Nevada Reports 2002 (118 Nev.) PDF

118 Nev.
1, 1 (2002)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 118
____________
118 Nev. 1, 1 (2002) Rhyne v. State
KELLY EUGENE RHYNE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36064
January 16, 2002 38 P.3d 163
Appeal from a judgment of conviction pursuant to a jury verdict of first-degree
murder and a sentence of death. Fourth Judicial District Court, Elko County; J. Michael
Memeo, Judge.
Defendant was convicted following a jury trial in the district court of first-degree
murder, for which he was sentenced to death. Defendant appealed. The supreme court,
Maupin, C. J., held that: (1) trial court should not have interjected itself into attorney-client
relationship between defendant and his attorney; (2) defendant was estopped from
challenging on appeal trial court's erroneous interference in attorney-client relationship
between defendant and his attorney; (3) conviction for first-degree murder either under theory
of premeditated and deliberate murder or felony murder, based on robbery charge, was
supported by evidence; (4) prosecutor's reference during closing argument to defendant's
failure to produce his white tennis shoes and thereby prove himself not guilty, while
improper, did not prejudice defendant; (5) prosecutor did not improperly rely on accomplice's
testimony; (6) defendant was not prejudiced by alleged excessive pretrial publicity; (7)
defendant's prearrest statement to police was admissible; (8) mitigating circumstances did not
outweigh aggravating circumstances; and (9) death was appropriate penalty.
Affirmed.
[Rehearing denied March 6, 2002]
Becker, J., with whom Rose, J., agreed, dissented in part.
Matthew J. Stermitz, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, and Alvin R. Kacin, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Trial court should not have interjected itself into attorney-client relationship between defense attorney and capital murder
defendant during guilt phase of trial by directing attorney to call witness after conducting ex parte hearing inquiring extensively into
defendant's reasons for wanting to call witness and attorney's reasons for not wanting to call him; decision as to whether to call witness
was one of trial tactics, which was within attorney's, not defendant's, control.
2. Criminal Law.
Capital murder defendant was estopped from challenging on appeal trial court's erroneous interference in attorney-client
relationship between defendant and his attorney during guilt phase of trial, as defendant invited error by seeking trial court's permission
to call witness despite attorney's disagreement; trial court thoroughly canvassed defendant regarding attendant risks of calling witness,
defendant clearly sought to call witness notwithstanding those risks, and thus defendant could not now complain that he received
exactly what he asked for.
3. Criminal Law.
While the client may make decisions regarding the ultimate objectives of representation, the trial lawyer alone is entrusted with
decisions regarding legal tactics such as deciding what witnesses to call.
4. Criminal Law.
Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney, and it is the attorney, not the client,
who has the immediate and ultimate responsibility of deciding if and when to object, which witnesses, if any, to call, and what
defenses to develop.
5. Criminal Law.
Appointed counsel should not be required to surrender any of the substantial prerogatives traditionally or by statute attached to
his office.
6. Criminal Law.
Capital murder defendant was estopped from challenging on appeal trial court's erroneous interference with attorney-client
relationship during penalty phase of trial by prohibiting attorney, at defendant's insistence and over attorney's objections, from
presenting testimony of three doctors and defendant's mother, as defendant was aware of attorney's concerns.
7. Criminal Law.
Trial court was not required to canvass capital murder defendant about his desire to represent himself, where defendant at no
time asked to represent himself.
8. Criminal Law.
Conviction for first-degree murder either under theory of premeditated and deliberate murder or felony murder, based on robbery
charge, was supported by the evidence, though defendant was acquitted of robbery; regardless of whether there was sufficient evidence
of robbery, there was sufficient evidence to support verdict of premeditated and deliberate murder.
there was sufficient evidence to support verdict of premeditated and deliberate murder.
9. Criminal Law.
Jury may return a general guilty verdict on an indictment charging several acts in the alternative even if one of the possible bases
of conviction is unsupported by sufficient evidence. As long as both theories are legally sufficient, the verdict will stand even if one
theory is ultimately found to be factually unsupported by the evidence.
10. Criminal Law.
Prosecutor's request to jury during closing argument to draw reasonable inference that defendant's tennis shoes had disappeared
by his own action because they were incriminating did not constitute misconduct in capital murder prosecution.
11. Criminal Law.
Prosecutor's reference during closing argument to defendant's failure to produce his white tennis shoes and thereby prove
himself not guilty, while improper, did not prejudice defendant in capital murder prosecution. The remark improperly suggested that
defendant bore burden to prove innocence, but it was brief, and prosecutor immediately corrected himself and advised jury that
defendant bore no such burden.
12. Criminal Law.
Prosecutor did not improperly rely on accomplice's testimony in capital murder prosecution. Jury was fully informed of
circumstances of accomplice's plea agreement and was capable of evaluating accomplice's version of the facts.
13. Criminal Law.
Capital murder defendant was not prejudiced by alleged excessive pretrial publicity, where he failed to demonstrate that any
juror was in fact prejudiced by pretrial media coverage of case.
14. Jury.
Even if defendant could show underrepresentation of Latinos from two jury venires from which his jury was drawn, defendant
failed to sustain burden of demonstrating any systematic exclusion in process used to compile jury pools, such as was necessary to
show violation of fair-cross-section requirement in capital murder prosecution.
15. Criminal Law.
Capital murder defendant's prearrest statement to police, given without Miranda warnings, was admissible as defendant was not
in custody at time he made statement.
16. Criminal Law.
Capital murder defendant waived on appeal issue of whether state improperly exercised peremptory challenges against women
jurors, where he failed to object to state's actions at trial.
17. Jury.
Capital murder defendant failed to demonstrate, under the totality of the circumstances, a prima facie showing of gender
discrimination by state in exercising peremptory challenges, as necessary to establish Batson challenge.
18. Criminal Law.
Trial court properly permitted jury to ask questions during guilt phase of capital murder trial; court properly adhered to
procedural safeguards, and defendant failed to demonstrate any bias reflected in questions submitted by jury.
19. Criminal Law.
Capital murder defendant's summary challenges to allegedly erroneous jury instructions,
neous jury instructions, made without citation to any authority to support claims that instructions were erroneous, or without persuasive
cogent argument that any error, defect, irregularity or variance in instructions affected defendant's substantial rights, would be
summarily rejected on appeal. NRS 177.255.
20. Criminal Law.
Capital murder defendant's summary challenges to alleged improperly admitted evidence during penalty phase of trial would be
summarily rejected on appeal, where defendant failed to offer any legal authority for why any of this evidence was inadmissible. NRS
175.552(3).
21. Criminal Law.
Contentions unsupported by specific argument or authority should be summarily rejected on appeal.
22. Sentencing and Punishment.
Supreme court would not require inquiry into particular circumstances and negotiations involved in capital murder defendant's
decisions to enter pleas in prior cases in determining whether prior cases could be considered as aggravating circumstances in
sentencing defendant to death. NRS 200.033(2)(b).
Mitigating circumstances, which were that murder was committed while defendant was under extreme mental or emotional
disturbance, and that defendant had suffered serious mental disorder during his life as result of long struggles with bipolar disorder and
problems taking his medications, did not outweigh aggravating circumstances of two violent prior felony convictions and mutilation of
victim. Thus, death was appropriate sentence in first-degree murder prosecution. Regardless of which attacker inflicted mutilating
injuries on victim, as a participant in murder, defendant was equally culpable for the mutilation, and defendant was competent at time
of murder and during trial. NRS 175.554(3).
Death sentence was appropriate penalty, in capital murder prosecution, as evidence supported finding of aggravating
circumstances of two violent prior felony convictions and mutilation of victim, and sentence was not excessive or the result of passion
or prejudice. NRS 175.055(2).
25. Criminal Law.
On appeal supreme court will not consider anything outside the trial record.
Before the Court En Banc.
OPINION
By the Court, Maupin, C. J.:
Kelly Eugene Rhyne appeals from a judgment of conviction, entered pursuant to a
jury verdict, of first-degree murder and from a sentence of death.
1

__________

1
Rhyne was also convicted of conspiracy to commit murder, but the district court declined to enter a
judgment on the verdict or to impose sentence. Moreover, Rhyne did not file a notice of appeal from the
conspiracy verdict. The appeal from the murder conviction and death sentence is automatic pur-
After careful review of the record on appeal and all of Rhyne's claims of error, we
conclude that the district court erred by intervening in Rhyne's relationship with his attorneys
but that Rhyne is estopped from complaining because he invited the error by seeking the
district court's permission to call a witness despite his attorney's disagreement. We reject
Rhyne's claims that the prosecutor committed misconduct warranting reversal, and we
conclude that the death sentence was appropriately imposed. Rhyne's remaining contentions
are either without merit or are unsupported by cogent argument and authority.
STATEMENT OF THE FACTS
At around 9:00 p.m. on the night of October 31, 1998, Kelly Rhyne arrived at what
was then known as the Miner's Camp bar. James Mendenhall and the victim, Donald Lobo
Brown, were also at the bar. An auction was taking place at the bar, and people were drinking
and bidding. Photographs taken during the auction and eyewitness testimony confirmed that
Rhyne was wearing a red t-shirt, a black vest, jeans, a black jacket, and white high-top tennis
shoes. Mendenhall was wearing a denim shirt, a cap, and boots.
Sometime before 10:00 p.m., a patron at the bar overheard Rhyne say to Mendenhall,
I hate that fing guy. Mendenhall replied, Don't do anything in here. We'll wait until he
gets outside. The patron ultimately concluded that Rhyne and Mendenhall were referring to
the victim, Donny Brown. After the auction ended, Brown and Rhyne were seen leaving the
bar a few minutes apart. Mendenhall then became involved in an altercation near the front
door of the bar. After the altercation, Rhyne returned, asked Mendenhall if he was okay, and
then left the bar with Mendenhall. When they returned later, Mendenhall's shirt had blood on
it. He removed it and placed it over a chair. Rhyne later retrieved the shirt and again left the
establishment. Later, via aerial search, police found the shirt on the roof of a building near
Rhyne's residence.
At around 1:00 a.m., a porter at a nearby hotel observed two men place a body in a
dumpster. Police later found the body of Donny Brown in the dumpster, apparently beaten to
death. His head had been crushed, and there was a large v-shaped indentation in the side of
his head that matched the lug of Mendenhall's boot.
__________
suant to NRS 177.055; however, an appellant must file a separate notice of appeal to challenge collateral
convictions resulting from the prosecution at issue. Here, without a judgment of conviction or a notice of appeal,
this court is without jurisdiction to consider Rhyne's claim that the conspiracy verdict is inconsistent with the
acquittal on robbery.
boot. There were also ladder-like marks on Brown's face that were suggestive of a pattern
from the sole of a tennis shoe.
When police contacted Rhyne at his residence at around 3:00 a.m., he was alert and
cooperative. Rhyne maintained that he had arrived at the bar around 9:00 p.m. and left only
once to get cigarettes at around 12:00 a.m. Rhyne allowed police to search his room and told
them he had been wearing a pair of workboots that night. But the boots Rhyne pointed out
had no blood on them, and police found nothing incriminating in the residence.
When the police returned to Rhyne's residence at 8:00 a.m., he voluntarily
accompanied them to the police station and gave a statement. He again maintained he had
been at the bar all evening and had only left once to purchase cigarettes. He denied spending
time with Mendenhall and denied leaving with him at any time. The police arrested Rhyne
after the interview.
During Rhyne's interview, police located Mendenhall, who accompanied the police to
the station and was ultimately arrested. DNA tests revealed a substantial amount of Brown's
blood on Mendenhall's clothes and boots. A small amount of Brown's blood was also found
on Rhyne's pants, jacket, and on his ring. The white tennis shoes Rhyne had been seen
wearing and his red shirt and black vest were never found.
The State charged Rhyne and Mendenhall with murder, felony murder, robbery, and
conspiracy to commit murder and filed notices of intent to seek the death penalty against both
men. On August 8, 1999, the district court granted a motion to sever the trials, and on August
31, 1999, Mendenhall entered an Alford
2
plea to one count of second-degree murder and one
count of conspiracy to commit murder. The State agreed not to oppose concurrent sentences,
and Mendenhall agreed to provide a written statement regarding the incident. He also agreed
that he could be called to testify at Rhyne's trial, but that his testimony was not part of the
plea negotiations. Mendenhall ultimately testified against Rhyne.
The jury trial began March 15, 2000. Much of the incriminating evidence presented at
trial has already been noted: Rhyne's professing hatred toward Brown on the night of the
murder and Mendenhall's ominous response; the suspicious disappearance of the shoes, shirt,
and vest that Rhyne was wearing that night; the presence of the victim's blood on Rhyne's
pants, jacket, and ring; and Rhyne's false statement to police that he had never spent time with
or left the bar with Mendenhall. In addition, Mendenhall testified and incriminated Rhyne
while denying his own culpability. According to Mendenhall, after his altercation by the door
of the bar, Rhyne came to the door and called to him to come outside.
__________

2
North Carolina v. Alford, 400 U.S. 25 (1970).
When he followed Rhyne outside and into the alley, he saw a man slumped over on the
ground. Rhyne asked him for help putting the man in the dumpster. Mendenhall initially
refused, but Rhyne had a crazy look in his eyes, and he threatened that if Mendenhall did
not help him throw Brown's body into the dumpster, Mendenhall would end up lying
alongside of him. Mendenhall was afraid and reluctantly helped Rhyne. As they carried the
body to the dumpster, Mendenhall slipped and fell. Mendenhall also testified that in moving
the body he got blood on his hands and clothes. After moving Brown's body, Mendenhall
went back into the bar. When Rhyne came back into the bar, he told Mendenhall to keep his
mouth shut and to go home.
The jury returned a verdict convicting Rhyne of first-degree murder and conspiracy to
commit murder, but acquitting him of robbery. At the close of the three-day penalty phase the
jury returned a sentence of death. The jury found the three aggravating circumstances alleged
by the State: torture or mutilation, a prior conviction for battery by a prisoner, and a prior
conviction for attempted assault with a deadly weapon. The jury found two mitigating
circumstances: the murder was committed while Rhyne was under an extreme mental or
emotional disturbance, and Rhyne has suffered a serious mental disorder during his life as a
result of his long struggles with bipolar disorder and problems taking his medications. The
jury found that the mitigating circumstances did not outweigh the aggravating circumstances
and imposed a sentence of death. On May 1, 2000, the district court entered a written
judgment of conviction and sentence of death pursuant to the jury's verdict. This automatic
appeal followed.
DISCUSSION
The district court's interference in Rhyne's relationship with his attorneys
[Headnotes 1, 2]
During the guilt phase of the trial Rhyne and his attorneys reached a point of
disagreement over whether a witness, Chris Brodhecker, should be called to testify. Rhyne
wanted Brodhecker called as a defense witness, while Rhyne's counsel felt Brodhecker was
unreliable and would potentially cause the defense case more harm than good. Brodhecker
was incarcerated with Mendenhall prior to the trial and proposed to testify that Mendenhall
had essentially confessed to him to acting alone in killing Donny Brown.
On March 28, 2000, the district court held an ex parte hearing with Rhyne and his
counsel to discuss the dispute. At the hearing, the district court inquired extensively into
Rhyne's reasons for wanting to call Brodhecker and into counsel's reasons for not wanting to
call him.
wanting to call him. The district court canvassed Rhyne thoroughly on the risks that counsel
felt were associated with calling Brodhecker and determined that Rhyne fully understood that
Brodhecker's testimony could backfire on the defense. The district court then directed counsel
to call Brodhecker.
[Headnotes 3, 4]
On appeal, Rhyne claims the district court should not have allowed him to direct the
actions of his counsel or should have canvassed him regarding his right to represent himself.
We conclude that the district court erred by interjecting itself into the attorney-client
relationship. And we take this opportunity to recognize the well-established rule that while
the client may make decisions regarding the ultimate objectives of representation, the trial
lawyer alone is entrusted with decisions regarding legal tactics such as deciding what
witnesses to call:
Once counsel is appointed, the day-to-day conduct of the defense rests with the
attorney. He, not the client, has the immediateand ultimateresponsibility of
deciding if and when to object, which witnesses, if any, to call, and what defenses to
develop.
3

Indeed, Justice Harlan has also suggested that a lawyer may properly make a tactical
determination of how to run a trial even in the face of his client's incomprehension or even
explicit disapproval.
4
Only the defendant, of course, can make certain fundamental
decisions regarding the objectives of representation, such as whether to present a defense of
not guilty by reason of insanity.
5
However, with few exceptions, the means of representation,
i.e., trial tactics, remain within counsel's control.
6

[Headnote 5]
In a case apposite to this one, the California Supreme Court upheld a trial court's
denial of a defendant's request, not joined in by counsel, to present certain evidence at a
capital trial.
7
The court explained that except for the defendant's exercise of fundamental
rights, like the right to testify, an attorney representing a criminal defendant has the
authority to control the presentation of the defense.
__________

3
Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring); see also United States v. Miller, 643
F.2d 713, 714 (10th Cir. 1981) (Whether to call a particular witness is a tactical decision and, thus, a matter of
discretion' for trial counsel. (citation omitted)); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)
([T]he decision whether to subpoena certain witnesses rests upon the sound professional judgment of the trial
lawyer.).

4
Brookhart v. Janis, 384 U.S. 1, 8 (1966) (Harlan, J., concurring).

5
Johnson v. State, 117 Nev. 153, 161-63, 17 P.3d 1008, 1014-15 (2001).

6
Id. at 163, 17 P.3d at 1015.

7
People v. Alcala, 842 P.2d 1192, 1232 (Cal. 1992).
criminal defendant has the authority to control the presentation of the defense.
8
In another
pertinent case, the California court approved a trial court's denial of a defendant's request,
opposed by counsel, to act as co-counsel.
9
The court stated that generally an attorney should
not be compelled over his objection to undertake the defense of an accused on terms which
undermine the powers normally ascribed to counsel.
10
Appointed counsel should not be
required to surrender any of the substantial prerogatives traditionally or by statute attached
to his office.'
11

Thus, the district court should not have attempted to resolve the dispute between
Rhyne and his counsel. Defense counsel was entitled to decide whether or not to call
Brodhecker.
[Headnote 6]
The district court error notwithstanding, we also conclude that under the facts of this
case, Rhyne is now estopped from raising this claim on appeal because he invited the error by
asking the district court to allow him to call the witness.
12
The district court thoroughly
canvassed Rhyne regarding the attendant risks of calling Brodhecker, Rhyne clearly sought to
call Brodhecker notwithstanding those risks, and Rhyne cannot now be heard to complain that
he received exactly what he asked for. Rhyne also challenges the district court's interference
during the penalty phase. At Rhyne's insistence, and over defense counsel's objections, the
district court prohibited defense counsel from presenting the testimony of three doctors and
Rhyne's mother. Again, the record reflects that, while the court should not have intervened,
Rhyne was aware of his counsel's concerns, and we conclude that Rhyne is estopped from
raising the issue now.
[Headnote 7]
Finally, we note that at no time did Rhyne ask to represent himself; therefore, the
district court did not err in failing to conduct a Faretta canvass.
13

The premeditated murder and felony-murder instruction
[Headnote 8]
The district court instructed the jury that it could convict Rhyne of first-degree
murder
__________

8
Id.

9
People v. Hamilton, 774 P.2d 730, 740-42 (Cal. 1989).

10
Id. at 741.

11
Id. (quoting People v. Mattson, 336 P.2d 937, 949 (Cal. 1959)).

12
See Jones v. State, 95 Nev. 613, 617, 600 P.2d 247, 250 (1979) (recognizing that where a defendant
participates in the alleged error, he is estopped from raising any objection on appeal); Sidote v. State, 94 Nev.
762, 762-63, 587 P.2d 1317, 1318 (1978) (holding that defendant who invites district court action perceived as
favorable to him may not then claim it as error on appeal).

13
See Faretta v. California, 422 U.S. 806 (1975).
118 Nev. 1, 10 (2002) Rhyne v. State
of first-degree murder under a theory of either premeditated and deliberate murder or felony
murder, based on the robbery charge. Rhyne complains that because he was acquitted of
robbery, there is no way to know which of the two theories the jury relied on to convict, and
that the murder verdict is therefore infirm. We reject this contention.
[Headnote 9]
The United States Supreme Court has held that a jury may return a general guilty
verdict on an indictment charging several acts in the alternative even if one of the possible
bases of conviction is unsupported by sufficient evidence.
14
Specifically, as long as both
theories are legally sufficient, the verdict will stand even if one theory is ultimately found to
be factually unsupported by the evidence.
15
We have applied this principle to charging
alternative theories of first-degree murder.
16
Regardless of whether there was sufficient
evidence of robbery, there is sufficient evidence to support a verdict of premeditated and
deliberate murder.
17
Rhyne was properly convicted of first-degree murder.
Prosecutorial misconduct
[Headnotes 10, 11]
Rhyne offers several allegations of prosecutorial misconduct by the State that he
claims warrant reversal. None of these claims has merit. Specifically, we first conclude that
the State committed no error in asking the jury to draw a reasonable inference that Rhyne's
tennis shoes had disappeared by his own action because they were incriminating.
18
We
further conclude that the State's brief reference in closing arguments to Rhyne's failure to
produce his white tennis shoes and thereby prove himself not guilty did not implicate his
post-arrest silence. The remark improperly suggested that Rhyne bore some burden to prove
innocence, but it was brief, and the prosecutor immediately corrected himself and advised the
jury that Rhyne bore no such burden. We conclude that the remark did not prejudice Rhyne.
19
The prosecutor did not call a witness a liar;
__________

14
Griffin v. United States, 502 U.S. 46, 56-57 (1991).

15
Id.; see also Turner v. United States, 396 U.S. 398, 420 (1970).

16
See Thomas v. State, 114 Nev. 1127, 1145, 967 P.2d 1111, 1123 (1998).

17
Id.; see also Sochor v. Florida, 504 U.S. 527, 538 (1992) (declining to presume that a general verdict rests
on a ground that the evidence does not support) (citing Griffin, 502 U.S. at 59-60).

18
See Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981) (stating that the jury must be given the right
to make logical inferences which flow from the evidence).

19
Cf. McNelton v. State, 115 Nev. 396, 408-09, 990 P.2d 1263, 1271-72 (1999).
118 Nev. 1, 11 (2002) Rhyne v. State
call a witness a liar; he merely summarized the testimony of a State's witness, which was
already on the record.
20

[Headnote 12]
Rhyne's contention that the State improperly relied on Mendenhall's testimony is also
without merit. The jury was fully informed of the circumstances of Mendenhall's plea
agreement and was capable of evaluating Mendenhall's version of the facts.
[Headnote 13]
We also reject Rhyne's complaint of excessive pretrial publicity. Rhyne has failed to
demonstrate that any juror was in fact prejudiced by the pretrial media coverage of the case.
As we noted in Sonner v. State, where a defendant fails to demonstrate actual bias on the part
of the jury ultimately empaneled, this court will not presume prejudice based on extensive
pretrial publicity.
21

Other claims
[Headnotes 14-18]
Rhyne charges that Latinos were underrepresented in the two jury venires from which
his jury was drawn in violation of the fair-cross-section requirement.
22
We conclude that
even if Rhyne can show underrepresentation, he has failed to sustain his burden of
demonstrating any systematic exclusion in the process used to compile the jury pools.
23
Rhyne also contends that his non-Mirandized, prearrest statement to the police at the Elko
police station was involuntary and should have been suppressed. This claim is without merit.
Rhyne was not in custody.
24
He also claims that the State improperly exercised peremptory
challenges against women jurors in violation of Batson v. Kentucky.
25
However, Rhyne
failed to object to the State's actions below and is therefore precluded from raising the issue
on appeal.
26
Moreover, we conclude that,
__________

20
See, e.g., Klein v. State, 105 Nev. 880, 884, 784 P.2d 970, 973 (1989) (holding that it is permissible for the
prosecutor to argue to the jury that facts in evidence established that witnesses had or did not have motives to
lie).

21
Sonner v. State, 112 Nev. 1328, 1336, 930 P.2d 707, 712-13 (1996).

22
See Duren v. Missouri, 439 U.S. 357, 364-66 (1979).

23
See id.; State v. Lopez, 692 P.2d 370 (Idaho Ct. App. 1984); U.S. v. Footracer, 189 F.3d 1058, 1062-63
(9th Cir. 1999) (holding that a jury selection process which treats all groups equally but may have a disparate
impact on one or more groups does not systematically exclude any group).

24
See Alward v. State, 112 Nev. 141, 154-55, 912 P.2d 243, 252 (1996); see also Mitchell v. State, 114 Nev.
1417, 1423-24, 971 P.2d 813, 818 (1998).

25
476 U.S. 79 (1986).

26
See Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (Batson objections must occur as soon as
possible, preferably before the jury is sworn.); Chambers v. Johnson, 197 F.3d 732, 735 (5th Cir. 1999)
(holding
118 Nev. 1, 12 (2002) Rhyne v. State
conclude that, under the totality of the circumstances, he has not demonstrated a prima facie
showing of gender discrimination.
27
Rhyne has also failed to demonstrate that the district
court should have granted a change of venue.
28
Likewise, he has failed to show error in the
district court's decision to allow the jurors to ask questions during the guilt phase of the trial;
the record reflects that the district court properly adhered to the procedural safeguards set
forth by this court in Flores v. State.
29
We decline Rhyne's invitation to revisit our holding in
Flores. Further, Rhyne has failed to demonstrate any bias reflected in the questions submitted
by the jury. Finally, there is no evidence that the jury's guilty verdict was the product of
passion and prejudice, and the district court did not err in denying a motion to set aside the
verdict.
Rhyne also makes several summary claims of error, which he fails to support with
cogent argument or discussion of relevant authority.
[Headnote 19]
For example, Rhyne summarily claims there was insufficient evidence of his specific
intent to kill Brown. He also challenges several jury instructions without citation to any
authority to support his claims that the instructions were erroneous. Specifically, Rhyne
contends that Instruction 43, directing the jury to decide whether Mendenhall was an
accomplice, should have included the phrase: evidence of an oral statement ought to be
viewed with caution. He also claims that Instruction 26 improperly permitted the jury to find
Rhyne guilty of either felony murder or premeditated murder without a unanimous decision
on either theory. However, neither contention is supported by specific argument or authority,
and we discern no error.
30
Rhyne also argues there was no evidence supporting instructions
on robbery; Rhyne was acquitted of robbery.
[Headnote 20]
Rhyne next contends that evidence was improperly admitted at the penalty phase
because it was inflammatory and prejudicial. Specifically, Rhyne challenges the admission of
evidence of his tattoos,
__________
that a Batson objection must be asserted before the venire is dismissed and that a timely objection is an essential
condition to the assertion of the Batson claim); United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994)
(holding that Batson challenges are waived unless objected to before trial begins).

27
See Libby v. State, 113 Nev. 251, 255, 934 P.2d 220, 222 (1997).

28
See NRS 174.455.

29
114 Nev. 910, 965 P.2d 901 (1998).

30
The latter contention is meritless. See Walker v. State, 113 Nev. 853, 870, 944 P.2d 762, 773 (1997).
118 Nev. 1, 13 (2002) Rhyne v. State
tattoos, an allegation of his substance abuse, his criminal history, threats he made against his
attorney, comments he made about a police officer, an incident in which he spat on another
inmate, two incidents in which he had been forcibly subdued by police while in custody, an
attack he made on a deputy, threats he made to another inmate, and the fact that he did
push-ups in his cell. Again, however, Rhyne fails to offer any legal authority for why any of
this evidence was inadmissible.
31
Rhyne also summarily challenges the district court's refusal
to issue instructions for directed verdicts or grant a motion to dismiss at the close of the
State's case in chief.
[Headnote 21]
We reject all of these claims. Contentions unsupported by specific argument or
authority should be summarily rejected on appeal.
32
Moreover, none of these claims present
persuasive, cogent argument that any error, defect, irregularity, or variance affected Rhyne's
substantial rights.
33

Additional penalty phase issues
Aggravating circumstances
[Headnotes 22, 23]
The State alleged as aggravating circumstances pursuant to NRS 200.033(2)(b) that
Rhyne had been previously convicted of two prior violent felonies: battery by a prisoner and
attempted assault with a deadly weapon. We reject Rhyne's claim that the battery in this case
is not the type of conduct anticipated by the statute. We also reject Rhyne's assertion that a
prior conviction based on a plea entered pursuant to North Carolina v. Alford
34
is legally
insufficient to support an aggravating circumstance.
35
We decline to require inquiry into the
particular circumstances and negotiations involved in defendants' decisions to enter pleas in
prior cases. In addition, the record reflects sufficient evidence of the aggravating
circumstance of mutilation pursuant to NRS 200.033{S).
__________

31
See NRS 175.552(3) (providing that at the penalty phase evidence may be presented concerning
aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter
which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible).

32
Mazzan v. Warden, 116 Nev. 48, 75, 993 P.2d 25, 42 (2000); see also Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987).

33
See NRS 178.598; see also NRS 177.255 (the court shall give judgment without regard to technical error or
defect which does not affect the substantial rights of the parties).

34
400 U.S. 25 (1970).

35
Cf. Jones v. State, 105 Nev. 124, 127-28, 771 P.2d 154, 156 (1989) (holding that conviction based upon a
plea of nolo contendere is legally valid for purposes of sentencing enhancements).
118 Nev. 1, 14 (2002) Rhyne v. State
aggravating circumstance of mutilation pursuant to NRS 200.033(8).
36

The dissent centers its analysis on the question of who was responsible for mutilating
the victim and on Rhyne's mental status. First, regardless of which attacker inflicted the
mutilating injuries on the victim, as a participant in the murder Rhyne is equally culpable for
the mutilation.
37
Second, the jury actually found two mitigating circumstances based on
Rhyne's mental problems. However, the record shows that Rhyne was competent at the time
of the murder and during his trial. The jury could therefore properly find that the mitigating
circumstances did not outweigh the aggravating circumstances and that death was the
appropriate sentence.
38

Constitutionality of the death penalty
Finally, Rhyne contends that Nevada's death penalty scheme is unconstitutional
because NRS 175.552(3), in permitting the admission of any evidence, fails to provide
adequate guidance and improperly expands the scope of aggravating information to be
considered by the jury, and because NRS 200.033 fails to narrow sufficiently the class of
offenders eligible for the death penalty. In previous cases we have considered the same
challenges Rhyne now makes to the constitutionality of NRS 175.552(3) and NRS 200.033,
and we have rejected them.
39
We are not persuaded that our prior holdings should be
reconsidered.
Mandatory review of death sentence pursuant to NRS 177.055
[Headnote 24]
NRS 177.055(2) requires this court to conduct a review of the death sentence to
evaluate: whether the evidence supports the finding of the aggravating circumstances;
whether the sentence was imposed under the influence of passion, prejudice, or any arbitrary
factor; and whether the sentence of death is excessive, considering both the crime and the
defendant. We have reviewed this case, and we conclude that the evidence adduced at trial
supports the finding of the aggravating circumstances and that the death sentence in this case
is not excessive or a result of passion or prejudice.
__________

36
See Browne v. State, 113 Nev. 305, 316-17, 933 P.2d 187, 193-94 (1997).

37
See Byford v. State, 116 Nev. 215, 240, 994 P.2d 700, 717, cert. denied, 531 U.S. 106 (2000).

38
See NRS 175.554(3); see also Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 300-01 (1998).

39
See, e.g., Middleton v. State, 114 Nev. 1089, 1116-17, 968 P.2d 296, 314-15 (1998); Colwell v. State, 112
Nev. 807, 814, 919 P.2d 403, 407-08 (1996).
118 Nev. 1, 15 (2002) Rhyne v. State
[Headnote 25]
Accordingly, we affirm the judgment of conviction and the sentence of death.
40

Young, Shearing, Agosti and Leavitt, JJ., concur.
Becker, J., with whom Rose, J., agrees, concurring in part and dissenting in part:
I concur with the majority opinion in all respects save one: the excessiveness of the
death penalty. I do not condone Rhyne's actions. His senseless murder of Mr. Brown and the
grief Rhyne has caused to Mr. Brown's family are certainly reprehensible. However, the
Constitution of the United States prohibits the automatic imposition of the death penalty on
persons convicted of first-degree murder.
1
Because of this, the United States Supreme Court
has consistently stated that death penalty cases warrant a higher level of scrutiny because, as
Justice Stewart stated in Furman v. Georgia:
2

The penalty of death differs from all other forms of criminal punishment, not in degree
but in kind. It is unique in its total irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal justice.
The concept that death is different has been the backbone for high court decisions
emphasizing that procedures, evidentiary rules or doctrines permissible in non-capital cases
may violate the constitutional prohibitions when applied to capital punishment prosecutions.
3

To survive constitutional scrutiny, death penalty statutory schemes must narrow the
class of individuals eligible to receive a death sentence. They must also provide for guided
discretion in the imposition of the penalty. The goal is to ensure individualized sentencing
and eliminate the possibility that the death sentence is being imposed automatically,
mechanically or arbitrarily.
4

__________

40
On March 26, 2001, Rhyne moved to supplement his appendix with 2000 census data on the number of
Hispanics in the Elko County population. The State filed its opposition to the motion on March 30, 2001. The
census data was not presented to the district court; therefore, we deny Rhyne's motion: On appeal this court will
not consider anything outside the trial record. Smithart v. State, 86 Nev. 925, 930, 478 P.2d 576, 580 (1970).

1
Woodson v. North Carolina, 428 U.S. 280 (1976) (mandatory death penalty system held invalid).

2
408 U.S. 238, 306 (1972).

3
Green v. Georgia, 442 U.S. 95 (1979) (hearsay rules could not be applied to exclude defendant's mitigation
evidence); Gardner v. Florida, 430 U.S. 349 (1977) (confidential presentence investigation report procedure
violates due process in capital sentencing context).

4
Proffitt v. Florida, 428 U.S. 242 (1976).
118 Nev. 1, 16 (2002) Rhyne v. State
Thus, an individual is not eligible for the death penalty simply because he or she commits a
brutal first-degree murder. There must be something more, either in the defendant's history, or
in the commission of the murder, that warrants the ultimate and irrevocable sanction of death.
Moreover, state courts have the responsibility for ensuring that statutory aggravators
are not so liberally construed that the narrowing function of the statutory scheme is
circumvented or eliminated.
5
Finally, in states where the statutes require the weighing of
aggravating and mitigating circumstances, an appellate court cannot simply assume that the
invalidity of an aggravating circumstance would not affect the sentencing body's decision to
impose the death penalty. Whenever a statutory aggravator is invalidated on appeal, the
appellate court must either: (1) remand the case for a new penalty phase, (2) reweigh the
aggravating and mitigating circumstances itself, or (3) determine that any error in the
aggravating circumstance is harmless beyond a reasonable doubt.
6

In Nevada, there are fourteen circumstances by which first-degree murder may be
punishable by death.
7
Because of the large number of aggravating circumstances, it is
essential that this court construe these aggravators to avoid undermining the constitutionality
of our death penalty scheme. These same considerations should, and do, govern our review of
death sentences for excessiveness.
We have recognized that the facts surrounding an aggravating circumstance are
important in reviewing the appropriateness of the death penalty.
8
In addition, we have noted
that, when considering whether the death penalty is excessive, we will look at various other
objective factors such as the influence drugs or alcohol may have played in the commission of
the crime, the treatment of co-defendants, the mental state of the defendant, the nature and
quantity of the defendant's prior history of violence, and the age of the defendant. The mere
presence of any of these factors is not controlling. Instead, we must look at the totality of the
circumstances surrounding the defendant and the crime in making a determination of
excessiveness.
9

__________

5
Walton v. Arizona, 497 U.S. 639 (1990); Maynard v. Cartwright, 486 U.S. 356 (1988).

6
Sochor v. Florida, 504 U.S. 527 (1992).

7
NRS 200.033.

8
Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987); Chambers v. State, 113 Nev. 974, 944 P.2d 805
(1997) (in light of mitigating circumstances, death penalty was not warranted where only aggravating
circumstances were armed robbery convictions over fifteen years old).

9
Dennis v. State, 116 Nev. 1075, 13 P.3d 434 (2000).
118 Nev. 1, 17 (2002) Rhyne v. State
Two categories of aggravating circumstances are present in Rhyne's case: (1) the
murder was committed by a person who had been convicted of a felony involving the use or
threat of violence to the person of another, and (2) the murder involved mutilation of the
victim. The underlying facts supporting these aggravators, together with the disparate
treatment given to co-defendant Mendenhall, and Rhyne's significant history of mental
illness, are the reasons I conclude that the death penalty is excessive in this case.
As to the first aggravating circumstance, Rhyne was previously convicted of battery
by a prisoner and attempted assault with a deadly weapon. The battery consisted of Rhyne
throwing a cup full of feces on a fellow inmate through the food slot of his cell door. It is
technically a felony involving the use of violence, but it is hardly the type of violence that
should provide a threshold for the imposition of the death penalty.
The attempted assault with a deadly weapon presents a closer issue. Two independent
witnesses, tourists from California, observed a confrontation between Rhyne and a group of
teenagers in downtown Reno. According to this couple, Rhyne was mumbling to himself
when he was surrounded by the teenagers who appeared to be taunting him. The teenagers
claimed Rhyne swung at or hit one of their friends. The teenager fell and was seriously
injured when his head hit a concrete projection. The tourists claimed Rhyne never attempted
to hit the teenager. Instead, the teenager, who was shadowboxing around Rhyne, tripped and
fell. A glove containing a rock constituted the deadly weapon.
Rhyne entered an Alford
10
plea, against the advice of counsel. I agree with the
majority that a conviction based upon an Alford plea is sufficient to support an aggravating
circumstance. However, it is a factor to be considered when reviewing a death sentence for
excessiveness. Given the testimony of the independent witnesses, I conclude that this is also
not the type of violent history which should provide a threshold for the death penalty.
The second aggravating circumstance involves our holding in Browne v. State.
11
I
agree that the definition of mutilation given in Browne and in the jury instruction in this case,
that mutilation is disfiguration beyond the act of killing, meets constitutional muster.
However, I am concerned with the application of the definition in cases like this which
involve killing by blunt force trauma. Nevertheless, the evidence certainly supports a finding
of mutilation under Browne.
For purposes of evaluating the excessiveness of the punishment, the question is
whether that mutilation was primarily caused by Rhyne.
__________

10

11
113 Nev. 305, 933 P.2d 187 (1997).
118 Nev. 1, 18 (2002) Rhyne v. State
Rhyne. The most significant damage to the victim's head, the area which would support a
finding of mutilation, was to the side of the head. The mark of Mendenhall's boot, not
Rhyne's tennis shoe, was placed firmly over this area. The marks attributed to Rhyne's tennis
shoe were on the victim's face, not the side of his head. Mendenhall's explanation that he
accidentally stepped on the victim's face while helping Rhyne dispose of the body is
incredible. The significant involvement by Mendenhall in the mutilation is an important
factor when reviewing Rhyne's death sentence.
Mendenhall's disparate sentence is also a significant factor in evaluating Rhyne's
sentence. Despite substantial evidence linking Mendenhall to first-degree murder, he was
allowed to plead to second-degree murder and was sentenced to life in prison with the
possibility of parole. Mendenhall testified that he had nothing to do with the murder and that
he only helped to dispose of the body. During arguments, the State repeatedly claimed
Mendenhall was a credible witness and downplayed his participation in the offense. Yet the
eyewitness testimony and forensic evidence (the amount of blood on Mendenhall's clothes,
the boot mark, etc.) belie Mendenhall's version of the events. In addition, if the State truly
thought Mendenhall was credible, then he should not have been charged with first-degree
murder or convicted of second-degree murder. Moreover, aside from the weak aggravators
discussed above, there is no reason for the disparate treatment between these two equally
culpable murderers.
Finally, there is the issue of Rhyne's severe mental illness. The jury found two
mitigating circumstances: that Rhyne committed the murder while under an extreme mental
or emotional disturbance, and that Rhyne suffered a serious mental disorder during his life.
Rhyne's entire involvement with the criminal justice system is directly a product of his mental
illness. Since the age of seventeen, Rhyne has suffered from a bipolar disorder. On occasion,
this has escalated into paranoia.
Moreover, the record reflects Rhyne's illness is of the most severe form. It is not
completely treatable. As a result, Rhyne's mood swings and unexpected behaviors are not
fully controlled, even with medication. In addition, like many individuals with severe bipolar
disorder, Rhyne's mental condition destabilizes quickly when he does not take his medication
or when he mixes his medication with alcohol or other drugs. Rhyne's mental condition was
the heart of the State's future dangerousness argument. He cannot be completely controlled,
nor can he always be isolated from his fellow inmates. He might irrationally attack another
inmate or a guard because he doesn't like what someone said or how a person looked.
118 Nev. 1, 19 (2002) Rhyne v. State
While it is true that Rhyne's mental condition makes him a more difficult and
time-consuming inmate to control, the record reflects that his incidents with fellow inmates
have been few and of a minor nature (feces throwing, spitting, etc.). Rhyne is no different
now than he has been his entire adult life, and his actions during that life are, at least in part, a
product of the deficiencies in our mental health system.
Like many states, Nevada's statutes and mental health system are not designed to deal
with individuals like Rhyne. Rhyne was institutionalized on several occasions because he
posed a threat to himself or others. In each case, once he was partially stabilized, he was
released from custody to a least restrictive environment as required by law. The problem is
that persons like Rhyne cannot function very well in an unsupervised setting. They begin to
destabilize, make threats or commit crimes, and then end up back in custody. They become
part of a revolving door syndrome that tragically escalates into more violent crimes. If Rhyne
had a history of violence unrelated to his illness, or if his previous convictions were based on
more significant facts, the future dangerousness argument might be more compelling. Given
the testimony in Rhyne's case, however, it appears to be no more than an argument to execute
someone because they are mentally ill and tiresome to handle. A death penalty based on such
concerns is excessive.
Rhyne should never, under any circumstance, be released from prison. But for the
reasons outlined above, I conclude that Rhyne's sentence of death is excessive. I would vacate
the judgment of death and impose a sentence of life in prison without the possibility of
parole.
____________
118 Nev. 19, 19 (2002) Allan v. State
BRANDON DOUGLAS ALLAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36410
January 22, 2002 38 P.3d 175
An appeal from a judgment of conviction pursuant to a jury verdict of first-degree
murder with the use of a deadly weapon. Second Judicial District Court, Washoe County;
James W. Hardesty, Judge.
Defendant was convicted, after a jury trial in the district court, of first-degree murder.
Defendant appealed. The supreme court, Rose, J., held that: (1) defendant's confession was
not voluntary, and (2) the trial court's error in determining the confession was voluntary was
not harmless.
118 Nev. 19, 20 (2002) Allan v. State
Reversed and remanded.
[Rehearing denied April 3, 2002]
Maupin, C. J., with whom Agosti and Leavitt, JJ., agreed, dissented.
Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
A confession is admissible only if it is freely and voluntarily made.
2. Criminal Law.
A district court's determination that a confession is voluntary will not be disturbed on appeal if it is supported by substantial
evidence.
3. Criminal Law.
Substantial evidence is that which a reasonable mind might consider adequate to support a conclusion.
4. Constitutional Law.
Under the Due Process Clause, a confession is involuntary only if the suspect's ability to exercise his free will was overborne by
police coercion. U.S. Const. amend. 14.
The court must analyze the voluntariness of a defendant's confession, for due process purposes, under the
totality-of-the-circumstances analysis, which includes the following factors: the youth of the accused, his lack of education or his low
intelligence, the lack of any advice of constitutional rights, the length of detention, the repeated and prolonged nature of questioning,
and the use of physical punishment such as the deprivation of food or sleep. U.S. Const. amend. 14.
6. Criminal Law; Witnesses.
Defendant's confession was not voluntary and thus was not admissible for impeachment purposes in prosecution for first-degree
murder. When detective began advising defendant of his Miranda rights at start of interrogation, defendant made unequivocal request
for counsel, and defendant made six invocations of his right to remain silent during first hour of interrogation, but detective
nevertheless engaged in psychological pressure as he insisted defendant talk about what had happened, defendant was under influence
of methamphetamine, and defendant informed detective that defendant had not slept in three days. U.S. Const. amend. 14.
7. Criminal Law.
Trial court's error in finding that defendant's confession was voluntary was not harmless in prosecution for first-degree murder
where defendant chose not to testify because trial court's determination allowed the confession to be used for impeachment purposes. If
defendant had testified, outcome of trial might have been different.
118 Nev. 19, 21 (2002) Allan v. State
OPINION
By the Court, Rose, J.:
On October 22, 1999, appellant Brandon Douglas Allan fired one shot from his
high-caliber handgun, killing his girlfriend Kellie Von Urquidy Parry. A jury convicted Allan
of first-degree murder and sentenced him to two consecutive terms of life imprisonment, with
the possibility of parole in forty years. We must determine whether the district court erred in
concluding that Allan's post-arrest statements were voluntary, and thus, admissible for
impeachment purposesa ruling that caused Allan to forego his constitutional right to testify.
After a thorough review of the record, we conclude that Allan's conviction must be reversed
and remanded for a new trial because the district court erred in concluding that his post-arrest
statements were voluntary.
FACTS
On October 22, 1999, Maureen Allan-Fry, Allan's mother, found Parry shot and dead
on the floor in the master bedroom of Allan's trailer located in Sun Valley, Nevada. Leaving
Allan at home, Maureen drove to a nearby fire station where she reported the shooting.
Numerous officers arrived at Allan's home in response to the report. Because Allan
refused to exit the trailer, Sergeant Donald Depoali called and spoke with Allan on the
telephone. Sergeant Depoali testified that in speaking with Allan he drew the conclusion that
Allan was either under the influence of narcotics or was intoxicated because Allan was at
times incoherent and was not giving him clear answers. Meanwhile, Sergeant Depoali was
able to convince Allan to come out of the trailer. However, when Allan did appear, he had a
.50 caliber Desert Eagle, the high-caliber handgun he used to kill Parry, in his waistband and
stated to the officers, I don't go anywhere without it. Sergeant Depoali implored Allan to
put his weapon down and informed Allan that the gun ain't going to solve nothing for
nobody, to which Allan responded, it will for me. Sergeant Depoali understood this to
mean that Allan wanted the officers to shoot him. Allan eventually complied with Sergeant
Depoali's request and put the gun down, which was found cocked and ready to fire with a full
magazine. Allan was arrested and transported to the police station, where the police
questioned him during a five-and-a-half-hour interview.
Before trial, the district court conducted a hearing to determine the voluntariness of
statements Allan made to the police after being arrested. Detective Larry Canfield, the officer
who interviewed Allan after his arrest,
118 Nev. 19, 22 (2002) Allan v. State
viewed Allan after his arrest, testified that Allan was sometimes incoherent during the
interview because he mumbled and garbled his words. While Detective Canfield began
reading Allan's Miranda rights, Allan made a statement, but Detective Canfield testified that
he did not understand what Allan was saying, and so he proceeded to read Allan his rights
and continue with the interview. Allan's counsel, however, insisted that Allan stated, I don't
want to say a word anyway, I want to see my lawyer, which Allan's counsel argued was an
anticipatory invocation of his Miranda right to counsel. Upon replay of the videotapes that
recorded the interview, Detective Canfield admitted that he heard something about not
saying a word and the word lawyer, but that he could not make out the context of the
statement. Notably though, Allan did not affirmatively waive his Miranda rights, but instead
simply responded to Detective Canfield's questions asking him what happened.
Allan's counsel used the tapes to show many instances where Allan stated, I don't
want to talk about it, I don't want to talk about what happened, and I don't have anything
to say. Despite these statements, Detective Canfield continued his interview, urging Allan to
talk because it was better for him and that it would make it easier for his mother, and
instructing Allan not to hold it in. During the interview, an attorney appeared at the
detention center for purposes of representing Allan but was not allowed to see Allan. Allan
was never informed about the presence of the attorney, but Detective Canfield re-Mirandized
Allan on the advice of the district attorney who counseled the detective during the interview.
The interview started at about 3:30 p.m. and lasted for five and a half hours. Notably, Allan
informed Detective Canfield that he had not slept for three days because he was under the
influence of methamphetamine. Ultimately, Detective Canfield obtained some details about
the shooting from Allan.
At the pre-trial hearing, the district court found that Allan had made six invocations of
his right to remain silent during the first half of the interview. Additionally, the district court
found that Allan's initial statement, which Detective Canfield overlooked or simply did not
hear, was indeed an unequivocal request for counsel. Accordingly, the district court
concluded that further interrogation should have stopped until Allan's attorney was present.
Nonetheless, the district court concluded that Allan's post-arrest statements could be used for
impeachment purposes on cross-examination of Allan because the district court found that
these statements were voluntary. The district court used the totality-of-circumstances test for
voluntariness and found: (1) Allan had not been deprived of food or sleep; (2) there was no
evidence to suggest that officers physically coerced Allan; (3) Allan was twice informed of
his constitutional rights;
118 Nev. 19, 23 (2002) Allan v. State
twice informed of his constitutional rights; and (4) although Allan was under the influence of
methamphetamine, he was clearly in possession of his faculties, as demonstrated by the fact
that he remembered his social security number and discussed issues regarding foreclosure of
his residence.
At trial the parties stipulated that blood tests were performed on Allan, which revealed
he had methamphetamine and amphetamine in his system.
After the State's case-in-chief, the district court held a hearing to inform Allan of his
right to testify. Allan's counsel informed the district court of the advice he gave Allan
regarding whether to testify. Specifically, he stated that he advised Allan that according to the
district court's voluntariness ruling, if Allan took the stand, the State could use his post-arrest
statements to impeach him. Based on this, Allan elected not to testify.
Allan did not call any witnesses, but his counsel in closing argument asserted that
Allan shot Parry accidentally. Nonetheless, the jury concluded that Allan had committed
first-degree murder with use of a deadly weapon, and after a daylong penalty hearing the jury
imposed consecutive life terms, with the possibility of parole in forty years.
DISCUSSION
It is uncontested that Detective Canfield violated Allan's Miranda rights by continuing
with his interrogation after Allan unequivocally requested an attorney and made six
invocations of his right to remain silent.
1
Despite this, the district court found, and the State
continues to argue, that Allan's statements were voluntary, and therefore, admissible for
impeachment purposes. Allan argues, however, that in considering the totality of the
circumstances to determine voluntariness, the district court failed to give proper weight to the
effect of Detective Canfield's violation of Miranda on Allan's weakened mental condition. As
a result of the district court's ruling, Allan contends that he was deprived of his constitutional
right to testify because the State indicated that it would use his statements to impeach him if
he testified.
[Headnotes 1-3]
A confession is admissible only if it is freely and voluntarily made.
2
A district
court's determination that a confession is voluntary will not be disturbed on appeal if it is
supported by substantial evidence.
__________

1
See, e.g., I don't want to say a word anyway, I want to see my lawyer, I don't want to talk about it, I
don't have anything to say, and I don't want to talk about what happened.

2
Steese v. State, 114 Nev. 479, 488, 960 P.2d 321, 327 (1998) (citing Passama v. State, 103 Nev. 212, 213,
735 P.2d 321, 322 (1987)).
118 Nev. 19, 24 (2002) Allan v. State
substantial evidence.
3
Substantial evidence is that which a reasonable mind might consider
adequate to support a conclusion.
4

[Headnotes 4, 5]
Under the Due Process Clause of the Fourteenth Amendment, a confession is
involuntary only if the suspect's ability to exercise his free will was overborne by police
coercion.
5
The court must analyze the voluntariness of a defendant's confession under the
totality-of-the-circumstances analysis. Among others, we consider the following factors:
[T]he youth of the accused; his lack of education or his low intelligence; the lack of
any advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the deprivation of
food or sleep.
6

[Headnote 6]
After reviewing the totality of the circumstances, we conclude the district court's
determination that Allan's confession was voluntary was not supported by substantial
evidence. We first acknowledge, however, that the district court correctly found that during
the interview Allan had not been deprived of food or sleep, the police officers did not
physically coerce Allan, and Allan was twice informed of his constitutional rights. On
balance, these factors tend to favor the State's position that Allan's statements were voluntary.
On the other hand, several factors support our conclusion that Allan's confession was
involuntary because Detective Canfield had succeeded in overbearing Allan's ability to
exercise his free will. When Detective Canfield began advising Allan of his constitutional
rights at the start of the interrogation, Allan made an unequivocal request for counsel when he
stated, I don't want to say a word anyway, I want to see my lawyer. Despite Allan's
unequivocal request, Detective Canfield continued the interrogation. In addition, Allan made
six invocations of his right to remain silent during the first hour of the interrogation, but
Detective Canfield refused to honor Allan's right to cease questioning.
7

__________

3
Id.

4
Id.

5
See Colorado v. Connelly, 479 U.S. 157, 167 (1986); see also Passama v. State, 103 Nev. at 214, 735 P.2d
at 323.

6
Steese, 114 Nev. at 488, 960 P.2d at 327 (quoting Passama, 103 Nev. at 214, 735 P.2d at 323).

7
See Henry v. Kernan, 197 F.3d 1021, 1028 (9th Cir. 1999) (Any minimally trained police officer should
have known such pressure [in ignoring the suspect's request to cease questioning] was improper and likely to
produce involuntary statements.).
118 Nev. 19, 25 (2002) Allan v. State
Instead, Detective Canfield engaged in psychological pressure as he insisted that Allan talk
about what had happened. By not honoring Allan's requests, Detective Canfield repeatedly
violated Allan's constitutional rights. Although Detective Canfield again advised Allan of his
constitutional rights, this did not occur until four hours into the interrogation, after Allan had
already made several incriminating statements.
Another important factor in this analysis is that Allan was under the influence of
methamphetamine during the interview. We note that Allan's mental condition by itself does
not dispose of the inquiry into constitutional voluntariness; but when police officers turn to
more subtle forms of psychological pressure, the defendant's mental condition becomes a
more significant factor in the voluntariness calculus.
8
The district court found that Allan
appeared to be in control of his faculties as Allan clearly stated his social security number
without assistance, he corrected Detective Canfield's reference to the address where the
incident occurred, and he understood some issues regarding the foreclosure of his residence.
However, he could not state the details of the foreclosure proceeding. Detective Canfield
testified, however, that he knew Allan was under the influence of methamphetamine, causing
him to garble his words and to come in and out of the conversation. In addition, Allan
informed Detective Canfield he had used methamphetamine that morning and also that he had
not slept for three days. Though Allan made several invocations of the right to remain silent,
Detective Canfield used subtle forms of psychological persuasion, despite Allan's mental
condition, as he urged Allan to talk about what happened. Further, we note that Allan
displayed unusual emotional outbursts during the interrogation as he was crying and made
several comments that he should suffer and that killing himself was too easy.
[Headnote 7]
Considering the totality of the circumstances, we conclude that Allan's confession was
not freely and voluntarily given. Accordingly, we hold that the district court's determination
that Allan's confession was voluntary and admissible for impeachment purposes
9
is not
supported by substantial evidence. We further conclude that the district court's error was not
harmless because Allan chose not to testify based on the district court's erroneous
voluntariness determination.
10
Had Allan testified, the outcome of the trial might have been
different.
__________

8
See Connelly, 479 U.S. at 163. See also Chambers v. State, 113 Nev. 974, 981-82, 944 P.2d 805, 809-10
(1997).

9
See Henry, 197 F.3d at 1026 (Post-Miranda confessions which are found to be involuntary may not be
admitted for any purposes, including impeachment.).

10
See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987) (noting that a criminal defendant has the constitutional
right to testify on his or her own behalf).
118 Nev. 19, 26 (2002) Allan v. State
the trial might have been different.
11
In light of this conclusion, we need not reach Allan's
other contentions.
12

CONCLUSION
Accordingly, we reverse Allan's judgment of conviction and remand the case for a
new trial.
Young, Shearing and Becker, JJ., concur.
Maupin, C. J., with whom Agosti and Leavitt, JJ., agree, dissenting:
In my view, the district court's determination that Allan's post-arrest statements to
police were voluntary was supported by substantial evidence.
As noted by the majority, a confession is involuntary under the Due Process Clause of
the Fourteenth Amendment to the Federal Constitution only if the suspect's ability to exercise
his free will was overborne by police coercion.
1
Under our decision in Steese v. State,
2
we
must analyze the voluntariness of a confession in terms of the totality of circumstances
surrounding the interrogation. In this, we consider such factors including the youth, education
and intelligence of the accused, the length of detention and the duration of questioning, and
the use of physical abuse such as the deprivation of food or sleep.
3
Here, there was no
indication that Allan had been deprived of food or sleep during the interrogation process, and
his statement does not demonstrate a marked lack of intellect or education. That he was aware
of his right to counsel and gave his correct social security number also supports the district
court's ruling insofar as it might relate to Allan's claim that his will was overborne secondary
to intoxication or otherwise. Finally, the fact that Allan had gone without sleep for a
considerable period of time due to his ingestion of methamphetamine is not of itself fatal to
the district court's conclusion that the statements, although taken in violation of Miranda,
were voluntary.
As I see it, the district court made its voluntariness determination based upon a
legitimate interpretation of the videotape, which depicts the interchange between Allan and
Officer Canfield.
__________

11
See Henry, 197 F.3d at 1029 (noting that after determining that the statements are involuntary, the court
must consider whether the error of admitting the statements for impeachment purposes had a substantial and
injurious effect on the verdict). See also Schoels v. State, 115 Nev. 33, 35, 975 P.2d 1275, 1276 (1999)
(observing that an error is harmless if in absence of the error the outcome would have been the same).

12
However, we reject Allan's contention that the State presented insufficient evidence to convict him of
first-degree murder.

1
See Colorado v. Connelly, 479 U.S. 157, 167 (1986); see also Passama v. State, 103 Nev. 212, 214, 735
P.2d 321, 323 (1987).

2
114 Nev. 479, 960 P.2d 321 (1998).

3
Id. at 488, 960 P.2d at 327.
118 Nev. 19, 27 (2002) Allan v. State
depicts the interchange between Allan and Officer Canfield. I therefore conclude that the
district court, in its ruling that Allan's statement was admissible for impeachment purposes,
did not improperly affect his right to testify.
____________
118 Nev. 27, 27 (2002) LaMantia v. Redisi
SANTO G. LaMANTIA, Appellant, v. FRANK REDISI, JR., Respondent.
No. 34055
January 24, 2002
38 P.3d 877
Appeal from a district court order granting summary judgment and certified as final under
NRCP 54(b), in favor of Frank Redisi, Jr., in an abuse of process/malicious prosecution case.
Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Defendant in underlying civil lawsuit brought action alleging malicious prosecution and
abuse of process against corporate plaintiff from underlying lawsuit and its president. The
district court granted summary judgment for president. Defendant in underlying lawsuit
appealed. The supreme court, Shearing, J., held that: (1) in the absence of a criminal
proceeding no claim for malicious prosecution could be asserted, overruling Dutt v. Kremp,
111 Nev. 567, 894 P.2d 354 (1995); and (2) president's presence at deposition and his
consultation with corporate plaintiff's attorney did not constitute abuse of process.
Affirmed.
L. Earl Hawley, Las Vegas, for Appellant.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP and George F. Ogilvie
III and Jeffrey A. Silvestri, Las Vegas, for Respondent.
1. Appeal and Error.
Appellate court reviews orders granting a motion for summary judgment de novo.
2. Judgment.
To successfully oppose a motion for summary judgment, the non-moving party must show specific facts, rather than general
allegations and conclusions, presenting a genuine issue of material fact for trial. NRCP 56(c).
3. Judgment.
A genuine issue of material fact exists for summary judgment purposes when a reasonable fact finder could return a verdict for
the non-moving party.
4. Judgment.
While court construes the pleadings and proof in the light most favorable to the non-moving party on a motion for summary
judgment,
and accepts all evidence and reasonable inferences therefrom as true, the non-moving party is not entitled to build its case on the
gossamer threads of whimsy, speculation, and conjecture.
5. Malicious Prosecution.
Elements of a malicious prosecution claim are: (1) want of probable cause to initiate the prior criminal proceeding, (2) malice,
(3) termination of the prior criminal proceedings, and (4) damage.
6. Process.
Abuse of process claim can arise from both civil and criminal proceedings.
7. Process.
Malice, want of probable cause, and termination in favor of the person initiating or instituting proceedings are not necessary
elements for a prima facie abuse of process claim.
A malicious prosecution claim requires that the defendant initiated, procured the institution of, or actively participated in the
continuation of a criminal proceeding against the plaintiff.
9. Malicious Prosecution; Process.
Where neither corporate plaintiff in earlier lawsuit nor its president initiated or procured the institution of a criminal proceeding
against defendant, as a matter of law defendant could not assert a malicious prosecution claim against president, although defendant
could assert an abuse of process claim against president arising from underlying civil suit; overruling Dutt v. Kremp, 111 Nev. 567,
894 P.2d 354 (1995).
10. Process.
Presence of president of corporate plaintiff in underlying civil lawsuit at deposition and consultation with corporate plaintiff's
attorney, without more, did not show that president actively pressured or directed corporate plaintiff to improperly use the legal process
to proceed against defendant in that lawsuit for a purpose other than resolving corporate plaintiff's legal dispute with defendant, and
did not constitute abuse of process.
Before Maupin, C. J., Shearing and Rose, JJ.
OPINION
By the Court, Shearing, J.:
This appeal arises from a district court order granting summary judgment in favor of Frank
Redisi, Jr., president of Teleview, Inc. (Teleview), in an action for malicious prosecution and
abuse of process. Teleview, a Nevada corporation, had previously sued Santo G. LaMantia
for injunctive relief, breach of contract, fraud, misrepresentation, unjust enrichment,
constructive trust, accounting, conversion, and conspiracy, involving its
predecessor-in-interest, Teleview Distributors, Inc., an Illinois corporation. The district court
in that case granted summary judgment in favor of LaMantia. LaMantia then sued Teleview
and Redisi for abuse of process and malicious prosecution. The district court granted
summary judgment in favor of Redisi,
summary judgment in favor of Redisi, which was certified under NRCP 54(b). LaMantia now
appeals.
The dispositive issue is whether the evidence, and all reasonable inferences to be drawn
therefrom, precluded the district court from granting summary judgment in favor of Redisi.
We conclude that summary judgment was appropriate, and we therefore affirm the district
court's order.
FACTS
In 1995, Teleview sued LaMantia in the Eighth Judicial District Court for injunctive relief,
breach of contract, fraud, misrepresentation, unjust enrichment, constructive trust,
accounting, conversion, and conspiracy. The district court entered an order granting summary
judgment in favor of LaMantia, finding that Teleview could not pursue its causes of action in
Nevada.
In 1996, LaMantia filed his complaint for malicious prosecution and abuse of process against
Teleview and Redisi. In his complaint, LaMantia alleged that Teleview and Redisi actively,
maliciously, and without probable cause commenced and prosecuted its lawsuit against him,
for which there was no legal basis. LaMantia also alleged in his complaint that Teleview and
Redisi initiated the lawsuit against him with an ulterior purpose, not for the purpose of
resolving its legal dispute. Teleview and Redisi filed a motion for summary judgment, which
the district court granted in part, in favor of Redisi. LaMantia appeals that order.
DISCUSSION
[Headnotes 1-4]
This court reviews orders granting a motion for summary judgment de novo.
1
To
successfully oppose a motion for summary judgment, the non-moving party must show
specific facts, rather than general allegations and conclusions, presenting a genuine issue of
material fact for trial.
2
A genuine issue of material fact exists when a reasonable fact finder
could return a verdict for the non-moving party.
3
While we construe the pleadings and proof
in the light most favorable to the non-moving party, and accept all evidence and reasonable
inferences therefrom as true,
4
the non-moving party is not entitled to build its case on the
gossamer threads of whimsy, speculation and conjecture.
5

__________

1
Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996).

2
NRCP 56(c); Boland v. Nevada Rock and Sand Co., 111 Nev. 608, 610, 894 P.2d 988, 990 (1995).

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

4
Day, 112 Nev. at 977, 922 P.2d at 538.

5
Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir. 1962), quoted in Posadas, 109 Nev. at
452, 851 P.2d at 442.
[Headnotes 5-7]
As this court has previously explained, the elements of a malicious prosecution claim are:
(1) want of probable cause to initiate the prior criminal proceeding; (2) malice; (3)
termination of the prior criminal proceedings; and (4) damage.
6
This court has also
previously explained that the elements of an abuse of process claim are: (1) an ulterior
purpose by the defendants other than resolving a legal dispute, and (2) a willful act in the use
of the legal process not proper in the regular conduct of the proceeding.
7
Abuse of process
can arise from both civil and criminal proceedings.
8
Malice, want of probable cause, and
termination in favor of the person initiating or instituting proceedings are not necessary
elements for a prima facie abuse of process claim.
9

[Headnotes 8, 9]
A malicious prosecution claim requires that the defendant initiated, procured the institution
of, or actively participated in the continuation of a criminal proceeding against the plaintiff.
10
The facts of this case show that neither Redisi nor Teleview initiated or procured the
institution of a criminal proceeding against LaMantia. Therefore, while in the instant case
LaMantia could assert an abuse of process claim against Redisi arising from the underlying
civil proceeding, we conclude, as a matter of law, that LaMantia cannot assert a malicious
prosecution claim against Redisi.
Previously, in Dutt v. Kremp, a case involving malicious prosecution and abuse of process
claims against an attorney who filed a medical malpractice lawsuit against a group of
physicians, this court discussed a malicious prosecution claim arising from the
commencement of a wrongful civil proceeding.
__________

6
Jordan v. Bailey, 113 Nev. 1038, 1047, 944 P.2d 828, 834 (1997).

7
Posadas, 109 Nev. at 457, 851 P.2d at 444-45 (quoting Kovacs v. Acosta, 106 Nev. 57, 59, 787 P.2d 368,
369 (1990)).

8
See Restatement (Second) of Torts 682 (1977); see, e.g., Poduska v. Ward, 895 F.2d 854, 856 (1st Cir.
1990) (finding that an underlying breach of contract lawsuit, that caused injury to business and business
reputation, supported an abuse of process claim); Vodrey v. Golden, 864 F.2d 28, 31 (4th Cir. 1988) (holding
that abuse of process lies where appellants purposely subverted the criminal justice system in an attempt to
frustrate [a] civil suit).

9
Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 606, 503 P.2d 9, 12 (1972); Restatement (Second) of
Torts 682 cmt. a (1977).

10
See Restatement (Second) of Torts 653 cmts. c, f & 655 (1977); see, e.g., Lewis v. Continental Airlines,
Inc., 80 F. Supp. 2d 686, 699 (S.D. Tex. 1999) (citing with approval Texas Supreme Court's adoption of
Restatement (Second) of Torts 653 malicious prosecution requirement that defendant initiate or procure
criminal prosecution); Schroeder v. De Bertolo, 912 F. Supp. 23, 26 (D.P.R. 1996) (holding that a criminal
proceeding is a necessary element of a malicious prosecution claim); Randall v. Lemke, 726 N.E.2d 183, 186
(Ill. App. Ct. 2000) (affirming dismissal of malicious prosecution claim for failure to initiate or procure
institution of criminal proceedings against plaintiff).
court discussed a malicious prosecution claim arising from the commencement of a wrongful
civil proceeding.
11
In Dutt, we set forth the elements of malicious prosecution in terms of a
prior action rather than a prior criminal proceeding.
12
We overrule Dutt to the extent that
the opinion suggests that a plaintiff may claim malicious prosecution in the absence of a
prior criminal proceeding.
[Headnote 10]
Abuse of process, however, can lie in a civil proceeding.
13
To survive summary judgment,
LaMantia had to present specific facts that Redisi had an ulterior purpose in the underlying
lawsuit, other than resolving Teleview's legal dispute with LaMantia, and that Redisi willfully
and improperly used the legal process to accomplish that purpose. The only evidence
LaMantia submitted at the summary judgment hearing was his attorney's affidavit stating that
Redisi appeared at LaMantia's deposition with Teleview's attorney and aided and consulted
with Teleview's attorney in the underlying litigation. LaMantia presented no evidence that
Redisi actively pressured or directed Teleview to improperly use the legal process to proceed
against LaMantia for an ulterior purpose other than resolving Teleview's legal dispute with
LaMantia. Redisi's presence at depositions and consultation with Teleview's attorney, without
additional evidence, does not constitute abuse of process. Therefore, we conclude that the
affidavit, and all reasonable inferences to be drawn therefrom, fails to raise a genuine issue of
material fact so as to survive a motion for summary judgment.
For the reasons set forth above, we affirm the district court order granting summary judgment
in favor of Redisi.
Maupin, C. J., and Rose, J., concur.
____________
118 Nev. 31, 31 (2002) Rowland v. State
ROBERT RYAN ROWLAND, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34552
January 24, 2002
39 P.3d 114
Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder,
burglary, robbery, and conspiracy to commit robbery. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
__________

11
111 Nev. 567, 571-75, 894 P.2d 354, 357-59 (1995).

12
Id. at 571-72, 894 P.2d at 357.

13
See supra note 8.
Defendant was convicted following a jury trial in the district court of first-degree murder,
burglary, robbery, and conspiracy to commit robbery. Defendant appealed. The supreme court
held that: (1) prosecutor's improper comments during closing argument of guilt phase, which
constituted improper vouching for witness's credibility, did not amount to reversible error; (2)
prosecutor's improper leading questions to co-defendant's alibi witness during
cross-examination did not amount to reversible error; (3) instruction that trial court found that
inmate was an accomplice as a matter of law was proper; (4) hearsay statement I know who
did it was admissible under excited utterance exception to rule against hearsay; (5)
erroneous admission of hearsay statement go check his hands was harmless; and (6)
defendant was not entitled to severance of his trial from co-defendant's.
Affirmed.
Steven G. McGuire, State Public Defender, and Harriet E. Cummings, Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, David F. Sarnowski, Chief Deputy Attorney
General, and Dorothy Nash Holmes, Deputy Attorney General, Carson City; Noel S. Waters,
District Attorney, Carson City, for Respondent.
1. Criminal Law.
Supreme court may consider sua sponte plain error which affects the defendant's substantial rights, if the error either: (1) had a
prejudicial impact on the verdict when viewed in context of the trial as a whole, or (2) seriously affects the integrity or public
reputation of the judicial proceedings.
2. Criminal Law.
The level of prosecutorial misconduct necessary to reverse a conviction depends upon how strong and convincing is the
evidence of guilt. If the issue of guilt or innocence is close, and if the state's case is not strong, prosecutorial misconduct will probably
be considered prejudicial.
3. Criminal Law.
Prosecutor's comments during closing argument of guilt phase regarding state witnesses, describing witness who had previously
denied seeing anything as finally testifying truthfully at trial, and stating that testimony of reluctant witness was finally given
and that he told the truth did not constitute improper vouching for witnesses' credibility in murder prosecution; case involved
numerous material witnesses and outcome depended on which witnesses were telling the truth, and thus reasonable latitude was given
to prosecutor to argue credibility of witnesses.
4. Criminal Law.
Prosecutor's comments during closing argument of guilt phase of murder prosecution describing inmate witness as a man of
integrity and honor who told the truth constituted commenting on witness's character and vouching for testimony given,
and thus comments were improper.
character and vouching for testimony given, and thus comments were improper.
5. Criminal Law.
Prosecutor's improper comments during closing argument of guilt phase of murder prosecution, which amounted to vouching for
witness's credibility, did not rise to level of reversible error, as there was overwhelming evidence of defendant's guilt.
6. Criminal Law.
Prosecutor's questions to co-defendant's alibi witness during cross-examination in murder prosecution, asking witness when
prison gang stopped beating up child molesters in prison and when gang stopped beating up witnesses in the case, were improper
leading questions, but prosecutor's conduct did not amount to reversible error; any answer witness gave would have worked to his
disadvantage, prosecutor was, in effect, arguing case to jury, which was something that was more appropriate in final argument, and
although questions were related to co-defendant's alibi witness, they affected defendant because the two were tried together.
7. Criminal Law.
Prosecutor's improper leading questions to co-defendant's alibi witness during cross-examination in murder prosecution did not
amount to reversible error, as there was overwhelming evidence of defendant's guilt.
8. Criminal Law.
Supreme court would review for plain error murder defendant's claim that trial court erred by instructing jury that court found,
as a matter of law, that inmate was an accomplice, where co-defendant objected to instruction and provided an alternative one, but
defendant failed to join co-defendant's objection or provide his own objection and an alternative instruction.
9. Criminal Law.
Instruction that trial court found that inmate was an accomplice as a matter of law was proper, in murder prosecution, though
inmate was never formally charged with murder, as inmate was culpably implicated in crime; inmate admitted that he was present at
meeting with defendant and other inmates to plan attack on victim, he stood as a lookout during attack, he helped carry laundry bag
containing victim's television, and he helped carry bag containing victim's food, jacket, and clock radio. NRS 175.291.
10. Criminal Law.
Instruction that trial court had found that inmate was an accomplice as a matter of law did not prejudice murder defendant;
court's finding actually raised state's burden because it was required to corroborate inmate's testimony through other witnesses, and
there was overwhelming evidence of defendant's guilt in light of several witnesses that corroborated inmate's testimony and directly
connected defendant to crime.
11. Criminal Law.
Although the question of whether a witness is an accomplice is typically a question of fact, a district court should instruct the
jury as a matter of law regarding a witness's accomplice status when the witness's own testimony leaves no doubt that the witness was
an accomplice.
12. Criminal Law.
Admission of out-of-court statement based on unavailability of witness requires satisfaction of two criteria: first, Confrontation
Clause usually requires prosecution to demonstrate that declarant is unavailable; and second,
second, upon showing of unavailability, the hearsay statement may be admitted if statement satisfies indicia of a firmly rooted hearsay
exception, or statement reflects particularized guarantees of trustworthiness. U.S. Const. amend. 6.
13. Criminal Law.
Hearsay statement I know who did it, made by inmate to police officer shortly after murder, was admissible via officer's
testimony under excited utterance exception to rule against hearsay, as it was clear that inmate was under stress of excitement caused
by murder because he was agitated after event, he had attacked an officer and had to be restrained, he was crying, mumbling, and
acting very irrational, and statement came less than 45 minutes after the murder. NRS 51.095.
14. Criminal Law.
Hearsay statement go check his hands, made by inmate to police officer, was inadmissible via officer's testimony, in murder
prosecution; statement was highly prejudicial, as it directly implicated defendant, and thus its probative value was substantially
outweighed by danger of unfair prejudice. NRS 48.035(1).
15. Criminal Law.
Erroneous admission of hearsay statement go check his hands, made by inmate to police officer, was harmless, in murder
prosecution, as there was overwhelming evidence of defendant's guilt, considering numerous eyewitness testimonies.
16. Criminal Law.
Generally, where persons have been jointly indicted they should be tried jointly, absent compelling reasons to the contrary.
17. Criminal Law.
Ultimate issue for a court, in determining whether defendant is entitled to a severed trial, is whether the jury can reasonably be
expected to compartmentalize the evidence as it relates to separate defendants.
18. Criminal Law.
A court determining whether defendant is entitled to a severed trial 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.
19. Criminal Law.
When challenging the district court's decision denying a motion for severance, defendant has the heavy burden of showing that
the district court abused its discretion.
20. Criminal Law.
Defendant was not entitled to severance of his trial from co-defendant's based on theory of antagonistic defenses in murder
prosecution; defenses were not mutually exclusive, as jury could accept defendant's or co-defendant's defense without rejecting the
other. NRS 174.165.
21. Criminal Law.
Defendant was not entitled to severance of his trial from co-defendant's based on theory that evidence against co-defendant
impermissibly spilled over to defendant's case because jury could not compartmentalize evidence that was only relevant to
defendant's guilt. Defendant failed to establish prejudice from alleged spill-over effect, failed to establish that evidence against
co-defendant would have been clearly inadmissible against him in a severed trial, and trial court provided some instructions on how to
compartmentalize the evidence. NRS 174.165.
22. Criminal Law.
Severance will not be granted based on guilt by association alone because merely having a better chance at acquittal is
insufficient to establish prejudice.
Before Shearing, Rose and Becker, JJ.
OPINION
Per Curiam:
Appellant Robert Ryan Rowland and co-conspirators, who were part of a prison gang known
as GFBD (God Forgives, Brothers Don't), murdered and robbed Nevada State Prison
inmate Steven Bruce Silva on January 19, 1998. Rowland was tried with one of the
co-conspirators, Tony Martin Smith. They were convicted and sentenced to life without
parole. Rowland contends that a number of errors occurred in the district court. We conclude
that none of Rowland's assignments of error warrant relief, and we affirm the judgment of
conviction and sentence of life without parole.
FACTS
I. Guilt phase
A jury trial commenced on April 15, 1999. Two of Rowland's co-conspirators were not tried
for Silva's murder, Juan Pedro LaPeire and Ricky Irvine. LaPeire pleaded guilty to conspiracy
to commit grand larceny, for which he was sentenced to time served, and then testified for the
State at the trial of Rowland and Smith. Irvine testified at the grand jury hearing, but was
dismissed from the case when he committed suicide in his cell after a local newspaper had
revealed that he had testified.
On January 19, 1998, inmate Silva was found badly beaten in his cell. Paramedics transported
Silva to the Carson-Tahoe Hospital, where he died from multiple injuries of blunt-force
trauma.
Officer Rod Moore, who began investigating the crime shortly after its occurrence, heard that
Irvine had exhibited some strange behavior after the incident and had claimed to know who
committed the crime. During an interview Irvine told Officer Moore, I know who did it,
and told him to go check [Rowland's] hands. Officer Moore visited Rowland and without
telling him why he was checking his hands, Officer Moore observed that his knuckles were
red, but saw no abrasions.
Officers conducted a search of the entire unit and found evidence connecting the four
suspects to the crime. In Silva's cell, a note saying expect no mercy from an unidentified
writer was found.
found. Inmate LaPeire, Rowland's cellmate, testified that he believed that this note was in
Rowland's handwriting. A Walkman and a television set, which belonged to Silva, were
found in Irvine's cell. A fan, allegedly belonging to Silva, was found in Smith's cell. Gloves
were found in both Rowland's and Smith's cells.
No guards witnessed what happened to Silva, but several inmate witnesses testified regarding
the events. LaPeire testified that he went to a meeting in Smith's cell the night before the
murder to plan the attack on Silva with Rowland, Smith, and Irvine. According to LaPeire,
Rowland and Smith were upset with Silva because Silva would not give his methadone pills
to them. LaPeire served as a lookout during the attack and helped carry Silva's property after
the incident. After the attack on Silva, LaPeire told the investigators that he and Rowland
were in their cell the entire time, but he later confessed, asserting that Rowland concocted this
lie for him.
Inmate Rick Ebel, Silva's cellmate testified that he was in Silva's cell when Rowland, Smith,
and Irvine kicked in the door and told Ebel to [g]et out. Ebel stated that he jumped out of
the cell but stood next to the doorway to observe what was happening. Meanwhile, Ebel
heard Rowland tell Silva, [y]ou're getting taxed, mother-fucker. Ebel testified that Rowland
punched and Smith kicked Silva while Irvine stuffed Silva's property in a laundry bag. Ebel
stated that after the attack, inmate David Baker came over from a nearby cell to administer
CPR on Silva while Ebel sought help. Ebel also went to the cell where Rowland, Smith, and a
third person were talking and told them, I think he's dead, to which either Rowland or
Smith responded, [w]ell just keep your mouth shut. Ebel admitted that he denied any
involvement for months until he was put in solitary confinement for six or seven months as a
result of the crime and his suspected involvement. He also admitted that he had a reputation
as a big mouth and admitted that part of his motive for testifying was that he was a suspect,
and he wanted to avoid being charged with the murder.
Inmate Richard Williams Watson, who lived in the cell across from Silva's, testified that he
saw Rowland punching Silva while wearing gloves, Smith holding a laundry bag of Silva's
belongings, and heard Rowland yell to Baker that he might be dead. Watson admitted that
he did not tell the whole story when he was first interviewed by investigators. In exchange for
his testimony, the prosecution wrote letters to the parole board on his behalf and he received a
90-day credit toward his sentence. After Watson agreed to testify, Rowland attacked him on a
prison bus on April 1, 1998, and threatened to cut his throat if he testified.
Inmate James Reid testified that on the day of the murder, he was making a phone call in the
unit where the murder occurred, and from that vantage point, he could see the area where
Silva's cell was located. Reid stated that he saw Smith, Irvine, and LaPeire leaving Silva's cell
carrying property in laundry bags. Reid also saw Rowland exiting Silva's cell carrying a shirt.
Reid admitted that he had lied to the investigators the first two times he was interviewed
because he was afraid of the consequences he might suffer if he was labeled a snitch.
Inmate Timothy Wade, Silva's former cellmate, testified that he was using the phone in Unit 6
when the attack on Silva occurred. Wade saw Smith and Rowland enter the rotunda on the
way down to Silva's cell and Smith yelled to Wade, mind your own business, which was
picked up on the prison telephone recording system. Wade went to Smith's cell and while
Smith was cleaning himself off, Smith told Wade that if Silva paid his debts he could get his
stuff back and he retorted to Wade that, [y]ou don't even like that dude. After providing
investigators with information about the crime, Wade said that GFBD members attacked him
in the prison yard. Initially, Wade refused to speak with investigators, but agreed to testify
only if he was provided protection.
Inmate Ricky Egberto testified that when he was in the prison infirmary with Smith and
Rowland six weeks after the murder, Smith and Rowland admitted that they had beaten Silva
over a drug debt and that Irvine was going to take the blame. Inmate David Springfield
testified that on the day of the murder he saw Rowland leave Silva's cell red-faced with
gloves on and saw Smith and Irvine carrying items out. Inmate Allen Clingempeel testified
that after Irvine committed suicide, Smith, with Rowland present, told Clingempeel to say
that Irvine confessed to the murder.
Rowland did not set forth any affirmative defenses and chose not to testify at trial. Instead,
Rowland chose to hold the State to its burden of proof. Thus, Rowland's defense consisted
primarily of attacking Watson's credibility by offering testimony of several officers who
stated that Watson had failed to alert them to any possible trouble with Rowland, contrary to
Watson's testimony.
On the other hand, Smith's defense was that he was not at the scene when the crime occurred.
Smith chose to testify. In addition, inmates Ronnie Johnson and Jason Jones testified as to
Smith's alibi. Specifically, Johnson testified that at the time of Silva's attack, Smith was with
him near the handball courts after he had just been to the visiting area to see his ex-wife and
son. Jones testified that he witnessed the attack but that he did not see Smith present at the
time of the attack. The State discredited Jones's testimony with rebuttal witness inmate
Richard Scott, who testified that Jones was playing cards with him during the attack on Silva.
On May 4, 1998, the jury returned guilty verdicts against Rowland and Smith for first-degree
murder, robbery, burglary, and conspiracy to commit robbery.
II. Penalty phase
The penalty hearing began on the following day and Rowland filed a motion to dismiss the
jury or at least take a two-week hiatus before proceeding with the penalty phase because some
of the jurors expressed concern for their safety. The district court denied the motion.
At the penalty hearing, Smith elected not to testify. However, Rowland chose to testify and
admitted hitting Silva but denied intending to kill him.
After weighing the various mitigating and aggravating circumstances, the jury rejected the
death penalty, imposing a sentence on both Rowland and Smith of life without the possibility
of parole. On July 21, 1999, the district court formally sentenced Rowland to various terms of
life without the possibility of parole.
DISCUSSION
I. The conduct of the prosecutor
[Headnote 1]
Rowland contends that the prosecutor engaged in numerous instances of misconduct
throughout the guilt and penalty phases of his trial. Rowland, however, failed to object to
most of the prosecutor's comments he now challenges. This court has long held that, as a
general rule, the failure to make timely objections [to prosecutorial misconduct] and to seek
corrective instructions during trial [precludes appellate consideration].
1
But we may
consider sua sponte plain error which affects the defendant's substantial rights, if the error
either: (1) had a prejudicial impact on the verdict when viewed in context of the trial as a
whole, or (2) seriously affects the integrity or public reputation of the judicial proceedings.
2

[Headnote 2]
The level of misconduct necessary to reverse a conviction depends upon how strong and
convincing is the evidence of guilt.
3
If the issue of guilt or innocence is close, if the state's
case is not strong, prosecutor misconduct will probably be considered prejudicial.
4

__________

1
Pray v. State, 114 Nev. 455, 459, 959 P.2d 530, 532 (1998).

2
Libby v. State, 109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993), vacated on other grounds, 516 U.S. 1037
(1996); see also NRS 178.602.

3
Oade v. State, 114 Nev. 619, 624, 960 P.2d 336, 339-40 (1998).

4
Garner v. State, 78 Nev. 366, 374, 374 P.2d 525, 530 (1962).
[Headnote 3]
Rowland claims that the prosecutor vouched for the credibility of four state witnesses on
several occasions during the closing argument of the guilt phase. We have held that the
prosecutor calling a witness a liar is improper
5
and even asserting that the defendant is lying
is equally impermissible.
6
In these cases, we were concerned about prosecutors improperly
vouching for or against a witness and the inappropriate use of the prestige of the district
attorney's office. But when a case involves numerous material witnesses and the outcome
depends on which witnesses are telling the truth, reasonable latitude should be given to the
prosecutor to argue the credibility of the witnesseven if this means occasionally stating in
argument that a witness is lying.
7
We find this true in this case. For example, one witness
who had previously denied seeing anything was referred to by the prosecutor in argument as
finally testifying truthfully at trial. And, she also argued that the testimony of a reluctant
witness was finally given and he told the truth. We find nothing wrong with these
statements when made in the context of arguing the credibility of a witness.
[Headnotes 4, 5]
However, the prosecutor went on to describe one inmate witness as a man of integrity and
honor who told the truth. Calling a witness a person of integrity and honor is indeed
commenting on the character of the witness and vouching for the testimony given. This
characterization of the witness's testimony amounts to an opinion as to the veracity of a
witness in circumstances where veracity might well have determined the ultimate issue of
guilt or innocence.
8
This argument was prosecutorial error. Many strong adjectives could
[have been] used [to describe the testimony] but it was for the jury, and not the prosecutor, to
say which witnesses were telling the truth. . . .'
9

__________

5
See Ross v. State, 106 Nev. 924, 927-28, 803 P.2d 1104, 1106 (1990) (holding that a prosecutorial statement
that a defense witness is a liar is not proper argument).

6
See Skiba v. State, 114 Nev. 612, 614, 959 P.2d 959, 960 (1998) (holding that it is improper for a prosecutor
to state, [t]he defendant is lying); Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1998) (The
characterization of testimony as a lie is improper argument.); see also United States v. Francis, 170 F.3d 546,
552 (6th Cir. 1999) (holding that the prosecutor's calling the defendant a liar and con man was
impermissible); Boyd v. French, 147 F.3d 319, 328-29 (4th Cir. 1998) (holding that it is improper for a
prosecutor to comment during closing arguments with repeated references to defendant's credibility).

7
See, e.g., Ross, 106 Nev. at 927, 803 P.2d at 1106 (A prosecutor may demonstrate to a jury through
inferences from the record that a defense witness's testimony is palpably untrue.).

8
Witherow, 104 Nev. at 724, 765 P.2d at 1155.

9
Id. (quoting Harris v. United States, 402 F.2d 656, 658 (1968)).
The line between appropriate argument on the credibility of a witness and improper
prosecutorial argument is occasionally difficult to define. We will have to rely primarily on
the trial supervision and good judgment of our district judges and look to them to determine
when appropriate argument on witness credibility becomes improper vouching for a witness
or the inappropriate use of the prosecutor's power. A prosecutor's use of the words lying or
truth should not automatically mean that prosecutorial misconduct has occurred. But
condemning a defendant as a liar should be considered prosecutorial misconduct. For those
situations that fall in between these two examples, we must look to the attorney for the
defendant to object and the district judge to make his or her ruling on a case-by-case basis.
[Headnotes 6, 7]
Rowland also argues that the prosecutor asked two leading questions that were improper, and
we agree. Rowland and others were members of a prison gang, the GFBD, and evidence was
received that the gang members would beat up prisoners who were convicted of child
molestation and prisoners who were testifying against them in this case. When
cross-examining Ronnie Johnson, Smith's alibi witness, the prosecutor asked, When did [the
GFBD] stop beating up child molesters at the prison? and When did [the GFBD] stop
beating up the witnesses in this case? Both questions are similar to the proverbial trick
question, When did you stop beating your spouse? Any answer will work to the witness's
disadvantage and the prosecutor is in effect arguing the case to the jury, something that is
much more appropriate in final argument. Although we recognize that these leading questions
were related to Smith's alibi witness, we note that these questions affected Rowland because
Smith and Rowland were tried together. Thus, we conclude that these questions were
improper.
We have reviewed Rowland's other claims of prosecutorial misconduct and conclude that
they are without merit. The instances where we have found improper prosecutorial
misconduct are insufficient to amount to reversible plain error. There was overwhelming
evidence of Rowland's guilt and instances of prosecutorial impropriety did not deprive
Rowland of a fair trial.
II. The district court's conclusion that LaPeire was an accomplice as a matter of law
[Headnotes 8-10]
Rowland asserts that the district court erred in finding that Juan LaPeire was an accomplice as
a matter of law in this case for several reasons. First, Rowland argues that by finding LaPeire
to be an accomplice as a matter of law,
an accomplice as a matter of law, the district court usurped the function of the jury to decide
the question and lowered the State's burden of proof in violation of Rowland's due process
rights. Second, Rowland argues that the district court failed to recognize that LaPeire was not
charged with murder as Rowland and Smith were, and thus was not liable to prosecution, for
the identical offense[s] charged against the defendant[s] as required by NRS 175.291.
Finally, Rowland claims the instruction prejudiced him because it suggested that LaPeire was
in cahoots with Rowland, and thus, could [have] cause[d] the jury to discount LaPeire's
admitted problems in telling the truth and motives for lying and made LaPeire's testimony
more credible.
The district court provided the jury with an accomplice instruction, which stated that a
conviction could not rest on the testimony of an accomplice alone, but that the accomplice's
testimony had to be corroborated. The court then added at the end of the instruction: The
court finds as a matter of law that Juan LaPeire is an accomplice in this case.
Smith objected to this instruction and provided an alternative instruction, but Rowland failed
to join Smith's objection or provide his own objection and an alternative instruction. Thus,
plain error analysis is appropriate.
10

[Headnote 11]
The instruction was given as a result of NRS 175.291 and Austin v. State.
11
We explained in
Austin that NRS 175.291 was a legislative declaration that one who has participated
criminally in a given criminal venture shall be deemed to have such character, and such
motives, that his testimony alone shall not rise to the dignity of proof beyond a reasonable
doubt.
12
Although the question of whether a witness is an accomplice is typically a question
of fact, a district court should instruct the jury as a matter of law regarding a witness's
accomplice status when the witness's own testimony leaves no doubt that the witness was an
accomplice.
13

This court has interpreted NRS 175.291 to define an accomplice as one who is liable to
prosecution for the identical offense charged against the defendant, . . . or who is culpably
implicated in, or unlawfully cooperates, aids or abets in the commission of the crime
charged.
14
In the present case, although LaPeire testified that he felt forced to participate in
the crime, he admitted that:
__________

10
See Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986) (noting that this court may review errors
that are patently prejudicial, regardless of counsel's failure to object); see also NRS 178.602.

11
87 Nev. 578, 588-89, 491 P.2d 724, 730-31 (1971).

12
Id. at 588, 491 P.2d at 731.

13
Id.

14
Potter v. State, 96 Nev. 875, 876-77, 619 P.2d 1222, 1223 (1980).
admitted that: (1) he was present at the meeting with Irvine, Smith, and Rowland to plan the
attack on Silva; (2) he stood as a lookout during the attack; (3) he helped carry a laundry bag
containing Silva's television; and (4) he helped carry a bag containing Silva's food, jacket, and
clock radio. Despite Rowland's contention that LaPeire was never formally charged with
murder, according to LaPeire's own testimony, LaPeire was culpably implicated in the
crime.
We conclude that this instruction was proper and that Rowland's contention that the district
court usurped the jury's function is without merit. In addition, we note that we have
considered Rowland's prejudicial arguments and we conclude that this instruction was not
prejudicial to Rowland. The district court's finding actually raised the State's burden because
the State was required to corroborate LaPeire's testimony through other witnesses. In any
event, there was overwhelming evidence of Rowland's guilt in light of the several witnesses
that corroborated LaPeire's testimony and directly connected Rowland to the crime.
III. The admissibility of hearsay statements made by deceased co-defendant Irvine
Rowland contends that the district court erred in admitting hearsay testimony. At trial the
State called Officer Rod Moore who interviewed Irvine shortly after Silva's murder. During
direct examination, Officer Moore testified that Irvine had told him I know who did it, and
to go check [Rowland's] hands. In overruling Rowland's objection, the district court
admitted the first statement as an excited utterance and the second as non-hearsay showing
why the investigation focused on Rowland.
[Headnote 12]
Admission of an out-of-court statement based on the unavailability of the witness requires
satisfaction of two criteria: First, the Confrontation Clause usually requires the prosecution
to demonstrate that the declarant is unavailable. Second, upon a showing of unavailability, the
hearsay statement may be admitted if: (1) the statement satisfies the indicia of a firmly
rooted' hearsay exception; or (2) the statement reflects particularized guarantees of
trustworthiness.'
15

Irvine's statement I know who did it
[Headnote 13]
The excited utterance exception contained at NRS 51.095 provides that [a] statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition is not inadmissible under the hearsay rule.
__________

15
Bockting v. State, 109 Nev. 103, 108, 847 P.2d 1364, 1367 (1993) (quoting Ohio v. Roberts, 448 U.S. 56,
63 (1980)).
made while the declarant was under the stress of excitement caused by the event or condition
is not inadmissible under the hearsay rule. We conclude that the district court did not abuse
its discretion in admitting Irvine's statement I know who did it. First, it is clear that he was
under the stress of excitement caused by Silva's murder because Irvine was agitated after the
event; Irvine had attacked an officer and he had to be restrained; and Irvine was crying,
mumbling, and acting very irrational. Moreover, the statement came less than forty-five
minutes after the murder.
16

Irvine's statement go check his hands
[Headnotes 14, 15]
Irvine's second statement was made over three hours later after Irvine had calmed down. We
have recognized that [a] statement merely offered to show that the statement was made and
the listener was affected by the statement, and which is not offered to show the truth of the
matter asserted, is admissible as non-hearsay.
17
The State argues that this statement was
offered to explain why the investigators began suspecting Rowland, and further that it was
necessary to tell the State's complete story. However, this statement directly implicates
Rowland. In addition, the State's argument and the district court's rationale for admitting the
statement relies on a technical application of the definition of hearsay that ignores the greater
purpose and spirit of Nevada's evidence laws. In fact, NRS 48.035(1) provides that
[a]lthough relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the
jury. Accordingly, we conclude that the district court erred in admitting Irvine's statement
go check his hands because it is highly prejudicial as it directly implicates Rowland and
thus, its probative value is substantially outweighed by the danger of unfair prejudice.
Notwithstanding, we conclude that the error was harmless because there was overwhelming
evidence when the numerous eyewitness testimonies are considered.
18

IV. The denial of appellant's pretrial motion for severance
Rowland claims that the district court erred in denying his motion to sever the trial.
__________

16
See Hogan v. State, 103 Nev. 21, 23, 732 P.2d 423, 423 (1987) (upholding a statement made one hour after
the threat).

17
Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990).

18
See Franco v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (noting that errors concerning hearsay
are subject to 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).
motion to sever the trial. Specifically, he argues that the district court abused its discretion by
not severing the trial because: (1) he and Smith asserted antagonistic defenses; and (2) the
jury could not compartmentalize and clearly separate the evidence against Smith and him. We
disagree and conclude that the district court did not err in denying the severance motion.
[Headnotes 16-19]
NRS 174.165 provides that a defendant is entitled to a severed trial if he presents a sufficient
showing of facts demonstrating that substantial prejudice would result from a joint trial.
Generally, where persons have been jointly indicted they should be tried jointly, absent
compelling reasons to the contrary.
19
The ultimate issue for a court is whether the jury can
reasonably be expected to compartmentalize the evidence as it relates to separate defendants.
20
Further, a court making this decision 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.
21
When challenging the district court's
decision, the appellant has the heavy burden of showing that the district court abused its
discretion.
22

As an initial matter, the State argues that Rowland and Smith did not inform the district court
of what their defenses were early enough for it to make an informed decision on the matter,
and thus failed to timely and specifically move for a severance. Indeed, Rowland's motion to
sever gave few clues as to the actual defenses to be presented at trial and was instead based
on: (1) a possible Bruton v. United States
23
problem caused by the introduction of Smith's
statements showing consciousness of guilt and the possible unavailability of Smith as a
witness; and (2) the possibility that Smith's defense would consist of inculpating Rowland,
thus making Smith an extra prosecutor against Rowland. Further, Smith informed the
district court of his alibi defense before trial, but Rowland's defense was unknown until the
morning of jury selection. Although Rowland's motion to sever did not specifically raise an
antagonistic defenses or jury compartmentalizing argument, we note that his motion did
raise the inference that Smith's defense was antagonistic and that the evidence against Smith
might spill-over to taint the case against Rowland.
__________

19
Jones v. State, 111 Nev. 848, 853, 899 P.2d 544, 547 (1995).

20
Id. at 854, 899 P.2d at 547.

21
Lisle v. State, 113 Nev. 679, 688-89, 941 P.2d 459, 466 (1997).

22
Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990).

23
391 U.S. 123 (1968).
Antagonistic defenses
[Headnote 20]
Rowland argues that his and Smith's defenses were antagonistic, warranting severance. This
court has stated that defenses must be antagonistic to the point that they are mutually
exclusive before they are to be considered prejudicial.
24
The Ninth Circuit has stated that
defenses become mutually exclusive when the core of the codefendant's defense is so
irreconcilable with the core of [the defendant's] own defense that the acceptance of the
codefendant's theory by the jury precludes acquittal of the defendant.
25

At the guilt phase, Rowland offered no affirmative defense but instead argued that the State's
witnesses were not credible. During the penalty phase, however, he admitted beating Silva,
but asserted that he lacked the intent to kill him. On the other hand, Smith's defense was that
he was not present at the scene of the crime when the attack occurred. We conclude that the
district court did not err in refusing to sever the trial based on antagonistic defenses because
these defenses are not mutually exclusive, as a jury could accept Smith's or Rowland's
defense without rejecting the other.
Jury compartmentalizing
[Headnote 21]
Rowland also contends that evidence against Smith impermissibly spilled over to his case
because the jury could not compartmentalize evidence that was only relevant to Rowland's
guilt in light of the length of the trial and dozens of witnesses and hundreds of exhibits.
Rowland points to several instances in which evidence against Smith spilled over to him:
(1) Ebel's testimony that he saw Smith get into an argument with Wade; (2) Watson's and
Reid's testimony that they saw Smith with some of Silva's things in a laundry bag; (3)
LaPeire's testimony that Smith called the shots for the GFBD and had offered him protection
if he would keep quiet about the case; and (4) Clingempeel's testimony that Smith pressured
him to lie and say Irvine had confessed.
[Headnote 22]
We stated in Lisle v. State that [t]he spillover' . . . theory involves the question of whether a
jury's unfavorable impression of [one] defendant against whom the evidence is properly
admitted will influence the way the jurors view the other defendant.
26

__________

24
Amen, 106 Nev. at 756, 801 P.2d at 1359.

25
United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).

26
113 Nev. at 689, 941 P.2d at 466 (quoting State v. Rendon, 715 P.2d 777 (Ariz. Ct. App. 1986)).
Severance will not be granted based on guilt by association alone because merely having a
better chance at acquittal is insufficient to establish prejudice.
27

We conclude that Rowland's arguments amount to nothing more than his opinion that he
would have a better chance at acquittal if he and Smith had separate trials. Rowland has failed
to establish the requisite prejudice from the spill-over effect, and failed to establish that the
evidence complained of would have been clearly inadmissible against him in a severed trial.
One of the charges against Rowland was a conspiracy charge, and conspiracy is usually
established by inference from the conduct of the parties.
28
Additionally, the district court
provided some instructions on how to compartmentalize the evidence. Accordingly, we
conclude that Rowland has failed to meet his heavy burden in showing that the district court
abused its discretion.
We have considered Rowland's other claimed errors and conclude that they are without merit.
CONCLUSION
We conclude that Rowland's assignments of error do not warrant relief. Accordingly, we
affirm his judgment of conviction and sentence.
____________
118 Nev. 46, 46 (2002) Executive Mgmt. v. Ticor Title Ins. Co.
EXECUTIVE MANAGEMENT, LTD., a California Corporation, Appellant, v. TICOR
TITLE INSURANCE COMPANY, a Foreign Corporation; BARBARA MARKS, an
Individual; THE MANLEY MARKS AND BARBARA MARKS 1988 TRUST,
BARBARA MARKS, Trustee; MARKS PLAZA, a Nevada Corporation; PALMALL
PROPERTIES, INC., a Nevada Corporation; and ARTHUR H. SHIPKEY, an
Individual, Respondents.
No. 35122
January 24, 2002
38 P.3d 872
Appeal from a summary judgment in a tort and contract case. Eighth Judicial District Court,
Clark County; Nancy M. Saitta, Judge.
After landowner, vendor's escrow agent, and common vendor to landowner and adjoining
landowner prevailed as codefendants in adjoining landowner's quiet title action,
__________

27
Id.

28
See Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998) (noting that conspiracy is seldom
proven through direct evidence).
in adjoining landowner's quiet title action, landowner sued escrow agent, adjoining land
owner, and vendor, alleging negligence, fraud, and breach of contract. The district court
dismissed, based on res judicata. Landowner appealed. The supreme court, 114 Nev. 823, 963
P.2d 465 (1998), affirmed in part, reversed in part, and remanded. On remand, the district
court granted summary judgment against landowner, based on landowner's failure to
qualify to conduct business in Nevada as a foreign corporation. Landowner appealed. The
supreme court held that: (1) if a foreign corporation that is not qualified to do business in
Nevada commences or maintains a court action in Nevada, the proper remedy is for the
district court to stay the unqualified foreign corporation's action until the foreign corporation
qualifies, rather than to dismiss the action, overruling League to Save Lake Tahoe v. Tahoe
Regional Planning Agency, 93 Nev. 270, 563 P.2d 582 (1977), and abrogating Nevada
National Bank v. Snyder, 108 Nev. 151, 826 P.2d 560 (1992), Atlantic Commercial v. Boyles,
103 Nev. 35, 732 P.2d 1360 (1987), and Bader Enterprises, Inc. v. Olsen, 98 Nev. 381, 649
P.2d 1369 (1982); and (2) as a matter of first impression, following appeal and remand, a
party may seek relief from its initial waiver of its right to jury trial.
George R. Carter, Las Vegas, for Appellant.
Cohen, Johnson, Day, Jones & Royal and Geoffrey A. Potts, Las Vegas, for Respondents
Palmall Properties and Shipkey.
Lionel Sawyer & Collins and David N. Frederick and Paul R. Hejmanowski, Las Vegas, for
Respondent Ticor Title.
Ralph J. Rohay, Las Vegas, for Respondent Marks.
The supreme court reviews summary judgment orders de novo.
Summary judgment is only upheld when a review of the record in a light most favorable to the non-moving party reveals that
there are no triable issues of material fact and that the moving party is entitled to judgment as a matter of law.
3. Statutes.
Court's objective in construing a statute is to give effect to the legislature's intent.
4. Statutes.
To give effect to the legislature's intent, the court first looks to the plain language of the statute.
5. Statutes.
Where the statutory language is ambiguous or otherwise does not speak directly to the issue, the court construes it according to
what reason and public policy would indicate the legislature intended.
6. Corporations.
If a foreign corporation that is not qualified to do business in Nevada commences or maintains a court action in Nevada, the
proper remedy is for the district court to stay the unqualified foreign corporation's action until the foreign corporation qualifies, rather
than to dismiss the action; overruling League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 563 P.2d 582
(1977), and abrogating Nevada National Bank v. Snyder, 108 Nev. 151, 826 P.2d 560 (1992), Atlantic Commercial v. Boyles, 103
Nev. 35, 732 P.2d 1360 (1987), and Bader Enterprises, Inc. v. Olsen, 98 Nev. 381, 649 P.2d 1369 (1982). NRS 80.210(1)(b).
7. Jury.
Following appeal and remand, a party may seek relief from its initial waiver of its right to jury trial. NRCP 38(b), 39(b).
8. Courts.
Federal cases interpreting the Federal Rules of Civil Procedure are strong persuasive authority, because the Nevada Rules of
Civil Procedure are based in large part upon their federal counterparts.
OPINION
Per Curiam:
FACTS
This case, involving alleged negligence, fraud, and breach of contract stemming from a
troubled property sale, presents two questions for our review: (1) whether NRS 80.210
requires dismissal of a foreign corporation's action when the corporation has failed to comply
with the qualification requirements of NRS 80.010 through 80.040; and (2) whether the right
to trial by jury is revived following an appeal and remand when the right previously had been
waived.
This case was appealed to this court before, resulting in remand to the district court. A
detailed factual statement regarding Executive's claims and the history of this case before the
first appeal is found in our previous opinion, Executive Management v. Ticor Title Insurance
Co.
1

Before the first appeal, the parties consented to withdrawing Executive's previous jury trial
request. Following appeal and remand from this court, however, Executive changed its mind
and filed another demand for trial by jury. The district court rejected Executive's demand.
Thereafter, with respondent Ticor Title Insurance Company leading the way, the respondents
filed motions for summary judgment based on Executive's failure to qualify to conduct
business in Nevada
__________

1
114 Nev. 823, 963 P.2d 465 (1998).
ness in Nevada by complying with the foreign corporation qualification requirements of NRS
80.010 through 80.040. Based on our case law interpreting NRS 80.210, which sets forth
penalties for a foreign corporation failing to qualify, Ticor asserted that Executive's action
should be dismissed.
When Executive filed this action in May of 1999, it had not complied with the foreign
corporation qualification requirements. Although Executive now argues that it was not
obligated to do so, in March of 1993 Executive qualified by filing the required documents and
paying the fees. Its certificate to do business, however, expired in December of 1994 and
remained unrenewed until May of 1999. Spurred by Ticor's motion, in May of 1999
Executive qualified to do business in Nevada by filing the required documents and paying all
fees back to 1994. The Secretary of State then issued Executive a certificate of reinstatement
confirming that Executive was in good standing for the years 1994-1999.
The trial court granted the respondents' motions for summary judgment, finding that
Executive had been doing business in Nevada, had failed to comply with the filing
requirements of NRS 80.015, and therefore could not maintain the action. Accordingly, the
district court dismissed Executive's action. The dismissal was with prejudice because the
statute of limitations had passed on all of Executive's claims. Executive appealed.
DISCUSSION
NRS 80.210 does not require dismissal of a foreign corporation's action
[Headnotes 1, 2]
We review summary judgment orders de novo.
2
Summary judgment is only upheld when a
review of the record in a light most favorable to the non-moving party reveals that there are
no triable issues of material fact and that the moving party is entitled to judgment as a matter
of law.
3

Before conducting business in Nevada, foreign corporations are required to qualify by
complying with the foreign corporation requirements of NRS 80.010 through 80.040. The
question of whether a foreign corporation is doing business and required to qualify,
although guided somewhat by NRS 80.015, is often a laborious, fact-intensive inquiry
resolved on a case-by-case basis.
4

__________

2
Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996).

3
Id. at 977, 922 P.2d at 538.

4
See, e.g., Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119, 122, 808 P.2d 512, 513 (1991) ([T]he
test to determine if a company is doing business in a state is two pronged. Courts look first to the nature of the
company's business functions in the forum state, and then to the quantity of business conducted in the forum
state. (citing Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276 (1961))); In re Hilton Hotel, 101 Nev. 489, 706
P.2d 137 (1985); Peccole v. Fresno Air Serv., Inc., 86 Nev. 377, 469 P.2d 397 (1970).
Failure to qualify can result in certain penalties set forth in NRS 80.210. One of those
penalties provides that the foreign corporation may not commence or maintain any action or
proceeding in any court of this state until it has fully complied with the provisions of NRS
80.010 to 80.040, inclusive.
5
What is meant by the terms maintain and until is the
subject of our discussion.
The parties argue at great length regarding whether Executive was doing business under
either the current or the former versions of NRS 80.015 during the relevant time periods that
would require Executive to comply with the foreign corporation qualification statutes. But for
purposes of our analysis, we simply assume that Executive was doing business and therefore
required to qualify.
This assumed, our holding in League to Save Lake Tahoe v. Tahoe Regional Planning Agency
6
indicates that the district court was correct in dismissing Executive's action with prejudice,
even in the face of Executive's retroactive compliance:
[B]elated compliance with the foreign corporation qualification statutes does not defeat
the applicability of the statute of limitations during the period of time the corporation
was in noncompliance. Institution of suit before compliance with filing requirements
does not toll the statute of limitations, nor does later compliance operate retroactively to
permit continuation of the action if the statute of limitations had run between filing of
the suit and such compliance.
7

We followed this rule in later cases.
8
We now, however, take the opportunity to reconsider
League to Save Lake Tahoe and its interpretation of NRS 80.210.
[Headnotes 3-5]
Our objective in construing NRS 80.210 is to give effect to the legislature's intent.
9
In so
doing, we first look to the plain language of the statute.
__________

5
NRS 80.210(1)(b) (emphasis added).

6
93 Nev. 270, 563 P.2d 582 (1977), overruled on other grounds by County of Clark v. Doumani, 114 Nev.
46, 952 P.2d 13 (1998).

7
Id. at 275, 563 P.2d at 585 (citations omitted).

8
See, e.g., Nevada National Bank v. Snyder, 108 Nev. 151, 826 P.2d 560 (1992) (requiring the district court
to dismiss a foreign corporation's action for failure to comply with NRS 80.030); Atlantic Commercial v. Boyles,
103 Nev. 35, 38, 732 P.2d 1360, 1362 (1987) (holding that where a foreign corporation had complied with the
qualifying statutes prior to dismissal, dismissal, if at all, should have been without prejudice); Bader
Enterprises, Inc. v. Olsen, 98 Nev. 381, 649 P.2d 1369 (1982) (affirming the district court's dismissal of an
action for the plaintiff foreign corporation's failure to comply with NRS 80.030).

9
Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).
guage of the statute.
10
Where the statutory language is ambiguous or otherwise does not
speak directly to the issue, however, we construe it according to what reason and public
policy would indicate the legislature intended.'
11

NRS 80.210 is susceptible to a different construction than the construction that League to
Save Lake Tahoe relied on. Construing the statutory term maintained, the League to Save
Lake Tahoe court concluded that an unqualified foreign corporation could only maintain a
previously commenced cause of action if the corporation had been qualified at the time it
filed the action but subsequently became unqualified because of failure to comply with
continuing statutory requirements.
12
On that reasoning, the court determined that the actions
of unqualified foreign corporations should be dismissed. But an equally tenable interpretation
of the word maintained is carry on or continue,
13
implying that the foreign corporation
should not be allowed to proceed with its action until it has fully complied with the
qualification requirements after its failure to comply has been discovered. In this light,
refusing to allow a foreign corporation to maintain an action does not require its dismissal.
The majority of states follow this more forgiving approachrather than dismiss an action
filed by an unqualified foreign corporation outright, most states with statutes similar to
Nevada's simply stay the action until the corporation qualifies.
14
The Model Business
Corporation Act, parts of which Nevada has adopted by statute,
15
explains the purpose of
this approach: to induce corporations that are required to obtain a certificate of authority
but without imposing harsh or erratic sanctions.
16
The Model Act observes that this
approach eliminates the temptation to wait until the applicable statutes of limitations
have run before raising the failure-to-qualify defense.
__________

10
Id.

11
State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1249-50 (1994) (quoting State,
Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)).

12
93 Nev. at 273, 563 P.2d at 584.

13
Black's Law Dictionary 657 (6th ed. abridged 1991).

14
Annotation, Application of Statute Denying Access to Courts or Invalidating Contracts Where Corporation
Fails to Comply With Regulatory Statute as Affected by Compliance After Commencement of Action, 23 A.L.R.
5th 744, 765 (1994) (reviewing a number of states with statute's similar to Nevada's and noting that a strong
majority of these courts have held that subsequent compliance allows the corporation to continue the suit); see
also Gratrix v. Pine Tree, Inc., 677 P.2d 1264 (Alaska 1984); Johnny's Pizza House, Inc. v. Huntsman, 844
S.W.2d 320 (Ark. 1992); Roldan Corp. N.V. v. District Court, 716 P.2d 120 (Colo. 1986); Triple T., Inc. v.
Jaghory, 612 So. 2d 642 (Fla. Dist. Ct. App. 1993); Hudson Farms, Inc. v. McGrellis, 620 A.2d 215 (Del.
1993).

15
Compare NRS 80.010, and NRS 80.015, with Model Business Corporation Act Annotated 15.01 (3d ed.
1997) (hereinafter Model Act).

16
Model Act 15.02 cmt.
observes that this approach eliminates the temptation to wait until the applicable statutes of
limitations have run before raising the failure-to-qualify defense.
17

Ticor is concerned that without the penalty of dismissal propounded by League to Save Lake
Tahoe, there would be no incentive for unqualified foreign corporations to qualify, and fraud
on Nevada citizens could result. Although we too expressed this concern in Bader
Enterprises Inc. v. Olsen,
18
upon further consideration, we conclude that this concern does
not justify the extraordinarily harsh penalty of dismissal. First, staying an action that has been
commenced by an unqualified foreign corporation will provide sufficient incentive to
encourage compliance. Second, NRS 80.210 sets forth its own penalties and enforcement
procedures, utilizing district attorneys and the attorney general under the governor's direction
to enforce the qualification requirementsthe judiciary need not impose penalties beyond
those provided. Third, the determination of whether a foreign corporation is actually doing
business in this state and therefore required to qualify involves a fact-intensive and often
nebulous inquiry, and thus, the failure to qualify can be the result of a bona fide
disagreement regarding the scope of NRS 80.015, which provides only limited guidance as
to the activities that do not constitute doing business.
19
Finally, the fact that the Secretary of
State is willing, as he was in this case, to reinstate foreign corporations that pay all past due
fees, and forgive the fault in every respect, authorizing the corporation to transact its
business in the same manner as if the aforesaid filing fees, licenses, penalties, and costs had
been paid when due,
20
indicates that failing to qualify is not so egregious that it warrants
dismissal with prejudice, what is perhaps a court's most severe civil penalty.
[Headnote 6]
Thus, we overrule League to Save Lake Tahoe's construction of NRS 80.210. Henceforth, the
district court should stay an unqualified foreign corporation's action until the foreign
corporation qualifies. Failure to promptly qualify, however, could result in dismissal.
21

__________

17
Id.

18
98 Nev. 381, 384, 649 P.2d 1369, 1370 (1982) (noting that the filing requirement of NRS 80.030(1)
serves to promote the public policy of this State to alert and protect its citizens in their transactions with defunct
foreign corporations).

19
Model Act 15.02 cmt.

20
Certificate of Reinstatement, issued by Nevada's Secretary of State to Executive on May 24, 1999.

21
Cf. NRS 80.210(2) (allowing an unqualified foreign corporation to commence an action seeking an
extraordinary remedy before complying with
Following appeal and remand, a party may seek relief from its initial waiver of its right to
jury trial under NRCP 39(b)
We next consider Executive's right to a trial by jury. As noted above, the district court refused
to grant Executive's demand for a jury trial because Executive had waived its right before the
first appeal. Urging us to uphold the district court's decision, Ticor points to NRCP 38(b),
which requires that a party demand a trial by jury at any time after the commencement of the
action and not later than the time of the entry of the order first setting the case for trial,
before November 1, 1994, in this case. We have not addressed this precise issue before.
Courts addressing this issue have rendered decisions running a full spectrum. At one extreme,
the Rhode Island Supreme Court has held that a waiver of a trial by jury is a waiver for all
time.
22
At the other extreme, the Supreme Court of Oklahoma has held that [t]he right of
trial by jury may be demanded and exercised as if the remanded proceedings were initiated
afresh.
23

[Headnotes 7, 8]
We prefer the more moderate approach taken by the federal courts. Federal cases interpreting
the Federal Rules of Civil Procedure are strong persuasive authority, because the Nevada
Rules of Civil Procedure are based in large part upon their federal counterparts.
24
The
federal courts allow a party that initially waived its right to a trial by jury to seek relief from
the waiver:
When the right to a jury trial is waived in the original case by failure to timely make the
demand, or by affirmative withdrawal of the demand, the right is not revived by the
ordering of a new trial. [Nevertheless a] party who wishes to obtain a jury trial on
remand after waiver may move under [FRCP] 39 for relief in the court's discretion.
25

Thus, federal courts allow a motion for relief from the initial waiver based on FRCP 39(b),
which states, notwithstanding the failure of a party to demand a jury in an action in which
such a demand might have been made of right, the court in its discretion upon motion may
order a trial by a jury of any or all issues.
__________
NRS 80.010-.040, but requiring the district court to dismiss the action if the corporation does not comply within
forty-five days after the action is commenced).

22
Shepard Co. v. General Motors Truck Co., 146 A. 477, 478 (R.I. 1929) (finding that a waiver of jury trial
was permanent and binding on a case remanded for new trial).

23
Seymour v. Swart, 695 P.2d 509, 512 (Okla. 1985).

24
See Las Vegas Novelty v. Fernandez, 106 Nev. 113, 119, 787 P.2d 772, 776 (1990).

25
8 James Wm. Moore et al., Moore's Federal Practice 38.52[7][c] (3d ed. 2001) (footnote omitted) (citing
McGowan v. U.S., 296 F.2d 252, 256 (5th Cir. 1961)).
upon motion may order a trial by a jury of any or all issues. NRCP 39(b) mirrors the federal
rule. Also, although no case speaks to this precise issue, earlier Nevada cases suggest this
approach is preferable.
26

In this case, it is unclear from the record whether the district court, in denying Executive's
demand, exercised its discretion and considered the circumstances that Executive claims
justify relief from the waiver or whether the district court simply denied the motion on the
assumption that Executive was absolutely bound by its first waiver. Thus, on remand the
district court should allow Executive to make the proper motion and determine whether
Executive has shown circumstances warranting relief from its initial waiver.
CONCLUSION
In conclusion, we hold that NRS 80.210 does not contemplate automatic dismissal of an
unqualified foreign corporation's action. Thus, because Executive had complied retroactively
with the foreign corporation qualification requirements, the district court should have allowed
the action to proceed. Accordingly, we reverse the district court's summary judgment and
remand for proceedings consistent with this opinion. Additionally, we conclude that NRCP
39(b) allows Executive to seek relief from its initial waiver of its right to trial by jury.
____________
118 Nev. 54, 54 (2002) Abrego v. State
JORGE ABREGO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36425
January 24, 2002
38 P.3d 868
Appeal from a judgment of conviction pursuant to a jury verdict of three counts of sale of a
controlled substance within 1,000 feet of a school and one count of possession of a controlled
substance. Sixth Judicial District Court, Humboldt County; Richard Wagner, Judge.
__________

26
See Walton v. District Court, 94 Nev. 690, 695, 586 P.2d 309, 312 (1978) (acknowledging a party's right to
request a jury trial under NRCP 39(b) notwithstanding the party's failure to submit a timely and proper
demand and noting that the decision to grant or deny the request is within the district court's discretion); see
also Hardy v. First Nat'l Bank of Nev., 86 Nev. 921, 922-23, 478 P.2d 581, 582 (1970) (noting that the plaintiff,
after failing to file a timely demand for a jury trial, could have proceeded under NRCP 39(b) but failed to do so);
Kohlsaat v. Kohlsaat, 62 Nev. 485, 488, 155 P.2d 474, 475 (1945) (noting, under the predecessor rule to NRCP
39, that the decision to grant relief from a waiver of the right to jury trial rests within the sound discretion of the
district court).
Defendant was convicted in the district court of three counts of sale of a controlled substance
within 1,000 feet of a school. Defendant appealed. The supreme court held that: (1) Apprendi
applies to enhancements for selling drugs within 1,000 feet of a school, but (2) defendant
affirmatively waived his right to have a jury decide sentencing enhancement for selling drugs
within 1,000 feet of a school.
Affirmed.
Steven G. McGuire, State Public Defender, and Harriet E. Cummings, Deputy Public
Frankie Sue Del Papa, Attorney General, Carson City; David G. Allison, District Attorney,
and Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for Respondent.
1. Jury.
Apprendi, which gives defendant the right to have the jury determine any fact that increases the penalty for a crime beyond the
statutory maximum, applies to enhancements for selling drugs within 1,000 feet of a school. NRS 453.3345.
2. Jury.
Defendant affirmatively waived his right to have a jury decide sentencing enhancement for selling drugs within 1,000 feet of a
school, in light of defendant's failure to present any evidence to dispute that his residence, where drug sales took place, was not within
1,000 feet of the schoolyard, together with his specific request that the court and not the jury determine the distance of defendant's
residence from the schoolyard. NRS 453.3345.
OPINION
Per Curiam:
Appellant Jorge Abrego was convicted of three counts of sale of a controlled substance within
1,000 feet of a school. The alleged sales took place at Abrego's home which was located near
an elementary school in Winnemucca, Nevada. As a result, Abrego's sentence was enhanced
pursuant to NRS 453.3345
1
for selling drugs within 1,000 feet of a school.
__________

1
NRS 453.3345 states, in pertinent part:
1. . . . [A]ny person who violates NRS 453.321, 453.322 or 453.323:
. . . .
(c) Within 1,000 feet of the perimeter of such a school ground or campus, playground, park, pool,
recreational center or arcade; or
The central issue of Abrego's appeal is whether the district court erred by not allowing the
jury to determine the applicability of the sentencing enhancement in light of the United States
Supreme Court opinion, Apprendi v. New Jersey.
2

We conclude that Apprendi applies to enhancements pursuant to NRS 453.3345, but that
Abrego affirmatively waived his right to have a jury decide the enhancement. As none of
Abrego's assignments of error warrant relief, we affirm the judgment of conviction and
sentence imposed by the district court.
FACTS
Nevada Division of Investigation (NDI) investigator Michael Buxton testified that he set up
three controlled purchases of methamphetamine from Abrego using a confidential informant.
Buxton testified that the informant was searched prior to each buy to ensure that the
informant had no drugs in his possession, fitted with an electronic listening device, and given
money with recorded serial numbers. In addition, the informant's car was searched prior to
each buy. Buxton then followed the informant to Abrego's residence and took photos from a
schoolyard located approximately 196 feet from Abrego's home. Buxton indicated that he
watched as the informant entered and exited Abrego's residence, listened via electronic wire
to conversations with Abrego, and followed the informant back to the NDI offices. Once at
the NDI office, the informant turned over the methamphetamine purchased from Abrego.
Over the course of three buys, the informant purchased approximately five and one-half
grams of methamphetamine for $550.00.
As a result of the recorded buys, NDI obtained a search warrant for, and executed a search of,
Abrego's residence. The search elicited, among other items, plastic baggies containing
methamphetamine. Thereafter, Abrego was arrested for three counts of sale of a controlled
substance and one count of possession of a controlled substance for the purpose of sale.
At trial, prior to jury selection, Abrego filed a motion in limine regarding whether facts
relative to the sentence enhancement should be decided by the court or the jury. Abrego's
counsel urged the court to determine the facts to support the enhancement rather than
submit the issue to the jury.
__________
(d) Within 1,000 feet of a school bus stop from 1 hour before school begins until 1 hour after school
ends during scheduled school days,
must be punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for the crime. The sentence prescribed by this section runs
consecutively with the sentence prescribed by statute for the crime.

2
530 U.S. 466 (2000). Abrego also raised two other issues on appeal: the admissibility of photographs
depicting the area of the sales, and the alleged failure of the police to serve him with a copy of a search warrant.
We have considered these issues and conclude that they are without merit.
urged the court to determine the facts to support the enhancement rather than submit the issue
to the jury. Abrego was concerned about the prejudicial effect of allowing the jury to hear
evidence that the sales took place within 1,000 feet of an elementary school. The prosecution
opposed the motion stating that this was a matter to be determined by the jury.
In light of Abrego's affirmative request to remove the issue from the jury, the district court
found that the introduction of evidence to support the enhancement would be more prejudicial
than probative and granted the motion. After the jury convicted Abrego of the sale of
controlled substance counts, the district court held a hearing on the issue of the distance
between the place where the sales took place and any school. Based upon the evidence
elicited at the hearing, as well as the trial testimony, the district court determined that the
sales took place within 1,000 feet of a school.
Following trial, the jury returned verdicts of guilty on the three counts of sale of a controlled
substance and one count of simple possession of a controlled substance.
Abrego was thereafter sentenced to 12 to 48 months in prison, with an additional 12- to
48-month enhancement for being within 1,000 feet of a school on each of the sales counts, to
be served consecutively. In addition, Abrego was sentenced to a concurrent term of
imprisonment of 12 to 30 months for the possession of a controlled substance count. Abrego
timely appealed.
DISCUSSION
[Headnote 1]
Abrego contends that the rule regarding the right to a jury determination on sentencing
enhancements set forth in Apprendi applies to his convictions. Apprendi was decided by the
United States Supreme Court before Abrego's appeal was filed with this court. We therefore
conclude that the rule in Apprendi applies to Abrego.
3

In Apprendi, the United States Supreme Court held that a criminal defendant's constitutional
rights are violated when his prescribed statutory maximum penalties are increased by any
fact, other than a prior conviction, that a jury does not find beyond a reasonable doubt.
4
Thus, under Apprendi, any fact that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
5

The facts of Apprendi are as follows. Apprendi pleaded guilty to two counts of second-degree
possession of a firearm for an unlawful purpose
__________

3
Powell v. Nevada, 511 U.S. 79 (1994).

4
Apprendi, 530 U.S. at 490.

5
Id.
unlawful purpose and one count of third-degree possession of an antipersonnel bomb.
6
The
State reserved the right to request the imposition of a higher sentence, pursuant to state
statute, on the ground that the offense was committed with a racially-biased purpose.
7
The
statute specified that a judge would determine the applicability of the enhancement. After an
evidentiary hearing, the trial judge ruled that Apprendi's actions were motivated by racial bias
and applied the hate crime enhancement.
8

The Supreme Court struck down the State sentencing provision in a 5-4 opinion. The majority
reasoned that the provision violated the Due Process Clause because it removed from the
jury's consideration a fact that increased the defendant's sentence. The Court considered, as a
narrow issue, whether Apprendi had a constitutional right to have a jury find racial bias
beyond a reasonable doubt.
The Apprendi Court concluded:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt. With that exception, we endorse the statement of the rule
set forth in the concurring opinions in [Jones]: [I]t is unconstitutional for a legislature
to remove from the jury the assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed. It is equally clear that such facts
must be established by proof beyond a reasonable doubt.
9

The Court reasoned that because the statute allows an examination into the defendant's state
of mind, it is an essential element of the crime because it is a mens rea factor. The Court
stated, the relevant inquiry is one not of form, but of effectdoes the required finding
expose the defendant to a greater punishment than that authorized by the jury's guilty
verdict?
10
The Court recognized that an exception to its holding applies when the fact that
increases the statutory maximum is a defendant's prior conviction.
11

In a case similar to Abrego's, the Ninth Circuit applied Apprendi in United States v. Nordby.
12
In Nordby, the district court found by a preponderance of the evidence that the
defendant was responsible for 1,000 or more marijuana plants and,
__________

6
Id. at 469.

7
Id. at 470.

8
Id. at 471.

9
Id. at 490 (quoting Jones v. United States, 526 U.S. 227, 252-53 (1999) (Stevens, J., concurring)).

10
Id. at 494.

11
See Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998).

12
225 F.3d 1053, 1058 (9th Cir. 2000).
found by a preponderance of the evidence that the defendant was responsible for 1,000 or
more marijuana plants and, therefore, imposed a statutory minimum sentence of ten years in
prison pursuant to 21 U.S.C. 841(b)(1)(A)(vii).
The court in Nordby found the application of Apprendi straightforward and held that the
district court erred by sentencing Nordby to the term of imprisonment without submitting the
question of marijuana quantity to the jury and without a finding that the marijuana quantity
had been proven beyond a reasonable doubt.
13
Thereafter, the Ninth Circuit engaged in plain
error review due to the fact that Nordby did not contest the evidence of drug quantity before
the district court and, as a part of such review, assessed whether the error affected Nordby's
substantial rights.
14
In doing so, the court decided that Nordby was prejudiced by the failure
to submit the issue of drug quantity to the jury.
15

The court noted that, although it was uncontested that over 2,000 marijuana plants were
found on Nordby's land, Nordby consistently maintained that he was not responsible for
growing the plants or for conspiring to do so at the time charged in the indictment.
16
In
making this determination, the court's review encompassed the whole record.
17
Because
Nordby contested the omitted element and raised evidence sufficient to support a contrary
finding, the court concluded that Nordby demonstrated more than a reasonable doubt that he
was responsible for possessing or manufacturing 2,000 or more marijuana plants during the
time charged and therefore was prejudiced by the error.
18

Finally, the court concluded that the Apprendi error in Nordby's case seriously affected the
fairness, integrity, or public reputation of judicial proceedings.
__________

13
Id. at 1059; see also U.S. v. Vazquez, 271 F.3d 93 (3d Cir. 2001). In Vazquez, the Third Circuit Court of
Appeals concluded that an Apprendi violation occurs when the judge, rather than the jury, determines drug
quantity and where the defendant is sentenced in excess of the prescribed statutory maximum for the crime
charged. The Vazquez court noted that the following courts of appeal have similarly applied Apprendi to cases
involving conspiracy to possess and distribute more than 5 kilos of cocaine in violation of 21 U.S.C. 841 and
846: U.S. v. Hishaw, 235 F.3d 565, 574-75 (10th Cir. 2000), cert. denied, 121 S. Ct. 2254 (2001); U.S. v.
Doggett, 230 F.3d 160, 164 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001); U.S. v. Rogers, 228 F.3d 1318,
1327 (11th Cir. 2000); and U.S. v. Rebmann, 226 F.3d 521, 524-25 (6th Cir. 2000). Vazquez, 271 F.3d at 99.

14
Nordby, 225 F.3d at 1060.

15
Id.

16
Id.

17
Id. at 1061 n.6 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

18
Id. at 1061.
tion of judicial proceedings.
19
Therefore, the court vacated Nordby's sentence.
In this case, Abrego contends that the district court committed reversible constitutional error
by determining the sentence enhancement, rather than submitting the issue to the jury. Abrego
argues that Apprendi requires that any fact, other than a prior conviction, that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury
and proven beyond a reasonable doubt. Abrego asserts that this court must follow Apprendi
and apply it retroactively under the Supremacy Clause and related legal precedent. In
addition, Abrego argues that the application of the sentence enhancement was not harmless
because such an argument ignores the central importance of the Sixth Amendment right to a
jury trial guaranteed by our system of justice.
[Headnote 2]
We agree with Abrego and follow the precedent set forth in Apprendi that any fact, other than
a prior conviction, that increases the penalty for a crime beyond the statutory maximum must
be submitted to the jury and proven beyond a reasonable doubt. However, we conclude that
Abrego's failure to present any evidence to dispute that his residence was not within 1,000
feet of the schoolyard together with his specific request that the district court, not the jury,
determine the distance of Abrego's residence from the schoolyard constitutes a waiver of
Abrego's rights under Apprendi. At the hearing on the motion in limine, the following
arguments were made to the district court.
Mr. Kjeldsen (for Abrego): I think [the factual finding] is a matter to be determined by
the judge and I'll submit it on that basis.
. . . .
I submit that [the factual finding] should be for the court because I think it is
substantially more prejudicial than probative.
. . . .
Mr. Hafen (for the prosecution): Your Honor, the problem that we have though is I
think I ought to be able to ask my witnesses what residence this occurred at and it's
going to come out that it happened at 215 Fifth Street. So I think the jury will make the
connection.
. . . .
Mr. Kjeldsen: I don't believe we do, Your Honor. I feel this is a matter of enhancement
and strictly for the court. Because anytime you say it is within so far from a school that
is just going to arouse the passions and prejudices of the jurors.
__________

19
Id. at 1060.
is just going to arouse the passions and prejudices of the jurors.
. . . .
Mr. Hafen: Well, Your Honor, I guess our position is that the jury is the factfinder and
ought to make the determination.
Therefore, while we conclude that an Apprendi violation occurred in Abrego's trial and
sentencing, we also conclude that Abrego affirmatively waived his protections under
Apprendi and cannot now complain of the violation.
CONCLUSION
Because we conclude that Abrego's assignments of error do not warrant relief, we affirm his
judgment of conviction and sentence.
____________
118 Nev. 61, 61 (2002) Batin v. State
MARLON JAVAR BATIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36525
January 30, 2002
38 P.3d 880
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of
embezzlement. Second Judicial District Court, Washoe County; Connie J. Steinheimer,
Judge.
Defendant was convicted in the district court on three counts of embezzlement. Defendant
appealed. On reconsideration en banc, the supreme court, Leavitt, J., held that defendant was
not entrusted with money in slot machines, a necessary element of embezzlement.
Reversed.
Maupin, C. J., with whom Becker, J., agreed, dissented.
Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
The State must prove every element of a crime beyond a reasonable doubt.
2. Constitutional Law; Criminal Law.
Because of the right to due process afforded in the United States and Nevada Constitutions, and because of the significance that
society attaches to the criminal sanction and thus to liberty itself,
118 Nev. 61, 62 (2002) Batin v. State
attaches to the criminal sanction and thus to liberty itself, an appellate court cannot sustain a conviction where the record is wholly
devoid of evidence of an element of a crime. Const. art. 1, 8(5); U.S. Const. amend. 14.
3. Criminal Law.
The requirement that the State prove every element of a charged offense beyond a reasonable doubt serves to give concrete
substance to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal
proceeding.
4. Embezzlement.
The key distinguishing element of the crime of embezzlement is the element of entrustment. NRS 205.300(1).
5. Embezzlement.
In order to be guilty of embezzlement, a defendant must have been entrusted with lawful possession of the property prior to its
conversion. NRS 205.300(1).
6. Embezzlement.
For purposes of proving embezzlement, the lawful possession of property by the defendant need not be actual; rather, the State
may show that a defendant had constructive possession of the property converted. NRS 205.300(1).
7. Embezzlement.
In proving constructive possession of property in support of a charge of embezzlement, a showing that a defendant was given
mere access to the property converted is insufficient. NRS 205.300(1).
8. Embezzlement.
Defendant was not entrusted with lawful possession of currency in slot machines, as required for embezzlement conviction,
where defendant had no job duties involving currency, was forbidden to touch currency, and was required to contact supervisor for any
task involving possession of currency. NRS 205.300(1).
1

OPINION ON EN BANC RECONSIDERATION
By the Court, Leavitt, J.:
Appellant Marlon Javar Batin was convicted of three counts of embezzlement for stealing
money from his employer, John Ascuaga's Nugget Hotel and Casino. On direct appeal, Batin
contended that his conviction was not supported by sufficient evidence. Specifically, Batin
contended that there was no evidence establishing the entrustment element of the crime of
embezzlement. In a divided decision, a three-justice panel of this court affirmed Batin's
conviction. His petition for rehearing was likewise denied.
__________

1
The Honorable Michael A. Cherry, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Cliff Young, Justice, and the Honorable William A. Maddox, Judge
of the First Judicial District Court, was designated by the Governor to sit in place of The Honorable Robert E.
Rose, Justice. Nev. Const. art. 6, 4.
118 Nev. 61, 63 (2002) Batin v. State
Batin then filed a petition for en banc reconsideration, arguing that he was actually innocent
of the crime of embezzlement. This court determined that en banc consideration of Batin's
case was warranted, and the petition was granted. Having considered the evidence presented
in the light most favorable to the State, we now conclude that Batin did not commit
embezzlement as a matter of law because there was no evidence presented of the entrustment
element of that crime. Because we cannot sustain a conviction where there is no evidence of
an essential element of the charged offense, we reverse the judgment of conviction.
FACTS
In 1993, Batin moved to Sparks from the Philippines and began working as a dishwasher at
the Nugget. After several years at the Nugget, Batin became a slot mechanic. Batin's job
duties as a slot mechanic included fixing jammed coins and refilling the hopper. Warren
Reid Anderson, Batin's supervisor, explained that the hopper is the part of the slot machine
that pays coins back, and is separate from the bill validator component of the slot machine
where the paper currency is kept. Anderson further testified that Batin had no duties with
respect to the paper currency in the bill validator, except to safeguard the funds, and that the
cash in the bill validator wasn't to be touched. Likewise, Anderson testified that if a
customer had a problem with a machine that required a cash refund it would require
supervisory backup in order to take any money out of a slot machine and pass it back to a
customer. Batin also testified about his job duties as a slot mechanic. Like Anderson, Batin
testified that he was prohibited from handling the paper currency inside the bill validator.
As a slot mechanic, Batin was given an SDS card that was used to both access the inside of
the slot machine and identify him as the employee that was opening the slot machine door.
The computerized SDS system is physically connected to each slot machine and counts the
paper currency placed into each machine's bill validator. The SDS actually records the
different denominations of bills and runs numerous reports concerning the currency. The SDS
also registers every time that the slot machine door is opened or closed. If the power is turned
off to a particular slot machine, the SDS system will only record the opening and closing of
the door; it cannot track what happens inside the machine.
Lori Barrington, soft count supervisor, explained that after the money is counted by SDS, it is
then counted three more times by a minimum of three Nugget employees. Barrington further
testified that there was not much variance between the amount of money SDS recorded that
the casino was supposed to have and the amount of money the casino actually had. In fact, out
of 1100 slot machines,
118 Nev. 61, 64 (2002) Batin v. State
machines, there were perhaps three errors per month totaling approximately $100.00 in
variance.
In March and early June 1999, however, there were larger discrepancies discovered between
the amount of money that the SDS recorded had been put into the slot machines and the
amount of money the slot machine actually contained. Kathleen Plambeck, the Nugget's
Internal Auditor, testified to several shortages from four different slot machines, totaling
approximately $40,000.00.
In reviewing the SDS reports, Plambeck testified that she found a pattern of conduct. Namely,
prior to the time that a shortage had been detected on a slot machine, Batin inserted his SDS
card into the slot machine, opened the door, turned off the power, and thereafter closed the
door on the machine. Plambeck found this pattern of conduct unusual because it was not
necessary to turn off the slot machine for most repairs, and no one other than Batin had been
turning off the power on the slot machines with the shortages. Batin testified at trial,
however, that he turned off the power on the slot machines so that he would not be
electrocuted and that he had always turned off the power prior to working on the slot
machines.
James Carlisle, an agent with the Nevada Gaming Control Board, investigated Batin and
discovered that he gambled regularly at three local casinos, and that he lost tens of thousands
of dollars. When Carlisle questioned Batin about how he was able to afford to gamble such
large sums of money, Batin could not or did not answer. At trial, however, Batin testified that
he was able to afford to gamble large sums of money because he won often.
Although Batin adamantly denied taking the money, Batin was arrested and charged with
three counts of embezzlement. The information alleged that Batin had been entrusted with
money by his employer and converted the money for a purpose other than that for which it
was entrusted. After a jury trial, Batin was convicted of all three counts of embezzlement.
DISCUSSION
Batin contends that his convictions for embezzlement should be reversed because there was
insufficient evidence of an essential element of the crime. We agree.
[Headnotes 1-3]
It is axiomatic that the State must prove every element of a crime beyond a reasonable doubt.
2
Because of the right to due process afforded in our constitutions,
3
and because of the
significance that our society attaches to the criminal sanction and thus to liberty itself, we
cannot sustain a conviction where the record is wholly devoid of evidence of an element of
a crime.
__________

2
Watson v. State, 110 Nev. 43, 45, 867 P.2d 400, 402 (1994).

3
U.S. Const. amend. XIV; Nev. Const. art. 1, 8, cl. 5.
118 Nev. 61, 65 (2002) Batin v. State
record is wholly devoid of evidence of an element of a crime.
4
Our insistence that the State
prove every element of a charged offense beyond a reasonable doubt serves an imperative
function in our criminal justice system: to give concrete substance' to the presumption of
innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a
criminal proceeding.
5

In the instant case, the State charged Batin with embezzlement and, consequently, at trial, had
the burden of proving every element of that crime beyond a reasonable doubt.
6
To prove that
a defendant committed the crime of embezzlement, the State must demonstrate beyond a
reasonable doubt that the defendant was a person with whom any money, property or effects
ha[d] been deposited or entrusted, and that the defendant use[d] or appropriate[d] the
money, property, or effects . . . in any manner or for any other purpose than that for which [it
was] deposited or entrusted.
7

[Headnotes 4-7]
The key distinguishing element of the crime of embezzlement is the element of entrustment.
8
In order to be guilty of embezzlement, a defendant must have been entrusted with lawful
possession of the property prior to its conversion.
9
For purposes of proving embezzlement,
the lawful possession need not be actual; rather, the State may show that a defendant had
constructive possession of the property converted.
10
This court has defined constructive
possession as both the power and the intention at a given time to exercise dominion or
control over a thing, either directly or through another person or persons.
__________

4
Jackson v. Virginia, 443 U.S. 307, 315 (1979).

5
Id. (quoting In re Winship, 397 U.S. 358, 363 (1970)).

6
We note that had the State charged Batin pursuant to NRS 205.0832, the Omnibus Theft Crime statute, the
evidence presented at trial would have supported a conviction under that statute because there was sufficient
evidence to support a finding that Batin was guilty of larceny. However, Batin was neither charged under the
Omnibus Theft Crime statute nor charged with larceny. Rather, Batin was charged solely with the crime of
embezzlement, a crime that Batin did not commit.

7
NRS 205.300(1) (emphasis added).

8
See 3 Charles E. Torcia, Wharton's Criminal Law 393 (15th ed. 1995); State v. Trolson, 21 Nev. 419, 32
P. 930 (1893); see also State v. Benigas, 95 Nev. 358, 594 P.2d 724 (1979); Rose v. State, 86 Nev. 555, 471
P.2d 262 (1970).

9
See Trolson, 21 Nev. at 423; State v. Superior Ct., in and for County of Pima, 555 P.2d 898, 899 (Ariz. Ct.
App. 1976); see also State v. Taylor, 378 P.2d 352, 353-54 (Utah 1963) ([T]he essential wrong is committed in
obtaining possession of the property. . . . One could not embezzle that which he had already stolen.).

10
See State v. Smitherman, 356 P.2d 675 (Kan. 1960); State v. Haynes, 80 N.W.2d 859 (Minn. 1957); State
v. Doucet, 14 So. 2d 917 (La. 1943).
118 Nev. 61, 66 (2002) Batin v. State
directly or through another person or persons.'
11
In proving constructive possession, a
showing that a defendant was given mere access to the property converted is insufficient.
12
Often, an individual is entrusted with access to a particular place or thing without being given
dominion and control over the property therein.
13
This is particularly true in instances, like
the present one, where the individual is expressly told that he is not allowed to touch the
property in the place to which access is granted.
[Headnote 8]
In the instant case, the record reveals that Batin was not entrusted with lawful possession,
constructive or otherwise, of the currency he allegedly took from the bill validators. In fact,
both Batin and his supervisor testified that Batin had no job duties whatsoever involving this
currency and that it wasn't to be touched. Further, Batin had absolutely no power to
exercise control over this currency, as Batin was required to contact his supervisor for any job
task involving possession of the currency inside the bill validator, such as a cash refund to a
customer. Because the aforementioned testimony was not contradicted at trial, we conclude
that there was insufficient evidence of an essential element of embezzlement, as Batin was
never entrusted with actual or constructive possession of the currency taken.
Our dissenting colleagues conclude that there was sufficient evidence of constructive
possession because Batin had access to the inside of the slot machine where the bill validator
was located and, occasionally, observed non-employee slot repairmen work on the slot
machine. As previously discussed, however, constructive possession requires a showing that
the accused was entrusted with control over property. We cannot say that an individual
exercises control over property when he is prohibited from touching it.
In light of the foregoing, we are compelled to reverse Batin's conviction. The State failed to
prove the entrustment element of the crime of embezzlement beyond a reasonable doubt, and
we cannot sustain a conviction where the record is devoid of an essential element of a
charged offense. To do otherwise, would imperil our system of justice
__________

11
Palmer v. State, 112 Nev. 763, 768, 920 P.2d 112, 115 (1996) (quoting Black's Law Dictionary 1163 (6th
ed. 1990)).

12
See United States v. Selwyn, 998 F.2d 556, 557-58 (8th Cir. 1993) (holding that maintenance person at post
office could not be guilty of embezzling mail because he never had lawful possession of the mail); United States
v. Sayklay, 542 F.2d 942, 944 (5th Cir. 1976) (holding that bookkeeper at bank could not be guilty of
embezzling funds derived from blank counter checks because she never had lawful possession of the checks).

13
For example, if a person gives a neighbor the key to their house to let the plumber in to fix a leaky faucet,
and the neighbor steals the television set, the crime is larceny not embezzlement because the neighbor was never
entrusted with possession of the television.
118 Nev. 61, 67 (2002) Batin v. State
imperil our system of justice by undermining the presumption that those charged with crimes
are innocent until proven guilty beyond a reasonable doubt.
Shearing and Agosti, JJ., and Cherry and Maddox, D. J., concur.
Maupin, C. J., with whom Becker, J., agrees, dissenting:
We respectfully dissent and would affirm the judgment of conviction. In our view, there is
sufficient evidence to support the jury's finding that Batin was guilty of embezzlement.
Historically, this court has afforded great deference in reviewing a jury's finding, refusing to
overturn a verdict that is supported by sufficient evidence.
1

To prove that a defendant committed the crime of embezzlement, the State must proffer
evidence that the defendant was entrusted with lawful possession of the property which he
converted.
2
The State need not prove that the defendant actually possessed the property, but
must merely prove that the defendant had constructive possession of the property alleged to
have been embezzled.
3

In viewing the evidence in a light most favorable to the State, we conclude that there is ample
evidence to support the jury's verdict that Batin had constructive possession of the paper
currency inside the bill validator. The State proffered evidence that Batin's employer
entrusted him with an SDS card, which allowed Batin to access the bill validator inside the
slot machine where the currency was kept. Moreover, Batin's job, as prescribed by his
employer, included safeguarding the funds contained inside the bill validator when he made a
slot machine repair and when supervising non-employee slot machine repairmen. In
safeguarding the currency inside the bill validator, Batin was entrusted with dominion and
control over that currency in a manner sufficient to support the jury's finding that Batin had
constructive possession over the funds that he converted.
4

Accordingly, because we conclude that there was sufficient evidence of the crime of
embezzlement, we would affirm the judgment of conviction.
__________

1
McNair v. State, 108 Nev. 53, 825 P.2d 571 (1992); Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).

2
NRS 205.300(1).

3
See 3 Charles E. Torcia, Wharton's Criminal Law 393 (15th ed. 1995).

4
See Palmer v. State, 112 Nev. 763, 768, 920 P.2d 112, 115 (1996) (defining constructive possession as
both the power and the intention at a given time to exercise dominion or control over a thing, either directly or
through another person or persons' (quoting Black's Law Dictionary 1163 (6th ed. 1990))).
____________
118 Nev. 68, 68 (2002) Braunstein v. State
STEVEN SAMUEL BRAUNSTEIN aka STEVEN SAMUEL JALBERT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 35968
February 13, 2002
40 P.3d 413
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
sexual assault of a child under the age of fourteen years. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
Defendant was convicted in the district court of two counts of sexual assault of a child under
the age of fourteen years. Defendant appealed. The supreme court, Agosti, J., held that: (1)
evidence showing an accused possesses a propensity for sexual aberration is not relevant to
the accused's intent; abrogating McMichael v. State, 94 Nev. 184, 189, 577 P.2d 398, 401
(1978); (2) evidence showing that an accused possesses a specific emotional propensity for
sexual aberration does not, as a matter of law, outweigh the prejudicial possibility that a jury
might convict for general rather than specific criminality; overruling Findley v. State, 94 Nev.
212, 577 P.2d 867 (1978); (3) trial court did not commit manifest error in admitting evidence
of defendant's prior bad acts of sexual contact with a minor; (4) failure to conduct a pretrial
hearing to determine the trustworthiness of hearsay statements of a child-victim of sexual
assault does not warrant automatic reversal, and error is subject to harmless error analysis;
overruling Lytle v. State, 107 Nev. 589, 816 P.2d 1082 (1991), and Quevedo v. State, 113
Nev. 35, 930 P.2d 750 (1997); and (5) district court committed harmless error in failing to
conduct trustworthiness hearing regarding admissibility of hearsay statements of child-victim.
Affirmed.
Rose, J., dissented in part.
Marcus D. Cooper, Public Defender, and Drew R. Christensen, Deputy Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
The trial court's determination to admit or exclude evidence of prior bad acts is a decision within its discretionary authority and
is to be given great deference, and it will not be reversed absent manifest error.
2. Criminal Law.
In determining whether a defendant's prior bad acts are admissible, the district court must conduct a hearing and determine
whether (1) the incident is relevant to the crime charged,
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).
3. Criminal Law.
Evidence showing an accused possesses a propensity for sexual aberration is not relevant to the accused's intent; abrogating
McMichael v. State, 94 Nev. 184, 189, 577 P.2d 398, 401 (1978).
4. Criminal Law.
Evidence showing that an accused possesses a specific emotional propensity for sexual aberration does not, as a matter of law,
outweigh the prejudicial possibility that a jury might convict for general rather than specific criminality; overruling Findley v. State, 94
Nev. 212, 577 P.2d 867 (1978). NRS 48.045(2).
5. Criminal Law.
Trial court did not commit manifest error in admitting evidence of defendant's prior bad acts of sexual contact with a minor in
defendant's trial on charges of sexual assault of a child under fourteen years of age, where trial court conducted hearing outside
presence of jury, concluded that State established the bad act by clear and convincing evidence, heard testimony of victim and had
evidence that defendant was convicted in connection with those acts, and that act was relevant, proximate in time, and admission was
not outweighed by prejudicial effect. NRS 48.045(2).
6. Criminal Law.
Failure to conduct a pretrial hearing to determine the trustworthiness of hearsay statements of a child-victim of sexual assault
does not warrant automatic reversal, and error is subject to harmless error analysis; overruling Lytle v. State, 107 Nev. 589, 816 P.2d
1082 (1991), and Quevedo v. State, 113 Nev. 35, 930 P.2d 750 (1997). NRS 51.385.
7. Criminal Law.
District court committed harmless error in failing to conduct trustworthiness hearing regarding admissibility of hearsay
statements of child-victim in defendant's sexual assault trial, where child testified at trial and defendant had opportunity to
cross-examine her, her statements to school counselor were made only six days after the incident, statements to cousin were consistent
and made while victim was emotionally upset, and no evidence was offered to show that child had motive to fabricate statements. NRS
51.385
8. Criminal Law.
District court properly struck defendant's conviction for lewdness when jury returned convictions on lewdness and sexual assault
of a child under fourteen years of age; lewdness and sexual assault are mutually exclusive crimes, and the correct remedy was to strike
the redundant conviction.
9. Infants.
Evidence from child-victim's mother, school counselor, cousin, and others that defendant has sexually assaulted her, and
testimony that physical examination of victim showed clear evidence of penetration was sufficient to support jury verdict that
convicted defendant of two counts of sexual assault of a child under fourteen years of age.
10. Criminal Law.
In reviewing evidence supporting a jury's verdict, the supreme court must determine whether the jury, acting reasonably, could
have been convinced beyond a reasonable doubt of the defendant's guilt by the competent evidence.
11. Criminal Law.
Where conflicting testimony is presented at trial, the jury determines what weight and credibility to give it.
12. Criminal Law.
In determining whether evidence was sufficient to support a conviction, the reviewing court, after viewing the evidence in the
light most favorable to the prosecution, determines whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.
OPINION
By the Court, Agosti, J.:
Appellant Steven Samuel Braunstein was convicted by a jury of two counts of sexual assault
of a minor under the age of fourteen and two counts of lewdness with a child under the age of
fourteen.
We conclude that (1) the district court did not abuse its discretion in admitting evidence of
one prior act of molestation committed by Braunstein; (2) although a trustworthiness hearing
must be held before the admission of a child-victim's hearsay statements, failure to conduct
such a hearing does not necessarily require reversal, and in this case, reversal is not
warranted; (3) the district court did not err in denying Braunstein's motion for a new trial
where the jury returned guilty verdicts for both sexual assault and lewdness; and (4) sufficient
evidence supports Braunstein's conviction.
FACTS
On June 14, 1999, Braunstein was charged with two counts of sexual assault upon a minor
under fourteen years of age. The victim, J.P., was born November 17, 1990. Braunstein
pleaded not guilty at his arraignment.
Prior to trial, the district court ruled that the State was entitled to offer evidence of a prior
molestation, allegedly committed by Braunstein, of another young female, A.M. Trial
commenced January 18, 2000.
J.P.'s mother testified at trial that she met Braunstein and became his friend in 1992.
Braunstein's daughter, K.B., who is four years older than J.P., had been injured in a
horse-riding accident in 1996 and was left with severe brain damage. J.P.'s mother would
watch K.B. in Braunstein's absence, and Braunstein became accustomed to watching J.P.
J.P. testified that Braunstein began touching her inappropriately when she was four years old.
She testified that he touched her in the "wrong places" by putting his hand under her
panties
the wrong places by putting his hand under her panties and placing his fingers inside her
vagina. She testified that she did not tell any adults because she was afraid that Braunstein
would hurt her. She also testified that she told her cousin about these incidents when she was
four years old. Her cousin testified that J.P. was about five years old when she first confided
in her. J.P. would cry when telling her cousin about these incidents.
In January 1999, J.P.'s mother became involved with the Girl Scouts organization, which
required her to attend administrative meetings during which she left J.P. alone with
Braunstein. J.P. testified to instances of sexual assault that occurred while her mother was
away from the home attending these meetings.
On May 14, 1999, the evening before they planned to vacation at Disneyland, J.P. and her
mother stayed the night at Braunstein's home. On this occasion, J.P. testified that she was
climbing and jumping on Braunstein's back while he lay on his stomach. She testified that
this helped his back to feel better when it hurt. J.P.'s mother was not present in the room at
the time. J.P. testified that while she was clothed in a long t-shirt and underwear, Braunstein
digitally penetrated her. She testified that the experience was painful. Early the next day, on
the way to Disneyland, J.P. told her mother about the incident, but her mother did not believe
her.
On May 20, 1999, J.P. told her school counselor, Nancy Gentis, about the May 14 incident.
Gentis had previously taught a sexual abuse awareness class at J.P.'s school. Gentis reported
the incident to the police. Gentis testified as to her involvement and also as to the statements
J.P. made to her concerning Braunstein's conduct. The jury also heard the testimony of J.P.'s
cousin, who testified to statements made to her by J.P. over the course of three years, all
concerning Braunstein's conduct.
On May 27, 1999, J.P. was examined by Phyllis Suiter, a board-certified pediatric and family
nurse practitioner at SAINT (Sex Abuse Investigative Team), a program designed to perform
examinations on suspected child-victims. Suiter testified that her physical examination of J.P.
revealed clear evidence of a penetrating injury that could only have been caused by sexual
abuse.
1

The jury also heard testimony concerning a prior bad act by Braunstein. A.M. testified that
between June and October 1997, when she was thirteen years old, Braunstein repeatedly
made sexual advances toward her. A.M. testified that she frequently babysat Braunstein's
daughter, K.B. A.M. testified to several incidents where Braunstein touched her
inappropriately, put ice into her underpants and retrieved it, frisked her, and touched her
breasts. On one occasion, A.M. was playing on the computer at Braunstein's home when
Braunstein,
__________

1
Evidence was also introduced that showed that Dr. Marc O'Connor had examined J.P. five years earlier for
suspected sexual abuse, but that the examination revealed no indication of sexual abuse.
Braunstein's home when Braunstein, who was alone with her at the time, accessed some
pornographic materials and made repeated sexual comments to her. At the same time,
Braunstein touched A.M.'s vagina through her clothes and fondled her breasts.
The jury ultimately returned guilty verdicts on both sexual assault counts and on two lesser
included counts of lewdness with a minor under the age of fourteen.
2
After the district court
had excused the jury, Braunstein objected that the verdicts were inconsistent. Braunstein also
moved for a new trial. After hearing arguments, the district court struck the convictions for
the two counts of lewdness.
On March 14, 2000, the district court sentenced Braunstein to two consecutive prison terms
of life with parole eligibility after twenty years. The judgment was entered on March 17,
2000, and Braunstein filed this timely appeal on April 13, 2000.
DISCUSSION
Braunstein first argues that the district court improperly admitted A.M.'s testimony.
Braunstein argues that the district court did not explicitly determine the relevance of the
evidence, state specifically why the evidence was clear and convincing, and only slightly
referenced the probative value of the evidence. In addition, Braunstein argues that the
incident was not similar to those with which he was charged.
[Headnote 1]
The trial court's determination to admit or exclude evidence of prior bad acts is a decision
within its discretionary authority and is to be given great deference. It will not be reversed
absent manifest error.
3
We conclude that the district court, after conducting a hearing outside
the presence of the jury, did not abuse its discretion in admitting A.M.'s testimony.
[Headnote 2]
The general rule for admitting evidence of prior bad acts is set forth in NRS 48.045(2).
4
In
determining whether such acts are admissible, the district court must conduct a hearing and
determine whether (1) the incident is relevant to the crime charged;
__________

2
Braunstein asked for and received an instruction on these two counts as lesser-included offenses of sexual
assault.

3
See Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765, 766 (1998).

4
NRS 48.045(2) states:
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.
(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.
5

This court has generally held inadmissible prior acts that are remote in time and involve
conduct different from the charged conduct.
6
This court has stated that the use of uncharged
bad acts is heavily disfavored and is likely to be prejudicial or irrelevant.
7
Prior bad act
evidence forces the accused to defend himself against vague and unsubstantiated charges and
may result in a conviction because the jury believes the defendant to be a bad person.
8
Thus,
using uncharged bad acts to show criminal propensity is forbidden and is commonly viewed
as grounds for reversal.
9

[Headnote 3]
We perceive no error in the district court's decision to admit A.M.'s testimony. In so ruling,
however, we specifically do not rely upon and today repudiate the legal proposition stated in
McMichael v. State
10
that evidence showing an accused possesses a propensity for sexual
aberration is relevant to the accused's intent.
In McMichael, the court quoted a 1956 Arizona case, State v. McDaniel, for the proposition
that
[c]ertain crimes today are recognized as stemming from a specific emotional
propensity for sexual aberration . . . . Even granting the general rule of inadmissibility
of evidence of independent crimes to prove the offense charged, many courts recognize
a limited exception in the area of sex crimes to prove the nature of the accused's
specific emotional propensity.
11

The McMichael court then noted that in sex crimes generally a more liberal judicial attitude
exists in admitting evidence of prior and subsequent proscribed sexual conduct.
__________

5
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).

6
Roever v. State, 114 Nev. 867, 872, 963 P.2d 503, 506 (1998) (in a case involving a woman's murder of her
husband, testimony recounting the defendant's prior violent behavior toward others and stories of extraordinary
past murders was so inflammatory, speculative, and utterly fantastic as to bear practically no probative value);
Beck v. State, 105 Nev. 910, 912, 784 P.2d 983, 984 (1989) (in a case involving a high school teacher's sexual
assault of one of his students, testimony by another student victim regarding a bad act that occurred sixteen years
earlier was deemed to be irrelevant as it involved a different bad act and was too remote in time).

7
Roever, 114 Nev. at 872, 963 P.2d at 506.

8
Id.

9
Id.

10
94 Nev. 184, 189, 577 P.2d 398, 401 (1978), overruled on other grounds by Meador v. State, 101 Nev.
765, 711 P.2d 852 (1985).

11
Id. (quoting State v. McDaniel, 298 P.2d 798, 802-03 (Ariz. 1956)).
and subsequent proscribed sexual conduct.
12
In McMichael, we upheld the trial court's
decision to admit evidence of other acts committed by the accused upon the complaining
witness. In McMichael, the trial court had analyzed the admissibility of the offered evidence
by careful application of NRS 48.045(2). The trial court had determined that the evidence was
admissible because it was probative of the issues of intent and absence of mistake or accident.
Resort by the McMichael court to McDaniel was as unnecessary as its conclusion that no
abuse in the admission of the evidence had occurred since the acts were similar, were
committed within a period immediately preceding and following the instant offense, and
involved sexual aberration.
13

We note that McDaniel was decided well before the promulgation of the first draft of the
Federal Rules of Evidence.
14
This case represents a common law approach that Nevada
abandoned when the Legislature enacted into law the evidence code. NRS 48.045(2) is
patterned after the relevant section of the first draft of the Federal Rules of Evidence and was
enacted in 1971 and therefore governed when McMichael was decided. The only appropriate
analysis of the evidence in McMichael was by application of NRS 48.045(2).
15
We question
whether the statute's reference to the admissibility of other crimes, wrongs or acts for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident should include the purpose of proving a propensity for
sexual aberration.
16
Evidence of such a propensity sounds much more like the kind of
inadmissible, bad character evidence prohibited by NRS 4S.045{1).
__________

12
Id.

13
Id. at 190, 577 P.2d at 402 (emphasis added).

14
The first draft of the proposed Federal Rules of Evidence was circulated in 1969. See Committee on Rules
of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules
of Evidence (U.S. Government Printing Office, 1969). In 1970, a proposed evidence code was circulated for the
State of Nevada which relied heavily upon and was substantially identical to the 1969 federal draft. See
Legislative Commission of the Legislative Counsel Bureau, A Proposed Evidence Code, Bulletin No. 90 (Nev.
1970). In turn, Nevada's proposed evidence code was passed into law with only minor changes in 1971. 1971
Nev. Stat., ch. 402, at 775 (providing for the harmonization and codification of Nevada's law on evidence (Act
of April 22, 1971)). Ultimately, the 1969 draft of the Federal Rules of Evidence was revised and promulgated by
the United States Supreme Court in 1973. H.R. Doc. No. 93-46, pt. 7 (1973). By adopting the 1969 draft,
Nevada enacted laws governing evidence which, while similar for the most part to the Federal Rules of
Evidence, also contain significant differences from the federal rules.

15
Nevada has not enacted statutes similar in any way to Federal Rules of Evidence 413 and 414 which were
added to the Federal Rules of Evidence in 1994.

16
Compare NRS 48.045(2), with McMichael, 94 Nev. at 190, 577 P.2d at 402.
more like the kind of inadmissible, bad character evidence prohibited by NRS 48.045(1).
[Headnote 4]
The doctrine of McMichael was extended out of its context in Findley v. State,
17
where the
court cited McMichael for the proposition that [e]vidence showing that an accused possesses
a specific emotional propensity for sexual aberration is relevant, and outweighs the
prejudicial possibility that a jury might convict for general rather than specific criminality.
18
Stated in this way, it appears the court determined as a matter of law that prejudice is
outweighed by relevance whenever other act evidence of sexual aberration is considered for
admission. This language and logic have persisted in our jurisprudence and, in our opinion,
unnecessarily so. This court now abandons McMichael, Findley and their progeny and returns
to an analysis of evidence of other sex crimes according to the parameters of NRS 48.045(2).
We specifically overrule the legal proposition enunciated in Findley that evidence of other
acts offered to prove a specific emotional propensity for sexual aberration is admissible and
that, when offered, it outweighs prejudice. In so doing we ensure that the trial courts will
always properly weigh the probative value of the evidence against the risk that the defendant
will be unfairly prejudiced by its admission.
[Headnote 5]
Here, the district court conducted a proper hearing outside the presence of the jury and
concluded that the State had established the prior bad act by clear and convincing evidence.
The court heard A.M.'s testimony and was presented with evidence that Braunstein had been
convicted of a crime in connection with his actions against A.M. The district court
determined that the prior bad act was relevant to prove a common scheme or plan
19
and was
proximate in time and that its admission was not substantially outweighed by the danger of
unfair prejudice. We cannot say that the district court's decision was manifestly erroneous.
The admission of the testimony was a proper exercise of the district court's discretion which
we will not disturb.
Braunstein's second argument is that the district court's failure to hold a pretrial hearing to
determine the trustworthiness of J.P.'s hearsay statements warrants automatic reversal.
__________

17
94 Nev. 212, 577 P.2d 867 (1978).

18
Id. at 215, 577 P.2d at 868 (emphasis added) (citing McDaniel, 298 P.2d 798).

19
This other act evidence is, in our view, also admissible to establish Braunstein's motive. The district court
found the act was also admissible pursuant to McMichael and Findley. Today, we reject the notion that other act
evidence is admissible to establish a specific emotional propensity for sexual aberration.
hearsay statements warrants automatic reversal. The State argues that the hearsay statements
were properly admitted in spite of the district court's failure to hold a pretrial hearing
regarding their admissibility. The State asks this court to clarify its previous decisions
concerning this issue and adopt a flexible approach that would allow this type of error to be
reviewable as harmless error. We conclude that the approach urged by the State is consistent
with this court's recent pronouncements. The requirement that the district court conduct a
trustworthiness hearing before admitting the hearsay statements of a child-victim of sexual
assault is found in NRS 51.385, which provides in relevant part:
1. In addition to any other provision for admissibility made by statute or rule of court, a
statement made by a child under the age of 10 years describing any act of sexual
conduct performed with or on the child or any act of physical abuse of the child is
admissible in a criminal proceeding regarding that act of sexual conduct or physical
abuse if:
(a) The court finds, in a hearing out of the presence of the jury, that the time, content
and circumstances of the statement provide sufficient circumstantial guarantees of
trustworthiness; and
(b) The child testifies at the proceeding or is unavailable or unable to testify.
20

This court previously concluded in Quevedo v. State
21
and Lytle v. State
22
that irrespective
of lack of objection by opposing counsel or confrontation of the victim at trial, failure to hold
a trustworthiness hearing pursuant to NRS 51.385 warrants reversal and requires a new
trial. Both Quevedo and Lytle involved testimony from adults relating to statements made to
them by the child-victims. The victims testified in both cases. Both cases were 3-2 decisions,
and neither Quevedo nor Lytle involved a confession by the defendant.
While Quevedo and Lytle each applied a strict rule of automatic reversal for the violation of
NRS 51.385, this court has also applied a harmless error analysis in a similar situation.
In Brust v. State,
23
the hearsay statements consisted of the victim's own videotaped
statements to a psychologist.
24
The child-victim had already testified and been
cross-examined when the tape was introduced.
__________

20
The Legislature amended NRS 51.385(1) during the 2001 legislative session. 2001 Nev. Stat., ch. 136, 1,
at 702. Because those amendments do not affect our decision, we have quoted the amended version of the
statute.

21
113 Nev. 35, 37, 930 P.2d 750, 751 (1997).

22
107 Nev. 589, 591, 816 P.2d 1082, 1083 (1991).

23
108 Nev. 872, 839 P.2d 1300 (1992).

24
Id. at 877, 839 P.2d at 1303.
tape was introduced.
25
Furthermore, the defendant had confessed to molesting the victim.
26
In considering the defendant's confession and the fact that the district court had heard the
victim's testimony before the hearsay statements were introduced, this court reasoned that
while the district court erred in not holding a trustworthiness hearing, it was harmless error
under those particular circumstances.
27
This court distinguished that case from Lytle, noting
that the district court in Brust knew what to expect from the videotape interview; hence, the
statements were merely repetitive.
28
In Lytle, the district court admitted hearsay statements
from five separate witnesses without prior knowledge of the content of their testimony.
29

More recently, in Lincoln v. State,
30
we held that the district court's failure to hold a
trustworthiness hearing was error, but the error was harmless. Lincoln was distinguished from
Lytle and Quevedo on the bases that the hearsay statements in question were tape-recorded
and the victim testified and was subject to cross-examination.
31

Factually, this case could be decided under either Brust and Lincoln, or Lytle and Quevedo.
The analysis under Brust and Lincoln acknowledges that a harmless error analysis applies and
contradicts the bright line rule of inadmissibility if a trustworthiness hearing is not held, as
decided in Lytle and Quevedo.
[Headnote 6]
We hold today that the failure to conduct a trustworthiness hearing under NRS 51.385 does
not warrant automatic reversal and that this error is subject to a harmless error analysis. We
expressly overrule our prior holdings in Lytle and Quevedo which yield a different result and
endorse the more reasoned approach offered by Brust and Lincoln.
When applying a harmless error analysis to hearsay statements admitted without a hearing as
required by NRS 51.385, the question of prime importance is whether or not the child to
whom the hearsay statements are attributed testified at trial. If the child did testify and was
subject to cross-examination, then no useful purpose is served by requiring, as urged by the
dissent, automatic reversal. An inquiry into the harm caused by the error is more appropriate.
We do not share the dissent's concern that only rarely will non-compliance with the hearing
requirement result in a reversal.
__________

25
Id.

26
Id. at 874, 839 P.2d at 1301.

27
Id. at 877, 839 P.2d at 1303.

28
See id. at 876-77, 839 P.2d at 1303.

29
See Lytle, 107 Nev. at 590, 816 P.2d at 1083.

30
115 Nev. 317, 988 P.2d 305 (1999).

31
Id. at 321, 988 P.2d at 307.
will non-compliance with the hearing requirement result in a reversal. Indeed, we do not rule
that whenever a victim testifies and is subject to cross-examination the failure to hold the
required trustworthiness hearing is always harmless error. We would not foreclose an
argument in the future that despite the victim's testimony at trial, the admission of hearsay
statements attributed to the victim constituted error resulting in prejudice to the defendant.
We agree that if the child does not testify, then admission of hearsay attributed to the child
should be thoroughly and carefully scrutinized at a hearing outside the jury's presence. The
district courts, we are confident, will conduct such hearings, and if by inadvertence they do
not, we will weigh the defendant's inability to conduct a cross-examination in our analysis of
whether the error was harmless.
[Headnote 7]
Here we conclude that the district court erred by failing to hold a trustworthiness hearing;
however, the error was harmless. Numerous indications of reliability surrounded the admitted
statements. First, J.P. made her statements to Nancy Gentis on her own accord and just six
days after the incident with Braunstein. The statements made to Gentis were consistent with
statements J.P. made to her cousin and her mother. Second, the statements made by J.P. to her
cousin, uttered over the course of three years, were described by her cousin as being said
while J.P. was emotionally upset and sometimes crying. J.P.'s described mental condition
while she made her statements to her cousin seems very appropriate to the circumstances and
is an indication of credibility. No evidence was offered to show that J.P. had any motive to
fabricate such statements. Furthermore, the statements introduced through the testimony of
either Gentis or J.P.'s cousin were consistent with J.P.'s in-court testimony. Because she was
fully cross-examined by defense counsel, Braunstein was not deprived of his opportunity to
test her credibility concerning these statements.
32

Braunstein's third argument is that the district court improperly denied his motion for a new
trial on the ground that the jury returned an inconsistent verdict. Braunstein objects to the
jury's guilty verdicts for both lewdness and sexual assault.
[Headnote 8]
We conclude that the district court properly determined that Braunstein cannot be convicted
of both lewdness and sexual assault. The crimes of sexual assault and lewdness are mutually
exclusive offenses.
33

__________

32
With regard to the testimony of J.P.'s cousin, Braunstein failed to object to her testimony at trial. Therefore,
Braunstein failed to preserve the issue for appeal. See Lord v. State, 107 Nev. 28, 38, 806 P.2d 548, 554 (1991).

33
See Townsend v. State, 103 Nev. 113, 120, 734 P.2d 705, 710 (1987).
NRS 200.366(1) defines sexual assault as follows:
A person who subjects another person to sexual penetration, or who forces another
person to make a sexual penetration on himself or another, or on a beast, against the
will of the victim or under conditions in which the perpetrator knows or should know
that the victim is mentally or physically incapable of resisting or understanding the
nature of his conduct, is guilty of sexual assault.
NRS 201.230 defines lewdness, in relevant part, as the willful and lewd commission of:
any lewd or lascivious act, other than acts constituting the crime of sexual assault,
upon or with the body, or any part or member thereof, of a child under the age of 14
years, with the intent of arousing, appealing to, or gratifying the lust or passions or
sexual desires of that person or of that child.
(Emphasis added.)
Here, the lewdness statute excludes from its definition acts constituting the crime of sexual
assault.
34
The crimes of sexual assault and lewdness are mutually exclusive and convictions
for both based upon a single act cannot stand. This court has consistently held that when a
defendant receives multiple convictions based on a single act, we will reverse redundant
convictions that do not comport with legislative intent.
35
We decline Braunstein's request
that we revisit our prior jurisprudence in this area. We, therefore, conclude that the district
court properly struck Braunstein's convictions for lewdness and properly denied Braunstein's
motion for a new trial.
Braunstein's final argument is that there is insufficient admissible evidence to support his
sexual assault convictions. We conclude that ample evidence was presented to support the
jury's verdict.
[Headnotes 9-12]
In reviewing evidence supporting a jury's verdict, this court must determine whether the jury,
acting reasonably, could have been convinced beyond a reasonable doubt of the defendant's
guilt by the competent evidence.
36
Where conflicting testimony is presented, the jury
determines what weight and credibility to give it.
37
We ask, [W]hether, 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.
__________

34
NRS 201.230.

35
Albitre v. State, 103 Nev. 281, 283, 738 P.2d 1307, 1309 (1987).

36
Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).

37
Bolden v. State, 97 Nev. 71, 72, 624 P.2d 20, 20 (1981).
have found the essential elements of the crime beyond a reasonable doubt.'
38

Here, the jury heard compelling evidence presented by J.P., her mother, her school counselor,
her cousin, and others that established that Braunstein had sexually assaulted her. The jury
also heard testimony that a physical examination of J.P. showed clear evidence of a
penetrating injury to her hymenal tissue. More than sufficient evidence existed to support the
jury's verdict.
CONCLUSION
We conclude that the district court did not err in admitting evidence of Braunstein's prior bad
acts. The district court's failure to hold a trustworthiness hearing is not grounds for automatic
reversal, and the district court's failure to hold such a hearing was harmless. The district court
properly denied Braunstein's motion for a new trial. Finally, sufficient evidence supports the
jury's verdict. Accordingly, we affirm Braunstein's convictions.
Shearing, Leavitt and Becker, JJ., concur.
Maupin, C. J., with whom Young, J., agrees, concurring:
I agree that the judgments of conviction in this matter should be affirmed.
I disagree, however, that this court should overturn Findley v. State
1
and McMichael v. State
2
as authority for the proposition that evidence showing that an accused poses a propensity
for sexual aberration may be relevant in prosecutions for sexual assault. In this, I believe that
both cases formulate a rule that is consistent with the exceptions to the general rule of
non-admissibility of other crimes, wrongs or acts under NRS 48.045(2) as proof of
character.
Rose, J., concurring in part and dissenting in part:
Accusations of child sexual assault are often hard to disprove, even when a defendant is
factually innocent. The majority strips yet another procedural safeguard from anyone accused
of this crime
1
and reverses a decade of precedent in the process.
__________

38
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).

1
19 Nev. 212, 214, 577 P.2d 867, 868 (1978).

2
94 Nev. 184, 188, 577 P.2d 398, 401 (1978), overruled on other grounds by Meador v. State, 101 Nev. 765,
711 P.2d 852 (1985).

1
In Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000), this court recently eliminated the requirement
that a person accused of child sexual assault be provided the assistance of a psychiatrist or psychologist if the
State uses such an expert witness in its prosecution. As I stated in my concurrence
NRS 51.385 requires that a district judge hold a hearing outside the presence of the jury to
determine the reliability of a hearsay statement made by a child under the age of ten before
admitting the statement into evidence for the jury's consideration. In several cases, we have
held that the law should be enforced as written and that it is mandatory to hold a reliability
hearing before admitting these hearsay statements.
2
There are good reasons for the law and
our holdings in Lytle and Quevedo.
First, there is always a concern that a witness can perceive and accurately relate what has
been seen, felt, or heard; and this is especially true when children testify. Hearsay statements
of children are usually testified to at trial by a parent, relative, health care provider, or law
enforcement officer. Not only is the reliability of the child's recollection of concern, but the
motives of and influences on the adult repeating the child's testimony in court are also
relevant to the reliability determination. It is not uncommon for an adult testifying about a
child's statements to be angry at the accused or to have a financial interest in the balance. A
reliability hearing determines if the repeated child's statements as testified to by an adult are
sufficiently trustworthy to be admitted in evidence.
Second, NRS 51.385 is an exception to the general rule that prohibits hearsay testimony. An
exception to a general rule should be strictly construed.
3
The repeated statements of a child
are often critical in a child sexual assault case and often damning to the defendantshould
not such important testimony that is ordinarily excluded be at least tested for reliability as
required by the law before it is presented to the jury?
Finally, the law itself is a directive, stating that a reliability hearing shall be held before child
hearsay statements are admitted. We should not lightly reject the legislature's concern for the
reliability of this type of testimony as well as jettison our prior precedents in the process.
We have held in two cases that a harmless error analysis is appropriate when the child hearsay
statements are those of the child on a videotape.
4
We reasoned that the tape of the testimony
was already in the possession of the district court and presumably reviewed by the district
judge and parties.
__________
to Koerschner, our previous rule providing for an accused to get the same expert assistance as the State in the
absence of compelling reasons to protect the child-victim provided for a trial that was fair to both parties. The
Koerschner decision eliminated this requirement, and, in my opinion, stripped the defendant of an important
procedural safeguard.

2
Lytle v. State, 107 Nev. 589, 591, 816 P.2d 1082, 1083 (1991); Quevedo v. State, 113 Nev. 35, 38, 930 P.2d
750, 751 (1997).

3
See generally 73 Am. Jur. 2d Statutes 313 (1974).

4
Lincoln v. State, 115 Nev. 317, 988 P.2d 305 (1999); Brust v. State, 108 Nev. 872, 839 P.2d 1300 (1992).
reviewed by the district judge and parties. In both cases, the child-victim testified and had
been cross-examined. The tapes were in large measure a repeat of the previous live testimony.
Another consideration in those cases was that the victim's own statements were on the tape
recordings, not those of another person recollecting what the child-victim told him or her as is
the case here. Three members of the majority recognized and approved this very exception to
the previously existing general rule, a general rule that they now reject.
I too have precious little sympathy for adults who sexually assault children, but we should
keep the process to determine guilt a fair and balanced one. We should save our
condemnation of the accused until after he or she is proven guilty, not remove safeguards
provided by the Legislature and previously approved by this court before guilt is established.
I am also concerned about the practical effect of subjecting all violations of NRS 51.385 to
the harmless error rule. This court seldom finds an error not to be cured by the harmless error
test. As a practical matter, the standard will now be that hearsay statements of children are
admissible regardless of compliance with NRS 51.385, and it will only be the rare case that is
reversed for non-compliance. When NRS 51.385 is violated in the future, this court will be
compelled to search the record, as we have done in this case, to find that guilt was
overwhelming or to find that the statements were reliable so that we may conclude that any
error was harmless.
In effect, NRS 51.385 is written out of the law by the majority opinion. A better process
would be to require the district attorneys and the district judges to comply with the law as
written or retry the casethe approach this court had taken during the past decade.
I do agree with the majority's insightful rejection of McMichael v. State and its progeny,
5
that
have supported the admission of evidence showing an accused's propensity for sexual
aberration to establish his intent.
Therefore, I respectfully concur in part and dissent in part, and would reverse this case based
on our prior precedents.
__________

5
94 Nev. 184, 577 P.2d 398 (1978), overruled on other grounds by Meador v. State, 101 Nev. 765, 711 P.2d
852 (1985).
____________
118 Nev. 83, 83 (2002) State, Bus. & Indus. v. Granite Constr.
THE STATE OF NEVADA, DEPARTMENT OF BUSINESS AND INDUSTRY, OFFICE
OF THE LABOR COMMISSIONER; and TERRY JOHNSON, in His Capacity as
Labor Commissioner of the State of Nevada, Appellants, v. GRANITE
CONSTRUCTION COMPANY, Respondent.
No. 36881
February 13, 2002
40 P.3d 423
Appeal from an order of the district court granting a petition for judicial review. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Public contractor filed petition for judicial review after the Labor Commission determined
that contractor should pay the prevailing wage to truck drivers who transported materials
from borrow pits to highway construction sites. The district court granted the petition after
determining that the truck drivers were not employed at the site of the work. State and
Labor Commissioner appealed. The supreme court held that the truck drivers were entitled to
the prevailing wage.
Reversed and remanded with instructions.
Frankie Sue Del Papa, Attorney General, and Dianna Hegeduis, Deputy Attorney General,
Carson City, for Appellants.
Bible Hoy & Trachok and Mark J. Lenz, Reno, for Respondent.
Dennis A. Kist & Associates and David R. Ford, Las Vegas, for Amicus Curiae International
Brotherhood of Teamsters Local 631.
Elizabeth Nadeau, Washington, D.C., for Amicus Curiae Operating Engineers and Teamsters.
Levy, Stern & Ford and Lewis N. Levy, Los Angeles, California; Sherman, Dunn, Cohen,
Leifer & Yellig, Washington, D.C., for Amicus Curiae Building and Construction Trades
Department, AFL-CIO, Operating Engineers and Teamsters.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP and Paul J. Georgeson,
Reno, for Amicus Curiae Associated General Contractors.
Michael E. Langton, Reno, for Amicus Curiae Building and Construction Trades Council of
Northern Nevada.
Neil Ditchek, Washington, D.C., for Amicus Curiae International Brotherhood of Teamsters.
Questions of law are reviewed de novo.
2. Statutes.
A reviewing court may undertake independent review of the administrative construction of a statute.
3. Labor Relations.
Truck drivers were entitled to the prevailing wage for transporting materials from borrow pits to state highway construction site,
as activity performed at borrow pits was part of the construction work necessary to the project, such that the borrow pits were a site of
the work, truck drivers unloaded materials directly onto roadway for immediate incorporation into project, and borrow pits were not
commercial pits but used for Department of Transportation (NDOT) projects. NRS 338.040.
4. Statutes.
When the language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go
beyond it.
5. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is ambiguous, and the plain meaning rule has no
application.
6. Statutes.
When a statute is ambiguous, the intent of the legislature is the controlling factor in statutory interpretation.
7. Statutes.
When a federal statute is adopted in a state statute, a presumption arises that the legislature knew and intended to adopt the
construction 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.
8. Administrative Law and Procedure; Statutes.
Although appellate court reviews questions of statutory construction de novo, an administrative agency charged with the duty of
administering an act is impliedly clothed with the power to construe the relevant laws, and the construction placed on a statute by the
agency charged with the duty of administering it is entitled to deference.
OPINION
Per Curiam:
This appeal involves the interpretation of NRS 338.040, Nevada's prevailing wage law.
Specifically, we are asked to determine the meaning of the phrase at the site of the work.
The Labor Commission interprets the phrase to include locations other than the actual place
where a public works project is situated. The district court, in a petition for judicial review
proceeding, found that the phrase is limited to the actual physical location of the public
project being constructed. We conclude that the phrase at the site of the work can include
the transportation of materials from the remote location where they are assembled to the main
public project construction site.
project construction site. We therefore reverse the order of the district court granting the
petition for judicial review and remand this matter to the district court.
FACTS
In 1997 and 1998, the Nevada Department of Transportation (NDOT) awarded Granite
Construction Company, a general contractor engaged in the construction of public works,
three separate road construction contracts: (1) Contract No. 2829 near Emigrant Pass,
Nevada; (2) Contract No. 2886 near Battle Mountain, Nevada; and (3) Contract No. 2949
near Trinity, Nevada. The construction work on these projects consisted of building and
resurfacing portions of the state highway system.
The contracts provided that Granite could either manufacture the aggregate for the highways
from pits leased by the State (borrow pits) or purchase the aggregate from independent
third-party suppliers. Granite ultimately used three borrow pits. Suzie Creek Pit No. EL81-01,
used for the Emigrant Pass project, was located approximately five miles from the nearest end
of that project. Pit No. HU83-06, used for the Battle Mountain project, was located
approximately four miles from the nearest end of the project. Finally, Pit No. CH30-02, used
for the Trinity project, was located approximately fifty-six miles from the nearest end of that
project.
Borrow pits contain raw material that Granite processed to produce aggregate meeting the
contract specifications. Because Granite needed to process the raw material, it was not
charged for the use of the pits. The State of Nevada had acquired rights to use the pits for
state projects in general. Thus, none of the pits was solely or exclusively dedicated to the road
construction projects in this case.
As part of the projects, Granite subcontracted with several trucking companies to haul the
processed materials for the road construction projects from the pits to the projects. At the pits,
Granite employees would crush the raw material, load and weigh the dump trucks, and
provide the drivers with a load slip. The drivers would then drive four, five, or fifty-six
miles to their respective projects. Upon arrival, a Granite employee would direct the driver to
the desired location and operate the dump control apparatus on the truck to unload the
materials. The Granite employee would then direct the truck driver to move forward as the
material was deposited on the roadbed. The drivers generally would not get out of their trucks
at the construction site and, once the current load was laid, the drivers would return to the pits
for another load.
Although it paid the prevailing wage to its employees at the pits, Granite did not pay the
prevailing wage to the truck drivers.
Granite did not pay the prevailing wage to the truck drivers.
1
Eventually, NDOT learned that
Granite was not paying the truck drivers the prevailing wage. As a result, NDOT withheld
payment of approximately $225,000.00 on the contracts and notified the Labor Commission
of the alleged violation. The Commission conducted an administrative investigation into
Granite's activities on the project and eventually advised Granite to pay the truck drivers the
prevailing wage.
Granite then petitioned the Labor Commission for a declaratory order, asserting that an
aggregate material source is not at the site of the work for purposes of NRS 338.040. The
matter was assigned to a hearing officer who concluded that the truck drivers were entitled to
the prevailing wage under NRS 338.040 because the borrow pits were part of the site of the
work and because the truck drivers were necessary to the execution of the contracts.
Granite filed a petition for judicial review, which the district court granted after concluding
that the truck drivers were not employed at the site of the work and were therefore not
entitled to the prevailing wage.
DISCUSSION
[Headnotes 1, 2]
The question before this court is one of statutory construction, namely, the meaning and
scope of NRS 338.040, Nevada's prevailing wage law. Questions of law are reviewed de
novo.
2
[A] reviewing court may undertake independent review of the administrative
construction of a statute.
3

[Headnote 3]
Nevada's prevailing wage law guarantees prevailing wages to mechanics, workers and
laborers in the performance of public work.
4
Also referred to as the Little Davis-Bacon Act
after its federal counterpart,
5
NRS 338.040 specifies who is entitled to receive prevailing
wages.
6
Specifically, the version of NRS 33S.040
__________

1
Granite stated that it pays the prevailing wage to its employees pursuant to its union contracts, not because it
believes the work performed at the borrow pits falls within the prevailing wage law.

2
SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).

3
American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983).

4
NRS 338.020 (1999).

5
40 U.S.C. 276a(a) (2001).

6
NRS 338.040 (1999).
338.040 in effect in 1999
7
provided: Workmen employed by contractors or subcontractors
or by public bodies at the site of the work and necessary in the execution of any contract for
public works are deemed to be employed on public works.
8

[Headnotes 4-6]
To determine the scope of Nevada's prevailing wage law, we first look to the relevant
statutory language. It is well established that when the language of a statute is plain and
unambiguous, a court should give that language its ordinary meaning and not go beyond it.
9
However, if a statute is susceptible to more than one natural or honest interpretation, it is
ambiguous, and the plain meaning rule has no application.
10
When a statute is ambiguous,
the intent of the legislature is the controlling factor in statutory interpretation.
11

NRS 338.040 does not specifically define the term at the site of the work. The Labor
Commission contends that the term must be read in conjunction with the words necessary in
the execution of any contract for the public works. Read together, the Labor Commission
asserts that the statute encompasses construction work necessary to the public works project
performed at locations other than the project site. Thus, at the site of the work includes all
locations where workers perform work necessary to the execution of a public works contract,
as well as transporting materials to and from such locations.
Granite asserts that the words at the site of the work connotes a clear geographical
limitation on those entitled to compensation at the prevailing wage rate
__________

7
The statute was amended in 2001, and the current version of NRS 338.040 provides:
1. Except as otherwise provided by specific statute, workmen who are:
(a) Employed at the site of a public work; and
(b) Necessary in the execution of the contract for the public work,
are deemed to be employed on public works.
2. The labor commissioner shall adopt regulations to define the circumstances under which a
workman is:
(a) Employed at the site of a public work; and
(b) Necessary in the execution of the contract for the public work.
Our decision today is based on the 1999 version of NRS 338.040. We express no opinion on what the outcome
of this case would be under the current version of the statute.

8
NRS 338.040 (1999).

9
City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989).

10
Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990).

11
Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983).
sation at the prevailing wage rate and restricts coverage to employees working on the physical
site of the public work being constructed, in this case the highways.
[Headnote 7]
We conclude that both are reasonable interpretations of the statute. Because the statute is
susceptible to more than one honest interpretation, it is ambiguous, and we turn to legislative
intent. As noted above, Nevada's prevailing wage law is derived from the federal
Davis-Bacon Act. When 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.
12

The Davis-Bacon Act, enacted by Congress in 1931, provides in pertinent part:
(a) The advertised specifications for every contract in excess of $2,000 to which the
United States or the District of Columbia is a party, for construction . . . or public
works . . . shall contain a provision stating the minimum wages to be paid various
classes of laborers and mechanics . . . and every contract based upon these
specifications shall contain a stipulation that the contractor or his subcontractor shall
pay all mechanics and laborers employed directly upon the site of the work . . . [the
prevailing wage].
13

29 C.F.R. 5.2(l), the regulation promulgated by the Secretary of Labor pursuant to the
Davis-Bacon Act, defines the term site of the work for purposes of the Act as follows:
(1) The site of the work is the physical place or places where the building or work
called for in the contract will remain; and any other site where a significant portion of
the building or work is constructed, provided that such site is established specifically
for the performance of the contract or project;
(2) Except as provided in paragraph (l)(3) of this section, job headquarters, tool yards,
batch plants, borrow pits, etc., are part of the site of the work, provided they are
dedicated exclusively, or nearly so, to performance of the contract or project, and
provided they are adjacent or virtually adjacent to the site of the work as defined in
paragraph (l)(1) of this section;
__________

12
Sharifi v. Young Bros., Inc., 835 S.W.2d 221, 223 (Tex. App. 1992) (citation omitted).

13
40 U.S.C. 276a(a) (2001) (emphasis added).
(3) Not included in the site of the work are permanent home offices, branch plant
establishments, fabrication plants, tool yards, etc., of a contractor or subcontractor
whose location and continuance in operation are determined wholly without regard to a
particular Federal or federally assisted contract or project. In addition, fabrication
plants, batch plants, borrow pits, job headquarters, tool yards, etc., of a commercial or
material supplier, which are established by a supplier of materials for the project before
opening of bids and not on the site of the work as stated in paragraph (l)(1) of this
section, are not included in the site of the work. Such permanent, previously established
facilities are not part of the site of the work, even where the operations for a period of
time may be dedicated exclusively, or nearly so, to the performance of a contract.
14

Federal circuit courts interpreting the Davis-Bacon Act have concluded, consistent with 29
C.F.R. 5.2(l), that the statutory phrase directly upon the site of the work limits coverage
under the Act to employees working directly on, or virtually adjacent to, the physical site of
the public work under construction.
15

Granite is correct that, under the federal law, the borrow pits at issue here would not be
considered a part of the site of the work because they are neither dedicated exclusively to the
performance of these particular highway projects nor virtually adjacent to the project sites.
However, the Nevada Legislature did not entirely adopt the language of the federal act when
it passed NRS 338.040. The Nevada Legislature omitted the words directly upon, used in
the federal act, and instead adopted the phrase at the site of the work to describe coverage
under NRS 338.040.
Because of this change in language, the statutory provisions of the federal act and Nevada's
act are not substantially similar. The Legislature intended the scope of NRS 338.040 to be
broader than that of the Davis-Bacon Act when it selected the phrase at the site of the work
instead of directly upon the site of the work. Thus, the federal cases cited by Granite are not
controlling in determining the coverage of Nevada's act. The federal act, by its plain
language,
__________

14
29 C.F.R. 5.2(l) (2001).

15
L.P. Cavett Co. v. U.S. Dept. of Labor, 101 F.3d 1111, 1115 (6th Cir. 1996) (holding that truck drivers
hauling asphalt from a batch plant to a highway site were not employed directly upon the site of the work
pursuant to Davis-Bacon Act); Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1453 (D.C. Cir. 1994)
(holding that workers in borrow pits and batch plants two miles from the construction site were not employed
directly upon the site of the work pursuant to Davis-Bacon Act); Building Const. Trades Dept. v. Dept. of
Labor, 932 F.2d 985, 986 (D.C. Cir. 1991) (holding that the statutory language directly upon the site of the
work restricts coverage of the Davis-Bacon Act to the geographical confines of the actual project site).
plain language, is more restrictive than Nevada's act, and the omission of the words directly
upon from the language of NRS 338.040 leads to the conclusion that the Nevada Legislature
did not intend geographic proximity to be determinative of coverage under Nevada's
prevailing wage law. Rather, the adoption of the language at the site of the work suggests
that the Legislature intended geographic proximity to be just one factor in determining
coverage under the statute.
Our reasoning is consistent with the manner in which other states have interpreted their
prevailing wage laws. Although each state's statute and/or regulations are not identical to
ours, other states have broadly interpreted their prevailing wage laws to encompass activities
performed at ancillary locations based upon the failure of their state statutes to use the federal
directly upon language.
16

The hearing officer in this case found that the truck drivers were entitled to the prevailing
wage pursuant to NRS 338.040 because the activity performed by Granite employees at the
borrow pits was part of the construction work necessary to the project. Thus, the borrow pits
were a site of the work. The hearing officer distinguished the facts of this case from the
situation where truck drivers simply deliver materials to be stockpiled at a construction site,
activity that, according to the Commissioner, is not covered under the Act. Here, the truck
drivers were transporting the materials from an ancillary site to the main site, much like
forklift operators moving materials from stockpiles to workers within a single site. Based
upon the facts of the case and the Labor Commission's interpretation of the statute, the
hearing officer found that the truck drivers were entitled to be paid at the prevailing wage
rate.
[Headnote 8]
Although we review questions of statutory construction de novo, an administrative agency
charged with the duty of administering an act is impliedly clothed with the power to construe
the relevant laws . . . and the construction placed on a statute by the agency charged with the
duty of administering it is entitled to deference.
17

__________

16
See, e.g., Sharifi v. Young Bros., Inc., 835 S.W.2d 221, 223 (Tex. App. 1992) (holding that truck driver
delivering materials to a public works construction site was entitled to the prevailing wage); Superior Asphalt v.
Department of Labor, 929 P.2d 1120, 1123 (Wash. Ct. App. 1997) (holding that truck drivers delivering
material and incorporating the materials into the project are entitled to prevailing wages); Green v. Jones, 128
N.W.2d 1, 7 (Wis. 1964) (holding that truck drivers whose materials were distributed over the surface of the
roadway immediately after their arrival at construction site were entitled to prevailing wages).

17
Elliot v. Resnick, 114 Nev. 25, 32 n.1, 952 P.2d 961, 966 n.1 (1998).
Our review of the record supports the hearing officer's determination. Specifically, the record
reveals that, with regard to the Emigrant Pass project, the Suzie Creek Pit used for that
project was located only five miles from the nearest end of the project. At the pit, Granite
employees crushed materials that were loaded into the dump trucks for transport. The truck
drivers then hauled the materials to the actual physical site of the road construction. Upon
arrival, the truck drivers unloaded the materials directly onto the roadway for immediate
incorporation into the project. The record further reveals that the public works contract for the
Emigrant Pass project described the work covered by the contract to include placing
plantmix bituminous surfacing, and placing plantmix bituminous open-graded surfacing.
Finally, although the borrow pit used for that project was not solely or exclusively dedicated
to the project, it was not a commercial pit, and the State of Nevada had acquired its use for
NDOT projects. Thus, we conclude that the hearing officer's determination was supported by
substantial evidence, did not violate NRS 338.040, and is therefore entitled to deference.
Accordingly, we conclude that the district court erred by granting Granite's petition for
judicial review.
18

CONCLUSION
We conclude that the scope of NRS 338.040 is broader than that of the federal act and that the
truck drivers transporting materials from one part of the construction site to another, where
the materials were immediately incorporated into the project, are entitled to receive prevailing
wages. Accordingly, we reverse the district court's order granting the petition for judicial
review. On remand, the district court shall deny the petition for judicial review and affirm the
hearing officer's decision that the truck drivers in this case are entitled to receive prevailing
wages.
19

__________

18
The parties stipulated that only evidence related to the Emigrant Pass project would be presented at the
hearing, but that the hearing officer's decision would apply to all three contracts. Therefore, we need not
consider whether the truck drivers delivering materials related to the Battle Mountain and Trinity, Nevada,
projects were covered under Nevada's prevailing wage law.

19
The Honorable A. William Maupin, Chief Justice, voluntarily recused himself from participation in the
decision of this matter.
____________
118 Nev. 92, 92 (2002) Lowe Enterprises v. Dist. Ct.
LOWE ENTERPRISES RESIDENTIAL PARTNERS, L.P., a California Limited Partnership;
CALIFORNIA INDEMNITY INSURANCE COMPANY; and COMMERCIAL
CASUALTY INSURANCE COMPANY, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF
CLARK, and THE HONORABLE MICHAEL CHERRY, District Judge,
Respondents, and ROBERT V. JONES, in His Individual Capacity and in His
Capacity as Trustee of the Scotsman Trust; THE ROBERT V. JONES COMPANY;
THE ROBERT V. JONES CORPORATION, and THE SANCTUARY, LTD., Real
Parties in Interest.
No. 37003
February 13, 2002
40 P.3d 405
Original petition for a writ of mandamus or prohibition challenging a district court order
denying petitioners' motion to strike real parties in interest's jury demand.
Lender brought action against borrower and guarantors for breach of contract, unjust
enrichment, fraud and negligent misrepresentation after borrower defaulted on loan. Borrower
and guarantors counterclaimed and demanded jury trial. Lender moved to strike jury demand
due to provision in loan documents, and the district court denied the motion. Lender
petitioned for writ of mandamus. The supreme court, Agosti, J., held that: (1) mandamus was
available to lender; (2) as a matter of first impression, contractual jury trial waivers are
enforceable when they are entered into knowingly, voluntarily and intentionally; and (3)
waiver was entered into knowingly, voluntarily and intentionally.
Petition granted.
Smith Larsen & Wixom, Las Vegas; Irell & Manella, LLP, and Andra Barmash Greene,
Newport Beach, California, for Petitioner Lowe Enterprises.
Schreck Brignone Godfrey and James J. Pisanelli and Nikki L. Baker, Las Vegas, for
Petitioners California Indemnity Insurance Company and Commercial Casualty Insurance
Company.
James J. Lee, Las Vegas, for Real Parties in Interest.
1. Mandamus.
Mandamus was available to lender, whose motion to enforce contract provision in which borrower waived right to jury trial was
denied, as there was not a plain, speedy and adequate remedy in the ordinary course of law; validity of contractual jury trial waivers in
state was a matter of great importance, and if lender had to wait to challenge the denial it would have too difficult a burden to
meet on appeal
would have too difficult a burden to meet on appeal as it would have to show that the error substantially affected its rights, and that, in
the absence of such error, the outcome of the case would have been different.
2. Jury.
Contractual jury trial waivers are enforceable when they are entered into knowingly, voluntarily and intentionally.
3. Jury.
Contractual jury trial waivers are presumptively valid unless the challenging party can demonstrate that the waiver was not
entered into knowingly, voluntarily or intentionally.
4. Jury.
The factors to consider in determining whether a contractual waiver of the right to jury trial was entered into knowingly and
voluntarily include but are not limited to: (1) the parties' negotiations concerning the waiver provision, if any; (2) the conspicuousness
of the provision; (3) the relative bargaining power of the parties; and (4) whether the waiving party's counsel had an opportunity to
review the agreement.
5. Jury.
Borrower and guarantors knowingly, voluntarily and intentionally waived their right to a jury trial in real estate contracts with
lender, despite assertions of unequal bargaining power; there were no allegations that loan documents did not contain waiver, that the
waiver was not conspicuous, or that the waiver was involuntarily obtained, and borrower and guarantors were represented by counsel
and had prior experience in real estate.
6. Jury.
Statute, providing that it is against public policy for any document relating to the sale of real estate to contain any provision that
waives any right secured to a mortgagor or guarantor by state law, did not preclude contractual waiver of the right to trial by jury;
statute's intent was to protect the rights created by state's anti-deficiency legislation, not to protect the right to a jury trial. NRS 40.453.
OPINION
In October 1996, The Robert V. Jones Corporation contracted to purchase certain real
property from a third party not related to this proceeding. Thereafter, The Sanctuary, Ltd.
(Sanctuary) was created to develop a residential community project on the property. The
petitioner, Lowe Enterprises Residential Partners, L.P. (Lowe), made a loan to Sanctuary
for the development of the project. In connection with the loan, the parties executed various
loan documents. Additionally, Robert V. Jones, individually, The Robert Jones Company and
The Robert V. Jones Corporation executed a payment guaranty to absolutely and
unconditionally guarantee[ ] the loan.
The relations between the parties soured when Sanctuary, Robert V. Jones, The Robert V.
Jones Company and The Robert V. Jones Corporation (collectively real parties in interest)
allegedly defaulted on the loan and the payment guaranty. Consequently, Lowe filed suit in
district court against real parties in interest alleging breach of contract, unjust enrichment,
fraud and negligent misrepresentation. Real parties in interest counterclaimed, cross-claimed
and demanded a jury trial.
Lowe filed a motion to strike the jury demand, arguing that real parties in interest were
precluded from making a jury demand because they knowingly, voluntarily and specifically
waived their right to try this case before a jury in the loan documents and payment guaranty.
Lowe set forth the following language contained in section 1.26(b) of the loan documents:
BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND
FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING
TO THE INDEBTEDNESS SECURED HEREBY OR ANY CONDUCT, ACT OR
OMISSION OF LENDER, TRUSTEE OR BORROWER, OR ANY OF THEIR
DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR - ANY OTHER PERSONS AFFILIATED WITH LENDER,
TRUSTEE OR BORROWER, IN EACH O[F] THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Lowe also cited section 6.1.9 of the payment guaranty which reads as follows:
Guarantor hereby waives to the extent permissible by law . . . the right to trial by jury in
any litigation arising out of, relating to, or connected with this Guaranty, it being
acknowledged by each Guarantor that each Guarantor is a professional developer
engaged and knowledgeable in sophisticated commercial real estate transactions, and
that each Guarantor makes this waiver of trial by jury knowingly and voluntarily and
only after consultation with sophisticated legal counsel of Guarantors' choosing.
Also, section 6.2 of the payment guaranty provided that [i]t is agreed between Guarantor and
Lender that the foregoing waivers are of the essence of the Loan transaction and that, but for
this Guaranty and such waivers, Lender would decline to make the Loan.
Loan. Therefore, Lowe urged the district court to strike the jury demand because real parties
in interest contractually waived their right to a trial by jury.
1

Real parties in interest argued that the jury trial waivers contained in the various loan
documents were unenforceable as a matter of law under NRS 40.453 which provides that it is
against public policy for any document relating to the sale of real estate to contain any
provision that waives any right secured to a mortgagor or guarantor by Nevada law.
Accordingly, because the various loan documents related to the financing and sale of real
property, real parties in interest asserted that NRS 40.453 precluded the district court from
enforcing the contractual jury trial waivers.
Petitioners finally argued that the waivers were enforceable because real parties in interest
were sophisticated borrowers who knowingly, voluntarily and unambiguously waived their
jury trial rights. Petitioners also argued that real parties in interest misconstrued NRS 40.453
beyond the statute's intended purpose, namely, the protection of rights under Nevada's
anti-deficiency legislation.
On October 5, 2000, without hearing arguments from the parties, and without addressing the
arguments raised by the parties in their briefs, the district court denied petitioners' motion to
strike the jury demand. The district court reasoned that the right to a jury trial was too
important to be precluded by the waiver. Accordingly, the district court entered an order
denying petitioners' motion to strike the jury demand.
Petitioners now seek a writ of mandamus from this court compelling the district court to
strike real parties in interest's jury demand.
Extraordinary review is available in this case
[Headnote 1]
Under NRS 34.160, this court may issue a writ of mandamus to compel the performance of an
act that the law requires as a duty resulting from an office, trust or station.
2
Extraordinary
relief will only issue where there is not a plain, speedy and adequate remedy in the
ordinary course of law.
__________

1
Petitioners California Indemnity Insurance Company (Cal Indemnity) and Commercial Casualty Insurance
Company (Commercial Casualty) joined in Lowe's motion to strike the jury demand. Both Cal Indemnity and
Commercial Casualty loaned money to real parties in interest using loan documents that contained jury waivers.
Cal Indemnity and Commercial Casualty were originally brought into the case as third-party defendants.

2
NRS 34.160 provides:
The writ may be issued by the supreme court, a district court or a judge of the district court, to compel the
performance of an act which the law especially enjoins as a duty resulting from an office, trust or station;
or
quate remedy in the ordinary course of law.
3
Petitioners argue that if they had to wait to
challenge the district court's denial of their motion to strike the jury demand on appeal,
petitioners would have to show that they were actually prejudiced by the district court's
grant of a jury trial. The petitioners contend that actual prejudice resulting from the grant of a
jury trial is too difficult a burden to meet upon appellate review. Accordingly, the petitioners
seek a writ of mandamus pursuant to NRS 34.160. Petitioners assert that such extraordinary
review is warranted because no other plain, speedy or adequate remedy exists.
In support of this argument, petitioners cite to this court's decision in El Cortez Hotel, Inc. v.
Coburn.
4
In El Cortez, we held that in order to establish grounds for reversal, the appellant
must show that the errors complained of would have so substantially affected its rights that it
could be reasonably assumed that if it were not for the alleged errors, a different result might
reasonably have been expected.
5
Accordingly, petitioners assert that extraordinary review is
available because it would be almost impossible for them to show that the grant of a jury trial
substantially affected their rights.
6

Although we have not addressed the issue of whether extraordinary review is available when
a district court denies a party's motion to strike a jury demand, we note that other jurisdictions
have addressed the issue.
7
In Beasley v. Wells Fargo Bank, the California Court of Appeals
stated
__________
to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled
and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person. When
issued by a district court or a judge of the district court it shall be made returnable before the district
court.

3
NRS 34.170.

4
87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971).

5
Id.; accord Olivero v. Lowe, 116 Nev. 395, 402, 995 P.2d 1023, 1028 (2000) (stating that reversal of verdict
rendered in bench trial was not warranted because the error would not have affected the outcome of trial).

6
See Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 667, 448 P.2d 46, 50 (1968) (stating that [t]he burden
is upon the appellant to show the probability of a different result).

7
See Ex parte Wells, 582 So. 2d 1134, 1136-37 (Ala. Civ. App. 1991) (holding that respondent had no right
to a jury trial and that a writ of mandamus was warranted because the trial court abused its discretion in not
granting petitioner's motion to strike the jury demand); Trizec Properties v. Superior Court, 280 Cal. Rptr. 885,
886-87 (Ct. App. 1991) (holding that a writ of mandate was warranted to direct the trial court to set aside its
order denying petitioner's motion to strike real parties in interest's request for a jury trial because real parties in
interest waived their right to a jury trial in the parties' commercial lease agreement); Pacific Telephone and
Telegraph Co. v. Superior Court, 72 Cal. Rptr. 177, 180 (Ct. App. 1968) (holding that a writ of prohibition was
warranted because the trial court improperly granted a jury trial in a civil contempt case).
California Court of Appeals stated that extraordinary writ proceedings were an expedient way
to resolve such an issue.
8
Additionally, in Ex parte SouthTrust Bank of Alabama, N.A., the
Alabama Supreme Court issued a writ of mandamus directing the trial court to grant the
defendant's motion to strike the plaintiff's jury demand.
9
The court concluded that since the
plaintiff's claims were equitable in nature, writ relief was appropriate because the plaintiff
was not entitled to a jury trial under Alabama law.
10

Similarly, we conclude that extraordinary review is available in this case because there is not
a plain, speedy and adequate remedy in the ordinary course of law.
11
If petitioners had to
wait to challenge the district court's denial of their motion to strike the jury demand on
appeal, petitioners would have too difficult a burden to meet upon appellate review. The
burden would be too difficult because Nevada case law requires appellants to show that the
error complained of substantially affected their rights. Further, Nevada case law requires
appellants to show that, in the absence of such error, the outcome of the case would have
been different.
Additionally, extraordinary review is available because the validity of contractual jury trial
waivers in Nevada is a matter of great importance. We have previously stated that where an
important issue of law needs clarification and public policy is served by this court's
invocation of its original jurisdiction, our consideration of a petition for extraordinary relief
may be justified.'
12
Clearly, the validity of contractual jury trial waivers is an important
issue of Nevada law that needs clarification, and public policy would be served by our
invocation of original jurisdiction.
Contractual jury trial waivers are valid and enforceable in Nevada
The issue of whether a contractual jury trial waiver is valid and enforceable in Nevada is one
of first impression for this court. Most courts addressing the issue have held that such waiver
provisions are enforceable if they are knowingly, voluntarily and intentionally made. Various
federal circuit courts have determined that the constitutional right to a jury trial in civil cases
may be knowingly and intentionally waived.
13
For instance, the Fourth Circuit Court of
Appeals stated that
__________

8
1 Cal. Rptr. 2d 446, 453 (Ct. App. 1991).

9
679 So. 2d 645, 649 (Ala. 1996).

10
Id.

11
NRS 34.170.

12
Falcke v. Douglas County, 116 Nev. 583, 586, 3 P.3d 661, 662-63 (2000) (quoting Business Computer
Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)).

13
See Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835, 837 (10th Cir. 1988) (stating that contractual
jury trial waivers are enforceable if they
Circuit Court of Appeals stated that [t]he seventh amendment right [to a trial by jury] is of
course a fundamental one, but it is one that can be knowingly and intentionally waived by
contract.
14
Additionally, federal district courts have overwhelmingly concluded that such
waivers are valid and enforceable if knowingly, voluntarily and intentionally made.
15
Finally,
many state courts have reached similar conclusions.
16
The underlying policies favoring the
enforcement of contractual jury trial waivers include the freedom to contract and
concerns of judicial economy.
__________
are entered into knowingly, voluntarily and intentionally because they are neither illegal nor contrary to public
policy); Leasing Service Corp. v. Crane, 804 F.2d 828, 832 (4th Cir. 1986) (stating that the right to a jury trial
in a civil case can be knowingly and intentionally waived by contract); K.M.C. Co., Inc. v. Irving Trust Co., 757
F.2d 752, 755 (6th Cir. 1985) (stating that the constitutional right to jury trial may only be waived if done
knowingly, voluntarily and intentionally); National Equipment Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d
Cir. 1977) (stating that the right to a jury trial can only be relinquished knowingly and intentionally).

14
Leasing Service Corp., 804 F.2d at 832.

15
See Morgan Guar. Trust Co. of New York v. Crane, 36 F. Supp. 2d 602, 603 (S.D.N.Y. 1999) (stating that
[t]he parties to a contract may, by prior written agreement entered into knowingly and voluntarily, waive the
right to a jury trial); Cooperative Finance Ass'n, Inc. v. Garst, 871 F. Supp. 1168, 1171 (N.D. Iowa 1995)
(stating that a party may contractually waive its right to jury trial if the waiver provision was knowingly and
voluntarily made); Whirlpool Financial Corp. v. Sevaux, 866 F. Supp. 1102, 1105 (N.D. Ill. 1994) (stating that
contractual jury trial waivers can be enforceable); Phoenix Leasing Inc. v. Sure Broadcasting, Inc., 843 F. Supp.
1379, 1384 (D. Nev. 1994) (holding that the right to a jury may be contractually waived as long as the waiver is
knowingly and voluntarily executed); Smyly v. Hyundai Motor America, 762 F. Supp. 428, 429 (D. Mass. 1991)
(stating that contractual jury trial waivers are enforceable if they are knowingly and intentionally made);
Smith-Johnson Motor Corp. v. Hoffman Motors Corp., 411 F. Supp. 670, 677 (E.D. Va. 1975) (stating that
contractual jury trial waivers are enforceable because they are neither illegal nor contrary to public policy).

16
See Mall, Inc. v. Robbins, 412 So. 2d 1197, 1199 (Ala. 1982) (holding that a contractual jury trial waiver
contained in a lease agreement is enforceable if the waiver language is conspicuous, the bargaining power of the
parties is equal and the waiver was intelligently and knowingly made); L & R Realty v. Connecticut Nat. Bank,
715 A.2d 748, 755 (Conn. 1998) (stating that jury trial waivers entered into in advance of litigation are
enforceable where there is clear evidence of an intent to waive); ST Systems v. Maryland National Bank, 684
A.2d 32, 39 (Md. Ct. Spec. App. 1996) (noting that parties can contractually waive their right to a jury trial);
Chase Commercial Corp. v. Owen, 588 N.E.2d 705, 709 (Mass. App. Ct. 1992) (stating that contractual jury
trial waivers are enforceable as long as the waiver language is clear and legible); Malan Realty Investors, Inc. v.
Harris, 953 S.W.2d 624, 627 (Mo. 1997) (stating that contractual jury trial waivers are enforceable as long as
the waiver was knowingly and voluntarily or intelligently made); Barclays Bank v. Heady Elec. Co., 571
N.Y.S.2d 650, 652 (App. Div. 1991) (stating that contractual jury trial waivers are valid and enforceable, unless
the party attacking their validity can show adequate basis to deny enforcement); TS 1 Partnership v. Allred, 877
P.2d 156, 160-61 (Utah Ct. App. 1994) (stating, without explanation, that contractual jury trial waivers are
enforceable); see also Jay M. Zitter, Contractual Jury Trial Waivers in State Civil Cases,
ing the enforcement of contractual jury trial waivers include the freedom to contract and
concerns of judicial economy.
17

Although many federal circuit courts, federal district courts and state courts have held that
contractual jury trial waivers are valid and enforceable, at least one jurisdiction has held to
the contrary. In Bank South, N.A. v. Howard, the Supreme Court of Georgia held that
pre-litigation contractual jury trial waivers are unenforceable in Georgia because such
waivers are not provided for by the state constitution and statutes.
18
The court reasoned that
the governing state's statutes contemplated that litigation had to be underway before a party
could waive the right to a jury trial.
19
The court likened the waiver of a jury trial to a
confession of judgment because both involved giving up valuable rights.
20
Accordingly, the
court decided that contractual jury trial waivers, entered into prior to the commencement of
litigation, were unenforceable in Georgia.
21

The dissenting opinion in Bank South, N.A. found fault with the majority for failing to
recognize that the right to a jury trial may be waived by a party prior to the commencement of
litigation.
22
The dissent stated that parties should be free to contract on any terms and
about any subject matter they so desire.'
23
The dissent also noted that many other
jurisdictions permit pre-litigation contractual jury trial waivers.
24
Moreover, the dissent
criticized the majority for analogizing waivers of jury trial with confessions of judgments.
25
The dissent argued that the two are not analogous because a confession of judgment is the
substitute for a verdict' which cannot be taken away until suit is commenced.
26
Conversely,
a waiver of jury trial is not a substitute for a verdict;
__________
42 A.L.R. 5th 53-135 (1996) (exhaustive annotation discussing state civil cases in which the courts have
considered the validity of pre-litigation contractual jury trial waivers).

17
See Trizec Properties v. Superior Court, 280 Cal. Rptr. 885, 887 (Ct. App. 1991) (holding that the
enforcement of contractual jury trial waivers best serves the needs of the contracting parties and the
overburdened court system).

18
444 S.E.2d 799, 800 (Ga. 1994).

19
Id.

20
Id.

21
Id.

22
Id. at 800-02 (Sears-Collins, J., dissenting).

23
Id. at 801 (quoting Duffett v. E & W Properties, Inc., 430 S.E.2d 858, 860 (Ga. Ct. App. 1993)).

24
Id.

25
Id.

26
Id. (quoting Information Buying Co. v. Miller, 161 S.E. 617, 619 (Ga. 1931)).
it merely limits litigation of the issue to a bench trial.
27
Thus, the dissent concluded that
pre-litigation contractual jury trial waivers should be permitted in Georgia.
28

[Headnotes 2-4]
We agree with the dissent's analysis rather than the majority's. Moreover, we note that several
commentators have criticized the majority's position because Georgia is the only jurisdiction
to hold that pre-litigation contractual jury trial waivers are invalid and unenforceable.
29
We
adopt the more reasoned position of the numerous jurisdictions that hold that contractual jury
trial waivers can be enforceable. Contractual jury trial waivers are enforceable when they are
entered into knowingly, voluntarily and intentionally. Furthermore, in accordance with
Nevada's public policy favoring the enforceability of contracts,
30
we conclude that
contractual jury trial waivers are presumptively valid unless the challenging party can
demonstrate that the waiver was not entered into knowingly, voluntarily or intentionally.
31
Finally, when determining whether a waiver was knowingly, voluntarily and intentionally
made, we adopt the position of the court in Whirlpool Financial Corp. v. Sevaux, which
stated:
__________

27
Id.

28
Id.

29
Edward Wood Dunham, Enforcing Contract Terms Designed to Manage Franchisor Risk, 19 Franchise
L.J. 91, 96 (2000) (noting that the court's decision in Bank South, N.A. is an extreme and, to date, unusual
position); E. Michelle Robinson, Note, Pre-Litigation Contractual Waivers of the Right to a Jury Trial Are
Unenforceable Under Georgia Law, 46 Mercer L. Rev. 1565, 1573 (1995) (criticizing the court's holding in
Bank South, N.A. and urging the Georgia Legislature to overturn the court's decision through legislation);
Kimberly A. Stout, Note, No Prelitigation Contractual Waiver of Jury Trial: Bank South, N.A. v. Howard, A
Step Backward for Georgia, 12 Ga. St. U. L. Rev. 929, 937 (1996) (The reasoning of the majority's opinion is
faulty in two respects. First, neither the Georgia Constitution nor the Georgia Code prohibit[s] jury trial waiver
provisions. Second, jury trial waiver provisions are not analogous to confessions of judgment. In contrast, jury
trial waiver provisions are similar to arbitration provisions and choice of forum clauses, which are both
permissible under state law.).

30
See Miller v. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981) (holding that an
exculpatory lease provision was a valid exercise of the freedom to contract); Hansen v. Edwards, 83 Nev. 189,
192, 426 P.2d 792, 793 (1967) (noting the public's interest in the enforcement of contractual rights and
obligations).

31
We note that other courts have also placed the burden of proof on the challenging party. See, e.g., L & R
Realty, 715 A.2d at 755 (holding that contractual jury trial waivers are presumptively enforceable); Barclays
Bank, 571 N.Y.S.2d at 652 (holding that contractual jury trial waivers will be deemed valid and enforceable
unless the challenging party can show an adequate basis for denying their enforcement). Placing the burden of
proof on the challenging party is also in accord with our decision in Phillips v. Parker, 106 Nev.
The factors to consider in determining whether a contractual waiver of the right to jury
trial was entered into knowingly and voluntarily include: (1) the parties' negotiations
concerning the waiver provision, if any, (2) the conspicuousness of the provision, (3)
the relative bargaining power of the parties and (4) whether the waiving party's counsel
had an opportunity to review the agreement.
32

Accordingly, we conclude that a court may consider, but is not limited to, the above factors
when determining whether a jury trial waiver should be enforced.
In light of our conclusion that jury trial waivers are enforceable, we believe it is prudent to
clarify the scope of this holding in relation to two previous decisions made by this court.
First, for purposes of clarity, we note that our decision in O'Banion v. Simpson was limited to
determining the constitutionality of a legislative regulation governing the waiver of one's
right to a jury trial.
33
In O'Banion we upheld a party's waiver of his right to a jury trial
because the waiver satisfied the applicable waiver statute.
34
However, we do not interpret
O'Banion as precluding the waiver of one's right to a jury trial through other means, such as
contractual jury trial waivers. Second, we note that our recent decision in Executive
Management v. Ticor Title Insurance Co. concerned the discretion of the district court to
grant relief from jury trial waivers made during the course of litigation, not with jury trial
waivers entered into between the parties prior to the start of litigation.
35
Jury trial waivers
entered into prior to the start of litigation are distinguishable because they do not implicate
the district court's discretionary powers for managing the cases that come before it. Instead,
pre-litigation jury trial waivers are grounded in the parties' freedom to contract and their
corresponding ability to allocate risk.
[Headnote 5]
Here, the parties do not dispute the conspicuousness of the waivers or the fact that their loan
documents contained these waivers. Additionally, real parties in interest have not contested
the waiver as having been involuntarily obtained. Although real parties in interest have
asserted that they were of unequal bargaining power,
__________
415, 417, 794 P.2d 716, 718 (1990). In Phillips, we held that the strong public policy in favor of arbitration
provisions serves to create a presumption that such provisions are enforceable. Id.

32
Sevaux, 866 F. Supp. at 1105.

33
44 Nev. 188, 193-95, 191 P. 1083, 1084-85 (1920).

34
Id.

35
118 Nev. 46, 38 P.3d 872 (2002).
gaining power,
36
real parties in interest were represented by counsel and had prior experience
in real estate. Accordingly, we conclude that the real parties in interest knowingly, voluntarily
and intentionally waived their right to a jury trial.
NRS 40.453 does not preclude waiver of the right to trial by jury
[Headnote 6]
We conclude that NRS 40.453 does not preclude waiver of the right to trial by jury. NRS
40.453 provides:
Except as otherwise provided in NRS 40.495:
1. It is hereby declared by the legislature to be against public policy for any document
relating to the sale of real property to contain any provision whereby a mortgagor or the
grantor of a deed of trust or a guarantor or surety of the indebtedness secured thereby,
waives any right secured to him by the laws of this state.
2. A court shall not enforce any such provision.
We have previously stated that [w]here the language of a statute is plain and unambiguous,
and its meaning clear and unmistakable, there is no room for construction, and the courts are
not permitted to search for its meaning beyond the statute itself.'
37
But in Roberts v. State
of Nevada, we noted that [w]hen a statute is ambiguous, the plain meaning rule has no
application.'
38
Accordingly, when the plain meaning rule is inapplicable, the statute can be
construed in line with what reason and public policy would indicate the legislature
intended. '
39
Finally, we have held that statutes should be interpreted to avoid absurd or
unreasonable results.
40

The language of NRS 40.453 is ambiguous to the extent that a strict application of the
extremely broad language of NRS 40.453 would lead to an absurd result. In particular, if the
legislature actually intended to prohibit the waiver of any right secured by law, then such
things as arbitration agreements,
41
forum selection clauses
__________

36
The record, to the contrary, supports the trial court's determination that the real parties in interest are
sophisticated and experienced business people.

37
State, Div. of Insurance v. State Farm, 116 Nev. 290, 293, 995 P.2d 482, 485 (quoting State v. Jepsen, 46
Nev. 193, 196, 209 P. 501, 502 (1922)).

38
104 Nev. 33, 37, 752 P.2d 221, 223 (1988) (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730
P.2d 438, 442 (1986)).

39
Id. (quoting McKay, 102 Nev. at 649, 730 P.2d at 442) (quoting Robert E. v. Justice Court, 99 Nev. 443,
445, 664 P.2d 957, 959 (1983))).

40
Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993).

41
See NRS 38.035 (providing for the enforceability of arbitration agreements).
clauses
42
and choice-of-law provisions
43
would be unenforceable. The Nevada Legislature
could not have intended such a result when it enacted NRS 40.453.
NRS 40.453 was enacted in 1969 as part of Assembly Bill 493.
44
On March 13, 1969, a
hearing was held before the Assembly Committee on Judiciary.
45
At the hearing, the
committee discussed, among other things, the passage of A.B. 493. During that hearing, a
concern arose that the only way to safeguard the anti-deficiency protections created under
A.B. 493 would be to prohibit the waiver of those protections, otherwise, lenders would
merely require their borrowers to waive these rights.
46
Thus, it was recommended to the
committee that A.B. 493 should include a clause stating that the anti-deficiency legislation
could not be waived.
The proceedings leading up to the 1987 amendment to NRS 40.453 provide some insight into
the legislature's intent. On June 10, 1987, a hearing was held before the Assembly Committee
on Judiciary.
47
At the hearing, a memorandum prepared by Michael Wall of the Supreme
Court of Nevada Central Legal Staff was distributed to the committee. The memo states the
following:
NRS 40.453 presently provides that it is against the public policy of this state to enforce
any provision whereby a mortgagor or the grantor of a deed of trust waives any right
secured to him by the laws of this state. This section is part of the anti-deficiency
statutes, and the obvious intent of the legislature was to preclude lenders from requiring
borrowers to waive their rights under the anti-deficiency statutes.
48

Accordingly, we conclude that the comments solicited by the legislature during the hearing on
the amendment to NRS 40.453 highlight the intent of the legislature to protect the rights
created by Nevada's anti-deficiency legislation,
__________

42
See Tandy Computer Leasing v. Terina's Pizza, 105 Nev. 841, 843, 784 P.2d 7, 8 (1989) (recognizing the
enforceability of forum selection clauses under certain circumstances).

43
See Engel v. Ernst, 102 Nev. 390, 395, 724 P.2d 215, 216 (1986) (recognizing the validity of choice-of-law
clauses).

44
See 1969 Nev. Stat., ch. 327, 4, at 573.

45
See Hearing on A.B. 297, A.B. 298, A.B. 493, A.B. 494 and A.B. 199 Before the Assembly Comm. on
Judiciary, 55th Leg. (Nev., March 13, 1969).

46
Id.

47
See Hearing on S.B. 359 Before the Assembly Comm. on Judiciary, 64th Leg. (Nev., June 10, 1987).

48
Memorandum from Michael K. Wall, Deputy Supervising Staff Attorney, Nevada Supreme Court, to Chief
Justice E. M. Gunderson, Nevada Supreme Court 3 (May 26, 1987), available at Hearing on S.B. 359 Before
the Assembly Comm. on Judiciary, 55th Leg., Ex. D (Nev., June 10, 1987).
by Nevada's anti-deficiency legislation, not to protect the right to a jury trial. This conclusion
is consistent with the fact that NRS 40.453 is codified in Chapter 40 of the Nevada Revised
Statutes under the subheading Foreclosure Sales and Deficiency Judgments.
49

Irrespective of the foregoing, real parties in interest contend that Keever v. Nicholas Beers
Co.
50
supports the proposition that NRS 40.453 precludes waiver of the right to trial by jury.
In Keever, this court held that a debtor could not waive his right to the one-action rule in a
document relating to the sale of real property.
51
The one-action rule under NRS 40.430(1)
provides that there may be but one action for the recovery of any debt, or for the
enforcement of any right secured by a mortgage or other lien upon real estate. Real parties in
interest argue that the holding in Keever can be extended to preclude the waiver of the right to
trial by jury.
We conclude that such extension is not warranted. Clearly, Keever involved the prohibited
waiver of the one-action rule. Nowhere in Keever did we address the right to a jury trial.
Accordingly, we are unpersuaded by real parties in interest's argument that the holding in
Keever can be extended to preclude the waiver of the right to a trial by jury.
NRS 40.453 does not preclude waiver of the right to trial by jury. A review of the legislative
history reveals that NRS 40.453 was enacted to protect the rights created by Nevada's
anti-deficiency legislation, not to protect the right to a jury trial. Therefore, NRS 40.453 does
not prohibit contractual jury trial waivers. Additionally, real parties in interest knowingly,
voluntarily and intentionally waived their right to a jury trial. Accordingly, we grant the
petition and direct the clerk of this court to issue a writ of mandamus instructing the district
court to strike the real parties in interest's jury demand.
52

Maupin, C. J., Young, Rose and Becker, JJ., concur.
__________

49
See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971) (holding that
the title of a statute may be considered in construing the statute).

50
96 Nev. 509, 611 P.2d 1079 (1980).

51
Id. at 515-16, 611 P.2d at 1084; see also NRS 40.430(1) (providing the statutory basis for the one-action
rule).

52
The Honorable Miriam Shearing, Justice, and The Honorable Myron E. Leavitt, Justice, voluntarily recused
themselves from participation in the decision of this matter.
____________
118 Nev. 105, 105 (2002) Silvera v. EICON
JOSEPH SILVERA, Appellant, v. EMPLOYERS INSURANCE COMPANY OF NEVADA,
Respondent.
No. 33975
February 15, 2002
40 P.3d 429
Appeal from a district court order adjudicating lien claimant's rights. Eighth Judicial District
Court, Clark County; James A. Brennan, Senior Judge.
Workers' compensation claimant brought personal injury action against motorist involved in
accident, and against insurer of claimant's car. After receiving workers' compensation benefits
and settling with both defendants, claimant moved for declaration that workers' compensation
insurer had no subrogation rights against automobile insurer. The district court denied
motion. Claimant appealed. The supreme court, Agosti, J., held that workers' compensation
insurer did not have subrogation right against automobile insurer.
Law Offices of Michael F. Bohn, Ltd., Las Vegas, for Appellant.
Beckett & Yott, Carson City, for Respondent.
1. Workers' Compensation.
Under subrogation law, insurer of automobile in which workers' compensation claimant was injured was not a party with a
legal liability to pay damages to injured workers' compensation claimant under underinsured motorist (UM) policy, and thus,
workers' compensation insurer had no subrogation rights against automobile insurer for payment made to claimant. NRS 616C.215.
2. Statutes.
It is presumed that the legislature approves the supreme court's interpretation of a statutory provision when the legislature has
amended the statute but did not change the provision's language subsequent to the court's interpretation.
Before Shearing, Agosti and Leavitt, JJ.
OPINION
Employers Insurance Company of Nevada (EICON) is the primary provider of workers'
compensation insurance to Nevada employers. Under NRS 616C.215(5), when an employee
is injured on the job, EICON is subrogated to the employee's right to recover damages in
certain circumstances and may place a lien upon the total proceeds of any recovery.
In this appeal, we are asked to decide if EICON may assert a lien against an injured
employee's recovery from an uninsured or underinsured motorist (UM) insurance policy
maintained by a party other than the employer or employee. We conclude that EICON is not
permitted to place a lien against such a recovery.
On November 16, 1994, appellant Joseph Silvera, an employee of the Greater Nevada Auto
Auction, was involved in an automobile accident with another motorist, Janet Springmeyer.
The accident occurred within the course and scope of Silvera's employment with Auto
Auction. Silvera sustained serious injuries. Toyota West owned the vehicle that was driven by
Silvera.
Both Springmeyer and Toyota West carried automobile insurance. Springmeyer's policy
limits were $15,000.00. Toyota West carried a fleet UM policy with MIC Property and
Casualty Insurance Corporation (MIC).
Silvera applied for and received workers' compensation benefits through EICON. The
payments totaled $47,218.97. In addition, Silvera filed a lawsuit against and ultimately settled
with both Springmeyer and MIC for the damages he sustained in the collision. Silvera settled
the claim against Springmeyer for the policy maximum of $15,000.00 and settled with MIC
for $135,000.00. EICON subsequently asserted that it had a right under NRS 616C.215 to
place a lien against the MIC settlement proceeds.
Upon settling his claims against Springmeyer and MIC, Silvera moved in that action for
adjudication of the lien rights being asserted by EICON. Specifically, Silvera asked the court
to declare that EICON had no lien rights with respect to his recovery from MIC, and
requested a refund of the amount paid to EICON. EICON was served with the motion and
filed its opposition thereto.
1
The district court denied the motion, determining that EICON
was entitled to assert the lien and that Silvera was not entitled to a refund. This timely appeal
followed.
We review the district court's construction of NRS 616C.215 de novo.
2
Under NRS
616C.215, when an employee receives an injury for which compensation is payable, EICON
may become subrogated to the employee's right to recover in two ways.
__________

1
While Silvera disputes whether Nevada law grants EICON subrogation rights to his recovery, Silvera does
not dispute that EICON has properly filed a lien. Additionally, it was proper for the district court to adjudicate
EICON's rights under that lien. See SIIS v. District Court, 111 Nev. 28, 32, 888 P.2d 911, 913 (1995)
(recognizing the right of SIIS, EICON's predecessor, to intervene in order to assert its statutorily created lien
rights); see also Gordon v. Stewart, 74 Nev. 115, 118, 324 P.2d 234, 236 (1958) (holding that the district court
has incidental jurisdiction over issues concerning the establishment and enforcement of an attorney's lien).

2
See County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).
subrogated to the employee's right to recover in two ways. First, EICON may become
subrogated to an employee's right of recovery under NRS 616C.215(2) when the
circumstances causing an employee's injury give rise to a legal liability in a person other than
the employer or employee to pay damages.
3
Second, pursuant to NRS 616C.215(3)(b),
EICON may become subrogated to an employee's right to recover proceeds under the
employer's UM policy; however, NRS 616C.215(3)(b) expressly precludes EICON from
becoming subrogated to the employee's right to recover proceeds under the employee's own
UM policy.
4
Once EICON is subrogated to an employee's right to recovery, NRS
616C.215(5) grants EICON authority to place a lien upon the recovery of such proceeds,
unless the proceeds were recovered from the employee's employer.
5

Neither party disputes that NRS 616C.215(3)(b) expressly permits subrogation against a UM
policy maintained by the employer and prohibits subrogation against a UM policy maintained
by the employee.
__________

3
NRS 616C.215(2)(b) provides in pertinent part:
2. When an employee receives an injury for which compensation is payable pursuant to the
provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS and which was caused under
circumstances creating a legal liability in some person, other than the employer or a person in the same
employ, to pay damages in respect thereof:
. . . .
(b) If the injured employee . . . receive[s] compensation pursuant to the provisions of chapters 616A
to 616D, inclusive, or chapter 617 of NRS, the insurer . . . has a right of action against the person so
liable to pay damages and is subrogated to the rights of the injured employee or of his dependents to
recover therefor.

4
NRS 616C.215(3)(b) provides in pertinent part:
3. When an injured employee incurs an injury for which compensation is payable pursuant to the
provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS and which was caused under
circumstances entitling him, or in the case of death his dependents, to receive proceeds under his
employer's policy of uninsured or underinsured vehicle coverage:
. . . .
(b) If an injured employee . . . receive[s] compensation pursuant to the provisions of chapters 616A to
616D, inclusive, or chapter 617 of NRS, the insurer . . . is subrogated to the rights of the injured
employee . . . to recover proceeds under the employer's policy of uninsured or underinsured vehicle
coverage. The insurer and the administrator are not subrogated to the rights of an injured employee . . .
under a policy of uninsured or underinsured vehicle coverage purchased by the employee.

5
NRS 616C.215(5) provides in pertinent part:
In any case where the insurer [EICON] . . . is subrogated to the rights of the injured employee or of his
dependents as provided in subsection 2 or 3, the insurer . . . has a lien upon the total proceeds of any
recovery from some person other than the employer, whether the proceeds of such recovery are by way of
judgment, settlement or otherwise.
employee. The issue here, however, is whether EICON may assert subrogation rights against
a UM policy that is maintained by a party other than the employer or employee. This involves
an analysis of NRS 616C.215(2)(b), which grants subrogation rights to EICON whenever the
circumstances causing an employee's injury give rise to a legal liability in a person other than
the employer or employee to pay damages. We conclude that NRS 616C.215(2)(b) does not
grant EICON a right of subrogation against a UM policy that is maintained by a party other
than the employer or employee.
NRS 616C.215(2)(b) defines the subrogation rights of the workers' compensation insurer.
This provision provides in relevant part:
2. When an employee receives an injury for which [workers'] compensation is payable
. . . which was caused under circumstances creating a legal liability in some person,
other than the employer or a person in the same employ, to pay damages in respect
thereof:
. . . .
(b) . . . the insurer . . . has a right of action against the person so liable to pay damages
and is subrogated to the rights of the injured employee . . . .
(Emphases added.) The statute allows subrogation only against someone with a legal
liability . . . to pay damages.
[Headnote 1]
In the 1991 decision of Truck Insurance Exchange v. SIIS,
6
this court determined that a UM
insurance company is not someone with a legal liability . . . to pay damages within the
meaning of the subrogation statute. This court decided that only tortfeasors have a legal
liability . . . to pay damages, and NRS 616.560(1)(b) (now NRS 616C.215(2)(b)) grants the
workers' compensation insurer subrogation rights only against those liable in tort, not those
liable in contract.
7
Therefore, this court determined that the workers' compensation insurer
did not have subrogation rights against the UM coverage purchased by the employer.
8
In
response, the legislature enacted NRS 616C.215(3)(b) in 1993, which specifically grants the
workers' compensation insurer subrogation rights against the UM coverage purchased by the
employer. NRS 616C.215(3)(b) would have changed the result in Truck Insurance Exchange.
__________

6
107 Nev. 995, 823 P.2d 279 (1991).

7
Id. at 996-97, 823 P.2d at 280-81.

8
Id.
[Headnote 2]
The legislature did not, however, change the language in the general subrogation statute. NRS
616C.215(2) (formerly NRS 616.560(2)) still allows subrogation only against those who have
a legal liability . . . to pay damages. In both Continental Casualty v. Riveras
9
and Truck
Insurance Exchange, this court interpreted that language to grant subrogation rights to the
workers' compensation insurer only against those liable in tort, not those liable in contract,
like the UM carrier. When the legislature, in 1993, added a new provision allowing
subrogation on employer-purchased UM policies, it retained the identical language in the
general subrogation provision that this court interpreted to refer only to a third-party
tortfeasor, not to a UM carrier.
10
It is presumed that the legislature approves the supreme
court's interpretation of a statutory provision when the legislature has amended the statute but
did not change the provision's language subsequent to the court's interpretation.
11
Moreover,
we have repeatedly refused to imply provisions into the workers' compensation scheme that
have not been expressly included by the legislature.
12
Thus, NRS 616C.215(2) cannot be
read to allow subrogation of the workers' compensation insurer to the rights of the injured
worker in a third party's UM insurance.
We conclude that there is no statutory provision that allows EICON to place a lien on the
third-party MIC proceeds. Accordingly, we reverse the order of the district court and remand
for further proceedings consistent with this opinion.
Shearing and Leavitt, JJ., concur.
__________

9
107 Nev. 530, 814 P.2d 1015 (1991).

10
1993 Nev. Stat., ch. 265, 188, at 742-43.

11
Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108, 112, 807 P.2d 728, 730 (1991).

12
See SIIS v. Wrenn, 104 Nev. 536, 539, 762 P.2d 884, 886 (1988); Weaver v. SIIS, 104 Nev. 305, 756 P.2d
1195 (1988).
____________
118 Nev. 110, 110 (2002) Resort at Summerlin v. Dist. Ct.
RESORT AT SUMMERLIN, L.P., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and
THE HONORABLE JAMES C. MAHAN, District Judge, Respondents, and A & B
PAINTING WEST, INC., a Corporation, Real Party in Interest.
No. 36572
February 15, 2002
40 P.3d 432
Original petition for a writ of mandamus challenging the district court's denial of motion to
dismiss a complaint seeking foreclosure on a lien.
Contractor filed complaint against resort to foreclose a lien against resort's real property. The
district court denied resort's motion to dismiss. Resort petitioned for writ of mandamus. The
supreme court held that door closing statute did not bar foreign contractor from bringing
suit in Nevada court despite its failure to comply with statutorily prescribed annual reporting
requirements.
Petition denied.
Lionel Sawyer & Collins and Todd M. Touton and Lynda Sue Mabry, Las Vegas, for
Petitioner.
Robert L. Bachman, Irvine, California, for Real Party in Interest.
1. Corporations.
Door closing statute did not bar foreign corporation from bringing suit in Nevada court, where corporation had initially
qualified to conduct business in Nevada but failed to comply with the statutorily prescribed annual reporting requirements. Door
closing statute dealt only with initial filing requirements for a foreign corporation to qualify to conduct business in state. NRS 80.110,
80.210.
2. Mandamus.
Appellate court may exercise its discretion to consider a writ petition challenging an order denying a motion to dismiss when an
important issue of law requires clarification.
Before Maupin, C. J., Agosti and Leavitt, JJ.
OPINION
Per Curiam:
[Headnote 1]
In this original proceeding, we are asked to decide a corporate law question of first
impression: Whether Nevada's door closing" statute,
ing statute, NRS 80.210, bars foreign corporations from commencing or maintaining suits in
the courts of this state when those corporations have initially qualified to conduct business in
Nevada pursuant to the laws of this state, yet fail to comply with the statutorily prescribed
annual reporting requirements. We conclude that the express terms of NRS 80.210 do not
preclude such corporations from commencing or maintaining suits in Nevada courts.
Accordingly, we deny petitioner's request to issue a writ of mandamus compelling the district
court to dismiss real party in interest's action.
In July 1996, plaintiff below and real party in interest herein, A & B Painting West, Inc., a
California corporation, initially qualified to conduct business as a foreign corporation in
Nevada. In order to qualify, A & B filed with the Nevada Secretary of State: (1) a certificate
of corporate existence issued from California setting forth the articles of incorporation; (2) a
certificate of acceptance of appointment of the corporation's resident agent; and (3) a general
statement describing the corporation's purpose and any stock the corporation may issue.
1
A
& B also paid the required fee upon qualifying to conduct business.
2

However, in April 1999, three years after initially qualifying, A & B's qualification to conduct
business in Nevada was revoked by Nevada's Secretary of State because A & B failed to file
the required annual list of officers, directors and designation of resident agent.
3
A & B
claims it failed to file the annual list because it had moved its place of business and never
received the renewal forms.
Approximately nine months after A & B's qualification to conduct business in Nevada was
revoked, A & B filed a complaint against, among others, petitioner Resort at Summerlin, L.P.
(the Resort), in the Eighth Judicial District Court in Las Vegas. In its complaint, A & B
sought, among other relief, to foreclose on a lien against the Resort's real property.
4

Shortly after the lawsuit commenced, the Resort moved to dismiss the complaint,
__________

1
See NRS 80.010.

2
See NRS 80.050.

3
See NRS 80.110.

4
A & B filed two complaints, one against the Resort at Summerlin and the other against Performance
Contracting, Inc., seeking foreclosure on liens against each. In the first complaint, A & B sought foreclosure
upon a lien in the amount of $235,479.34, alleging that it had supplied labor and material in the building of the
Resort's hotel/casino, and that the Resort now refused to pay A & B for the labor and material. In its second
complaint, A & B sought to foreclose on a lien in the amount of $72,818.03, alleging that it supplied labor and
material under subcontract with Performance Contracting, Inc. After filing its complaints, A & B released the
lien against Performance Contracting, Inc. The lien in the amount of $235,479.34 remains as a basis for A & B's
complaint.
miss the complaint, arguing that because A & B was not qualified to do business in Nevada at
the time it commenced suit, dismissal was proper under NRS 80.210. This statute provides
that a foreign corporation which fails or neglects to comply with the provisions of NRS
80.010 to 80.040, inclusive . . . may not commence or maintain any action or proceeding in
any court of this state until it has fully complied with the provisions of NRS 80.010 to
80.040, inclusive.
5
Based on this statute, the Resort argued that the district court was
obligated to dismiss A & B's complaints.
Two weeks after the Resort filed its motion to dismiss, A & B, apparently realizing its
mistake, filed its annual list of officers and directors and paid all filing fees, costs, and
penalties.
6
Accordingly, on June 26, 2000, the Nevada Secretary of State reinstated A & B's
qualification to conduct business in Nevada.
7

The district court, after reviewing the pleadings on file and hearing oral arguments, entered an
order denying the Resort's motion to dismiss. Although the record is unclear, it appears that
the district court refused to dismiss the actions because it deemed dismissal too harsh a
penalty to impose on A & B simply because A & B had failed to comply with the annual
filing requirements.
[Headnote 2]
The Resort then filed this petition for a writ of mandamus. We may exercise our discretion to
consider a writ petition challenging an order denying a motion to dismiss when an important
issue of law requires clarification.
8
The Resort asks that this court order the district court to
dismiss A & B's complaints because dismissal is warranted under NRS 80.210. Furthermore,
the Resort asks that dismissal be with prejudice as the applicable statute of limitations has run
on A & B's claims. Accordingly, in this original proceeding, we decide whether NRS 80.210
bars a foreign corporation such as A & B from bringing suit in courts of this state when the
foreign corporation initially qualifies to conduct business in Nevada, yet fails to comply with
Nevada's annual reporting requirements.
NRS 80.210 is Nevada's door closing statute, which precludes foreign corporations doing
business
9
in Nevada that do not comply with the provisions of NRS S0.010 to S0.040,
inclusive,
__________

5
NRS 80.210(1)(b).

6
See NRS 80.110; NRS 80.170.

7
See NRS 80.170.

8
Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).

9
NRS 80.015 and NRS 80.016 define what does and does not constitute doing business in Nevada. In the
following cases, this court has analyzed whether a foreign corporation is doing business in Nevada so as to
trigger the requirements of NRS Chapter 80. See Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119,
124-25, 808 P.2d 512, 515 (1991) (stating that Oregon corporation's activities in Nevada, while systematic and
continuous,
not comply with the provisions of NRS 80.010 to 80.040, inclusive, from bringing suit in
courts of this state. In part, this statute reads:
1. Every corporation which fails or neglects to comply with the provisions of NRS
80.010 to 80.040, inclusive:
(a) Is subject to a fine of not less than $500, to be recovered in a court of competent
jurisdiction; and
(b) Except as otherwise provided in subsection 2, may not commence or maintain any
action or proceeding in any court of this state until it has fully complied with the
provisions of NRS 80.010 to 80.040, inclusive.
10

Although statutory language differs, all fifty states have comparable statutes.
11

NRS 80.010 to 80.040 contemplate the initial filing requirements with which a foreign
corporation must comply in order to qualify to conduct business in Nevada. NRS 80.010 sets
forth the initial papers a foreign corporation must file with the Secretary of State, including:
(1) a certificate of corporate existence; (2) a certificate of acceptance of appointment by the
resident agent; and (3) a statement by an officer of the corporation as to a general description
of corporate purposes and the authorized par and no par value stock. NRS 80.015 and 80.016
define what does and does not constitute doing business in Nevada. NRS 80.012 and
80.025 provide for reserving and modifying a corporate name. NRS 80.030 contemplates the
filing of amendatory documents after qualification. Finally, NRS 80.040 requires an English
translation to accompany any foreign language documents. A & B complied with these
provisions to initially qualify to conduct business in Nevada. As these are the provisions
applicable to NRS 80.210, NRS 80.210 is not a bar to the suit in question.
After a foreign corporation has qualified to do business in Nevada, NRS 80.110 mandates
that within two months of its initial filing, the corporation must file a report with the Nevada
Secretary of State listing the officers, directors and resident agent of the corporation. NRS
80.110 also requires foreign corporations to annually file with the Secretary of State an
updated list.
__________
were not so great as to constitute doing business under NRS Chapter 80); In re Hilton Hotel, 101 Nev. 489,
492, 706 P.2d 137, 139 (1985) (stating that conducting a single piece of businessattending a convention in
Nevadadoes not constitute doing business). In this case, however, it is uncontested that A & B was doing
business in Nevada.

10
NRS 80.210(1) (emphasis added). Subsection 2 of NRS 80.210 allows foreign corporations that are
otherwise barred from bringing suit to bring an action for an extraordinary remedy. Both parties concede in their
briefs to this court that this provision is not at issue in this petition.

11
See Joyce Yeager, Boarders and Barriers, Definitions of Authority to Do Business as a Foreign
Corporation, 102 Com. L.J. 398, 409 n.71 (1997) (listing all fifty statutes, as well as the Model Business
Corporations Act).
to annually file with the Secretary of State an updated list. Pursuant to NRS 80.110, the
foreign corporation must also submit an eighty-five dollar fee along with its annual report.
NRS 80.150 sets forth the penalty for a foreign corporation if it fails to comply with the
annual reporting requirement and fee schedule set forth in NRS 80.110 through NRS 80.170.
In addition to a fee of fifteen dollars, a foreign corporation that fails to comply is denoted as a
defaulting corporation, forfeit[ing] its right to transact business within this state.
12

Once a foreign corporation is deemed to have forfeited its right to transact business in
Nevada, NRS 80.170 sets forth the procedure with which a defaulting corporation must
comply in order to have its qualification to conduct business in Nevada reinstated. NRS
80.170 requires a defaulting corporation: (1) to file the annual list required by NRS 80.110
and NRS 80.140; (2) to pay the annual eighty-five dollar fee required by NRS 80.110; and (3)
to pay a fifty dollar reinstatement fee. Once a defaulting corporation has complied with
these three requirements, the Secretary of State will reinstate the corporation's qualification to
conduct business in Nevada.
13

This court has recently considered our previous construction of NRS 80.210. In Executive
Management, Ltd. v. Ticor Title Insurance Co.,
14
we overruled League to Save Lake Tahoe
v. Tahoe Regional Planning Agency's
15
interpretation of NRS 80.210. In League to Save
Lake Tahoe, we held that dismissal was proper when the foreign corporation was not initially
qualified to do business in Nevada at the time the suit was commenced.
16
In Executive
Management, we expressed concern with this approach, deeming dismissal to be an
extraordinarily harsh penalty.
17
Thus, we determined that the more proper course of action is
to have the district court stay an unqualified corporation's action until the foreign corporation
qualifies.
18
We noted, however, that failure to promptly qualify could result in dismissal.
19

In this case, A & B initially qualified to conduct business in Nevada pursuant to NRS 80.010.
A & B, however, failed to comply with NRS S0.110,
__________

12
NRS 80.150(2).

13
We are not unmindful of the provision in NRS 80.170(4) that precludes reinstatement after five consecutive
years of forfeiture. However, that provision does not apply here as A & B forfeited its right to transact business
in Nevada for less than one year.

14
118 Nev. 46, 52, 38 P.3d 872, 876 (2002).

15
93 Nev. 270, 563 P.2d 582 (1977).

16
Id. at 273, 563 P.2d at 583-84.

17
Executive Management, 118 Nev. at 52, 38 P.3d at 875-76.

18
Id. at 52, 38 P.3d at 876.

19
Id.
ply with NRS 80.110, the annual filing requirements, prior to filing the underlying actions.
Because A & B failed to comply with NRS 80.110, its qualification to conduct business in
Nevada was forfeited. However, failure to comply with the annual filing requirements does
not trigger NRS 80.210. NRS 80.210 expressly states that a foreign corporation may not
maintain or commence a suit in Nevada courts if the corporation fails to comply with NRS
80.010 to 80.040, inclusive. (Emphasis added.) Again, NRS 80.010 to NRS 80.040, unlike
NRS 80.110, deals with the initial filing requirements with which a foreign corporation must
comply in order to qualify to conduct business in Nevada. NRS 80.110, on the other hand,
deals with the annual requirements a foreign corporation must comply with after initially
qualifying to conduct business in this state. Failing to comply with the annual filing
requirements set forth in NRS 80.110 does not fall within the prohibited conduct outlined in
NRS 80.210. NRS 80.210 does not apply, by its express terms, to foreign corporations that
fail to comply with the annual requirements set forth in NRS 80.110.
Accordingly, we deny the petition for a writ of mandamus compelling the district court to
dismiss real party in interest's action.
____________
118 Nev. 115, 115 (2002) State v. Friend
THE STATE OF NEVADA, Appellant, v. ROBERT MARCUS FRIEND, Respondent.
No. 35363
February 15, 2002
40 P.3d 436
Appeal from a district court order granting a motion to dismiss six counts of securities
violations, holding that one-year notes issued in exchange for investment funds were not
securities under NRS 90.295. Eighth Judicial District Court, Clark County; Sally L. Loehrer,
Judge.
Defendant moved to dismiss two counts of securities fraud, two counts of offer or sale of
unregistered security, and two counts of transacting business as an unlicensed broker-dealer
and/or sales representative. The district court granted the motion. State appealed. The
supreme court held that the notes issued by defendant were securities under the Nevada
Uniform Securities Act.
Frankie Sue Del Papa, Attorney General, and Matthew S. Gabe, Deputy Attorney General,
Carson City; Stewart L. Bell, District Attorney, Clark County, for Appellant.
Daniel J. Albregts, Ltd., Las Vegas, for Respondent.
Joseph C. Long, Norman, Oklahoma, for Amicus Curiae North American Securities
Administrators Association, Inc.
1. Criminal Law.
The meaning of a statute is a question of law reviewed de novo. No deference is given to the district court's interpretation.
2. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is ambiguous, and when the meaning of a statute is
ambiguous, legislative intent controls its interpretation.
3. Statutes.
The supreme court will interpret a statute in accord with reason and public policy to avoid an absurd result.
4. Securities Regulation.
Notes issued by defendant to purchasers, allegedly for debt-bridge financing, were securities under the family resemblance
test for purposes of the Nevada Uniform Securities Act; notes were purchased in order to earn profit due to favorable interest rate on
notes, investment opportunity was offered to a broad range of people through newspaper advertisement, purchasers viewed notes as
investments, and purpose of Act was to reduce risk of this type of behavior. NRS 90.295.
Court adopted family resemblance test to determine when a note is a security. NRS 90.295.
The family resemblance test, used to determine when a note is a security, begins with the presumption that every note is a
security. NRS 90.295.
Under the first step of the family resemblance test, used to determine when a note is a security, the notes under review are
compared to notes that are not securities, including those delivered in consumer financing, secured by a home mortgage, evidencing a
character loan to a bank customer, formalizing an open-account debt incurred in the ordinary course of business, evidencing loans by
commercial banks for current operations, short-term notes secured by a small business lien or an assignment of accounts receivable.
Under the second step of the family resemblance test, used to determine when a note is a security, the notes under review are
analyzed under the following four factors: (1) the motivations prompting a reasonable seller and buyer to enter into the transaction, (2)
whether the instruments are used in common trading for speculation or investment, (3) the expectations of a reasonable investing
public, and (4) whether another regulatory scheme significantly reduces the risk of the instrument. NRS 90.295.
The first step under the family resemblance test to determine when a note is a security is to analyze why seller and buyer enter
into the transaction. If the seller's purpose is to raise money for general business use or to finance substantial investments and the buyer
is interested primarily in the profit the note is expected to generate, the instrument is likely a security. But if the note is exchanged to
facilitate the purchase and sale of a minor asset or good, to correct for cash-flow difficulties, or to advance some other purpose, the
note is less sensibly described as a security.
Defendant's motivation in selling notes to purchasers was to raise money for general use, and purchasers' motivation was
primarily in profit from the notes, and thus motivation was that of a security-type transaction for purposes of first prong of family
resemblance test used to determine when a note is a security. Although defendant alleged notes were for debt-bridge financing, bank
statements showed that invested funds were used for general business, or personal, expenses, and purchasers were not purchasing
consumer goods but rather were interested in favorable interest rate. NRS 90.295.
The second step under the family resemblance test to determine when a note is a security examines the distribution of the note
to determine whether it is an instrument in which there is common trading for speculation or investment. Common trading occurs
when the instrument is offered and sold to a broad segment of the public.
Defendant's plan of distribution of notes involved common trading, for purposes of second prong of family resemblance test
used to determine when a note is a security; defendant's corporation placed an advertisement in a regional newspaper seeking potential
investors, promising a high interest rate in exchange for debt-bridge financing, advertisement was apparently placed in the newspaper
more than once, and newspaper had potential audience of well over a million people. NRS 90.295.
The third step under the family resemblance test to determine when a note is a security considers whether the notes are
reasonably viewed by purchasers as investments. Under this step, it must be determined if the seller of the notes calls them investments
and, if so, whether it is reasonable for a prospective purchaser to believe the seller.
Purchasers of notes from defendant reasonably viewed their purchases as investments, for purposes of third prong of family
resemblance test used to determine when a note is a security; purchasers invested in corporation to make a profit on a high interest
rate of return, newspaper advertisement portrayed the notes as investments, and there was no evidence to establish that the notes
were not investments. NRS 90.295.
The fourth step under the family resemblance test to determine when a note is a security examines the adequacy of other
regulatory schemes in reducing the risk to the lender.
Before Young, Agosti and Leavitt, JJ.
OPINION
Per Curiam:
In this case, we are asked to determine the meaning of the word note, as defined as a
security, under NRS 90.295 of the Nevada Uniform Securities Act (the Act). The district
court held that one-year notes issued by respondent Robert Marcus Friend were not securities
under the Act.
We conclude that a plain, literal reading of the word note, as contained in the definition of
security, under NRS 90.295 leads to absurd results and, therefore, we reject this
interpretation. However, since the Act is based upon federal securities acts, we conclude that
it is appropriate for this court to adopt the family resemblance test, as set forth by the
United States Supreme Court in Reves v. Ernst & Young,
1
to determine when a note is a
security. Applying this test, we conclude that the notes issued by Friend in this case are
securities.
FACTS
Respondent Robert Marcus Friend was a founding partner of MEI World Industries, Inc.,
which was a company located in Las Vegas and incorporated in Nevada in December 1993.
MEI was formed for the purposes of operating a business importing goods from China. In
addition to being President of MEI, Friend was also listed as one of two members of the
company's first Board of Directors in the articles of incorporation. Friend was not licensed as
a securities broker-dealer or sales representative in the State of Nevada.
Sometime between December 1993 and July 1994, MEI began advertising in the Las Vegas
Review-Journal promising a 21.75 percent return on one-year notes in exchange for
debt-bridge financing. Donald and Carola Bell contacted MEI in response to one of those
advertisements. Upon doing so, the Bells received a brochure detailing the nature of the
company and scheduled a meeting with Donald Brozan, a Vice-President/Treasurer of the
company.
Donald Bell left this meeting under the impression that in exchange for making an investment
in MEI, he and his wife would be issued a one-year note, corporate note, that would pay the
principal plus 20 some percent interest. He did not believe they were receiving stock
certificates, shares, or any interest in the company. Rather, he understood that their
investment was going to be put in a separate Bank of America account and used strictly for
debt-bridge financing,
__________

1
494 U.S. 56, 57 (1990).
for debt-bridge financing, which was to pay for the cost of moving goods into the United
States from China and pay off . . . [MEI's] suppliers. According to Bell, he was never
informed of any risks or that any portion of the investment would be used for the personal
expenses of MEI employees. He was also unaware that Friend had a previous conviction for
procuring a false loan.
Attracted by the favorably high interest rate, the Bells made two investments in MEI. In June
1994, the Bells invested $20,000.00 drawn from a family trust account. In exchange, the Bells
received a one-year corporate note, which was signed by Friend and promised a profitable
return on their investment of anywhere between 21 percent and 25 percent. The total sum of
the principal plus interest on this first note was to be paid to the Bells in June 1995. In
November 1994, the Bells invested an additional $50,000.00 into MEI from funds drawn
from the same family trust account. Again, the Bells were issued a corporate note, which this
time promised a return of 25.50 percent. The total sum of the principal plus interest on this
second note was to be paid in November 1995.
During the course of the following year, the Bells had occasional contact with employees of
MEI. Unable to reach MEI by phone in August 1995, the Bells went to MEI's office to cash in
their $20,000.00 note. To the Bells' surprise, MEI's office was vacant. Subsequently, the Bells
filed a complaint with the Attorney General of Nevada.
In June 1998, the State charged Friend with two counts of securities fraud, two counts of offer
or sale of unregistered security, two counts of transacting business as an unlicensed
broker-dealer and/or sales representative, and two counts of obtaining money under false
pretenses. In February 1999, a preliminary hearing was held in Las Vegas Justice Court. The
case was soon referred to the district court.
In October 1999, Friend moved to dismiss the first six counts of the charges against him on
the basis that the corporate note issued by Friend, through MEI, was not a security as
defined by NRS 90.295 and, therefore, the Act did not apply. The district court noted that
there is no case law in the State of Nevada . . . defining the term security or what constitutes
a security under the statute. The district court applied the family resemblance test.
Applying this test, the district court held that the corporate notes issued by Friend, through
MEI, were not securities. The district court reasoned that to rule any other way would result
in every single corporation which borrowed money in the private market being subject to the
Securities Act. Accordingly, the first six counts of charges against Friend under the Act were
dismissed.
DISCUSSION
[Headnote 1]
The meaning of a statute is a question of law reviewed de novo.
2
No deference is given to
the district court's interpretation.
3
Here, this court must determine whether a one-year note
issued in exchange for investment funds is governed under the Act. Specifically, this court
must interpret the meaning of the word note under the definition of security contained in
NRS 90.295. Therefore, our analysis must begin with the language of the statute itself.
Plain meaning interpretation
The State argues that the definition of securities expressly includes notes and, therefore, this
court should give the statute its plain meaning so as to include the notes issued by Friend in
exchange for an investment in his business.
4
In response, Friend argues that there is
ambiguity in the meaning of the word note under the Act.
[Headnotes 2, 3]
This court has stated that when the words of a statute are clear and unambiguous, they will be
given their plain, ordinary meaning.
5
There is no need to look beyond the language of the
statute.
6
However, if a statute is susceptible to more than one natural or honest
interpretation, it is ambiguous.
7
When the meaning of a statute is ambiguous, legislative
intent controls its interpretation.
8
This court will interpret the statute in accord with reason
and public policy to avoid an absurd result.
9

NRS 90.295 defines a security to mean, among other things, simply a note. The word
note is generally defined as [a] written promise by one party . . . to pay money to another
party . . . or to bearer.
10
We conclude that a literal, plain meaning interpretation of the word
note as a security would lead to the absurd result of applying to nearly all notes issued
in Nevada,
__________

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

3
See Carson City District Attorney v. Ryder, 116 Nev. 502, 505, 998 P.2d 1186, 1188 (2000).

4
The State cites to State v. Tober, 841 P.2d 206, 208 (Ariz. 1992), and State v. Sheets, 610 P.2d 760, 765
(N.M. Ct. App. 1980), to support its argument.

5
See Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001).

6
See id.

7
Id.

8
Id.

9
See id.

10
Black's Law Dictionary 1085 (7th ed. 1999).
the absurd result of applying to nearly all notes issued in Nevada, including promissory notes
issued in connection with such things as car loans or student loans. This court has stated that
the unreasonableness of the result produced by one among alternative possible
interpretations of a statute is reason for rejecting that interpretation.
11
Therefore, we must
look elsewhere for meaning.
Family resemblance test
[Headnote 4]
Alternatively, the State argues that this court should adopt the family resemblance test and,
under the test, the notes issued by Friend are securities. Friend also urges this court to adopt
the test; however, he argues that the notes are not securities.
[Headnotes 5, 6]
The family resemblance test was established in Reves to determine when a note is a
security.
12
Since both the Act and the federal securities acts similarly define a security as
a note
13
or any note,
14
we conclude that it is appropriate for this court to adopt the test.
[Headnote 7]
The test begins with the presumption that every note is a security,
15
which may be rebutted
under either step of a two-tiered analysis.
16
Under the first step, the notes under review are
compared to the following notes that are not securities, which includes those that are
delivered in consumer financing; secured by a mortgage on a home; evidencing a character
loan to a bank customer; formalizing an open-account debt incurred in the ordinary course of
business; evidencing loans by commercial banks for current operations; short-term notes
secured by a lien on a small business or some of its assets; or short-term notes secured by an
assignment of accounts receivable.
17

Here, the notes under review are referred to by Friend as corporate notes and were payable
one year from the date of issuance with a return of the principal amount loaned plus 21 to 25
percent. These notes were issued to the Bells in exchange for $70,000.00. We conclude that
the notes under review do not appear to be among the excluded notes in the above list.
__________

11
Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975).

12
494 U.S. at 67.

13
NRS 90.295.

14
Securities Act of 1933, 15 U.S.C. 77b(a)(1) (1997); Securities Exchange Act of 1934, 15 U.S.C.
78c(a)(10) (1997).

15
Reves, 494 U.S. at 67.

16
Stoiber v. S.E.C., 161 F.3d 745, 748-49 (D.C. Cir. 1998).

17
494 U.S. at 65.
appear to be among the excluded notes in the above list. We must, therefore, move to the next
step.
[Headnote 8]
The next step of the test is to compare the notes under review to the list of notes above under
the following four factors: (1) the motivations prompting a reasonable seller and buyer to
enter into the transaction; (2) whether the instruments are used in common trading for
speculation or investment; (3) the expectations of a reasonable investing public; and (4)
whether another regulatory scheme significantly reduces the risk of the instrument.
18

(1) Motivation
[Headnote 9]
The first step is to analyze what motivations would prompt a reasonable seller and buyer to
enter into the transaction.
19
If the seller's purpose is to raise money for the general use of a
business enterprise or to finance substantial investments and the buyer is interested primarily
in the profit the note is expected to generate, the instrument is likely to be a security.'
20
On
the other hand, [i]f the note is exchanged to facilitate the purchase and sale of a minor asset
or consumer good, to correct for the seller's cash-flow difficulties, or to advance some other
commercial or consumer purpose . . . the note is less sensibly described as a security.'
21

[Headnote 10]
Here, according to Friend, the main purpose of the transactions was for debt-bridge financing
of imports from China to the United States. However, according to bank statements obtained
by the State, the funds invested by the Bells were used for general business, or personal,
expenses. Moreover, the Bells were not purchasing consumer goods from MEI. Rather, it
appears that the main purpose for investing funds into MEI was to earn a profit from a
favorable interest rate. Therefore, under this first prong, we conclude that the motivation of
Friend, the seller, and the Bells, the buyers, appears to be that of a security-type transaction.
(2) Plan of distribution
[Headnote 11]
The second step examines the distribution of the note to determine whether it is an
instrument in which there is common trading for speculation or investment.
__________

18
Id. at 66.

19
Id.

20
Id.

21
Id.
trading for speculation or investment.'
22
Common trading occurs when the instrument is
offered and sold to a broad segment of the public.'
23

[Headnote 12]
Here, MEI placed an advertisement in a regional newspaper seeking potential investors. In
this advertisement, MEI promised a high interest rate of return on one-year notes in exchange
for debt-bridge financing. The record is unclear on how long this advertisement ran; however,
it appears that it was placed in the newspaper more than once. As the newspaper is distributed
throughout Southern Nevada, which is home to well over a million people, we conclude that
this investment opportunity was offered to a broad segment of the public and that the plan of
distribution involved common trading.
(3) Expectations
[Headnote 13]
The third step of the analysis considers whether . . . [the notes] are reasonably viewed by
purchasers as investments.
24
Under this step, we must determine if the seller of the notes
calls them investments and, if so, whether it is reasonable for a prospective purchaser to
believe them.
25

[Headnote 14]
Here, it appears that the Bells invested in MEI to make a profit on a high interest rate of
return. Moreover, the advertisement in the newspaper portrayed the notes as investments.
There is no evidence to establish that the notes issued to the Bells were not investments.
Although Donald Bell did not view the notes as stocks or shares in MEI, it appears that the
sole purpose of the transactions was for investment purposes. We conclude that the
transactions appear to be ones involving securities.
(4) Need for securities laws
[Headnote 15]
The final step of the analysis examines the adequacy of other regulatory schemes in reducing
the risk to the lender.
26
Although Friend has been charged with two counts of obtaining
money under false pretenses, we conclude that there is a need for securities laws in Nevada.
The purpose of the federal securities acts was " 'to eliminate serious abuses in a largely
unregulated securities market.
__________

22
Stoiber, 161 F.3d at 750 (quoting Reves, 494 U.S. at 66).

23
Id. at 750 (quoting Reves, 494 U.S. at 68).

24
Id. at 751.

25
See id.

26
Id. at 751.
was to eliminate serious abuses in a largely unregulated securities market.'
27
Recognizing the virtually limitless scope of human ingenuity . . . by those who seek the use
of the money of others on the promise of profits,'
28
Congress broadly defined the scope of
securities laws. Like Congress, it appears that the Nevada Legislature recognized a similar
need for such broad security regulations. We will give effect to that determination.
CONCLUSION
We conclude that a plain, literal interpretation of the word note as defined by NRS 90.295
would lead to absurd results, and therefore, we reject such an interpretation. Although the
district court correctly adopted the family resemblance test, we conclude that the court
erred in holding that the notes issued by Friend were not securities. Therefore, we reverse the
dismissal of the six counts of securities violations against Friend and remand this case to the
district court to reinstate these charges and proceed to trial.
____________
118 Nev. 124, 124 (2002) Venetian Casino Resort v. Dist. Ct.
VENETIAN CASINO RESORT, LLC; GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC; and FRONTIER INSURANCE COMPANY, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in
and for THE COUNTY OF CLARK, and THE HONORABLE JAMES A.
BRENNAN, Senior Judge, Respondents, and LEHRER McGOVERN BOVIS, INC.;
HERRICK CORPORATION; HARRIS/ARIZONA REBAR, INC.; CHOICE
ELECTRIC; EBERHARD/SOUTHWEST ROOFING, INC.; and TRM
CORPORATION dba SUPERIOR TILE COMPANY, Real Parties in Interest.
No. 37527
February 27, 2002
41 P.3d 327
Original petition for a writ of certiorari, mandamus, or prohibition, challenging the district
court's appointment of a special master to conduct preferential mechanic's lien hearings.
Subcontractors filed legal action to foreclose on mechanic's liens and requested preferential
lien hearings. The district court referred hearings to special master. Owner, construction
company, and insurance company sought writ of mandamus.
__________

27
Reves, 494 U.S. at 60 (quoting United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849 (1975)).

28
Id. at 60-61 (quoting S.E.C. v. Howey Co., 328 U.S. 293, 299 (1946)).
and insurance company sought writ of mandamus. The supreme court held that: (1)
appointment of a special master to hold preferential lien hearings was justified, (2) special
master could not be delegated the authority to determine validity of claims, (3) owner had
waived objection to special master's participation on conflict of interest grounds, and (4)
special master was not disqualified on ground that her law firm represented parties that had
indirect interest in outcome of foreclosure litigation.
Petition granted in part, denied in part.
Agosti, J., dissented.
Hale Lane Peek Dennison Howard & Anderson and Lance C. Earl and Patrick J. Reilly, Las
Vegas; Lionel Sawyer & Collins and David N. Frederick and Todd E. Kennedy, Las Vegas,
for Petitioners.
Dixon & Truman, Las Vegas; Harrison Kemp & Jones, Chtd., Las Vegas; Griffin Cochrane &
Marshall and Jennifer W. Fletcher, Atlanta, Georgia, for Real Party in Interest Lehrer
McGovern Bovis, Inc.
J. Timothy Bak, Las Vegas; Law Offices of Tommy A. Conner, San Francisco, California, for
Real Party in Interest TRM Corp. d/b/a Superior Tile.
Peel, Brimley, Spangler & Brown, Henderson; Monteleone & McCrory, LLP, and Joseph A.
Miller, Los Angeles, California, for Real Party in Interest Herrick Corp.
Peel, Brimley, Spangler & Brown, Henderson, for Real Parties in Interest Harris/Arizona
Rebar, Choice Electric, and Eberhard Southwest Roofing.
1. Reference.
Where matters of account are involved, referral to a special master is only warranted if the matters are beyond the competence of
a court, i.e., the matters are not simple, would reach substantial proportions, or would consume an inordinate amount of judicial
resources.
2. Reference.
In all cases, referral to a special master is only warranted when it is necessary, not merely when it is desirable.
3. Reference.
Trial court's appointment of a special master to hold preferential lien hearings in subcontractors' actions to foreclose on
mechanic's liens was justified, as underlying litigation involved matters of account that would reach substantial proportions and would
potentially consume an inordinate amount of judicial resources; underlying litigation involved more than 100 potential claimants, each
of which was entitled to request a preferential lien hearing, those hearings could be lengthy and complicated,
cated, and one hearing had already involved four days of testimony, eighty exhibits, and an amount claimed in excess of one million
dollars. NRS 108.239(5), 108.2421; NRCP 53.
4. Reference.
Special masters may only exercise limited authority.
5. Mechanics' Liens.
The trial court, not the special master, is primarily responsible for determining the rights of the parties in mechanic's lien
foreclosure proceedings. NRS 108.239(5).
In mechanic's lien foreclosure proceedings, special master could not be delegated the authority to preside over preferential lien
hearings in their entirety and determine not only the amounts of the claims, but also their validity. Trial court was responsible for
determining the respective rights of the parties, which included determining validity of the liens. NRS 108.239(5).
Owner waived its right to object to special master's authority as to preferential lien hearings she had already conducted, although
trial court's broad delegation of authority to special master to determine validity of mechanic's liens was impermissible, where owner
waited until special master had conducted several hearings, eight months from time of her appointment and seven months from time
trial court referred hearings to her, before filing its motion to vacate her appointment.
8. Reference.
A party who wishes to object to the appointment of a special master must do so at the time of appointment, or within a
reasonable time thereafter, or else its objection is waived.
Owner had, for those preferential lien hearings already conducted in mechanic's lien foreclosure proceedings, waived its ability
to object to special master's participation on conflict of interest grounds, where owner was aware of allegedly disqualifying
relationships from time of special master's appointment, or soon thereafter, but failed to object until after special master had issued
several recommendations.
10. Reference.
If a party has constructive or actual knowledge of potentially disqualifying circumstances, but fails to object within a reasonable
amount of time, the objection to a special master on conflict of interest ground is waived.
11. Reference.
Because special masters are frequently attorneys, accommodation regarding conflicts of interest is required to account for the
likelihood that special masters will be engaged as advocates in matters other than those in which they serve as special masters.
12. Reference.
Special master presiding over preferential lien hearings was not disqualified on the ground that law firm for which she worked
represented four parties that had an indirect interest in outcome of underlying mechanic's lien foreclosure litigation; only one alleged
conflict could affect all hearings, law firm agreed to discontinue further representation of that party, remaining alleged conflicts were
case specific, and owner could raise specific conflicts regarding future lien claimants with trial court at appropriate time.
13. Reference.
The clearly erroneous standard applies only to the trial court's review of a special master's findings of fact. Conclusions of law,
on the other hand, require de novo review by the trial court.
1

OPINION
Per Curiam:
Petitioner, Venetian Casino Resort, retained real party in interest Lehrer McGovern Bovis,
Inc. (LMB), to construct the Venetian Casino Hotel and Resort. LMB contracted with several
trade contractors that, in turn, contracted with various venders and subcontractors, resulting in
more than 100 subcontractors being retained in several tiers below LMB to construct the
Venetian Casino Hotel & Resort. During construction, disputes arose as to the amounts due
under the contracts. The various contractors filed mechanic's liens against the property and
soon thereafter instituted legal action to foreclose on their liens. Because Venetian had posted
surety bonds to clear title to the property, the lien claimants requested preferential lien
hearings pursuant to NRS 108.2421. Senior District Judge James A. Brennan referred the
preferential lien hearings to Special Master Erika Pike Turner. Turner has since presided over
and issued reports for at least four preferential lien hearings.
Venetian, Grand Canal Shops Mall Construction, LLC, and Frontier Insurance Company,
hereinafter collectively referred to as Venetian, request extraordinary relief and seek to vacate
the appointment of Special Master Turner and the referral to her of the preferential lien
hearings. Venetian avers that the referral is improper in terms of both justification and scope,
and that Turner is disqualified from the role of special master because her law firm represents
four parties that are indirectly related to the Venetian litigation.
DISCUSSION
The district court's appointment of a special master was appropriate in this case, but the
district court's delegation of authority to the special master was too broad. In addition, we
conclude that Venetian has, thus far, waived its objections to Special Master Turner's
participation in the preferential lien hearings on conflict of interest grounds.
__________

1
The Honorable A. William Maupin, Chief Justice, and The Honorable Myron E. Leavitt, Justice, voluntarily
recused themselves from participation in the decision of this matter.
The Honorable Archie E. Blake, Judge of the Third Judicial District Court, was designated by the Governor to
sit in place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 4.
Turner's participation in the preferential lien hearings on conflict of interest grounds. We hold
that Turner may continue to preside over the preferential lien hearings in which she has no
conflict of interest, consistent with the limits of authority set forth in this opinion.
The appointment of a special master
[Headnotes 1, 2]
We deny, in part, Venetian's request for writ relief because the district court's appointment of
a special master in this case was properly justified. In actions not before a jury, NRCP 53(b)
authorizes referral to a special master for matters of account and of difficult computation of
damages or upon a showing that some exceptional condition requires it. Referral to a
special master for lien foreclosure actions is specifically authorized by NRS 108.239(5).
Where matters of account are involved, referral to a special master is only warranted if the
matters are beyond the competence of a court,
2
i.e., the matters are not simple, would
reach substantial proportions, or would consume an inordinate amount of judicial resources.
3
In all cases, referral to a special master is only warranted when it is necessary, not merely
when it is desirable.
4

[Headnote 3]
Judge Brennan's order of reference to Special Master Turner simply states that [d]ue to
anticipated congestion of proceedings in the instant case, it appears necessary to appoint a
Hearing Master. Although no further justification for the reference is provided, looking at
the record, as a whole, it is clear that the underlying litigation involves matters of account that
would reach substantial proportions and would potentially consume an inordinate amount of
judicial resources. The underlying litigation involves more than 100 potential claimants, each
of which is entitled to request a preferential lien hearing pursuant to NRS 108.2421. These
hearings may be lengthy and complicated. One of the hearings conducted thus far involved
four days of testimony, eighty exhibits, and an amount claimed in excess of one million
dollars. Therefore, the district court's appointment of a special master was authorized by
NRCP 53 and NRS 108.239.
The scope of Special Master Turner's authority
[Headnotes 4, 5]
We grant, in part, Venetian's petition for a writ of mandamus because the district court,
__________

2
Russell v. Thompson, 96 Nev. 830, 834, 619 P.2d 537, 540 (1980).

3
Id. at 835 n.3, 619 P.2d at 540 n.3.

4
Id. at 834, 619 P.2d at 540.
because the district court, by referring the preferential lien hearings in their entirety to Special
Master Turner, has conferred too much authority to the special master. Special masters may
only exercise limited authority. This court has explained that [m]asters are appointed to aid
judges in the performance of specific judicial duties, as they may arise in the progress of a
cause,' and not to place the trial judge into a position of a reviewing court.
5
The role a
special master may play in lien foreclosure proceedings is specifically limited by NRS
108.239(5) to ascertaining and reporting upon the liens and the amount justly due thereon.
The district court, not the special master, is primarily responsible for determining the rights of
the parties.
6

[Headnote 6]
Here, Special Master Turner was given the authority to preside over the preferential lien
hearings in their entirety and has determined not only the amounts of the claims, but also their
validity. The original order of appointment made the following delegation:
The Special Master is hereby vested with all the authority that a Special Master has
under the Nevada Rules of Civil Procedure and The Rules of Practice for the Eighth
Judicial District Court (EDCR). However, the Special Master is limited to the hearing
of matters expressly conferred upon her by this Court.
The district court subsequently referred authority over the preferential lien hearings, with no
limitation, to the special master.
7

After Special Master Turner conducted several hearings, the district court issued an order to
clarify her role as special master.
__________

5
Russell, 96 Nev. at 834, 619 P.2d at 539 (quoting Ex parte Peterson, 253 U.S. 300, 312 (1920)); see also La
Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957).

6
NRS 108.239(5) states, in pertinent part:
The court shall enter judgment according to the right of the parties, and shall, by decree, proceed to
hear and determine the claims in a summary way, or may, if it be the district court, refer the claims to a
master to ascertain and report upon the liens and the amount justly due thereon.

7
The Order of Reference states only that the statement of claims filed by the parties,
shall include, but is not limited to:
(a) The amount claimed as due under the terms of lien claimant's contract, including a breakdown of
costs for labor and materials claimed by the lien claimant;
(b) The costs associated with preparing and filing the lien claim and estimated costs related to
preparing for the preferential hearing; and,
(c) Attorney's fees incurred preparing the lien and representing the lien claimant to date as well as
estimated attorney's fees incurred for representation of the lien claimant in the preferential hearing.
(Emphasis added; citations omitted.)
Although the district court claims that the preferential lien hearings are primarily aimed at
determining the amount due under the contracts, the referral order states that, [a]ssuming the
defendants in the preferential lien hearings raise defenses involving the validity of the liens
themselves the Special Master shall also have to make recommendations or report upon' the
validity of the liens. The district court, on other occasions, has confirmed that the special
master will hear and make recommendations regarding the validity of the liens.
This broad delegation of authority to Special Master Turner to determine the validity of the
liens is impermissible. The special master's role must, under NRS 108.239(5), be limited to
determining the amount of the claims due, not their validity. The district court is responsible
for determining the respective rights of the parties, which, in this case, includes determining
the validity of the liens.
[Headnotes 7, 8]
Venetian has, however, waived its right to object to Special Master Turner's authority as to
those hearings she has already conducted. A party who wishes to object to the appointment of
a special master must do so at the time of appointment, or within a reasonable time thereafter,
or else its objection is waived.
8
Venetian waited until Special Master Turner had conducted
several preferential lien hearings, and eight months from the time of her appointment, and
seven months from the time the district court referred the preferential lien hearings to her,
before filing its motion to vacate her appointment. Venetian has, therefore, waived its right to
object to the special master's role as to those hearings she has already conducted.
Special Master Turner's alleged conflict of interest
[Headnotes 9, 10]
Venetian has, for those hearings already conducted, likewise, waived its ability to object to
Special Master Turner's participation on conflict of interest grounds. If a party has
constructive or actual knowledge of potentially disqualifying circumstances, but fails to
object within a reasonable amount of time, the objection is waived.
9
Venetian was aware of
the allegedly disqualifying relationships from the time of Special Master Turner's
appointment,
__________

8
Burlington Northern v. Department of Revenue, 934 F.2d 1064, 1069 (9th Cir. 1991); Adriana Intern. Corp.
v. Thoeren, 913 F.2d 1406, 1410 (9th Cir. 1990); Spaulding v. University of Washington, 740 F.2d 686, 695
(9th Cir. 1984).

9
See Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 651, 940 P.2d 134, 139 (1997); Ainsworth
v. Combined Ins. Co., 105 Nev. 237, 260, 774 P.2d 1003, 1019 (1989); Jacobson v. Manfredi, 100 Nev. 226,
230, 679 P.2d 251, 254 (1984); see also Preston v. U.S., 923 F.2d 731, 733 (9th Cir. 1991).
tionships from the time of Special Master Turner's appointment, or soon thereafter, but failed
to object until after she had issued several recommendations.
10
Therefore, as to the hearings
already conducted, Venetian has waived its right to object to Special Master Turner's alleged
conflicts of interest.
[Headnote 11]
In addition, the conflicts of interest alleged by Venetian do not rise to such a level so as to
require Special Master Turner to recuse herself from the underlying litigation. Canon 3E(1) of
the NCJC states, in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances
where:
. . . .
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the
judge previously practiced law served during such association as a lawyer concerning
the matter . . . .
The NCJC expressly applies to special masters.
11
However, because special masters are
frequently attorneys, accommodation is required to account for the likelihood that special
masters will be engaged as advocates in matters other than those in which they serve as
special masters.
12

[Headnote 12]
The conflicts alleged by Venetian involve parties that are represented by Gordon and Silver,
the law firm for which Turner works. These parties have only an indirect interest in the
outcome of the underlying litigation. In addition, only one of the conflicts Venetian alleged
would, if it were in fact a conflict, affect all of the preferential lien hearings. Gordon and
Silver has agreed to discontinue further representation of this party. The remaining alleged
conflicts are case specific, as they relate to some of the individual lien claimants, not to
Venetian. Special Master Turner may, therefore, within the limits set forth in this opinion,
preside over further lien hearings in the Venetian litigation. If Venetian believes there is some
conflict of interest as to some future lien claimant,
__________

10
See Ainsworth, 105 Nev. at 260, 774 P.2d at 1019 (Well-reasoned authority supports a conclusion . . . that
counsel, knowing facts assertively supportive of a motion for . . . recusal . . . based upon charges of bias and
impropriety, may not lie in wait' and raise those allegations in a motion only after learning the court's ruling on
the merits.' (quoting Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986))).

11
NCJC, Application, sec. A.

12
Jenkins v. Sterlacci, 849 F.2d 627, 630 n.1, 632 (D.C. Cir. 1988).
claimant, it may raise it with the district court at the appropriate time.
The district court's review of the special master's findings
[Headnote 13]
Judge Brennan appears to have incorrectly reviewed Special Master Turner's
recommendations using a clearly erroneous standard.
13
The clearly erroneous standard
applies only to the district court's review of a special master's findings of fact; conclusions of
law, on the other hand, require de novo review by the district court.
14
Thus, the district court
manifestly abused its discretion in applying the incorrect standard of review.
CONCLUSION
For the foregoing reasons, we deny the petition to the extent that it challenges the district
court's decision to refer the lien foreclosure proceedings to Special Master Turner.
Additionally, we deny the petition to the extent that it challenges Special Master Turner on
conflict of interest grounds, as petitioners have waived, with regard to the hearings already
conducted, any alleged conflict. We grant the petition with respect to the scope of the district
court's referral order and its review of the special master's recommendations. By making too
broad a referral to Special Master Turner, and by failing to apply the proper standard of
review to her recommendations, the district court abused its discretion. We therefore direct
the clerk of this court to issue a writ of mandamus
15
compelling the district court to enter an
order clarifying and limiting the scope of Special Master Turner's authority, consistent with
this opinion, and to reevaluate the special master's recommendations using the proper
standard of review.
16

Agosti, J., dissenting:
I dissent. The district judge who appointed the special master was himself appointed to assist
the district court with the burden of its civil caseload. Now, the specially appointed senior
judge has in turn appointed a master to relieve him of the burden of his civil caseload.
__________

13
Although Judge Brennan alleged in one order that he has been using a de novo standard of review, all of his
decisions to either reject or adopt the special master's findings have, in fact, been stated in terms of a clearly
erroneous standard.

14
See Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962).

15
See NRS 34.160; see also Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536
(1981); Russell v. Thompson, 96 Nev. 830, 832-33, 619 P.2d 537, 538 (1980).

16
We also lift the partial stay we issued on May 9, 2001.
caseload. This is certainly a misuse of resources. I believe the senior judge ought to handle
this case himself.
____________
118 Nev. 133, 133 (2002) Northwest Pipe Co. v. Dist. Ct.
NORTHWEST PIPE CO., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE GENE T. PORTER, District Judge, Respondents, and
CHRISTOPHER STAYTON, ALAN STAYTON, By and Through Their Natural
Father and Guardian, VAN STAYTON; DONNA R. CLARK, Personal
Administratrix of the Estate of SANDRA LEE DAVIS, aka SANDRA LEE VIGIL;
CHRISTINA ARGUELLO, MANUAL VIGIL, III, a Minor, By and Through
CHERYL MARTINEZ, Guardian and Personal Representative of the Estate of
MANUAL VIGIL, II; LINDA COZZOLINO, an Individual; HAZEL COKER, Special
Adminstratrix of the Estate of RANDALL W. LEDFORD, Deceased; THE ESTATE
OF RANDALL W. LEDFORD; THELMA JACQUELINE ALSTON; DONALD
ALSTON; and LEONARD LEDFORD, an Individual, Real Parties in Interest.
No. 36699
March 13, 2002
42 P.3d 244
Original petition for writ of mandamus or prohibition.
Survivors of fatal automobile accident that occurred in California brought wrongful death
actions against Oregon company that was transporting concrete pipes that fell off truck. The
district court ruled that Nevada law governed. Oregon company appealed. The supreme court,
Shearing, J., held that Nevada law applied to actions.
Petition denied.
[Rehearing denied May 7, 2002]
Maupin, C. J., with whom Becker, J., agreed, dissented in part. Agosti, J., with whom Leavitt,
J., agreed, dissented.
Cohen, Johnson, Day, Jones & Royal and Geoffrey A. Potts, Las Vegas, for Petitioner.
Beckley, Singleton, Chtd., and Charles A. Michalek, Daniel F. Polsenberg and James L.
Edwards, Las Vegas, for Real Parties in Interest Thelma Jacqueline Alston and Donald
Alston.
Hafen, Porter & Storm, Ltd., Las Vegas, for Real Parties in Interest Christopher Stayton, Alan
Stayton, and Estate of Sandra Lee Vigil (Davis).
Harrison Kemp & Jones, Chtd., Las Vegas, for Real Parties in Interest Linda Cozzolino and
Estate of Randall W. Ledford and Leonard Ledford.
Mainor & Harris, Las Vegas, for Real Parties in Interest Christina Arguello, Manual Vigil,
III, and Estate of Manual Vigil, II.
1. Death.
Nevada law governed wrongful death actions brought by survivors, almost all of whom were Nevada residents, arising out of a
fatal automobile accident that occurred in California against Oregon company that was transporting concrete pipes that fell off truck,
as no other relationship existed between parties that was centered elsewhere. (Per Shearing, J., with two Justices concurring and two
Justices concurring in part.)
2. Action.
The law of the forum is presumed to govern unless two or more of four enumerated factors show that another state has an
overwhelming interest in the litigation. Those factors are: (1) it is the place where the conduct giving rise to the injury occurred; (2) it
is the place where the injury is suffered; (3) the parties have the same domicile, residence, nationality, place of incorporation, or place
of business and it is different from the forum state; and (4) it is the place where the relationship, if any, between the parties is centered.
(Per Shearing, J., with two Justices concurring and two Justices concurring in part.)
OPINION
[Headnote 1]
Northwest Pipe Company has filed an original petition for a writ of mandamus or prohibition
challenging a district court order ruling that Nevada law governs the underlying wrongful
death actions arising out of a fatal automobile accident that occurred in California. We
conclude that the district court did not manifestly abuse its discretion in determining that
Nevada law governs.
The underlying actions arose from an accident that occurred on a highway in San Bernardino
County, California, when three concrete pipes weighing several tons fell off a Northwest Pipe
Company truck and struck several vehicles. Six individuals were killed: two Nevada
residents, Manual and Sandra Vigil, and four California residents, Randall and Melissa
Ledford and their two children, Lonnie and Skyler.
children, Lonnie and Skyler. Eleven plaintiffs, the real parties in interest in this proceeding,
filed wrongful death actions in the district court. All plaintiffs are Nevada residents, except
Linda Cozzolino and Leonard Ledford, who are California residents. Northwest Pipe
Company, apparently the sole remaining defendant, is an Oregon corporation, with
headquarters in Oregon and business interests throughout the United States, including
Nevada. In fact, the pipes that fell from the truck were apparently destined to be used in a Las
Vegas Valley Water District project.
[Headnote 2]
Northwest Pipe does not dispute the jurisdiction of the Nevada courts, but argues that the
Nevada district court should apply California law in the wrongful death actions before it.
Both Northwest Pipe and the real parties in interest agree that the choice of law question is
governed by Motenko v. MGM Dist., Inc.
1
Under Motenko, the law of the forum is presumed
to govern unless two or more of four enumerated factors show that another state has an
overwhelming interest in the litigation. These factors are:
(a) it is the place where the conduct giving rise to the injury occurred;
(b) it is the place where the injury is suffered;
(c) the parties have the same domicile, residence, nationality, place of incorporation, or
place of business and it is different from the forum state;
(d) it is the place where the relationship, if any, between the parties is centered.
2

In this case, the only factor favoring application of California law is that the conduct giving
rise to the injury occurred in California. Motenko, however, recognizes that even though an
accident occurs in one state, the compensable injury may be suffered in a different state. In
Motenko, plaintiff's parent was physically injured in Nevada, but the legal injury, for purposes
of a claim for loss of parental consortium, was suffered in Massachusetts. The same is true in
a wrongful death action in which the injury is to the survivors. In this case, almost all of the
survivors are Nevada residents, and the Vigils' children, who are impacted the most, are
Nevada residents. Therefore, although the deaths occurred in California, the injury to the
survivors has occurred in Nevada.
The remaining two factors mentioned in Motenko also do not demonstrate that California has
an overwhelming interest in this litigation. The parties do not have the same non-Nevada
domicile,
__________

1
112 Nev. 1038, 921 P.2d 933 (1996).

2
Id. at 1049, 921 P.2d at 935.
and no other relationship exists between the parties that is centered elsewhere. Since
Northwest Pipe cannot show that two or more of the Motenko factors are met, the
presumption that the law of the forum governs is not overcome.
3

The district court did not manifestly abuse its discretion
4
in ruling that Nevada law applies to
the wrongful death action before it. Therefore, we deny this petition.
Young and Rose, JJ., concur.
Maupin, C. J., with whom Becker, J., agrees, concurring in part and dissenting in part:
I concur in the majority conclusion that the district court should apply Nevada law to this
controversy when it is tried in district court, but with two exceptions. Under Motenko, the law
of the forum is presumed to govern unless other non-forum factors show that another state
has an overwhelming interest in the litigation.
1
In an action brought in Nevada, another state
has an overwhelming interest if two of the following non-forum based factors are met: (1) the
conduct giving rise to the injury occurred in that other state; (2) the injury was suffered in the
other state; (3) the parties have the same domicile, residence, nationality, place of
incorporation, or place of business and it is different from the forum state; and (4) the other
state is the place where the relationship, if any, between the parties is centered.
2

The majority correctly notes that the third and fourth factors are not implicated in this case. It
also correctly notes that only one factor in favor of applying California law exists, at least as
to the cases brought by the Nevada residents. However, as to the two cases initiated by the
California residents, it appears that two of the Motenko factors are met. First as noted, the
accident causing the injury occurred in the State of California. Second, the wrongful death
damages are being suffered in California.
Thus, under our formula in Motenko, at least as to the two California plaintiffs, California
does have an overwhelming interest in the application of its law to their claims.
Agosti, J., with whom Leavitt, J., agrees, dissenting:
I would grant the petition for a writ of mandamus. I disagree with the test enunciated in
Motenko v. MGM Dist., Inc.
1
I would apply the significant relationship test
__________

3
Id. at 1041, 921 P.2d at 935.

4
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

1
Motenko v. MGM Dist., Inc., 112 Nev. 1038, 1041-42, 921 P.2d 933, 935 (1996).

2
Id.

1
112 Nev. 1038, 921 P.2d 933 (1996).
apply the significant relationship test of the Restatement (Second) of Conflict of Laws 175
(1971) which states the following:
In an action for wrongful death, the local law of the state where the injury occurred
determines the rights and liabilities of the parties unless, with respect to the particular
issue, some other state has a more significant relationship under the principles stated in
6 to the occurrence and the parties, in which event the local law of the other state will
be applied.
2

The principles of section 6 referred to in section 175 are stated in section 6(2) and are as
follows:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those
states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
The Restatement comments to section 6(2) are instructive. These factors are not meant to be
exclusive, nor are they listed according to their importance; the weight to be assigned to each
factor will vary according to different areas of choice of law.
3

When this court adopted the Motenko standard, it borrowed and modified section 145 of the
Restatement. The exact language of section 145 bears examination here:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined
by the local law of the state which, with respect to that issue, has the most significant
relationship to the occurrence and the parties under the principles stated in 6.
(2) Contacts to be taken into account in applying the principles of 6 to determine the
law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of
the parties, and
__________

2
See also Restatement (Second) Conflict of Laws 146 (1971), which deals with personal injuries and is
identical in all respects to section 175.

3
Restatement (Second) of Conflict of Laws 6 cmt. c (1971).
(d) the place where the relationship, if any, between the parties is centered.
Once again, the comments to section 145 are instructive. This rule is cast broadly and
generally but notes that, where it is possible, the Restatement has also enunciated particular,
more precise rules for some specific torts.
4
Following the general rule of section 145 are a
number of sections which enunciate the choice of law test for specific torts. For example,
section 146 applies to personal injuries; section 147 applies to injuries to tangible things;
section 148 applies to fraud and misrepresentation; section 149 applies to defamation; section
175 applies to a right of action for death.
In Motenko, a personal injury case, this court referred to section 146 but focused on the
language of section 145 when it criticized the Restatement approach. I believe that because
the Restatement enunciated a specific test for torts involving personal injuries and wrongful
death, reference to section 145 was unnecessary. Instead, referring to sections 146 and 175,
the law of the state where the injury occurred applies unless another state has a more
significant relationship to the occurrence and the parties. In making the determination of
whether another state has a more significant relationship, the rule points to a consideration of
the factors enumerated in section 6(2). Those factors, each and every one of them, boil down
to policy considerations which affect the parties and the states involved. The significant
relationship test examines not only factual matters like where the injury occurred, but also
the forum and non-forum states' relationships to the case and what interests and policies of
each state are implicated according to which state's law is chosen.
I am struck by the comments of Justice Cliff Young in his concurring opinion in Motenko. In
agreeing with the result reached by the majority while disagreeing with the new test
enunciated by the majority, he considered Nevada's strong public policy of protecting its
tourist industry.
5
This very important consideration supports the majority's decision to apply
Nevada law in Motenko. Unfortunately, application of the test adopted in Motenko never
permits a court to consider the important policy questions which inevitably arise in choice of
law controversies. The Motenko test does not incorporate the specific reference in sections
146 and 175 to the policy considerations of section 6(2). As the Motenko dissent observed,
the majority test is quantitative rather than qualitative.
6

__________

4
Id. 145 cmt. a.

5
Motenko, 112 Nev. at 1043, 921 P.2d at 936 (Young, J., concurring).

6
Id. at 1048, 921 P.2d at 939 (Steffen, C. J., dissenting).
I would also note that since not all the factors of the Motenko test will be relevant to every
choice of law controversy, and since the rule requires that two or more factors must be met
before the law of a non-forum state may be applied, it is unlikely that anything but Nevada
law will ever apply. As such, I agree with the observation made by the dissent in Motenko
that the majority has in reality not abandoned the vested rights rule at all. I also agree with
the dissent's critique of the vested rights rule.
7

While the Motenko test might seem to promote predictability and uniformity, prized interests
of the Motenko majority,
8
I question its reasonableness.
First, because two justices dissent to Nevada law being applied to the California plaintiffs'
causes of action, and because I and the justice who concurs with me join them in this
conclusion, we comprise a majority and California law will be applied to those causes of
action. Thus, California law will apply to some but not all the plaintiffs in this action. The
goal of uniformity is not achieved within the case itself. Predictability is also not apparent.
The justices who here concur in part and dissent in part disagree with the majority as to the
result achieved through application of the Motenko test to the California plaintiffs. It was
precisely upon the observation that under the Restatement test [d]ifferent judges can weigh
the same factors to reach opposite conclusions
9
that the Restatement test was rejected in
favor of the modified version adopted by the majority in Motenko. It is not reasonable to
adopt a test that suffers from the same defects as the rejected test.
Ironically, the Restatement recognizes that the values of predictability and uniformity
enumerated in section 6(2)(f) may not always be achieved. As pointed out in its commentary,
[p]redictability and uniformity of result are of particular importance in areas where the
parties are likely to give advance thought to the legal consequences of their transactions, but
predictability and uniformity can be purchased at too great a price. In a rapidly developing
area, such as choice of law, it is often more important that good rules be developed than that
predictability and uniformity of result should be assured through continued adherence to
existing rules.
10
In the case before us today, as well as in Motenko, the parties cannot be
said to have given advance thought to the legal consequences of their transactions. These are
negligence cases.
Second, I believe that applying Nevada law in this case is unreasonable since virtually every
fact and circumstance giving rise to the causes of action,
__________

7
Id. at 1047, 921 P.2d at 938-39 (Steffen, C. J., dissenting).

8
Id. at 1041, 921 P.2d at 935.

9
Id.

10
Restatement (Second) Conflict of Laws 6 cmt. i (1971).
rise to the causes of action, except for the domicile of some of the plaintiffs, points to the
application of California law. This terrible accident occurred in California. Under the
Restatement approach, the law of California applies because that is where the injury occurred,
unless Nevada has a more significant relationship to the occurrence and the parties under the
principles stated in section 6. Nevada has no relationship, significant or otherwise, to the
occurrence of the accident. Nevada has a relationship to some of the plaintiffs but to none of
the defendants. It seems to me that Nevada's relationship to some of the plaintiffs is not
significant enough to warrant the selection of Nevada law over California's. Nevada has no
strong articulated public policy that would favor such a result. In contrast, California certainly
has a strong interest in the enforcement of its traffic laws; the allegation has been made that
the driver of the truck from which the pipes fell was driving under the influence of alcohol
and that his driving contributed to the accident.
11

I favor the Restatement approach, not as described in Motenko, but as set out in the
Restatement. I would apply that test here and I would conclude that it is appropriate to choose
California law. Therefore I would grant the relief prayed for in the writ.
____________
118 Nev. 140, 140 (2002) State of Nevada v. Dist. Ct. (Anzalone)
STATE OF NEVADA, OFFICE OF THE ATTORNEY GENERAL; FRANKIE SUE DEL
PAPA, DONALD HAIGHT, DAVID THOMPSON, and J.T. HEALY, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in
and for THE COUNTY OF CLARK, and THE HONORABLE JAMES C. MAHAN,
District Judge, Respondents, and MICHAEL J. ANZALONE, Real Party in Interest.
No. 38185
March 13, 2002
42 P.3d 233
Original petition for a writ of mandamus or prohibition challenging a district court order that
denied a motion to dismiss the causes of action against petitioners.
Former investigator for the Office of the Attorney General brought action against the State,
the Office, the Attorney General, and others, in their individual and official capacities,
alleging defamation, civil rights violations, and tortious discharge. The district court denied
defendants' motion to dismiss action.
__________

11
See Griffith v. White, 929 F. Supp. 755, 759 (D. Vt. 1996), where the court concluded that the state where
the drinking occurred has a greater interest in having its laws applied since that state has an inherent interest in
protecting the public from drunk drivers. See also Wert v. McDonnell Douglas Corp., 634 F. Supp. 401 (E.D.
Mo. 1986).
district court denied defendants' motion to dismiss action. Defendants petitioned for writ of
mandamus or prohibition to compel dismissal. The supreme court held that: (1) it would
exercise its discretion to grant extraordinary relief; (2) Attorney General's statements in
newspaper were protected under the common-law conditional privilege of reply; (3) statement
by fellow investigator to law enforcement was a statement of opinion and not actionable as
defamation; (4) investigator did not state a claim for emotional distress damages; and (5)
investigator could not establish a claim under 1983 for deprivation of procedural due
process in connection with his discharge.
Petition granted.
Shearing, J., dissented.
Frankie Sue Del Papa, Attorney General, Patrick O. King, Senior Deputy Attorney General,
and David W. Wasick, Assistant Attorney General, Carson City, for Petitioners.
Wait Law Firm, Reno, for Petitioner Del Papa, individually.
Christopher G. Gellner, Las Vegas; Fitzgerald & Arsenault, Las Vegas; Mirch & Mirch,
Reno; Christine Manno, Phoenix, Arizona, for Real Party in Interest.
1. Mandamus.
Supreme court would, as a matter of judicial economy and because underlying case raised important legal questions, exercise its
discretion to grant extraordinary relief to Office of Attorney General and other State defendants that sought to dismiss claims by former
investigator for the Office arising from his termination, where case had been pending for four years and involved serious,
well-publicized allegations against the Office, which, if meritless, would require dismissal of entire case.
2. Mandamus.
Writ relief is an extraordinary remedy that will only issue at the discretion of the supreme court.
3. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law especially enjoins as a duty resulting from
an office, trust or station or to control manifest abuse of discretion.
4. Prohibition.
A writ of prohibition is the counterpart of the writ of mandamus and is available to arrest the proceedings of any tribunal
when such proceedings are without or in excess of the jurisdiction of such tribunal.
5. Mandamus.
Writ relief is not proper to control the judicial discretion of the district court, unless discretion is manifestly abused or is
exercised arbitrarily or capriciously.
6. Mandamus.
Defendants' writ petition filed less than four months after denial of their underlying motion to dismiss did not present
inexcusable delay, and thus was not barred by doctrine of laches, even though defendants waited two years from filing of complaint to
file motion to dismiss, where shortly after petition was filed, defendants filed a motion to dismiss for failure to state a claim, and
district court continued motion to dismiss several times at request of plaintiff's attorney.
7. Mandamus.
Writ relief is subject to laches.
8. Mandamus.
To determine whether laches should preclude consideration of a writ petition, a court must determine: (1) whether there was an
inexcusable delay in seeking the petition, (2) whether an implied waiver arose from the petitioner's knowing acquiescence in existing
conditions, and (3) whether there were circumstances causing prejudice to the respondent.
9. Libel and Slander.
To create liability for defamation there must be, among other things, a false and defamatory statement that was an unprivileged
publication.
Common-law conditional privilege of reply protected Attorney General's statements in her letter published by newspaper and
sent to Governor and Gaming Commission, even assuming they were defamatory to former investigator for Office of Attorney General
whom she previously terminated, where such statements rebutted investigator's attack on the Office, published in same newspaper,
stating that he was forced to resign because he was asked to perform an illegal act in connection with an intelligence investigation of
Gaming Control Board, and Attorney General limited her response to investigator's allegations.
The common-law privilege of reply grants those who are attacked with defamatory statements a limited right to reply.
The privilege of reply, which grants those who are attacked with defamatory statements a limited right to reply, may be lost if
the reply: (1) includes substantial defamatory matter that is irrelevant or non-responsive to the initial statement; (2) includes substantial
defamatory material that is disproportionate to the initial statement; (3) is excessively publicized; or (4) is made with malice in the
sense of actual spite or ill will.
13. Torts.
Common-law conditional privilege of reply protected Attorney General's statements in letter published by newspaper setting out
reasons why former investigator for Office of Attorney General was no longer employed with the Office, even assuming investigator
maintained a cause of action for invasion of privacy, where investigator was quoted in article in same newspaper as saying that he was
forced to resign when asked to conduct an unauthorized investigation of Gaming Control Board. Restatement (Second) of Torts
652G.
14. Torts.
To maintain a cause of action for public disclosure of private facts one must prove that a public disclosure of private facts has
occurred that would be offensive and objectionable to a reasonable person of ordinary sensibilities.
Statement by one investigator with Office of Attorney General to law enforcement officials concerning the firing of a fellow
investigator that if I had conducted an investigation that was crappy or half-assed,
I had conducted an investigation that was crappy or half-assed, I would expect to be fired as well, amounted to a statement of opinion,
and thus was not actionable as defamation.
As a general rule, only assertions of fact, not of opinion, can sustain a defamation claim.
In context of a defamation claim, the test for whether a statement constitutes fact or opinion is whether a reasonable person
would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact.
18. Attorney General.
That investigator for Office of the Attorney General was under the impression that he was being asked to conduct an illegal
investigation of Gaming Control Board, absent other independent evidence, would not support claim of tortious discharge or establish
sufficiently outrageous conduct required to award emotional distress damages.
19. Master and Servant.
Generally an at-will employee can be terminated whenever and for whatever cause without giving rise to liability on the part of
the employer.
To support a claim of tortious discharge, the evidence produced by an employee must be concrete and establish outrageous
conduct that violates public policy.
An employee's statements that are conjecture or speculation cannot support a claim of tortious discharge.
22. Damages.
In order to sustain a claim of emotional distress, the plaintiff needs to show that there was extreme and outrageous conduct with
either the intention of, or reckless disregard for, causing emotional distress.
23. Damages.
Evidence that Solicitor General responded to an inquiry by a prospective employer of a former investigator for the Office of
Attorney General, by informing the prospective employer that he could not tell him anything due to pending litigation, was insufficient
to establish that Office or Solicitor General caused investigator's unemployment, as required to sustain investigator's claim for
emotional distress damages.
24. Judgment.
It is insufficient to allege wrongdoing and cite only the resulting injury. In the face of a summary judgment motion, it is
incumbent upon the party opposing it to produce some admissible evidence to show that the alleged tortfeasor acted negligently or
intentionally, or failed to act when required to, and that the conduct or the failure to act is the proximate cause of the injuries
complained of.
25. Civil Rights.
Attorney General and Deputy Attorney General were not persons for purposes of claim under 1983, and thus could not be
sued in their official capacities in state court under the federal civil rights statutes. 42 U.S.C. 1983.
26. Civil Rights.
To establish a claim under 1983, the plaintiff must prove that the conduct complained of: (1) was committed by a person
acting under color of state law, and (2) deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or
laws of the United States.
ties secured by the Constitution or laws of the United States. 42 U.S.C. 1983.
27. Civil Rights.
The threshold inquiry in a 1983 claim is whether the plaintiff has identified a right cognizable under the statute. Section 1983
does not itself create substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. 42 U.S.C.
1983.
Investigator for the Office of the Attorney General, as an at-will employee of the State, had no property interest in his
employment, and thus could not establish a claim under 1983 for deprivation of procedural due process in connection with his
discharge from employment. U.S. Const. amend. 14; 42 U.S.C. 1983.
The Fourteenth Amendment protects individuals against the deprivation of liberty or property by the government without due
process. U.S. Const. amend. 14.
To establish a claim under 1983 for deprivation of procedural due process, the claimant must establish: (1) a liberty or
property interest protected by the Constitution, (2) a deprivation of the interest by the government, and (3) lack of process. U.S. Const.
amend. 14; 42 U.S.C. 1983.
For purposes of substantive due process protections, property rights are defined by reference to state law. U.S. Const. amend. 14.
32. Attorney General; Constitutional Law.
Attorney General's request that investigator for Office of Attorney General resign or be terminated because Attorney General
lost confidence in investigator did not amount to a charge of moral turpitude, and thus, investigator's termination did not implicate a
liberty interest, precluding his due process claim under 1983, even though the reason for termination was published. U.S. Const.
amend. 14; 42 U.S.C. 1983.
The liberty interest protected by the due process clause encompasses an individual's freedom to work and earn a living. U.S.
Const. amend. 14.
A public employer who dismisses an employee for reasons that are published and are sufficiently serious to stigmatize or
otherwise burden the employee, so that he is not able to take advantage of other employment opportunities, entitles the employee to
notice and a hearing consistent with due process to clear his name. U.S. Const. amend. 14.
Published charges against a public employee that carry the stigma of moral turpitude, such as dishonesty or immorality, may
implicate a liberty interest, but charges of incompetence or inability to get along with others do not. U.S. Const. amend. 14.
36. Attorney General; Constitutional Law.
Public employee's statements within newspaper article, alleging that he was forced to resign from his position as investigator for
Office of Attorney General because he refused to participate in an unauthorized intelligence investigation did not oppose any
discriminatory practice made unlawful under Title VII, and thus, employee had no First Amendment retaliation claim grounded on
Title VII. U.S. Const. amend. 1; 42 U.S.C. 2000e et seq.
In essence, under Title VII, an employer is prohibited from retaliating against an employee because the employee challenges the
employer's discriminatory practices. U.S. Const. amend. 1; 42 U.S.C. 2000e et seq.
OPINION
Per Curiam:
This writ petition arises from a wrongful termination case against the Attorney General's
office by a former investigator, Mike Anzalone. Anzalone's complaint alleges various causes
of action arising from his termination, including, among others, defamation, civil rights
violations, and tortious discharge. On October 13, 2000, petitioners filed a motion to dismiss
the complaint. The district court denied the motion.
1
Petitioners now seek extraordinary
relief from this court to compel dismissal of the underlying case.
Extraordinary relief lies within our sole discretion, and is granted only in limited
circumstances. As a matter of judicial economy and because this case raises important legal
questions, we exercise our discretion to grant extraordinary relief here. We conclude that
Anzalone's claims against petitioners either lack merit or cannot be sustained against
petitioners. We therefore grant the petition.
FACTS
Mike Anzalone was employed at the Attorney General's office from August 1993 until he
resigned in 1996. Before his resignation, Anzalone was involved with the criminal
investigation of Ron Harris, a Gaming Control Board (GCB) employee, who had been
arrested for cheating activity. The GCB had previously experienced problems with the legal
representation the Attorney General's office was providing. As a result, the GCB, at the time
the Attorney General's office initiated the Harris investigation, was lobbying for legislation
that would have allowed it to hire its own legal counsel.
Anzalone alleges that from that time on, bad feelings persisted between the Attorney
General's office and the GCB. Anzalone further alleges that as a result, the Attorney General's
office unlawfully expanded the criminal investigation of Harris to include an
"intelligence-type investigation" of the GCB and its chairman, Bill Bible.
__________

1
Several affidavits and other matters outside of the pleadings were presented to the district court on the
motion to dismiss. In such a case, the motion shall be treated as one for summary judgment. NRCP 12(c); see
also Lumbermen's Underwriting v. RCR Plumbing, 114 Nev. 1231, 1234, 969 P.2d 301, 303 (1998).
unlawfully expanded the criminal investigation of Harris to include an intelligence-type
investigation of the GCB and its chairman, Bill Bible. Anzalone alleges that as part of this
investigation, Deputy Attorney General David Thompson, who was ultimately put in charge
of the Harris investigation at the direction of Attorney General Frankie Sue Del Papa,
requested that Anzalone obtain telephone and bank records of Bible and other GCB members
by illegal means. Anzalone alleges that he was forced to resign because he refused to do so.
Thereafter, on February 18, 1998, Anzalone filed the underlying complaint against the State
of Nevada; Frankie Sue Del Papa, Attorney General; Office of the Attorney General for the
State of Nevada; Donald Haight, Deputy Attorney General; J.T. Healy, an investigator of the
Attorney General's office; Ronald Wheatly,
2
an investigator of the Attorney General's office;
and David Thompson, Deputy Attorney General. Anzalone sued the individuals in their
individual and official capacities. In his complaint, Anzalone raised various claims related to
his termination. On October 13, 2000, petitioners filed a motion to dismiss the complaint. On
February 26, 2001, the district court held a hearing and denied the motion to dismiss.
3
On
July 17, 2001, as the trial date approached, petitioners filed this writ petition requesting this
court to compel dismissal of Anzalone's claims.
DISCUSSION
Writ relief
[Headnotes 1-5]
We must first consider whether a petition for writ relief seeking to compel dismissal of the
case after an unsuccessful motion to dismiss is proper. Writ relief is an extraordinary remedy
that will only issue at the discretion of this court.
4
A writ of mandamus is available to
compel the performance of an act which the law especially enjoins as a duty resulting from an
office, trust or station, or to control manifest abuse of discretion.
5
A writ of prohibition is
the counterpart of the writ of mandamus and is available to arrest[ ] the proceedings of any
tribunal . . . when such proceedings are without or in excess of the jurisdiction of such
tribunal.
__________

2
Wheatly filed a motion for summary judgment on May 31, 2001, and the district court granted his motion.

3
Del Papa renewed a motion for summary judgment on June 4, 2001, requesting that all the claims in her
individual capacity be dismissed. On June 26, 2001, the district court granted the motion.

4
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665, 856 P.2d 244, 246 (1993).

5
NRS 34.160; see also Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981).
such tribunal.
6
Writ relief is not proper to control the judicial discretion of the district court,
unless discretion is manifestly abused or is exercised arbitrarily or capriciously.
7

The instant petition follows from petitioners' unsuccessful motion to dismiss the underlying
case. We have previously held that writ relief is available to review a district court's denial of
a motion to dismiss, but only on a limited basis. In State ex rel. Department of Transportation
v. Thompson,
8
we determined that it was not in the best interest of Nevada's judicial system
for this court to entertain writ petitions challenging district court denials of motions to
dismiss or motions for summary judgment. Since that decision, we have determined that
although we will generally decline to entertain such writ petitions, we may do so when: (1) no
factual dispute exists and the district court is obligated to dismiss an action pursuant to clear
authority under a statute or rule; or (2) an important issue of law needs clarification and
considerations of sound judicial economy and administration militate in favor of granting the
petition.
9
We have emphasized, however, that very few writ petitions warrant extraordinary
relief and that [t]he interests of judicial economy, which inspired the Thompson rule, will
remain the primary standard by which this court exercises its discretion.
10

Here, while we again reiterate the limited availability of writ relief to review district court
orders denying motions to dismiss or for summary judgment, we conclude that the instant
case is one of the very few instances that warrant extraordinary relief. The underlying case
has been pending for nearly four years and involves important questions of law and serious,
well-publicized allegations against the Attorney General's office. If petitioners' contention
that Anzalone's claims are meritless is correct, the entire case must be dismissed. Petitioners
have already been subjected to four years of litigation, and should not be subjected
unnecessarily to four more years. We therefore conclude that judicial economy militates in
favor of our intervention.
[Headnotes 6-8]
Anzalone counters, asserting laches. Anzalone explains that the petitioners waited over two
years from the time he filed his complaint to file the underlying motion to dismiss. Writ relief
is subject to laches.
__________

6
NRS 34.320.

7
Newman, 97 Nev. at 604, 637 P.2d at 536.

8
99 Nev. 358, 361, 662 P.2d 1338, 1340 (1983).

9
Advanced Countertop Design v. Dist. Ct., 115 Nev. 268, 269, 984 P.2d 756, 758 (1999); Smith v. District
Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).

10
Smith, 113 Nev. at 1344-45, 950 P.2d at 281.
ject to laches.
11
To determine whether or not laches should preclude consideration of a writ
petition, a court must determine: (1) whether there was an inexcusable delay in seeking the
petition, (2) whether an implied waiver arose from the petitioner's knowing acquiescence in
existing conditions, and (3) whether there were circumstances causing prejudice to the
respondent.
12

Anzalone's contention that there was inexcusable delay lacks merit. Shortly after Anzalone
filed his complaint, petitioners filed a motion to dismiss for failure to state a claim. The
district court dismissed two causes of action and denied petitioners' remaining arguments for
dismissal without prejudice, stating that petitioners could file a motion for summary judgment
after the parties conducted discovery. Also, after the petitioners filed the underlying motion to
dismiss, the district court continued the motion several times to conduct further discovery at
the request of Anzalone's attorney. Furthermore, this writ petition was filed less than four
months after the district court denied the underlying motion to dismiss, which does not
present inexcusable delay.
As noted earlier, the motion should have been treated as a motion for summary judgment.
Summary judgment is appropriate when there are no genuine issues of material fact, and the
moving party is entitled to summary judgment as a matter of law.
13

Defamation
[Headnotes 9, 10]
Anzalone alleges various defamation claims against Del Papa and J.T. Healy, an investigator
with the Attorney General's office. To create liability for defamation there must be, among
other things, a false and defamatory statement that was an unprivileged publication.
14
Anzalone's various defamation claims against Del Papa arise from a letter she wrote to the
Las Vegas Sun on March 26, 1997. The letter was written in response to an article published
in the Las Vegas Sun earlier that day that alleged that the Attorney General's office was
conducting an unauthorized intelligence investigation of the GCB. This article also stated
that, Anzalone said he believes he was taken off the intelligence case in January 1996 and
forced to resign a month later because he wouldn't help Thompson pursue the investigation,
which did not lead to the filing of criminal charges against any other Control Board
employees.
__________

11
Building & Constr. Trades v. Public Works, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992); Buckholt v.
District Court, 94 Nev. 631, 633, 584 P.2d 672, 673 (1978).

12
Building & Constr. Trades, 108 Nev. at 611, 836 P.2d at 637.

13
Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993); see also NRCP 56(c).

14
Lubin v. Kunin, 117 Nev. 107, 111, 17 P.3d 422, 425 (2001).
Board employees. Del Papa's letter first denied the allegations that the Attorney General's
office was conducting an intelligence investigation, and as to Anzalone, the letter stated:
The [March 26, 1997,] article places heavy reliance on an obviously disgruntled former
employee of the Attorney General's office, who indeed was given the choice to resign
or be fired. Mr. Anzalone has chosen to publicly discuss his reasons for leaving the
Attorney's [sic] General's office, but has not been completely candid. In point of fact, I
did lose confidence in Mr. Anzalone after it was reported to me that he had removed
documents from a file and failed to turn over evidence after being requested to do so. In
addition, Mr. Anzalone had been disciplined for misuse of state property. These are the
reasons he was offered the option voluntarily to resign or be terminated. These may also
be the reasons he has chosen to distort the facts.
[Headnote 11]
Assuming for the purposes of our analysis that Del Papa's statements were defamatory, we
conclude that they were protected under the common-law conditional privilege of reply, a
privilege we now adopt. The common-law privilege of reply grants those who are attacked
with defamatory statements a limited right to reply. In Foretich v. Capital Cities/ABC, Inc.,
15
the United States Court of Appeals for the Fourth Circuit explained, by example, how the
privilege would workIf I am attacked in a newspaper, I may write to that paper to rebut
the charges, and I may at the same time retort upon my assailant, when such retort is a
necessary part of my defense, or fairly arises out of the charges he has made against me.
Applying this privilege is a question of law,
16
one we can resolve by simply comparing the
two documents published. In the March 26, 1997, article, Anzalone attacked the Attorney
General's office by stating that they were conducting an intelligence investigation and
further that he was forced to resign because he refused to perform an illegal act. Del Papa's
response rebutted these charges and explained the inaccuracies that were found within the
March 26, 1997, article. Thus, we conclude that Del Papa's response falls within the
conditional privilege of reply.
[Headnote 12]
The privilege may be lost, however, if the reply: (1) includes substantial defamatory matter
that is irrelevant or non-responsive to the initial statement;
__________

15
37 F.3d 1541, 1559 (4th Cir. 1994) (quoting William Blake Odgers, A Digest of the Law of Libel and
Slander *228 (1st Am. ed. Bigelow 1881), quoted in Chaffin v. Lynch, 1 S.E. 803, 811 (Va. 1887)).

16
See Lubin, 117 Nev. at 115, 17 P.3d at 428.
to the initial statement; (2) includes substantial defamatory material that is disproportionate to
the initial statement; (3) is excessively publicized; or (4) is made with malice in the sense of
actual spite or ill will.
17
In comparing Anzalone's statements within the article and Del
Papa's reply letter, we conclude that it is clear that Del Papa's response did not exceed the
privilege. Specifically, Del Papa limited her response to the allegations that the Attorney
General's office was conducting an intelligence investigation of the GCB and that Anzalone
was forced to resign because he would not help Thompson pursue this investigation. In
addition, it was not excessive publication for Del Papa to also send the letter to the Governor,
the GCB, and the Nevada Gaming Commission. It is clear that Del Papa's letter was made in
response to the article and within the scope of the matters raised by Anzalone.
[Headnotes 13, 14]
Notably, Anzalone alleges that Del Papa violated his right to privacy when Del Papa wrote
the letter to the Las Vegas Sun. Anzalone argues that Del Papa divulged confidential
information regarding the reasons why Anzalone was no longer employed with the Attorney
General's office. To maintain a cause of action for public disclosure of private facts one must
prove that a public disclosure of private facts has occurred which would be offensive and
objectionable to a reasonable person of ordinary sensibilities.
18
The Restatement (Second)
of Torts provides that rules of conditional privilege that apply to a defamation claim are
applicable in an invasion of privacy claim.
19
Assuming Anzalone has maintained a cause of
action for invasion of privacy, we conclude for the same reasons stated above that Del Papa's
response is protected under the conditional privilege of reply.
[Headnotes 15-17]
Anzalone next claims that Healy, during the execution of a search warrant unrelated to the
Harris investigation, made statements to other individuals in law enforcement that reflected
negatively on Anzalone's character, professional integrity, and honesty. Healy's deposition
indicates that in response to an article about Anzalone's termination, Healy stated to other
investigators, if I had conducted an investigation that was crappy or half-assed, I would
expect to be fired as well. As a general rule, only assertions of fact, not of opinion, can
sustain a defamation claim.
__________

17
See Foretich, 37 F.3d at 1559; see also Restatement (Second) of Torts 599-605 (1977); Rodney A.
Smolla, Law of Defamation 8:61-8:65 (2d ed. 1999).

18
Montesano v. Donrey Media Group, 99 Nev. 644, 649, 668 P.2d 1081, 1084 (1983).

19
See Restatement (Second) of Torts 652G (1977).
claim.
20
The test for whether a statement constitutes fact or opinion is: whether a
reasonable person would be likely to understand the remark as an expression of the source's
opinion or as a statement of existing fact.'
21
We conclude that Healy's statement is one of
opinion.
Tortious discharge
[Headnotes 18, 19]
There is no dispute that Anzalone was an at-will employee of the State. It is well settled in
Nevada that generally an at-will employee can be terminated whenever and for whatever
cause without giving rise to liability on the part of the employer.
22
We have recognized,
however, an exception to the general rule, where the termination violates the public policy of
the state.
23

[Headnotes 20, 21]
To support a claim of tortious discharge, the evidence produced by the employee must be
concrete and establish outrageous conduct that violates public policy.
24
Anzalone provides
insufficient evidence to support his claim. In his deposition, Anzalone concedes that he was
never asked outright to unlawfully obtain the bank and telephone records of GCB Chairman
Bill Bible. However, after Anzalone had explained that he did not have probable cause to
obtain a subpoena from the grand jury, it was his impression from Thompson's statement that
there were other ways to obtain the records. This impression is insufficient to support
Anzalone's claim of tortious discharge because we have held that, not only is the employee's
unequivocal statement of outrageous behavior necessary, but that the employee's statement
must be supported by independent evidence.
25
An employee's statements that are conjecture
or speculation cannot support a claim of tortious discharge.
__________

20
K-Mart Corporation v. Washington, 109 Nev. 1180, 1191, 866 P.2d 274, 281 (1993).

21
Lubin, 117 Nev. at 112, 17 P.3d at 426 (quoting Nev. Ind. Broadcasting v. Allen, 99 Nev. 404, 410, 664
P.2d 337, 342 (1983)).

22
Yeager v. Harrah's Club, Inc., 111 Nev. 830, 834, 897 P.2d 1093, 1095 (1995).

23
D'Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 216 (1991) (The essence of a tortious discharge
is the wrongful, usually retaliatory, interruption of employment by means which are deemed to be contrary to the
public policy of this state.).

24
Id.

25
See Wayment v. Holmes, 112 Nev. 232, 236-37, 912 P.2d 816, 818-19 (1996). The only other evidence
Anzalone produces in support of this allegation are two affidavits, which contain inadmissible hearsay
statements, one from a friend that Anzalone told about being asked to get the records and one from another
investigator who resigned, stating that he had the same impression as Anzalone, to obtain these same records by
improper means.
tious discharge.
26
Therefore, Del Papa's affidavit and deposition testimony that Anzalone
was requested to resign or be terminated because she lost confidence in Anzalone's abilities
as a State employee and investigator for the Attorney General's office is unchallenged, and
summary judgment is proper.
[Headnote 22]
Likewise, Anzalone's claims for emotional distress damages also fail. We have recognized
claims for intentional and negligent infliction of emotional distress in the context of wrongful
employment termination.
27
In order to sustain a claim of emotional distress, however, the
plaintiff needs to show that there was extreme and outrageous conduct with either the
intention of, or reckless disregard for, causing emotional distress.'
28
Anzalone's speculation
regarding what he was asked to do does not provide a basis to establish outrageous conduct to
award emotional distress damages any more than it does for the tort of wrongful discharge.
[Headnote 23]
In a further attempt to establish outrageous conduct on the part of the petitioners, Anzalone
claims that Del Papa threatened to blacklist him. As evidence to establish that he was
blacklisted, Anzalone states that he has made great effort to find employment as an
investigator in Nevada and has been unsuccessful. The only support he provides is a letter his
attorney wrote to the Solicitor General Mark Gahn, alleging that the Attorney General's office
mishandled a reference-check call. The letter asserts that the prospective employer was told
that he needed to contact the solicitor general directly. Solicitor General Gahn informed the
prospective employer that he could not tell him anything because of the pending litigation.
Anzalone has produced no other evidence of action taken by petitioners to blacklist him.
[Headnote 24]
It is insufficient to allege wrongdoing and cite only the resulting injury. In the face of a
summary judgment motion, it is incumbent upon the party opposing it to produce some
admissible evidence to show that the alleged tortfeasor acted negligently or intentionally, or
failed to act when required to, and that the conduct or the failure to act is the proximate cause
of the injuries complained of.
29
Anzalone has failed to show facts to establish probable
cause to support his allegation of being "blacklisted.
__________

26
See Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 302, 662 P.2d 610, 621 (1983) ([T]he opposing
party is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.' (quoting
Hahn v. Sargent, 523 F.2d 461, 467 (1st Cir. 1975))).

27
Shoen v. Amerco, Inc., 111 Nev. 735, 747, 896 P.2d 469, 476 (1995).

28
Id. (quoting Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981)).

29
See Posadas, 109 Nev. at 452, 851 P.2d at 441-42.
probable cause to support his allegation of being blacklisted. Anzalone's inability to find
employment as an investigator could just as easily have been the result of Del Papa exercising
her conditional right of reply and the resulting publicity. Anzalone has shown no evidence
that the petitioners took any action to blacklist him, and therefore, fails to establish that
they caused his unemployment.
Section 1983
[Headnotes 25, 26]
Anzalone alleges a claim under 42 U.S.C. 1983 against Del Papa and Donald Haight. To
establish a claim under 1983, the plaintiff must prove that the conduct complained of: (1)
was committed by a person acting under color of state law, and (2) deprived the plaintiff of
rights, privileges, or immunities secured by the Constitution or laws of the United States.
30
We first note that the United States Supreme Court has held that officials acting in their
official capacities are not persons under 42 U.S.C. 1983, and therefore, may not be sued in
state courts under the federal civil rights statutes.
31
As such, Anzalone has failed to state a
claim under 1983 against Del Papa and Haight in their official capacities. As noted earlier,
the district court dismissed all the claims against Del Papa in her individual capacity.
[Headnote 27]
Regarding the 1983 claims against Haight in his individual capacity, the Ninth Circuit
Court of Appeals has explained that 42 U.S.C. 1983 is designed to protect individuals
from an abuse of state power by providing a cause of action against state and local officials
who, acting within the scope of their duties, have deprived an individual of a cognizable
federal right.
32
The threshold inquiry in a 1983 claim is whether the plaintiff has
identified a right cognizable under the statute. Section 1983 does not itself create substantive
rights, but merely provides a method for vindicating federal rights elsewhere conferred.'
33

[Headnotes 28-31]
Anzalone alleges that Haight deprived him of his property interest in his job and his liberty
interest in his reputation. The Fourteenth Amendment protects individuals against the
deprivation of liberty or property by the government without due process.
__________

30
See Lebbos v. Judges of Super. Ct., Santa Clara County, 883 F.2d 810, 817 (9th Cir. 1989).

31
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); see also Northern Nev. Ass'n Injured
Workers v. SIIS, 107 Nev. 108, 115, 807 P.2d 728, 732 (1991).

32
Devereaux v. Perez, 218 F.3d 1045, 1051 (9th Cir. 2000).

33
Graham v. Connor, 490 U.S. 386, 394 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Fourteenth Amendment protects individuals against the deprivation of liberty or property by
the government without due process. To establish a claim under 1983 for deprivation of
procedural due process, the claimant must establish (1) a liberty or property interest
protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3)
lack of process.
34
Property rights are defined by reference to state law.
35
Because Anzalone
was an at-will employee of the State of Nevada, he had no property interest in his
employment.
36
Therefore, this allegation fails to support a 1983 claim.
[Headnotes 32-35]
Anzalone argues that the manner in which he was terminated impugned his good name and
interfered with his ability to obtain employment within his chosen profession. The liberty
interest protected by the due process clause encompasses an individual's freedom to work
and earn a living.'
37
An employer who dismisses an employee for reasons which are
published and are sufficiently serious to stigmatize' or otherwise burden the [employee] so
that he is not able to take advantage of other employment opportunities, entitles the
employee to notice and a hearing to clear his name.
38
Charges that carry the stigma of
moral turpitude' such as dishonesty or immorality may implicate a liberty interest, but
charges of incompetence or inability to get along with others do not.'
39
Here, Del Papa
stated that the reason she had Haight request Anzalone to resign or be terminated was because
she lost confidence in Anzalone, which does not amount to charges of moral turpitude. Thus,
we conclude that Anzalone cannot sustain his liberty allegation against Haight. Accordingly,
for the reasons above, the district court should have granted summary judgment as to
Anzalone's 1983 claims.
First Amendment/retaliation
[Headnote 36]
Anzalone presents a general allegation of First Amendment retaliation. He fails to cite any
authority regarding this claim other than a United States Supreme Court case that states that
Title VII extends to unfair employment practices used against a former employee.
__________

34
Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).

35
Id.

36
See Rea v. Matteucci, 121 F.3d 483, 484-85 (9th Cir. 1997); Brady v. Gebbie, 859 F.2d 1543, 1548-49 (9th
Cir. 1988).

37
Portman, 995 F.2d at 907 (quoting Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1100
(9th Cir. 1981)).

38
Id. (quoting Bollow, 650 F.2d at 1101).

39
Id. (quoting Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir. 1991)).
employee.
40
Based on this, we conclude that Anzalone's First Amendment retaliation claim
is grounded in Title VII.
Anzalone first asserts that he exercised his right to free speech when he spoke to the reporter
from the Las Vegas Sun. He then alleges that Del Papa retaliated against him on two instances
for exercising this right: first, by threatening to drag him through the mud and following
through on the threat; and second, by providing unfavorable information to the press through
her reply letter.
41
He makes no allegation that he was discriminated against because of his
race, color, religion, sex, or national origin, or retaliated against for opposing discriminatory
practices.
[Headnote 37]
Title VII prohibits employment decisions that have been motivated by an individual's race,
color, religion, sex, or national origin.
42
In addition, Title VII prohibits employers from
retaliating against an employee for opposing any practice that is an unlawful employment
practice under Title VII or participating in any Title VII proceeding.
43
In essence, an
employer is prohibited from retaliating against an employee because the employee challenges
the employer's discriminatory practices.
44

Here, we conclude that Anzalone's Title VII retaliation claim lacks merit. Anzalone's
statements within the Las Vegas Sun article did not oppose any practice made unlawful under
Title VIIdiscriminatory practices. Instead, Anzalone's statements within the article alleged
that the Attorney General's office was conducting an unauthorized intelligence
investigation of the GCB, and alleged that he was forced to resign because he refused to
participate in that investigation. Accordingly, since no allegation or proof of discrimination
has been made, we conclude that the district court should have granted summary judgment
as to Anzalone's retaliation claim.
__________

40
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

41
We acknowledge that Anzalone asserts that Thompson began an investigation against him and his wife in
connection with the Harris investigation. However, this alleged improper investigation occurred shortly after
Anzalone resigned and before Anzalone exercised his free speech rights, and therefore, we conclude that this
allegation cannot serve as the basis for Anzalone's retaliation claim.

42
42 U.S.C. 2000e-2(a) (1994).

43
42 U.S.C. 2000e-3(a) (1994) provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees
. . . because he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.

44
See, e.g., Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984) (addressing the
claim of a hospital employee that opposed the mistreatment of black patients); Cohen v. Fred Meyer, Inc., 686
F.2d 793, 796 (9th Cir. 1982) (addressing an employment discrimination complaint).
trict court should have granted summary judgment as to Anzalone's retaliation claim.
CONCLUSION
For the reasons set forth above, we grant petitioners' petition and direct the clerk of this court
to issue a writ of mandamus directing the district court to grant summary judgment to
petitioners on Anzalone's claims.
45

Shearing, J., dissenting:
I would deny the State's petition for a writ of mandamus or prohibition challenging the
district court order denying the State's motion to dismiss. While I do not necessarily disagree
with the law cited by the majority, I do not agree that the district court manifestly abused its
discretion or exercised it arbitrarily or capriciously.
1
This court was correct in State ex rel.
Department of Transportation v. Thompson when it determined that it is not in the best
interests of Nevada's judicial system for this court to entertain writ petitions challenging
district court denials of motions to dismiss or motions for summary judgment.
2

____________
118 Nev. 156, 156 (2002) Floyd v. State
ZANE MICHAEL FLOYD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36752
March 13, 2002
42 P.3d 249
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of burglary
while in possession of a firearm, four counts of first-degree murder with use of a deadly
weapon, one count of attempted murder with use of a deadly weapon, one count of
first-degree kidnapping with use of a deadly weapon, and four counts of sexual assault with
use of a deadly weapon, and from a sentence of death. Eighth Judicial District Court, Clark
County; Jeffrey D. Sobel, Judge.
Defendant was convicted in the district court of four counts of first-degree murder with use of
a deadly weapon, four counts of sexual assault with use of a deadly weapon, and single
counts of burglary while in possession of a firearm, attempted murder with use of a deadly
weapon,
__________

45
The Honorable A. William Maupin, Chief Justice, and The Honorable Nancy A. Becker, Justice,
voluntarily recused themselves from participation in the decision of this matter.

1
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (interpreting NRS
34.160).

2
99 Nev. 358, 361, 662 P.2d 1338, 1340 (1983).
118 Nev. 156, 157 (2002) Floyd v. State
with use of a deadly weapon, and first-degree kidnapping with use of a deadly weapon, and
was sentenced to death. Defendant appealed. The supreme court held that: (1) joinder of
counts arising out of two separate incidents was appropriate, (2) defendant was not entitled to
change of venue on basis of extensive pretrial publicity, (3) aggravating circumstances did
not require probable cause findings, (4) penalty phase was part of parties' case in chief for
purposes of discovery rules, (5) report and test results prepared by non-testifying defense
psychiatrist were properly discovered and used by State in penalty phase rebuttal, (6)
defendant's waiver of Miranda rights and his subsequent admissions were voluntary and
intelligent, (7) prosecutor's improper comment during guilt phase closing argument was
harmless error, (8) penalty phase testimony of one victim's mother exceeded scope of
appropriate victim impact testimony but was not so unduly prejudicial as to render proceeding
fundamentally unfair, (9) evidence was sufficient to support finding of three aggravating
circumstances, and (10) sentences of death were appropriate.
Affirmed.
Marcus D. Cooper, Public Defender, Curtis S. Brown, Chief Deputy Public Defender, and
Robert L. Miller, Deputy Public Defender, Clark County, for Appellant.
Lynn M. Robinson, Chief Deputy District Attorney, Clark County, for Respondent.
1. Indictment and Information.
Joinder of counts relating to sexual assault committed by defendant in his apartment and counts relating to murders committed
by him at nearby supermarket was appropriate, where events were related and evidence of each set of crimes was relevant and
admissible to prove the other; crimes at supermarket began about 15 minutes after crimes at apartment ended, defendant used same
shotgun to commit both sets of crimes, defendant's actions and statements in his apartment were relevant to question of premeditation
and deliberation with respect to murders, and defendant's actions, demeanor, and possession of shotgun at supermarket corroborated
testimony of sexual assault victim. NRS 48.045(2).
2. Criminal Law.
Even if joinder of counts for trial is permissible, a trial court should sever the offenses if the joinder is unfairly prejudicial. NRS
173.115, 174.165(1).
3. Criminal Law.
Decision to sever counts otherwise subject to joinder is within the discretion of the district court, and an appellant has the heavy
burden of showing that the court abused its discretion. NRS 174.165(1).
4. Criminal Law.
Defendant charged with kidnapping and sexual assault, and also with murder and other crimes committed some 15 minutes after
the kidnapping and sexual assault,
118 Nev. 156, 158 (2002) Floyd v. State
ping and sexual assault, was not unfairly prejudiced by joinder of charges arising out of the two incidents, absent any indication that
jury improperly accumulated evidence against defendant or used proof of one count to convict him of another count, or that joinder
prevented defendant from testifying on any charges, where evidence of murder and related crimes was overwhelming and evidence of
kidnapping and sexual assaults was substantial and uncontradicted.
5. Criminal Law.
Whether to change venue is within the sound discretion of the district court and will not be disturbed absent a clear abuse of
discretion. NRS 174.455(1).
6. Criminal Law.
Defendant seeking to change venue must not only present evidence of inflammatory pretrial publicity but must demonstrate
actual bias on the part of the jury empaneled. NRS 174.455(1).
7. Criminal Law.
Defendant charged with sexual assault and multiple murders was not entitled to change of venue on basis of extensive pretrial
publicity, in absence of any showing that any juror actually empaneled was biased, where all jurors who were ultimately empaneled
indicated during voir dire that pretrial publicity would not influence their decision and expressed willingness to consider sentences
other than death in event of guilty verdict. NRS 174.455(1).
Aggravating circumstance alleged in a capital proceeding does not constitute a separate crime that requires a finding of probable
cause under the United States or Nevada Constitutions. Const. art. 1, 8, cl. 1; U.S. Const. amend. 5.
Probable cause finding is not necessary for the State to allege aggravating circumstances and seek a death sentence. Const. art.
1, 8, cl. 1; U.S. Const. amend. 5.
10. Criminal Law.
Resolution of discovery issues in a criminal case is normally within the district court's discretion.
11. Criminal Law.
Report and test results prepared by non-testifying defense psychiatrist in murder prosecution were not subject to exclusion as
privileged work product, in absence of any indication that report or test results were internal documents representing mental processes
of defense counsel in analyzing and preparing defendant's case. NRS 174.234(2)(c), 174.245(1)(b).
12. Criminal Law.
Report and test results prepared by non-testifying defense psychiatrist in murder prosecution were discoverable as [r]esults or
reports of physical or mental examinations originally intended to be introduced in evidence. NRS 174.245(1)(b).
Penalty phase of capital murder prosecution was part of parties' case in chief, for purposes of rules governing discovery and
use of psychological evidence in capital cases. NRS 174.234(2), 174.245(1)(b).
Capital murder defendant's failure to offer psychological evidence during guilt phase did not preclude State from discovering
and making use of report and test results prepared by non-testifying defense psychiatrist to rebut defendant's penalty phase
expert psychological testimony,
118 Nev. 156, 159 (2002) Floyd v. State
atrist to rebut defendant's penalty phase expert psychological testimony, where testimony and evidence offered by defendant during
penalty phase was part of his case in chief for purposes of applicable rules. NRS 174.234(2), 174.245(1)(b).
15. Criminal Law.
Discovery statutes use the term case in chief to refer to either party's initial presentation of evidence, in contrast to either's
presentation of rebuttal evidence. Before trial a party should know and be able to disclose evidence it expects to present in its case in
chief, whereas the need for and nature of rebuttal evidence is uncertain before trial. NRS 174.234(2), 174.245(1)(b).
16. Homicide; Sentencing and Punishment.
State has the burden of proof in both phases of a capital trial: first, in proving that a defendant is guilty of first-degree murder;
and second, if such guilt is proven, in proving that aggravating circumstances exist and are not outweighed by any mitigating
circumstances.
Term case in chief in the discovery statutes encompasses the initial presentation of evidence by either party in the penalty
phase of a capital trial. NRS 174.234(2), 174.245(1)(b).
State's use of report and test results prepared by defense psychiatrist, to rebut testimony of another defense psychological expert
witness during penalty phase of capital murder prosecution, did not violate defendant's constitutional rights, despite defense's failure to
call psychiatrist who prepared report and test results in either phase, where evidence was used only in rebuttal, trial court restricted
State's use of such evidence to standardized psychological test results, evidence did not describe any incriminating or aggravating
statements by defendant or include any of expert's conclusions, and jury was not informed that source of evidence was originally
employed by defense.
19. Criminal Law.
Interrogation, for Miranda purposes, means not only express questioning, but any words or actions that police should know
are reasonably likely to evoke an incriminating response from a suspect.
20. Criminal Law.
Though informed of his Miranda rights, unless the defendant knowingly and voluntarily waived them, statements made during
custodial interrogation are inadmissible.
21. Criminal Law.
State must prove by a preponderance of the evidence that a defendant's waiver of Miranda rights was knowing and intelligent.
22. Criminal Law.
To determine the validity of a defendant's waiver of Miranda rights, the supreme court examines the facts and circumstances of
the case, such as the background, conduct and experience of the defendant.
23. Criminal Law.
Relevant considerations in determining the voluntariness of a confession include the youth of the defendant, his lack of
education or low intelligence, the lack of advice of constitutional rights, the length of detention, repeated and prolonged questioning,
and physical punishment such as deprivation of food or sleep.
24. Criminal Law.
Admissibility of a confession is primarily a factual question. The supreme court should not disturb the district court's
determination if it is supported by substantial evidence.
118 Nev. 156, 160 (2002) Floyd v. State
25. Criminal Law.
Capital murder defendant's initial comments to police were spontaneous, and therefore admissible despite fact that they
preceded administration of Miranda warnings. Although defendant was in custody at time of statements at issue, arresting officer did
not do or say anything reasonably likely to elicit incriminating statements from defendant in brief time before Miranda warnings were
given.
26. Criminal Law.
Capital murder defendant's waiver of Miranda rights, and his subsequent admissions, were voluntary and intelligent; defendant
was in his early twenties and had served four years in military, had average score on intelligence test, made most of his admissions
after Miranda warnings, understood what he was saying despite his apparent intoxication, agitation and confusion, and began making
admissions immediately after his arrest, no lengthy detention or repeated or prolonged questioning occurred, defendant was not in
physical discomfort and was not deprived of food or sleep, and defendant's statements remained consistent and were accurate.
27. Criminal Law.
Intoxication renders a confession inadmissible only if the defendant was so intoxicated that he could not understand the meaning
of his comments.
28. Criminal Law.
Prosecutor's comments alleged to constitute misconduct should be considered in context.
29. Criminal Law.
Capital murder defendant waived all but plain error review of prosecutorial comments alleged to amount to misconduct by
failing to object to such comments at trial. NRS 178.602.
30. Criminal Law.
Prosecutor's inflammatory comment during guilt phase closing argument in capital murder prosecution, stating that defendant
perpetrated the worst massacre in the history of Las Vegas, was not supported by record and was therefore improper.
31. Criminal Law.
Prosecutor's improper comment during guilt phase closing argument in capital murder prosecution, stating that defendant
perpetrated the worst massacre in the history of Las Vegas, was harmless error, where evidence of defendant's guilt was
overwhelming. NRS 178.598.
Penalty phase testimony of murder victim's mother, to effect that victim's entire family had been kidnapped and his sister
sexually assaulted, was so collateral and inflammatory as to exceed scope of appropriate victim impact testimony. NRS 48.035(1).
Victim impact testimony is permitted at a capital penalty proceeding under state statute and federal due process standards, but it
must be excluded if it renders the proceeding fundamentally unfair. U.S. Const. amend. 14; NRS 175.552(3).
Admissibility of testimony during the penalty phase of a capital trial is a question within the district court's discretion, and the
supreme court reviews only for abuse of discretion.
Rule precluding admission of relevant evidence having probative value substantially outweighed by the danger of
unfair prejudice,
118 Nev. 156, 161 (2002) Floyd v. State
value substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury remains
applicable in a capital penalty proceeding. NRS 48.035(1).
Improperly admitted victim impact testimony in penalty phase of capital murder prosecution was not so unduly prejudicial as to
render proceeding fundamentally unfair, and did not require reversal of sentence.
People other than victims who had been present at scene of murders were properly permitted to testify during capital penalty
proceeding with respect to great-risk-of-death aggravator and nature of murders.
Evidence in capital penalty proceeding was sufficient to support finding of three aggravating circumstances with respect to each
of four murders, namely, knowing creation of great risk of death to more than one person by means that would normally be hazardous
to lives of more than one person, murder at random and without apparent motive, and conviction in immediate proceeding of more
than one murder. Defendant repeatedly fired shotgun while walking and running through supermarket in which a number of people
were present, and defendant knew nothing about people he killed or why he had killed them. NRS 177.055(2).
Sentences of death imposed upon defendant convicted of four murders were not imposed under influence of passion, prejudice,
or any arbitrary factor, and were not excessive, despite defendant's presentation of mitigating evidence including his own allocution
expressing remorse and taking responsibility for his actions, in light of multiple, brutal, unprovoked murders involved. NRS
177.055(2).
OPINION
Per Curiam:
Early in the morning on June 3, 1999, appellant Zane Michael Floyd held a woman against
her will at his apartment in Las Vegas and sexually assaulted her. He then took his shotgun,
walked to a nearby Albertson's supermarket, and shot five employees, killing four of them.
Floyd does not contend that the State failed to prove that he committed the crimes he was
convicted of, but he asks that his conviction be reversed, arguing that he was improperly
denied a change of venue. He also argues, among other things, that the charges of kidnapping
and sexual assault were improperly joined at trial with the burglary, attempted murder, and
murder charges; that the State was improperly allowed to discover and use psychological
evidence obtained by his own expert; and that the prosecutor committed misconduct during
the guilt and penalty phases of the trial.
118 Nev. 156, 162 (2002) Floyd v. State
We conclude that these claims largely lack merit and none warrant relief. We therefore affirm
his conviction and sentence.
FACTS
Early in the morning on June 3, 1999, Floyd telephoned an outcall service and asked that a
young woman be dispatched to his apartment. As a result, a twenty-year-old woman came to
Floyd's apartment around 3:30 a.m. As soon as she arrived, Floyd threatened her with a
shotgun and forced her to engage in vaginal intercourse, anal intercourse, digital penetration,
and fellatio. At one point he ejected a live shell from the gun, showed it to the woman, and
said that her name was on it. Eventually Floyd put on Marine Corps camouflage clothing and
said that he was going to go out and kill the first people that he saw. He told the woman that
he had left his smaller gun in a friend's vehicle or he could have shot her. Eventually he told
her she had 60 seconds to run or be killed. The woman ran from the apartment, and around
5:00 a.m. Floyd took his shotgun and began to walk to an Albertson's supermarket which was
about fifteen minutes by foot from his apartment.
Floyd arrived at the supermarket at about 5:15 a.m. The store's security videotape showed that
immediately after entering the store, he shot Thomas Michael Darnell in the back, killing
him. After that, he shot and killed two more people, Carlos Chuck Leos and Dennis Troy
Sargeant. Floyd then encountered Zachary T. Emenegger, who attempted to flee. Floyd
chased him and shot him twice. Floyd then leaned over him and said, Yeah, you're dead,
but Emenegger survived. Floyd then went to the rear of the store where he shot Lucille Alice
Tarantino in the head and killed her.
As Floyd walked out the front of the store, Las Vegas Metropolitan Police Department
(LVMPD) officers were waiting for him. He went back in the store for a few seconds and
then came out again, pointing the shotgun at his own head. After a police officer spoke with
him for several minutes, Floyd put the gun down, was taken into custody, and admitted to
officers that he had shot the people in the store.
The jury found Floyd guilty of four counts of first-degree murder with use of a deadly
weapon, one count of attempted murder with use of a deadly weapon, one count of burglary
while in possession of a firearm, one count of first-degree kidnapping with use of a deadly
weapon, and four counts of sexual assault with use of a deadly weapon.
The jury found the same three aggravating circumstances in regard to each of the murders: the
murder was committed by a person who knowingly created a great risk of death to more than
one person by means which would normally be hazardous to the lives of more than one
person;
118 Nev. 156, 163 (2002) Floyd v. State
one person by means which would normally be hazardous to the lives of more than one
person; the murder was committed at random and without apparent motive; and the defendant
had, in the immediate proceeding, been convicted of more than one murder. For each murder,
the jury imposed a death sentence, finding that the aggravating circumstances outweighed any
mitigating circumstances. For the other seven offenses, the district court imposed the
maximum terms in prison, to be served consecutively. The court also ordered restitution
totaling more than $180,000.00.
DISCUSSION
1. Severance of the charges
[Headnote 1]
Before trial, Floyd moved unsuccessfully to sever the counts relating to the events at his
apartment from those relating to the events at the supermarket. Floyd contends that two
independent episodes were involved and therefore joinder of the charges was improper and
prejudiced him. He quotes the Supreme Court of California:
When a trial court considering a defendant's motion for severance of unrelated counts
has determined that the evidence of the joined offenses is not cross-admissible, it
must then assess the relative strength of the evidence as to each group of severable
counts and weigh the potential impact of the jury's consideration of other crimes
evidence. I.e., the court must assess the likelihood that a jury not otherwise convinced
beyond a reasonable doubt of the defendant's guilt of one or more of the charged
offenses might permit the knowledge of the defendant's other criminal activity to tip the
balance and convict him. If the court finds a likelihood that this may occur, severance
should be granted.
1

This appears to be a sound statement of law, but it is not applicable here. The California court
was considering the joinder of unrelated counts. We conclude that the counts here were
related and that the evidence of each set of crimes was relevant and admissible to prove the
other.
NRS 173.115 provides that multiple offenses may be charged in the same information if the
offenses charged are based either on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common scheme or plan. Also, if
evidence of one charge would be cross-admissible in evidence at a separate trial on another
charge, then both charges may be tried together and need not be severed.
__________

1
People v. Bean, 760 P.2d 996, 1006 (Cal. 1988) (citation omitted).
118 Nev. 156, 164 (2002) Floyd v. State
ered.
2
Here, joinder was proper because the acts charged were at the very least connected
together. The crimes at the supermarket began only about fifteen minutes after the crimes at
the apartment ended, and Floyd used the same shotgun in committing both sets of crimes.
Moreover, his actions and statements in committing the crimes at his apartment were
particularly relevant to the question of premeditation and deliberation regarding the murders
at the supermarket. Likewise, Floyd's actions and demeanor and possession of the shotgun at
the supermarket corroborated the testimony of the sexual assault victim and would have been
relevant, at a separate trial, to prove more than just Floyd's character. Thus, the evidence of
the two sets of crimes was cross-admissible.
3

[Headnote 2]
Even if joinder is permissible under NRS 173.115, a trial court should sever the offenses if
the joinder is unfairly prejudicial.
4
NRS 174.165(1) provides that if a defendant is
prejudiced by joinder of offenses, the district court may order separate trials of counts or
provide whatever other relief justice requires. Floyd quotes the Montana Supreme Court
regarding the types of prejudice that can result from joinder of charges:
The first kind of prejudice results when the jury considers a person facing multiple
charges to be a bad man and tends to accumulate evidence against him until it finds him
guilty of something. The second type of prejudice manifests itself when proof of guilt
on the first count in an information is used to convict the defendant of a second count
even though the proof would be inadmissible at a separate trial on the second count.
The third kind of prejudice occurs when the defendant wishes to testify on his own
behalf on one charge but not on another.
5

[Headnotes 3, 4]
The decision to sever is within the discretion of the district court, and an appellant has the
heavy burden of showing that the court abused its discretion.
6
To establish that joinder was
prejudicial requires more than a mere showing that severance might have made acquittal
more likely.
7
We conclude that Floyd has not shown that he was unfairly prejudiced by
joinder of charges. The evidence of the burglary, murders, and attempted murder was
overwhelming.
__________

2
Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989).

3
See NRS 48.045(2); Middleton v. State, 114 Nev. 1089, 1108, 968 P.2d 296, 309 (1998).

4
Middleton, 114 Nev. at 1107, 968 P.2d at 309.

5
State v. Campbell, 615 P.2d 190, 198 (Mont. 1980).

6
Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990).

7
United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir. 1983).
118 Nev. 156, 165 (2002) Floyd v. State
overwhelming. The evidence of the kidnapping and sexual assaults was substantial and
uncontradicted. He has not shown that the jury improperly accumulated evidence against him,
that it used the proof of one count improperly to convict him of another count, or that the
joinder prevented him from testifying on any charges. Thus the district court did not err in
denying Floyd's motion to sever the charges.
2. Pretrial coverage of the crimes and change of venue
The district court denied Floyd's motion for a change of venue. He claims that this was error
because jurors were biased by the extensive and prominent coverage of his case by the print
and broadcast media in Las Vegas. The State does not dispute that the media coverage of the
case was massive. It simply points out that Floyd presents no evidence that this coverage
resulted in bias on the part of any juror.
[Headnotes 5, 6]
NRS 174.455(1) provides that a criminal action may be removed from the court in which it
is pending, on application of the defendant or state, on the ground that a fair and impartial
trial cannot be had in the county where the indictment, information or complaint is pending.
Whether to change venue is within the sound discretion of the district court and will not be
disturbed absent a clear abuse of discretion.
8
A defendant seeking to change venue must not
only present evidence of inflammatory pretrial publicity but must demonstrate actual bias on
the part of the jury empaneled.
9
Even where pretrial publicity has been pervasive, this court
has upheld the denial of motions for change of venue where the jurors assured the district
court during voir dire that they would be fair and impartial in their deliberations.
10

[Headnote 7]
Floyd does not point to evidence that any empaneled juror was biased and does not even refer
to the voir dire of the prospective jurors. Review of the voir dire shows that when asked about
pretrial publicity, the jurors who were ultimately empaneled indicated that it would not
influence their decision. It appears that every juror also expressed a willingness to consider
sentences other than death in the event of a guilty verdict. We conclude that the district court
did not err in denying the motion for a change of venue.
__________

8
Sonner v. State, 112 Nev. 1328, 1336, 930 P.2d 707, 712 (1996), modified on rehearing on other grounds,
114 Nev. 321, 955 P.2d 673 (1998).

9
Id.

10
Id. at 1336, 930 P.2d at 712-13; see also Ford v. State, 102 Nev. 126, 129-32, 717 P.2d 27, 29-31 (1986).
118 Nev. 156, 166 (2002) Floyd v. State
3. Finding probable cause for aggravating circumstances
Floyd argues that before the State can allege aggravating circumstances and seek the death
penalty, a grand jury or a justice court must first find probable cause for the circumstances.
He cites the Fifth Amendment to the United States Constitution and Article 1, Section 8, of
the Nevada Constitution, which require indictment by a grand jury or the filing of an
information before a person can be tried for a capital or other infamous crime.
11
Floyd's
argument has no merit.
[Headnote 8]
The United States Supreme Court has stated: Aggravating circumstances are not separate
penalties or offenses, but are standards to guide the making of [the] choice' between the
alternative verdicts of death and life imprisonment.
12
Therefore, an aggravating
circumstance alleged in a capital proceeding does not constitute a separate crime that requires
a finding of probable cause under the U.S. or Nevada constitutions.
Floyd also relies on the Supreme Court's holding in Jones v. United States that under the
Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.
13
Jones does not support Floyd's proposition either. The Court
emphasized that its holding in Jones did not apply to aggravating circumstances because the
finding of aggravating facts falling within the traditional scope of capital sentencing [is] a
choice between a greater and lesser penalty, not . . . a process of raising the ceiling of the
sentencing range available.
14

[Headnote 9]
We conclude that a probable cause finding is not necessary for the State to allege aggravating
circumstances and seek a death sentence.
__________

11
See U.S. Const. amend. V; Nev. Const. art. 1, 8, cl. 1; see also Hurtado v. California, 110 U.S. 516, 538
(1884) (holding it constitutional for states to proceed in criminal actions by information following preliminary
examination and finding of probable cause, rather than by grand jury indictment).

12
Poland v. Arizona, 476 U.S. 147, 156 (1986) (quoting Bullington v. Missouri, 451 U.S. 430, 438 (1981)).

13
526 U.S. 227, 243 n.6 (1999); see also Apprendi v. New Jersey, 530 U.S. 466, 478, 490 (2000).

14
Jones, 526 U.S. at 251; see also Apprendi, 530 U.S. at 496 ([T]his Court has previously considered and
rejected the argument that the principles guiding our decision today render invalid state capital sentencing
schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific
aggravating factors before imposing a sentence of death.).
118 Nev. 156, 167 (2002) Floyd v. State
4. The State's use of psychological evidence garnered by a defense expert
Before trial, Floyd filed a supplemental notice that he might call neuropsychologist David L.
Schmidt as an expert witness. Floyd opposed reciprocal discovery, but the district court
ordered him to provide the State with Schmidt's report on his examination of Floyd, which
included the results of standardized psychological tests administered to Floyd. The defense
later unendorsed Schmidt as a witness, and Schmidt did not testify. During the penalty phase
of trial, Floyd called a different psychologist, Edward J. Dougherty, Ed.D., to testify
regarding Floyd's mental health. In rebuttal and over Floyd's objection, the State called
psychologist Louis Mortillaro, Ph.D., who provided his opinion on Floyd's mental status,
relying in part on the results from the standardized tests administered by Schmidt. The district
court did not permit the State to use anything from Schmidt's report other than the raw test
data. Floyd argues that Mortillaro's testimony violated his constitutional rights, relevant
Nevada statutes, and his attorney-client privilege.
[Headnote 10]
NRS 174.234(2) provides that in a gross misdemeanor or felony prosecution, a party who
intends to call an expert witness during its case in chief must, before trial, file and serve upon
the opposing party a written notice containing:
(a) A brief statement regarding the subject matter on which the expert witness is
expected to testify and the substance of his testimony;
(b) A copy of the curriculum vitae of the expert witness; and
(c) A copy of all reports made by or at the direction of the expert witness.
NRS 174.245(1)(b) similarly provides in part that the defendant must allow the prosecutor to
inspect and copy any [r]esults or reports of physical or mental examinations, scientific tests
or scientific experiments that the defendant intends to introduce in evidence during the case
in chief of the defendant. Furthermore, resolution of discovery issues is normally within the
district court's discretion.
15

[Headnotes 11, 12]
Addressing first the claim that Schmidt's report and test results were privileged work-product,
we conclude that it has no merit. At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which he can analyze and
prepare his client's case.
__________

15
Lisle v. State, 113 Nev. 679, 695, 941 P.2d 459, 470 (1997).
118 Nev. 156, 168 (2002) Floyd v. State
he can analyze and prepare his client's case.'
16
NRS 174.245(2)(a) apparently codifies this
privilege, providing that [a]n internal report, document or memorandum that is prepared by
or on behalf of the defendant or his attorney in connection with the investigation or defense of
the case is not subject to discovery.
17
Floyd has failed to show that Schmidt's report or the
test results were internal documents representing the mental processes of defense counsel in
analyzing and preparing Floyd's case. We conclude that they were discoverable as [r]esults
or reports of physical or mental examinations that Floyd originally intended to introduce in
evidence.
18

[Headnotes 13, 14]
Next Floyd argues that the State's discovery and use of the Schmidt materials was improper
because in his view he did not introduce those materials or any psychological evidence during
his case in chief. NRS 174.234(2) and 174.245(1)(b) require discovery from the defendant
only where he intends to call an expert witness or to introduce certain evidence during his
case in chief. Floyd introduced psychological evidence only in the penalty phase, not in the
guilt phase, and he assumes that in a capital murder trial case in chief refers only to the
guilt phase of the trial, not the penalty phase. He offers no authority or rationale for this
assumption, and we conclude that it is unfounded.
[Headnote 15]
Black's Law Dictionary defines case in chief as [t]hat part of a trial in which the party with
the initial burden of proof presents his evidence after which he rests.
19
The statutes in
question refer to the case in chief of the defendant as well as of the state, even though a
criminal defendant normally has no burden of proof. It is clear that the statutes use the term
case in chief to refer to either party's initial presentation of evidence, in contrast to either's
presentation of rebuttal evidence. This meaning is consistent with the context of discovery:
before trial a party should know and be able to disclose evidence it expects to present in its
case in chief, whereas the need for and nature of rebuttal evidence is uncertain before trial.
This meaning is also consistent with the use of the term in this court's case law.
20

[Headnotes 16, 17]
The State has the burden of proof in both phases of a capital trial:
__________

16
Id. (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).

17
Emphasis added.

18
NRS 174.245(1)(b); see also NRS 174.234(2)(c).

19

20
See, e.g., Batson v. State, 113 Nev. 669, 677, 941 P.2d 478, 483 (1997).
118 Nev. 156, 169 (2002) Floyd v. State
trial: first, in proving that a defendant is guilty of first-degree murder; and second, if such
guilt is proven, in proving that aggravating circumstances exist and are not outweighed by
any mitigating circumstances. In both phases, the defense has the choice of presenting its own
case in response to the State's. Therefore, we conclude that the term case in chief in NRS
174.234(2) and 174.245(1)(b) encompasses the initial presentation of evidence by either party
in the penalty phase of a capital trial.
[Headnote 18]
Floyd nevertheless maintains that it was improper for the State's expert, who testified in
rebuttal, to use the test results obtained by Schmidt after the defense had decided not to call
Schmidt as a witness. We conclude that the use of the evidence here was permissible.
A United States Supreme Court case provides some guidance. In Buchanan v. Kentucky, the
Supreme Court considered whether the admission of findings from a psychiatric
examination of petitioner proffered solely to rebut other psychological evidence presented by
petitioner violated his Fifth and Sixth Amendment rights where his counsel had requested the
examination and where petitioner attempted to establish at trial a mental-status defense.
21
The Court concluded that it did not.
22
At his trial, petitioner Buchanan had attempted to
establish the affirmative defense of extreme emotional disturbance.'
23
He introduced
evidence from various evaluations of his mental condition done after an earlier burglary
arrest.
24
In response and over Buchanan's objection, the prosecution introduced evidence
from a psychological evaluation of Buchanan done at his and the prosecution's joint request
after his arrest for the murder in question; Buchanan had not introduced any evidence from
the evaluation.
25
The Court reasoned that if a defendant presents psychiatric evidence, then,
at the very least, the prosecution may rebut this presentation with evidence from the reports of
the examination that the defendant requested.
26
The Court noted that Buchanan presented a
mental-status defense and introduced psychological evidence, that he did not take the stand,
and that the prosecution could respond to this defense only by presenting other psychological
evidence.
27
The prosecution therefore introduced excerpts from the evaluation requested by
Buchanan,
__________

21
483 U.S. 402, 404 (1987).

22
Id. at 421-25; see also State v. Fouquette, 67 Nev. 505, 538, 221 P.2d 404, 421 (1950).

23
Buchanan, 483 U.S. at 408.

24
Id. at 409 & n.9.

25
See id. at 410-12.

26
Id. at 422-23.

27
Id. at 423.
118 Nev. 156, 170 (2002) Floyd v. State
evaluation requested by Buchanan, which set forth the psychiatrist's general observations
about the mental state of petitioner but had not described any statements by petitioner dealing
with the crimes for which he was charged.
28
The Court concluded: The introduction of
such a report for this limited rebuttal purpose does not constitute a Fifth Amendment
violation.
29
Also, since defense counsel had requested the psychological evaluation and was
on notice that the prosecution would likely use psychological evidence to rebut a
mental-status defense, the court concluded that there was no violation of the Sixth
Amendment right to counsel.
30

We conclude that under the circumstances of this case the State's use of evidence obtained
from Floyd by his own expert did not violate Floyd's constitutional rights. We rely on a
number of factors in reaching this conclusion. First, similar to Buchanan, the evidence was
used only in rebuttal after Floyd introduced evidence of his mental status as a mitigating
factor. Second, the district court restricted the State's use of evidence contained in the defense
expert's report to the standardized psychological test results. Like Buchanan, this evidence
did not describe any statements by Floyd dealing with his crimes which could incriminate
him or aggravate the crimes, nor did it include any conclusions reached by the defense expert.
Third, the jury was not informed that the source of the evidence was originally an expert
employed by the defense, avoiding the risk of undue prejudice inherent in such information.
31

5. Miranda and appellant's statements to police
Floyd claims that evidence of his first comments made to police after his arrest was admitted
in violation of Miranda v. Arizona.
32
He also claims that evidence of his other statements to
police should have been suppressed because his waiver of his Miranda rights was not
voluntary and knowing.
After Floyd was handcuffed at the crime scene and before being questioned, he told LVMPD
officers, I can't believe I shot those people. Noticing that Floyd had on Marine Corps
clothing, the arresting officer briefly spoke to him about the Marine Corps and then informed
him of his Miranda rights. Floyd acknowledged that he understood his rights and agreed to
talk. His statement was tape-recorded. Around 7:00 a.m., Floyd gave another taperecorded
statement at the Clark County Detention Center
__________

28
Id.

29
Id. at 423-24.

30
Id. at 424-25.

31
Cf. Lange v. Young, 869 F.2d 1008, 1014 (7th Cir. 1989); United States ex rel. Edney v. Smith, 425 F.
Supp. 1038, 1053 (E.D.N.Y. 1976).

32
384 U.S. 436 (1966).
118 Nev. 156, 171 (2002) Floyd v. State
recorded statement at the Clark County Detention Center after again being informed of his
Miranda rights. The two statements were basically consistent. Floyd remembered shooting
only the first and last victims. He also told police that he had been out with his girlfriend and
others the night before. He had been drinking heavily and began playing blackjack. His
girlfriend became angry and left, and he lost most of his money. He did not tell the police
about the sexual assaults earlier that morning, but he told them that he had left his pistol in a
friend's vehicle, a detail which is consistent with what the sexual assault victim said he had
told her. In his first statement he denied any recent use of methamphetamine, but in the
second he said that he had taken one small line of methamphetamine not long before the
shootings.
The arresting officer testified that when Floyd gave his first statement he smelled of alcohol,
was very excited and rambling, and had to be calmed down. A blood sample taken from
Floyd at 8:00 a.m. the morning of the crimes showed that he had a blood alcohol level of 0.09
percent. An LVMPD criminalist estimated that the level would have been about 0.14 percent
around the time of the shootings. A test for controlled substances proved negative.
[Headnotes 19-24]
Miranda holds that evidence of a suspect's statements made during custodial interrogation is
inadmissible at trial unless the police first informed the suspect of his Fifth Amendment
privilege against self-incrimination.
33
Interrogation means not only express questioning,
but any words or actions that police should know [are] reasonably likely to evoke an
incriminating response from a suspect.
34
Though informed of his Miranda rights, unless the
defendant knowingly and voluntarily waived them, statements made during custodial
interrogation are inadmissible.
35
The State must prove by a preponderance of the evidence
that the waiver was knowing and intelligent.
36
To determine the validity of the waiver, this
court examines the facts and circumstances of the case such as the background, conduct and
experience of the defendant.
37
Relevant considerations in determining the voluntariness of a
confession include the youth of the defendant, his lack of education or low intelligence, the
lack of advice of constitutional rights, the length of detention, repeated and prolonged
questioning, and physical punishment such as deprivation of food or sleep.
38
The
admissibility of a confession is primarily a factual question;
__________

33
See 384 U.S. at 479.

34
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

35
See Miranda, 384 U.S. at 479.

36
Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994); Tomarchio v. State, 99 Nev. 572, 576, 665
P.2d 804, 807 (1983).

37
Falcon, 110 Nev. at 534, 874 P.2d at 774-75.

38
Chambers v. State, 113 Nev. 974, 981, 944 P.2d 805, 809 (1997).
118 Nev. 156, 172 (2002) Floyd v. State
admissibility of a confession is primarily a factual question; this court should not disturb the
district court's determination if it is supported by substantial evidence.
39

[Headnote 25]
Before the arresting officer informed Floyd of his Miranda rights, Floyd made several
incriminating admissions. He argues that evidence of these admissions should have been
suppressed. Although Floyd was in custody at the time in question, he was not subjected to
interrogation: the record shows that the officer did not do or say anything reasonably likely to
elicit incriminating statements from Floyd in the brief time before the Miranda warnings
were given. Therefore, Floyd's initial comments were admissible.
[Headnotes 26, 27]
The record also supports the determination that Floyd waived his rights and made his
admissions voluntarily and intelligently. At the time he spoke to police, Floyd was in his early
20s and had served four years in the Marine Corps. The record shows that Floyd had an
average score on an intelligence test. He made most of his admissions after being advised of
his Miranda rights. He began making the admissions immediately after his arrest; no lengthy
detention or repeated or prolonged questioning occurred. He was not in physical discomfort,
nor did police deprive him of food or sleep. He was somewhat intoxicated, but intoxication
renders a confession inadmissible only if the defendant was so intoxicated that he could not
understand the meaning of his comments.
40
Although Floyd was obviously agitated and even
somewhat bewildered by what he had done, the record shows that he understood what he was
saying. His statements remained consistent and were accurate, as is borne out by the other
evidence of the crimes. We conclude that Floyd acted voluntarily and intelligently and that
the district court did not err in admitting evidence of his statements.
6. Prosecutorial misconduct
[Headnotes 28, 29]
Floyd asserts that several comments by the prosecution constituted misconduct. A
prosecutor's comments should be considered in context, and a criminal conviction is not to
be lightly overturned on the basis of a prosecutor's comments standing alone.
41

__________

39
Id.

40
See Kirksey v. State, 112 Nev. 980, 992, 923 P.2d 1102, 1110 (1996).

41
United States v. Young, 470 U.S. 1, 11 (1985).
118 Nev. 156, 173 (2002) Floyd v. State
Moreover, Floyd failed to object to some of the remarks.
42
Most of the comments require no
discussion because they all either were proper or did not amount to prejudicial error.
[Headnote 30]
However, we will discuss one comment which was inappropriate. During closing argument in
the guilt phase, the prosecutor told the jury that Floyd perpetrated the worst massacre in the
history of Las Vegas. The jury began its deliberations soon after. Defense counsel then
objected to the prosecutor's remark as prejudicial and inflammatory. The district court
responded: I think [the remark] isn't within the evidence. I also don't think it is true. What
remedy would you suggest, now that the jury is gone? If you wish, I'll bring them back in and
say that that wasn't proper argument. Defense counsel declined that proposal because he
thought an admonition would be moot and would raise more attention than the original
comment.
[Headnote 31]
The district court was correct that the record contains nothing to support the prosecutor's
remark, and it is elementary that a prosecutor may not make statements unsupported by
evidence produced at trial.
43
The remark was therefore improper.
44
We caution prosecutors
to refrain from inflammatory rhetoric: Any inclination to inject personal beliefs into
arguments or to inflame the passions of the jury must be avoided. Such comments clearly
exceed the boundaries of proper prosecutorial conduct.
45
Here, given the overwhelming
evidence of Floyd's guilt, we conclude that the error was harmless.
__________

42
Riley v. State, 107 Nev. 205, 218, 808 P.2d 551, 559 (1991) (stating that generally this court will not
consider whether a prosecutor's remarks were improper unless the defendant objected to them at the time,
allowing the district court to rule upon the objection, admonish the prosecutor, and instruct the jury); cf. NRS
178.602 (providing that despite lack of objection, this court may address an error if it was plain and affected a
defendant's substantial rights).

43
Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 585 (1992); see also Leonard v. State, 114 Nev. 1196,
1212, 969 P.2d 288, 298 (1998); Collier v. State, 101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985).

44
The State contends that the comment was simply an accurate statement of fact known to anyone who has
lived in Las Vegas any length of time, and akin to arguing in the Timothy McVeigh case that the Oklahoma
bombing was the worst massacre in the history of the State of Oklahoma. This extravagant comparison is
neither apt nor persuasive. The multiple murders in this case were an exceptional occurrence, but even a quick
look at this court's case law shows that unfortunately they do not stand alone in Las Vegas history. In 1992, four
people were shot to death in a Las Vegas apartment in the presence of two young children. See Evans v. State,
112 Nev. 1172, 926 P.2d 265 (1996).

45
Shannon v. State, 105 Nev. 782, 789, 783 P.2d 942, 946 (1989).
118 Nev. 156, 174 (2002) Floyd v. State
given the overwhelming evidence of Floyd's guilt, we conclude that the error was harmless.
46

7. Victim impact testimony
Floyd also contends that the prosecution committed misconduct by eliciting improper victim
impact testimony.
[Headnote 32]
Mona Nall, the mother of murder victim Thomas Darnell, testified during the penalty phase.
She related an incident in which her son was assaulted and kidnapped. When she began to tell
how the kidnappers came to her own house, the district court initially sustained an objection
by defense counsel. After the prosecutor said the testimony would become relevant to show
who the victim was, the court said it would permit some more questioning. The witness then
testified that she, her husband, their son, and their 16-year-old daughter were held hostage for
seven hours and the daughter was sexually assaulted. Defense counsel again objected, and the
court asked the prosecutor, If you have something of relevance to show . . ., would you get to
that point, please? The witness then said that her son was held hostage for over 30 days and
was finally released in the Utah desert after his abductors tried to cut off his ears.
[Headnotes 33, 34]
Victim impact testimony is permitted at a capital penalty proceeding under NRS 175.552(3)
and under federal due process standards, but it must be excluded if it renders the proceeding
fundamentally unfair.
47
The United States Supreme Court has stated that victim impact
evidence during a capital penalty hearing is relevant to show each victim's uniqueness as an
individual human being.
48
Admissibility of testimony during the penalty phase of a capital
trial is a question within the district court's discretion, and this court reviews only for abuse of
discretion.
49
Here, although the jurors heard the evidence, it is apparent that the district court
actually considered it irrelevant.
[Headnote 35]
NRS 175.552(3) provides that evidence may be presented concerning aggravating and
mitigating circumstances relative to the offense, defendant or victim and on any other matter
which the court deems relevant to sentence, whether or not the evidence is ordinarily
admissible.
__________

46
See NRS 178.598 (Any error, defect, irregularity or variance which does not affect substantial rights shall
be disregarded.).

47
Leonard, 114 Nev. at 1214, 969 P.2d at 300.

48
Payne v. Tennessee, 501 U.S. 808, 823 (1991).

49
Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997).
118 Nev. 156, 175 (2002) Floyd v. State
is ordinarily admissible. Nevertheless, NRS 48.035(1) remains applicable in a capital
penalty proceeding and provides that even relevant evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury.
50

[Headnote 36]
Some evidence of the travails that victim Thomas Darnell endured in his life was certainly
relevant, but evidence that his entire family was kidnapped and his sister sexually assaulted
was so collateral and inflammatory that it violated NRS 48.035(1) and exceeded the scope of
appropriate victim impact testimony. Though the evidence should have been excluded, it was
not so unduly prejudicial that it rendered the proceeding fundamentally unfair; therefore,
reversal of the sentence is not warranted.
51

[Headnote 37]
Floyd also complains that the district court denied his motion to allow only one victim impact
witness for each murder victim and to exclude other testimony. In fact, the court granted the
motion in regard to limiting victim impact witnesses to one per murder victim. The court also
ruled that other people who were at the scene of the murders could testify, not as victims but
in regard to the great-risk-of-death aggravator and the nature of the murders. Floyd has not
shown that there was anything improper about the court's ruling.
8. Mandatory review of the death sentences
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.
[Headnote 38]
The same three aggravating circumstances were found for each murder: it was committed by
a person who knowingly created a great risk of death to more than one person by means
which would normally be hazardous to the lives of more than one person;
__________

50
See McKenna v. State, 114 Nev. 1044, 1051-52, 968 P.2d 739, 744 (1998) (recognizing that admissible
penalty evidence must satisfy NRS 48.035(1)).

51
See McNelton v. State, 111 Nev. 900, 906, 900 P.2d 934, 938 (1995) (citing Payne, 501 U.S. at 825).
118 Nev. 156, 176 (2002) Floyd v. State
normally be hazardous to the lives of more than one person; it was committed at random and
without apparent motive; and Floyd had, in the immediate proceeding, been convicted of
more than one murder. The evidence supports the finding of each of these circumstances. The
first is established by the fact that Floyd repeatedly fired a shotgun while walking and running
through a supermarket where a number of people were present. The second is amply
supported by a record that shows that Floyd knew nothing about the people he killed or why
he had killed them. For example, immediately after his arrest, Floyd said, Why did I kill
those people? I, I don't know. Finally, Floyd was convicted of four murders in this case,
establishing the third circumstance.
[Headnote 39]
We see no indication that the sentences of death were imposed under the influence of passion,
prejudice, or any arbitrary factor. We also conclude that the death sentences in this case are
not excessive.
Floyd presented a number of witnesses to testify in mitigation. A family friend and a
coworker both testified that they knew him to be a good person and that the person who
committed the crimes in this case was not the Zane Floyd they knew. The coworker and
Floyd's stepfather testified respectively that when they met Zane in jail immediately after the
crimes he was like a zombie and wasn't there. His stepfather also told of Floyd's
difficulties and behavioral problems in school and of how well he later did in the Marine
Corps. A former Marine who served with Floyd as an instructor in combat training school
testified that Floyd was the best instructor, that in the field, he would be a perfect Marine,
but that on his own he did not do well.
Floyd's close friend testified that he and Floyd began using marijuana and methamphetamine
when they were fifteen or sixteen. The friend testified that Floyd's mother was often
intoxicated and that on Floyd's sixteenth birthday his stepfather played drinking games with
Floyd and his friends. After Floyd returned from the Marines, his friend reintroduced him to
methamphetamine, which they sometimes used without sleeping for several days.
Floyd's mother testified about her own drug and alcohol abuse and the loss of her first child,
which caused her to drink even more. When she became pregnant with Floyd, her husband
was displeased, they separated, and he filed for divorce just before Floyd's birth. She
described Floyd's learning and behavioral problems as a child. She also spoke about how he
played baseball and loved animals.
118 Nev. 156, 177 (2002) Floyd v. State
A clinical social worker and psychoanalyst conducted a psychosocial evaluation of Floyd and
testified to the following. Floyd's mother had used various illegal controlled substances and
abused alcohol. Floyd's stepfather also abused alcohol and was sometimes violent towards
Floyd's mother. Floyd had difficulties in school and began drinking when he was fifteen and
using methamphetamine when he was sixteen. He enlisted in the Marine Corps at age
seventeen. After four years he was honorably discharged on condition that he not reenlist
because of his alcohol problems. When he was twenty-two, Floyd attempted to contact his
biological father, who refused any contact. Returning home from the military, Floyd lived
with his parents. He had no driver's license because of a DUI. He worked for a short time at
Costco, but was terminated. He then obtained employment as a security guard, but lost that
job in May 1999. That same month his cousin was killed, which affected him and other
family members deeply.
Psychologist Dr. Dougherty testified and gave his opinion that Floyd
suffers from the mental disease of mixed personality disorder with borderline, paranoid,
and depressive features. In addition, I confirmed the prior diagnosis of attention deficit
hyperactivity disorder . . . . It's my opinion . . . that Mr. Floyd's reasoning was impaired
as to rational thought at times, and at times he did not act knowingly and purposely at
the time of the alleged incident. His symptoms were exacerbated by a long history of
the ingestion of drugs and alcohol.
Floyd spoke in allocution and took responsibility for what he had done and said he could not
tell why he did it. He said he was sorry and would regret his actions for the rest of his life.
This mitigating evidence is not insignificant, but given the aggravating circumstances and the
multiple, brutal, unprovoked murders in this case, we do not deem the death sentences
excessive.
CONCLUSION
We affirm Floyd's judgment of conviction and sentence.
Maupin, C. J., with whom Agosti, J., agrees, concurring:
I concur in the result reached by the majority, but write separately to state my view that there
was no prosecutorial misconduct at trial in connection with the massacre argument.
It is true that no facts on the record technically demonstrated that the killings in this case
constituted the worst massacre in the history of Las Vegas. (Emphasis added.) However,
whether the killing spree perpetrated by appellant was or was not the worst "massacre" is of
little moment.
118 Nev. 156, 178 (2002) Floyd v. State
massacre is of little moment. What appellant did was a massacre by any definition of the
word. While the rhetoric was not specifically accurate, the argument was a legitimate
comment on the apparent random gunning down of five people, killing four of them.
____________
118 Nev. 178, 178 (2002) Chapman v. State
BRIAN CHAPMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35894
March 15, 2002
42 P.3d 264
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of felony
driving under the influence of alcohol. Fifth Judicial District Court, Nye County; John P.
Davis, Judge.
Defendant pleaded guilty in the district court to felony driving under the influence of alcohol
(DUI). Defendant appealed. The supreme court held that three-year felony statute of
limitations applied to defendant's third or subsequent DUI offense.
Affirmed.
Harold Kuehn, Tonopah, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney,
and Erik A. Levin, Deputy District Attorney, Nye County, for Respondent.
Criminal Law.
Three-year felony statute of limitations, not one-year misdemeanor statute of limitations, applied to defendant's fourth driving
under the influence of alcohol (DUI) offense, which was committed within seven years of at least two prior constitutionally valid DUI
convictions, as statute made it a felony to commit third or subsequent DUI offense. NRS 171.085(2), 171.090(2), 484.3792(1)(c).
OPINION
Per Curiam:
This case presents an issue of first impression for this court and requires that we determine
the applicable statute of limitations for a third or subsequent driving under the influence
(DUI) charge within seven years of two or more constitutionally valid prior convictions.
Between 1993 and 1998, Chapman was convicted of three DUI offenses.
118 Nev. 178, 179 (2002) Chapman v. State
three DUI offenses.
1
Under Nevada's DUI laws, a district court convicted Chapman of a
felony for his third DUI offense and sentenced him to imprisonment in state prison. While
Chapman was in prison on his third DUI conviction, on October 28, 1998, the State charged
him with his fourth DUI offense within seven years. The State filed the complaint one week
after the expiration of the one-year misdemeanor statute of limitations.
Chapman filed a motion to dismiss the charge, for a violation of the one-year misdemeanor
statute of limitations, NRS 171.090(2), on a theory that all DUIs are misdemeanors until
sentencing. The district court rejected this theory and denied Chapman's motion to dismiss.
2
We agree with the district court's decision.
NRS 484.3792(1)(c) makes it a felony to commit a third or subsequent DUI offense within
seven years of at least two constitutionally valid prior convictions.
3
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.
4
Therefore, the felony statute of limitations, NRS 171.085(2), applies to
third or subsequent DUI offenses committed within seven years of at least two prior
constitutionally valid convictions. If the felony charge fails, and the State filed its information
after one year, then the one-year misdemeanor statute of limitations would bar conviction.
Because the State properly charged Chapman's fourth DUI offense as a felony, and
Chapman's three prior DUI convictions were constitutionally valid, the three-year felony
statute of limitations applies. The State filed the complaint within three years from the date of
the offense. We, therefore, conclude that the district court properly denied the motion to
dismiss. Accordingly, we affirm the judgment of conviction.
__________

1
June 9, 1993El Cajon Municipal Court, Riverside County, California; March 24, 1994Pahrump
Township Justice Court, Nye County, Nevada; and October 1, 1998Fifth Judicial District Court, Nye County,
Nevada.

2
Chapman entered a conditional guilty plea, reserving his right to appellate review of the district court's
denial of his motion to dismiss. The district court convicted Chapman, sentenced him to imprisonment in state
prison, and stayed the sentence pending appeal to this court.

3
NRS 484.3792 provides, in pertinent part:
1. [A] person who violates the provisions of NRS 484.379:
. . . .
(c) For a third or subsequent offense within 7 years, is guilty of a category B felony and shall be
punished by imprisonment in the state prison . . . .

4
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).
____________
118 Nev. 180, 180 (2002) Nationwide Mut. Ins. Co. v. Coatney
NATIONWIDE MUTUAL INSURANCE COMPANY, an Insurance Company Doing
Business in Nevada, Appellant, v. ALISHA COATNEY, an Individual; GENICE
COATNEY, Parent and Guardian of HOLLY COATNEY, a Minor; GENICE
COATNEY, an Individual; and MICHAEL COATNEY, an Individual, Respondents.
No. 36208
March 15, 2002
42 P.3d 265
Appeal from a district court order granting respondents partial summary judgment on a claim
for declaratory relief, certified as final pursuant to NRCP 54(b). Eighth Judicial District
Court, Clark County; Nancy M. Saitta, Judge.
Insureds brought action against automobile insurer for a declaratory judgment invalidating
anti-stacking clause that limited uninsured-underinsured motorist (UM) benefits to the limits
of coverage for the car involved in the accident. The district court entered partial summary
judgment in favor of insureds. Insurer appealed. The supreme court held that anti-stacking
clause was valid in limiting benefits to the limits on the car involved in the accident.
[En banc reconsideration denied July 26, 2002]
Hardy & Hardy and Nancy M. Somers, Las Vegas, for Appellant.
Patrick K. McKnight, Las Vegas, for Respondents.
1. Insurance.
Anti-stacking provisions prevent insureds from combining their coverage limits on separate policies or automobiles.
2. Insurance.
An anti-stacking clause is void unless it is expressed in clear language and is prominently displayed in the policy, binder, or
endorsement and the insured has not purchased separate coverage on the same risk or paid a premium calculated for full
reimbursement under that coverage. NRS 687B.145(1).
3. Insurance.
Anti-stacking clause was valid in limiting uninsured-underinsured motorist (UM) benefits to the limits on the car involved in the
accident and in prohibiting recovery under the higher limits on the other vehicle covered by the policy; the clause was prominently
displayed within a box, and the lower limits were reflected in the premium. NRS 687B.145(1).
4. Insurance.
Restricting uninsured-underinsured motorist (UM) recovery to the highest amount on a single vehicle is not the only valid
anti-stacking method.
method. An insurer may limit UM recovery to the limits on a single insured vehicle. NRS 687B.145(1).
OPINION
Per Curiam:
In this appeal from a certified partial summary judgment, we are asked to decide whether, and
under what circumstances, an insurer may validly limit uninsured-underinsured motorist
coverage to a specific automobile. We conclude that uninsured-underinsured motorist
limitations of this nature are valid, provided they comply with the three statutory prerequisites
set forth in NRS 687B.145(1). Because the insurance policy at issue comports with these
statutory requirements, the insurer's coverage limitation and anti-stacking provision are not
void for public policy reasons. We therefore reverse and remand for trial on respondents'
remaining claims.
FACTS
On June 12, 1997, respondents Alisha and Holly Coatney were severely injured in an
automobile accident with an underinsured motorist while Alisha was driving a 1989 Ford
Tempo owned by her father, respondent Michael Coatney. Both Alisha and Holly were
minors when the accident occurred. The medical costs related to their injuries exceeded the
underinsured motorist's liability coverage.
Appellant Nationwide Mutual Insurance Company (Nationwide) insured the Tempo, which
carried uninsured-underinsured motorist (UM) coverage of $50,000 per person or $100,000
per occurrence. At the time of the accident, Nationwide also insured a 1995 GMC Vandura
owned by Michael Coatney under the same policy. The Vandura coverage included separate
UM limits of $100,000 per person or $300,000 per occurrence. The Vandura was not
involved in the accident that injured Alisha and Holly.
[Headnote 1]
The policy explicitly limited UM coverage through an anti-stacking clause.
1
The paragraphs
containing the anti-stacking and UM coverage provisions were enclosed in a box, setting
them off from the remainder of the policy, and provided that [i]f you or any other insured is
in an accident:
__________

1
Anti-stacking provisions prevent insureds from combining their coverage limits on separate policies or
automobiles. See generally Bove v. Prudential Insurance Co., 106 Nev. 682, 684, 799 P.2d 1108, 1109 (1990).
[i]f you or any other insured is in an accident:
(a) In your autowe will not pay more than the limit of coverage for that particular
auto.
(b) In a motor vehicle other than your auto or while a pedestrian we will not pay for
more than the limit of coverage which you have on any one of your autos.
This limit of coverage applies regardless of the number of policies, insureds, your
autos, claims made, or motor vehicles involved in the accident. Coverages on other
motor vehicles insured by us cannot be added to or stacked on the coverage of your
auto that covers the loss.
Following the accident, Nationwide paid the Coatneys $100,000 under the policy's UM
provision in subpart a) of the paragraph. Nationwide contends that, because Alisha and Holly
were injured while in the Tempo, their recovery was limited to the UM coverage connected to
that particular auto, or $50,000 per person.
The Coatneys demanded additional payment of the $100,000 of UM coverage per person that
they purchased in connection with the Vandura. Such stacking of UM coverage would total
$150,000 per injured child. After Nationwide rejected this demand, the Coatneys filed an
action in district court. Among other claims, the Coatneys sought a declaratory judgment that
Nationwide must stack the coverages under the policy.
By stipulation, the parties conducted limited discovery. The Coatneys deposed Thomas Rau, a
Nationwide actuary, who testified concerning Nationwide's method of calculating its Nevada
UM coverage. Nationwide also produced actuarial tables and a summary of the model it used
for UM premium pricing.
Neither party disputed any facts relating to the issue of whether Nationwide had an obligation
to stack the UM coverages. Consequently, both Nationwide and the Coatneys submitted
cross-motions for summary judgment on that issue. In their motion for partial summary
judgment, the Coatneys conceded that Nationwide had a statutory right to limit UM coverage
in the policy.
2
However, they argued that the policy's anti-stacking clause was void in this
case.
__________

2
Nevada's anti-stacking statute, NRS 687B.145(1), provides:
Any policy of insurance or endorsement providing coverage under the provisions of NRS 690B.020 or
other policy of casualty insurance may provide that if the insured has coverage available to him under
more than one policy or provision of coverage, any recovery or benefits may equal but not exceed the
higher of the applicable limits of the respective coverages, and the recovery or benefits must be prorated
between the applicable coverages in the proportion that their respective limits bear to the aggregate of
their limits. Any provision which limits benefits pursuant to this section must be in clear language and be
promi
After a hearing on the cross motions for partial summary judgment, the district court ruled in
favor of the Coatneys, specifically finding that the Coatneys could stack the UM coverage on
each vehicle. The district court ruled that the anti-stacking clause was void because (1) it was
ambiguous regarding whether the UM coverage was limited to the highest coverage on a
single vehicle, and (2) it failed to specify that the UM limitation applied regardless of the
number of UM premiums paid. The district court declined to reach the issue of whether the
policy improperly required the Coatneys to purchase separate coverage for the same risk.
The district court certified its order granting partial summary judgment as final under NRCP
54(b).
3
Nationwide now appeals.
DISCUSSION
[Headnote 2]
A valid anti-stacking provision must satisfy three prerequisites under NRS 687B.145(1).
4
First, the limiting provision must be expressed in clear language. Second, the provision must
be prominently displayed in the policy, binder or endorsement. Finally, the insured must not
have purchased separate coverage on the same risk nor paid a premium calculated for full
reimbursement under that coverage.
5
Accordingly, a limiting provision is void if it fails to
comply with any of these three requirements.
6

[Headnote 3]
The Coatneys contend, and the district court agreed, that an anti-stacking clause is void for
public policy under NRS 687B.145(1) unless it expressly states that UM policy coverage may
equal but not exceed the highest UM amount on a single vehicle.
7

__________
nently displayed in the policy, binder or endorsement. Any limiting provision is void if the named insured
has purchased separate coverage on the same risk and has paid a premium calculated for full
reimbursement under that coverage.

3
NRCP 54(b) provides, in part:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of
a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of
judgment.

4
See Neumann v. Standard Fire Ins., 101 Nev. 206, 209, 699 P.2d 101, 103 (1985).

5
Id.

6
See id.

7
Here, the Coatneys' highest UM coverage was the $100,000/$300,000 limit on the Vandura.
We have previously invalidated an anti-stacking clause under the clarity requirement of NRS
687B.145(1) that failed to specifically limit the total UM coverage to the highest coverage on
any single vehicle.
8
However, unlike the Coatneys' policy, the policy in Torres v. Farmers
Insurance Exchange did not attempt to limit UM recovery to the insured vehicle involved in
the accident.
9

[Headnote 4]
We now make clear that restricting UM recovery to the highest amount on a single vehicle is
not the only valid anti-stacking method at an insurer's disposal. Indeed, an insurer cannot
possibly be expected to award an insured the higher policy limit on a single vehicle where it
has already validly restricted UM recovery to the limit on the vehicle involved in the accident.
10
In short, an insurer may incorporate either anti-stacking method into its policies, and must
be allowed to enforce a provision limiting UM recovery to the limits on a single insured
vehicle.
Here, because the accident occurred in the Tempo, subpart a) of the Coatneys' policy applied
to explicitly limit UM coverage to that particular auto, or the $50,000/$100,000 UM
amount on the Tempo.
11
This policy language is clear and was prominently displayed within
a box along with the other UM policy provisions. Additionally, the policy's anti-stacking
clause expressly prohibits stacking of UM coverage on other insured vehicles. This clause
was also enclosed in the box surrounding the policy's text. The policy's language is
unambiguous and comports with the requirements of NRS 687B.145(1); it is therefore not
void for public policy.
The Coatneys also contend that Nationwide charged them a double premium for UM
insurance covering the same risk on both autos, in violation of the third requirement of NRS
687B.145(1). The record, however, clearly shows that the Tempo and Vandura each carried
different UM coverage amounts for different risks. Nationwide's actuary, Thomas Rau,
opined that the Coatneys purchased separate UM coverage for distinct risks on each
vehicle.
__________

8
See Torres v. Farmers Insurance Exchange, 106 Nev. 340, 793 P.2d 839 (1990). We note that we expressly
approved of language nearly identical to that in the Coatneys' policy in Bove v. Prudential Insurance Co., 106
Nev. 682, 686, 799 P.2d 1108, 1111 (1990).

9
The insured was injured as a passenger on her uninsured friend's moped. See Torres, 106 Nev. at 342, 793
P.2d at 840.

10
In circumstances where the insured is injured as a passenger in a third party's vehicle or uninsured vehicle
he or she owns, any anti-stacking clause limiting UM recovery to the limit on the insured vehicle involved in the
accident would necessarily be inapplicable.

11
This result would have been different had the accident not occurred in the Tempo. Under subpart b) of the
policy, the Coatneys would have been entitled to the higher $100,000/$300,000 Vandura coverage limit if the
accident had occurred in an automobile not owned by the Coatneys or while the injured insureds were
pedestrians.
chased separate UM coverage for distinct risks on each vehicle. According to Mr. Rau,
Nationwide accordingly calculated each auto's premium to reflect the different UM risks and
corresponding coverage amounts on each vehicle.
12
The Coatneys have failed to produce any
evidence to refute this conclusion.
The record reveals that the Coatneys received precisely the coverage for which they paid. An
insurance purchaser must weigh the cost of various coverage levels against the benefit of the
amount of risk protection he or she desires. The Coatneys had the option of purchasing
$100,000/$300,000 in liability insurance for the Tempo, the amount for which they insured
the Vandura. Because the Coatneys actually purchased the lesser coverage amount of
$50,000/$100,000 for the Tempo, Nationwide correspondingly charged them a reduced
premium on that vehicle. The Coatneys accepted the risk of a reduced UM recovery in the
Tempo by paying a premium calculated to provide only $50,000 per person per accident.
Because the policy's language and calculation of premiums comport with the three
requirements of NRS 687B.145(1), Nationwide validly restricted the Coatneys' recovery to
the Tempo's $100,000 UM coverage limit. The evidence clearly indicates that Nationwide
charged the Coatneys separate premiums for separate risks on each of their vehicles. Given
that the insurance policy is not void for public policy, its terms must be enforced as written.
13
We therefore reverse the judgment of the district court and remand for consideration of any
remaining claims.
__________

12
The Vandura premium of $46.30 purchased UM coverage of $100,000/$300,000 on that vehicle, while a
separate premium of $40.60 purchased $50,000/$100,000 coverage on the Tempo.

13
See Nelson v. CSAA, 114 Nev. 345, 347-48, 956 P.2d 803, 805 (1998).
____________
118 Nev. 186, 186 (2002) Civil Serv. Comm'n v. Dist. Ct.
CIVIL SERVICE COMMISSION FOR THE CITY OF RENO, Petitioner, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE
COUNTY OF WASHOE, and THE HONORABLE BRENT T. ADAMS, District
Judge, Respondents, and DAVID CARTER, and DONNA KRISTAPONIS, Assistant
City Manager for Developmental Services, Real Parties in Interest.
No. 38156
March 15, 2002
42 P.3d 268
Original petition for a writ of mandamus or prohibition challenging a district court order that
denied a motion to dismiss a petition for judicial review.
Public employee sought judicial review after Civil Service Commission upheld city's decision
to terminate his employment. Commission petitioned for writ of mandamus or prohibition
seeking to compel the district court to dismiss the petition for judicial review. The supreme
court held that employee's failure to name city as respondent in his petition for judicial review
did not require dismissal of petition.
Petition denied.
Patricia A. Lynch, City Attorney, and Tracy L. Chase, Deputy City Attorney, Reno, for
Petitioner.
Kenneth J. McKenna, Reno, for Real Party in Interest Carter.
1. Municipal Corporations.
Former city employee's failure to name city as respondent in his petition for judicial review of Civil Service Commission's
decision upholding city's decision to terminate employee did not require that petition be dismissed, where employee's petition was
timely filed, and trial court had discretion to decline to dismiss petition for judicial review. NRS 233B.130.
2. Mandamus.
A writ of mandamus may issue 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.
3. Prohibition.
A writ of prohibition may issue to arrest the proceedings of a district court when such proceedings are in excess of the district
court's jurisdiction.
4. Mandamus; Prohibition.
A writ of prohibition or mandamus may issue only where there is no plain, speedy, and adequate remedy at law, and original
petitions for extraordinary relief are addressed to the sound discretion of the supreme court.
5. Mandamus; Prohibition.
Although petitions for writs of mandamus or prohibition arising out of denials of motions for summary judgment and motions to
dismiss may be entertained,
be entertained, the supreme court generally will not exercise its discretion to consider such petitions unless considerations of sound
judicial economy and administration militate in favor of granting the petitions.
6. Administrative Law and Procedure.
Filing requirements under statute allowing for judicial review of administrative decisions are mandatory and jurisdictional;
however, technical derelictions generally do not preclude a party's right to review. NRS 233B.130.
OPINION
Per Curiam:
This original petition for a writ of mandamus or prohibition challenges a district court order
that denied petitioner's motion to dismiss the real party in interest's petition for judicial
review. Real party in interest David Carter sought judicial review after the Civil Service
Commission upheld the City of Reno's decision to terminate his employment. The Civil
Service Commission now requests extraordinary writ relief to enjoin the district court from
proceeding further in this case or, in the alternative, to compel the district court to dismiss
Carter's petition for judicial review. For the reasons discussed below, we conclude that
extraordinary relief is not warranted in this case.
FACTS
Carter's employment as a combination inspector with the City of Reno was terminated in
August 2000 on the basis that he violated various management policies and procedures,
including failing to report damage to his assigned City vehicle and overcharging the City for
fuel for the vehicle. Thereafter, Carter challenged his termination, and the Civil Service
Commission upheld the City of Reno's decision to terminate Carter.
In November 2000, Carter filed a petition for judicial review of the Civil Service
Commission's decision, naming as respondents the Civil Service Commission for the City of
Reno and Donna Kristaponis, Assistant City Manager for Developmental Services. Carter
did not name his former employer, the City of Reno, as a respondent, and the parties dispute
whether the Civil Service Commission was ever served with the petition for judicial review.
In February 2001, Kristaponis filed a motion to dismiss Carter's petition for judicial review,
asserting that he failed to name an indispensable party, the City of Reno, and failed to timely
serve the petition pursuant to NRS 233B.130. The Civil Service Commission
Service Commission joined in the motion to dismiss, asserting that it was never served with
the petition for judicial review. The district court ultimately granted the motion to dismiss as
to Kristaponis but denied the motion as to the Civil Service Commission. The Civil Service
Commission then filed this original writ petition.
DISCUSSION
[Headnotes 1-4]
A writ of mandamus may issue to compel the performance of an act which the law requires as
a duty resulting from an office, trust or station,
1
or to control an arbitrary or capricious
exercise of discretion.
2
A writ of prohibition may issue to arrest the proceedings of a district
court when such proceedings are in excess of the district court's jurisdiction.
3
However, a
writ may issue only where there is no plain, speedy, and adequate remedy at law,
4
and
original petitions for extraordinary relief are addressed to the sound discretion of this court.
5

Here, the Civil Service Commission requests a writ compelling the district court to dismiss
Carter's petition for judicial review. The Civil Service Commission contends that it has no
plain, speedy, and adequate remedy at law and will be forced to defend a challenge to Carter's
termination via judicial review in the absence of an indispensable party, the City of Reno,
unless this court issues an extraordinary writ. The Civil Service Commission argues that the
provisions of NRS 233B.130 are jurisdictional and that the district court is therefore
exceeding its jurisdiction by entertaining Carter's petition for judicial review.
[Headnote 5]
Although writ petitions arising out of denials of motions for summary judgment and motions
to dismiss may be entertained, this court generally will not exercise its discretion to consider
such petitions unless considerations of sound judicial economy and administration militate[ ]
in favor of granting [the] petitions.
6
This court has stated that it may exercise its discretion
to review decisions of law regarding the failure to serve process in accordance with a statute
or rule where
__________

1
NRS 34.160.

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

3
NRS 34.320; see also State v. Dist. Ct., 116 Nev. 953, 957, 11 P.3d 1209, 1211 (2000).

4
NRS 34.170; NRS 34.330.

5
State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983); NRAP 21; see also
Nev. Const. art. 6, 4.

6
dance with a statute or rule where no disputed factual issues exist and, pursuant to clear
authority under a statute or rule, the district court is obligated to dismiss an action.
7
Additionally, we may exercise our discretion where, as here, an important issue of law
requires clarification.
8
We further conclude, however, that extraordinary relief is not
warranted in this case.
NRS 233B.130, which provides for judicial review of administrative proceedings, states, in
pertinent part:
Petitions for judicial review must:
(a) Name as respondents the agency and all parties of record to the administrative
proceeding;
. . . .
(c) Be filed within 30 days after service of the final decision of the agency.
Cross-petitions for judicial review must be filed within 10 days after service of a
petition for judicial review.
. . . .
5. The petition for judicial review and any cross-petitions for judicial review must be
served upon the agency and every party within 45 days after the filing of the petition,
unless, upon a showing of good cause, the court extends the time for such service.
The Civil Service Commission contends that Carter's petition for judicial review must be
dismissed because it was not served within forty-five days from the date it was filed as
required by NRS 233B.130(5) and because it failed to name as respondents all parties of
record to the administrative proceeding, i.e., Carter's former employer, the City of Reno, as
required by NRS 233B.130(2)(a). Citing Bing Construction v. State, Department of Taxation,
9
the Civil Service Commission argues that all of the provisions of NRS 233B.130 are
jurisdictional in nature and that the district court was therefore required to dismiss Carter's
petition for judicial review because he failed to comply with the statute. We disagree.
[Headnote 6]
Filing requirements are mandatory and jurisdictional;
10
however, technical derelictions do
not generally preclude a party's right to review.
__________

7
Id. at 1345, 950 P.2d at 281.

8
Id.

9
107 Nev. 630, 817 P.2d 710 (1991).

10
See Kame v. Employment Security Dep't, 105 Nev. 22, 25, 769 P.2d 66, 68 (1989) (stating time period for
filing a petition for judicial review is mandatory and jurisdictional).
right to review.
11
In Bing Construction, this court stated that NRS 233B.130 is
jurisdictional in nature and is designed to place limits on the substantive rights of parties to
seek review in a civil action commenced before an agency.
12
However, Bing Construction
involved dismissal of a petition for judicial review on grounds that it was not timely filed, and
this court noted that [w]hen a document is received in a timely manner, in substantially the
correct form, the party should not be precluded from a right of review.
13
Thus, dismissal is
not mandatory when a party substantially complies with the technical requirements of NRS
233B.130, save the jurisdictional filing requirement.
In this case, the record reveals that Carter failed to name the City of Reno as a respondent in
his petition for judicial review or to timely serve it on the Civil Service Commission.
However, it is undisputed that Carter timely filed the petition. Thus, the district court had the
discretion to dismiss Carter's petition for failure to comply with the procedural requirements
of NRS 233B.130, but because Carter timely filed the petition, the district court was not
required to dismiss the petition for lack of subject matter jurisdiction.
14
Therefore, we
conclude that the district court did not exceed its jurisdiction by declining to dismiss Carter's
petition for judicial review. Accordingly, we deny the petition for a writ of mandamus or
prohibition.
__________

11
Bing Constr., 107 Nev. at 632, 817 P.2d at 711; see also Scrimer v. Dist. Ct., 116 Nev. 507, 516-17, 998
P.2d 1190, 1196 (2000) (a balanced and multifaceted analysis is warranted in determining whether to dismiss
complaint under NRCP 4(i) because good public policy dictates that cases be adjudicated on their merits).

12
107 Nev. at 631, 817 P.2d at 711.

13
Id. at 631-32, 817 P.2d at 711.

14
From the record before us, it is unclear whether the district court intended to order Carter to amend the
petition to join the City of Reno in lieu of dismissing the petition. We note that the City of Reno is an
indispensable party and must be joined before the merits of the petition can be heard. See NRCP 19; Crowley v.
Duffrin, 109 Nev. 597, 602-03, 855 P.2d 536, 540 (1993) (misjoinder or nonjoinder of parties does not justify
the entry of summary judgment and remand for joinder of necessary parties serves the interest of judicial
efficiency).
____________
118 Nev. 191, 191 (2002) Canterino v. The Mirage Casino-Hotel
JOSEPH D. CANTERINO, Appellant, v. THE MIRAGE CASINO-HOTEL, a Nevada
Corporation, dba THE MIRAGE, Respondent.
No. 30659
March 19, 2002
42 P.3d 808
Rehearing of Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 16 P.3d 415 (2001).
Appeal from a district court order granting a new trial in a premises liability/negligent
security action. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Hotel patron sued hotel for personal injuries after he was beaten and robbed in hotel. The
district court ordered a new trial after patron did not accept remittitur of jury verdict. Patron
appealed. The supreme court, 117 Nev. 19, 16 P.3d 415 (2001), affirmed in part and reversed
in part, remanding for a new trial on issue of damages only. On rehearing, the supreme court,
Young, J., held that erroneous ex parte instruction excluding jurors who disagreed on the
liability issue from deciding the damages issue required a new trial on all issues.
Opinion modified; remanded.
[Rehearing denied August 27, 2002]
Shearing, J., dissented.
Goodman Chesnoff & Keach, Las Vegas, for Appellant.
Morris Pickering, Las Vegas, for Respondent.
1. New Trial.
Error in instructing jury ex parte that the two jurors who disagreed on the liability issue could not participate in the damages
award determination required a new trial on all issues, not only on the issue of damages.
2. Trial.
A jury's decision is impermanent until it has been submitted to and accepted by the trial court.
OPINION ON REHEARING
By the Court, Young, J.:
On January 29, 2001, we issued an opinion affirming in part and reversing in part a district
court order granting a new trial in this personal injury action, and remanding for a new trial
on the issue of damages only.
issue of damages only. We subsequently granted respondent's petition for rehearing, and we
now modify our previous opinion and remand for a new trial on the issues of both liability
and damages.
The circumstances of this case are fully set forth in Canterino v. The Mirage Casino-Hotel.
1
In brief, Joseph Canterino sued the Mirage Casino-Hotel for damages after he was beaten and
robbed in the hotel, and the jury awarded him more than five and one-half million dollars.
The district court found the award excessive, reduced it to one and one-half million dollars
and issued a conditional order of remittitur. Canterino rejected the remittitur, and the district
court ordered a new trial. Canterino appealed, seeking reinstatement of the jury award. We
concluded that a new trial on the issue of damages was necessary because the district court
erred by instructing the jury, ex parte, that the two jurors who voted against finding the
Mirage liable could not participate in the damage award determination. We limited the scope
of the new trial to the issue of damages.
[Headnote 1]
We granted rehearing for the limited purpose of considering whether the new trial should
encompass the issue of liability as well as the issue of damages. In our previous opinion we
quoted Perkins v. Komarnyckyj,
2
an Arizona Supreme Court decision, in support of our
decision that all jurors must participate in all jury deliberations. However, we did not follow
Perkins' holding that all issues must be retried on remand following an erroneous ex parte
jury instruction that damages should be decided only by the jurors who agree on liability.
Instead, we concluded that only the damages portion of the jury verdict was flawed by the
district court's erroneous instruction in this case. Having reconsidered the matter, we
conclude that Perkins' holding that all issues must be retried is the better-reasoned decision.
In Perkins, a patient sued his dentist and his periodontist for malpractice, alleging that they
failed to diagnose a squamous cell carcinoma in its early stages and that the resulting delay in
treatment significantly reduced his chance of survival.
3
The patient died during the jury trial,
and the complaint was amended to an action for wrongful death, with the patient's survivors
substituted as plaintiffs. During deliberations, the ten-person jury sent the judge some written
questions. The judge provided the jury with written answers, without informing the parties
that the jury had asked questions or consulting them regarding the proper answers.
4

__________

1
117 Nev. 19, 16 P.3d 415 (2001).

2
834 P.2d 1260 (Ariz. 1992).

3
834 P.2d at 1261.

4
Id.
One question was particularly important; the jury asked: If any jurists [sic] should find for
the defendants, should those jurists take part in the determination of the percentage of
liabilities and damages? The judge responded that [t]he jurors who agree on liability are the
ones who should fix damages and sign the form of verdict.
5
The jury returned a verdict in
favor of plaintiffs; eight jurors found against both defendants and two jurors found in favor of
both defendants. The jury decided that the plaintiffs' damages totaled $1,098,054, and that the
dentist was 67% at fault, the periodontist 33% and the patient 0%.
6

On appeal, the court of appeals ruled that the trial court erred by answering the jury's note
without notifying the parties and by instructing that the jurors who voted against the
defendants' liability were not to participate in the deliberation of the remaining issues. The
court of appeals affirmed the judgment on liability, since all jurors had participated in that
determination, but reversed the damages award and remanded for retrial on the damages issue
alone.
7

The Arizona Supreme Court granted review to determine whether the entire judgment must
be reversed and remanded when the trial judge communicates ex parte with jurors, and
erroneously directs those jurors who voted in favor of the defendants on liability not to
participate in deciding damages, or whether the case was properly remanded for retrial on the
issue of damages alone.
8
We are faced here with precisely the same question.
The Arizona Supreme Court decided that the entire judgment must be reversed. Specifically,
the court concluded that the judge's error was inherently prejudicial, and no further showing
is needed to require reversal, remand, and retrial on all issues.
9
In reaching this conclusion,
the court observed that a jury's decision on an issue is not final until the jury's verdict is
submitted to and accepted by the trial court.
10
The court explained:
[U]ntil they return the verdict, the jury may decide again and again to reconsider one or
all of the issues in the case. For example, a jury might vote that both defendants in a
tort case are liable, and then later, in the course of allocating percent ages of fault or
fixing damages,
__________

5
Id.

6
Id.

7
Id. at 1262.

8
Id.

9
Id. at 1264.

10
Id. (citing Ralston v. Stump, 62 N.E.2d 293, 294 (Ohio Ct. App. 1944) (Until the conclusion of the jury is
submitted to and accepted by the court, it is nothing more than a tentative agreement among the jurors, subject to
revocation or change at any time before such submission and acceptance.), and 75B Am. Jur. 2d Trial 1752,
at 521 & n.95 (1992)).
ages of fault or fixing damages, conclude that one defendant was not really liable at all.
Consequently, we do not and cannot know or assume that at any point in the
deliberations, a majority of the jury unalterably concluded that Defendants were liable
for [the patient's] death. Defendants were deprived of their right to have all of the jurors
participate in deciding all of the issues.
11

[Headnote 2]
The Arizona Supreme Court's observations closely parallel this court's oft-repeated
observations about the impermanent nature of a judicial decision before it is reduced to
writing and filed by the court clerk. For example, in Rust v. Clark County School District,
12
we noted that until the entry of a final judgment, the district court remains free to reconsider
and issue a written judgment different from its oral pronouncement; thus, only a final
judgment has any effect and only a final judgment may be appealed. We agree with Perkins'
reasoning that a jury's decision is similarly impermanent until it has been submitted to and
accepted by the trial court; and we adopt Perkins' holding that an erroneous ex parte
instruction excluding jurors who disagreed on the liability issue from deciding the damages
issue requires a new trial on all issues.
We therefore modify our previous opinion regarding the juror participation issue, and we
remand for a new trial on all issues.
13

Becker, J., and Gibbons, D. J., concur.
Maupin, C. J., concurring:
For the reasons stated by the majority with regard to the trial court's communication with the
jury, I agree that this case should be remanded for a full trial on both liability and damages. I
write separately with regard to the claims of misconduct lodged against Mr. Canterino's
counsel to elaborate upon my separate concurrence submitted with the original opinion in this
matter.
In my original separate concurrence, I concluded that the remarks of Canterino's counsel did
not merit a new trial. I am still of that opinion. My prior concurrence attempted to apply the
majority ruling in DeJesus v. Flick,
1
by concluding that the verdict reached by the jury
below was not "objectively unreliable.
__________

11
Id.

12
103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987).

13
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of
this matter. The Honorable Michael P. Gibbons, Judge of the Ninth Judicial District Court, was designated by
the Governor to sit in place of The Honorable Myron E. Leavitt, Justice. Nev. Const. art. 6, 4.

1
116 Nev. 812, 7 P.3d 459 (2000).
dict reached by the jury below was not objectively unreliable. In this I stated:
However, given the divergence of opinion within this court over this appeal, as well as
the four-to-three split of this court in DeJesus, what constitutes objective non-reliability
can be the subject of reasonable intellectual or philosophical differences. The dissents
here and in DeJesus demonstrate the confusion that can occur when we, on a
case-by-case basis, make these difficult determinations in the context of published
opinions. Thus, we should engage in plain error analysis of misconduct to which no
objection has been made with great care, and with the understanding that discrete
patterns of misconduct do not set the standard for evaluating plain error.
2

The arguments on rehearing, coupled with the fact that I did not participate in the DeJesus
decision, have persuaded me to more definitively weigh in on the statement of doctrine
governing situations of attorney misconduct when the opponent does not object or move for
mistrial. It is important that I do this because the members of this court that did participate in
DeJesus were evenly split on this issue. Although appreciating the sentiments of the majority
in that case, I have come to agree with the dissenters in DeJesus in terms of the rule that
should apply to unobjected-to misconduct in civil cases. That rule is stated by the DeJesus
dissenters as follows:
It is only in those rare circumstances where the comments are of such sinister
influence as to constitute irreparable and fundamental error' that the absence of
objection will be overlooked.
3

Unlike criminal cases, in which most defendants are represented by counsel not of their own
choosing, civil litigants generally exercise free choice in the selection of an attorney. Also,
property rather than liberty interests are at stake. Thus, the protection from attorney
misconduct arises from a completely different dynamic. The choice to object, to not object or
to seek a mistrial is, as a general matter, one of tactics by the attorney chosen to represent the
affected party. Given the disparity of opinion on the issue within this court,
__________

2
Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 27, 16 P.3d 415, 420 (2001) (Maupin, C. J.,
concurring).

3
DeJesus, 116 Nev. at 827, 7 P.3d at 469 (Rose, C. J., dissenting) (quoting Budget Rent A Car Systems, Inc.
v. Jana, 600 So. 2d 466, 467 (Fla. Dist. Ct. App. 1992) (quoting LeRetilley v. Harris, 354 So. 2d 1213, 1215
(Fla. Dist. Ct. App. 1978))). Four commissioned members of this court have now taken this view in separate
decisions: Justice Leavitt, Justice Rose, Justice Shearing and myself.
on the issue within this court, the original majority in DeJesus has quite arguably made it
difficult for trial judges to know when to intervene to avoid a reversal when misconduct
occurs and that misconduct is not met with an objection from the opposing side. The division
of the court on this issue may also have made it difficult for civil trial attorneys to determine
where the line of propriety is drawn to avoid implication of the plain error doctrine. This is
underscored by the original dissent of Justice Rose in this case, in which he attempts to apply
DeJesus on a comparative basis to this matter. I firmly believe that we should not engage in
such comparisons. These are decisions that must be made on a case-by-case basis. Thus,
recognizing that no litmus test for judicial intervention in these situations can be divined, I
am constrained to agree with the more relaxed standard articulated in the DeJesus dissent. In
this, I make no comment on how I would have applied this rule in DeJesus since I was
recused in that matter.
I stress again that we should operate from the premise or presumption that, in civil cases,
failures to object or seek a mistrial in connection with attorney misconduct are the result of
tactical or strategic choices by trial counsel. As I observed originally:
In this case, as an apparent matter of trial tactics, defense counsel chose to let much of
the conduct complained of go unchallenged either by way of objection and a request for
admonishment of the jury or a request for a mistrial. The record below suggests that
defense counsel could have reasonably concluded that the histrionics of Canterino's
counsel were having a negative rather than a positive effect on the jury. This, however,
turned out not to be the case. The jury verdict in this case was the result of a calculated
risk taken by an experienced attorney retained at the election of the client. We should
not intervene to disturb this kind of dynamic in civil cases.
4

Thus, my decision that a full trial on liability and damages is necessary is not at all based
upon the allegations of misconduct made against Canterino's trial counsel.
5
Rather, it is
based upon the fact that we should have adopted the rule on the jury communication issue
adopted by the Arizona Supreme Court.
6

__________

4
Canterino, 117 Nev. at 28, 16 P.3d at 420 (Maupin, C. J., concurring).

5
Justice Agosti questions my re-raising of the DeJesus issue at this time. While I appreciate her concern, the
issue was raised on rehearing. Further, the uncertainty over the split decisions of the court on the issue led me to
conclude that the bench and bar of the state should know where all of the justices stand on it as soon as possible.

6
See Perkins v. Komarnyckyj, 834 P.2d 1260 (Ariz. 1992).
Agosti, J., concurring:
I concur with the majority. I write separately to respond to the concurrences of Chief Justice
Maupin and Justice Rose. Rehearing was granted in this case pursuant to NRAP 40(c)(2),
which states: The court may consider rehearings in the following circumstances: (i) When
the court has overlooked or misapprehended a . . . material question of law in the case . . . .
As the majority notes, we relied in our original opinion on Perkins v. Komarnyckyj,
1
an
Arizona case, but failed to apply its holding to the question of whether all jurors must
participate in all deliberations. We granted rehearing for the limited purpose of examining
Perkins to determine whether we should adopt its reasoning for Nevada. The concurring
justices, however, have now taken the opportunity to discuss matters not on the table for
rehearing and have rendered advisory opinions on an issue not currently before the court.
Chief Justice Maupin weighs in with an opinion on the legal principle he would have
adopted in a case from which he recused himself, DeJesus v. Flick.
2
He reminds us all that
DeJesus was a four-to-three split decision and that the fourth majority vote was a district
judge sitting by designation in his place.
I suggest that it may be inappropriate to gratuitously remark about how one would vote on an
issue not before the court for resolution. We do not know whether the identical issue is
pending in a case awaiting resolution before us or in any court.
3
I think the better course is to
decide a case in controversy when it is presented.
Rose, J., concurring:
I initially applied DeJesus v. Flick
1
to the facts of this case, as I felt obligated to do.
2
In
doing so, I determined that the attorney misconduct here is similar to that cited in DeJesus,
3
and under the DeJesus standard, the damages here are clearly excessive when compared to
the proven injuries.
4
Therefore, I felt that the entire judgment should be reversed, as we are
now voting to do on a different basis on rehearing.
__________

1
834 P.2d 1260 (Ariz. 1992).

2
116 Nev. 812, 7 P.3d 459 (2000).

3
Nevada Code of Judicial Conduct, Canon 3B(9).

1
116 Nev. 812, 7 P.3d 459 (2000).

2
Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 30, 16 P.3d 415, 422 (2001) (Rose, J., concurring in
part and dissenting in part).

3
See DeJesus, 116 Nev. at 817-19, 7 P.3d at 463-64.

4
Canterino, 117 Nev. at 30-33, 16 P.3d at 422-24 (Rose, J., concurring in part and dissenting in part).
However, in applying the DeJesus test, one aspect of it presented a major problemthe
search for an objective standard in determining whether damages were appropriate or
excessive. The DeJesus majority used the medical expenses to gauge whether the damages
for pain and suffering and permanent injury were excessive.
5
But great damages can result
from an injury that requires minimal medical expensesas is often the case with mild to
moderate brain injuries. We are attempting to apply some objective standard to injuries that
are proven largely by subjective testimony. If we are to continue with the DeJesus analysis, I
would eliminate the objectively reasonable standard
6
when reviewing damages, and
instead, review the damages awarded to see if substantial evidence supports their award.
7

The concurrence of Chief Justice Maupin on rehearing voices his agreement with the rule
suggested by the dissenters in the original DeJesus decision. Notwithstanding my views
stated in this case in attempting to follow the DeJesus precedent, my preference would be to
abandon the DeJesus standard and adopt the rule three justices urged in the DeJesus dissent
8
and that is supported in this concurrence.
Shearing, J., dissenting:
I do not agree that the district court's erroneous instructions on the issue of damages requires
a retrial on all issues. The jury verdict was very clear that six out of eight jurors found that the
Mirage was liable to Canterino. The jury made a permanent determination and reduced its
determination to writing when it filed its verdict form. Assuming that the jury followed the
district court's erroneous instruction on who was to determine damages, the error only related
to the determination of damages.
I believe that the majority opinion elevates form over substance. When a competent jury
determines an issue that has been thoroughly (and expensively) litigated, it is a waste of time,
money, and talent to require a new jury to redetermine the issue. One of the principal
criticisms of our civil justice system is that litigation has become too expensive for the vast
majority of our citizens to be able to afford. The result reached by the majority unnecessarily
exacerbates that problem.
__________

5
DeJesus, 116 Nev. at 820 & n.5, 7 P.3d at 464-65 & n.5.

6
See id. at 820, 7 P.3d at 464-65.

7
See id. at 828, 7 P.3d at 467 (Rose, C. J., dissenting).

8
See id. at 823-28, 7 P.3d at 466-70 (Rose, C. J., dissenting).
____________
118 Nev. 199, 199 (2002) State v. Kopp
THE STATE OF NEVADA, Appellant, v. TIMOTHY JACK KOPP, Respondent.
No. 36457
April 5, 2002
43 P.3d 340
Appeal from a district court order dismissing two misdemeanor counts against respondent.
Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
After grand jury indicted defendant for felony failure to stop at signal of police officer,
misdemeanor driving and/or being in actual physical control of motor vehicle while under the
influence of intoxicating liquor (DUI), and misdemeanor resisting arrest, defendant filed
motion to dismiss misdemeanor charges. The district court dismissed. State appealed. The
supreme court, Agosti, J., held that: (1) court could resort to statutory construction to interpret
provision that, in certain situations, two or more offenses could be charged in same
indictment or information in separate count for each offense, whether felonies or
misdemeanors or both; and (2) statute did not grant district court jurisdiction over
misdemeanors that were joined with felony or gross misdemeanor in single indictment or
information.
Affirmed.
Maupin, C. J., dissented.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney,
Brian S. Rutledge, Chief Deputy District Attorney, and Mary P. Brown, Deputy District
Attorney, Clark County, for Appellant.
Marcus D. Cooper, Public Defender, and Darin F. Imlay, Deputy Public Defender, Clark
County, for Respondent.
1. Criminal Law.
Under Nevada law, the construction of a statute is a question of law that an appellate court will review de novo.
2. Statutes.
When the language of a statute is unambiguous, the courts are not permitted to look beyond the statute itself when determining
its meaning.
3. Statutes.
When a statute is susceptible to reasonable but inconsistent interpretations, the statute is ambiguous, and a court will resort to
statutory interpretation in order to discern legislative intent.
4. Statutes.
Language of statute providing that, in certain situations, two or more offenses could be charged in same indictment or
information in separate count for each offense, whether felonies or misdemeanors or both, was susceptible to more than one reasonable
interpretation, and thus appellate court could resort to statutory interpretation to determine legislative intent. NRS 173.115.
118 Nev. 199, 200 (2002) State v. Kopp
5. Criminal Law.
Statute did not grant district court jurisdiction over misdemeanor that was joined with felony or gross misdemeanor in single
indictment or information, even though statute's language was susceptible to more than one interpretation, and statute did not mention
gross misdemeanors, given that state constitution eliminated concurrent jurisdiction between justice and district courts, use of
generic term misdemeanor in statute was intended to include misdemeanor battery on police officer offense within district court
jurisdiction, rather than to provide supplemental jurisdiction over all misdemeanors, district court was overburdened, whereas justice
court was underutilized, and it was reasonable to avoid vesting district attorney with discretion to determine which court would hear
misdemeanor. Const. art. 6, 6; NRS 173.115.
When a statute may be given conflicting interpretations, one rendering it constitutional, and the other unconstitutional, the
constitutional interpretation is favored.
7. Criminal Law.
Purpose behind amendment to Nevada constitutional provisions on the jurisdiction of courts was to do away with concurrent
jurisdiction between district and justices' courts. Const. art. 6, 6.
8. Statutes.
Statute should be interpreted in light of the policy and the spirit of the law, and the interpretation should avoid absurd results.
9. Statutes.
Appellate court will resolve any doubt concerning the legislature's intent in favor of what is reasonable, versus what is
unreasonable.
OPINION
This case presents an issue of first impression regarding whether a district court acquires
jurisdiction over misdemeanors that have been joined in a single indictment or information
with a felony or gross misdemeanor. We conclude that district courts do not acquire
jurisdiction over misdemeanors under such circumstances.
On October 14, 1999, Timothy Kopp was subdued and arrested by officers of the Las Vegas
Metropolitan Police Department following a high-speed car chase that ended at the City
Limits Bar on Las Vegas Boulevard. After Kopp's arraignment in the justice's court, the State
presented the facts of the case to a grand jury, and subsequently, the grand jury indicted Kopp
on the following three counts: (1) failing to stop at the signal of a police officer, a felony
under NRS 484.348(3); (2) driving and/or being in actual physical control of a motor vehicle
while under the influence of intoxicating liquor, a misdemeanor under NRS 484.379; and (3)
resisting arrest, a misdemeanor under NRS 199.280(2). Upon the issuance of the indictment,
118 Nev. 199, 201 (2002) State v. Kopp
issuance of the indictment, the State moved for dismissal of the criminal complaint in the
justice's court.
Thereafter, Kopp filed a motion in the district court to dismiss the misdemeanor charges,
arguing that the district court lacked jurisdiction over them. After reviewing Kopp's motion to
dismiss and the State's motion in opposition, the district court ruled that it lacked jurisdiction
over the misdemeanor charges and dismissed them. It is this ruling the State challenges on
appeal.
The question posed in this appeal is whether NRS 173.115 grants jurisdiction to the district
court over a misdemeanor joined with a felony or gross misdemeanor in a single indictment
or information. NRS 173.115 states:
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.
(Emphasis added.)
It is the State's position that the district court acquires jurisdiction over misdemeanors that are
joined with a felony or gross misdemeanor in a single indictment or information. The State
contends that since criminal cases may only come before district courts by way of an
indictment or information,
1
it is reasonable to conclude that the legislature intended that the
district courts have jurisdiction over any misdemeanor that has been joined with a felony or
gross misdemeanor. Furthermore, the State submits that its interpretation of NRS 173.115 is
in harmony with NRS 4.370(3), which provides:
Justices' courts have jurisdiction of all misdemeanors and no other criminal offenses
except as otherwise provided by specific statute.
(Emphasis added.) According to the State, while justices' courts generally have exclusive
jurisdiction over misdemeanors under NRS 4.370(3), NRS 173.115 articulates a specific
instance when the district court acquires jurisdiction over misdemeanors. Essentially, the
State contends that NRS 173.115 gives the district court a kind of supplemental jurisdiction
over misdemeanors when those misdemeanors are joined together with felonies or gross
misdemeanors in one indictment or information.
In contrast, Kopp argues that were this court to adopt the State's interpretation of NRS
173.115
__________

1
See Nev. Const. art. 1, 8, cl. 1; NRS 173.015; see also Seim v. State, 95 Nev. 89, 98, 590 P.2d 1152, 1157
(1979) (discussing criminal procedure in district courts).
118 Nev. 199, 202 (2002) State v. Kopp
State's interpretation of NRS 173.115 then that statute would conflict with the Nevada
Constitution and NRS 4.370(3) because the district courts and justices' courts may not
exercise concurrent jurisdiction over misdemeanors. For support, Kopp cites to our decision
in K.J.B. Inc. v. District Court,
2
in which we stated:
Prior to 1978, the Nevada Constitution allowed the district courts and the justices'
courts to exercise concurrent jurisdiction in some areas, including unlawful detainer
actions. In 1978, however, Article 6, section 6 of the Nevada Constitution was amended
to provide, in part: The District Courts . . . shall have original jurisdiction in all cases
excluded by law from the original jurisdiction of the justices' courts. Therefore, the
district courts have no original jurisdiction in matters in which the justices' courts have
original jurisdiction. In short, concurrent jurisdiction between the district courts and the
justices' courts can no longer exist.
3

According to Kopp, NRS 173.115 is most reasonably interpreted as only permitting the
joinder of felonies and those misdemeanors which are denominated as gross misdemeanors,
which is consistent with the fact that the district courts' original jurisdiction in criminal cases
is limited to felonies and gross misdemeanors.
4

[Headnotes 1-5]
The question of whether NRS 173.115 grants jurisdiction to the district court over a
misdemeanor that is joined with a felony or gross misdemeanor in a single indictment or
information is a question of first impression. Under Nevada law, the construction of a statute
is a question of law that we review de novo.
5
When the language of a statute is
unambiguous, the courts are not permitted to look beyond the statute itself when determining
its meaning.
6
However, when a statute is susceptible to reasonable but inconsistent
interpretations, the statute is ambiguous, and this court will resort to statutory interpretation in
order to discern legislative intent.
7
We conclude that NRS 173.115 is ambiguous because, as
demonstrated by the parties, its language is susceptible to more than one reasonable
interpretation. NRS 173.115 does not mention the term "gross misdemeanors,"
__________

2
103 Nev. 473, 745 P.2d 700 (1987).

3
Id. at 475, 745 P.2d at 701 (quoting Nev. Const. art. 6, 6).

4
See Kimball v. State, 100 Nev. 190, 191, 678 P.2d 675, 676 (1984) (stating that [t]he original jurisdiction
of the district court is in fact limited to felonies and gross misdemeanors).

5
Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998).

6
Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995).

7
Gallagher, 114 Nev. at 599, 959 P.2d at 521.
118 Nev. 199, 203 (2002) State v. Kopp
not mention the term gross misdemeanors, creating an ambiguity as to the type of
misdemeanors NRS 173.115 was intended to include. Accordingly, we must turn to our
rules of statutory interpretation in order to discern the meaning of NRS 173.115.
[Headnotes 6, 7]
Standard rules of statutory interpretation direct us to conclude that NRS 173.115 does not
grant the district court jurisdiction over misdemeanors that are joined with a felony or gross
misdemeanor in a single indictment or information. It is well settled that when a statute may
be given conflicting interpretations, one rendering it constitutional, and the other
unconstitutional, the constitutional interpretation is favored.
8
Here, the interpretation
advanced by the State would grant the district and justices' courts concurrent jurisdiction over
misdemeanors, a result that is directly at odds with the intent of Article 6, Section 6 of the
Nevada Constitution. As we explained in K.J.B., the purpose behind the 1978 amendment to
Article 6, Section 6 of the Nevada Constitution was to do away with concurrent jurisdiction
between the district and justices' courts.
9
Interpreting NRS 173.115 as applying to gross
misdemeanors, rather than all misdemeanors, avoids any constitutional conflict because the
district courts have original jurisdiction over gross misdemeanors.
10

Further, it appears that the legislature used the generic term misdemeanors when NRS
173.115 was enacted because, at that time, the district court had original jurisdiction over the
misdemeanor offense of battery on a police officer.
11
Therefore, when the legislature used
the term misdemeanors in NRS 173.115, it was acknowledging the fact that the original
jurisdiction of the district courts extended to both gross misdemeanors and the misdemeanor
offense of battery on a police officer.
12
Thus, the legislature was not attempting to grant
the district court a type of "supplemental" jurisdiction over all misdemeanors as proposed
by the State.
__________

8
Sheriff v. Wu, 101 Nev. 687, 689-90, 708 P.2d 305, 306 (1985).

9
103 Nev. at 475, 745 P.2d at 701.

10
We see no persuasive reason for expanding the logic of our decision in Kimball to the facts of this case.
Kimball stands for the proposition that district courts have jurisdiction over lesser-included misdemeanors, not
that they have jurisdiction over any misdemeanor whenever it is joined with a felony or gross misdemeanor. 100
Nev. at 191, 678 P.2d at 676.

11
Battiato v. Sheriff, 95 Nev. 361, 362, 594 P.2d 1152, 1153 (1979) (stating that original jurisdiction of the
offense of misdemeanor battery on a police officer lies in the district court).

12
NRS 173.115 was enacted in 1967. 1967 Nev. Stat., ch. 523, 112, at 1413. Eleven years later, the Nevada
Constitution was amended, and concurrent jurisdiction between the district and justices' courts was eliminated.
See K.J.B., 103 Nev. at 475, 745 P.2d at 701. NRS 173.115, however, has not been amended since it was first
enacted.
118 Nev. 199, 204 (2002) State v. Kopp
lature was not attempting to grant the district court a type of supplemental jurisdiction over
all misdemeanors as proposed by the State.
13

[Headnotes 8, 9]
Finally, we conclude that it is not reasonable to interpret NRS 173.115 as granting
jurisdiction to the district court over a misdemeanor that is joined with a felony or gross
misdemeanor in a single indictment or information. We have long adhered to the position that
a statute should be interpreted in light of the policy and the spirit of the law, and the
interpretation should avoid absurd results.
14
Additionally, we have consistently held that we
will resolve any doubt concerning the legislature's intent in favor of what is reasonable,
versus what is unreasonable.
15
It is more reasonable to interpret NRS 173.115 as not granting
district courts jurisdiction over misdemeanors under these circumstances because it avoids the
unreasonable result of having an overburdened district court system, as well as an
underutilized justices' court system. Since felony arrests often involve additional
misdemeanor charges, it is likely that the district courts would experience an increase of
misdemeanor counts under the State's interpretation of NRS 173.115. Meanwhile, the justices'
courts would experience a corresponding decrease in their criminal cases. This result is
unreasonable as well because it invests the executive authority, the district attorney, with
discretion to decide which court, the district or the justices' court, will exercise jurisdiction
over a misdemeanor charge. This result would also defeat the broader public policies behind
having one set of specially equipped courts dealing with misdemeanor offenses and another
set of specially equipped courts handling more serious offenses.
16
The legislature would not
have intended such a blurred result.
Based on the foregoing, we conclude that NRS 173.115 refers to gross misdemeanors and
felonies, and not to misdemeanors. Moreover, after careful consideration of all of the State's
arguments, we expressly reject the State's contention that NRS 173.115 should be interpreted
as granting jurisdiction to district courts over a misdemeanor that is joined with a felony or
gross misdemeanor in a single indictment or information. Accordingly, we affirm the decision
of the district court.
__________

13
Currently, under NRS 200.481, the battery of a police officer is treated as either a gross misdemeanor or a
felony, depending on the nature of the offense.

14
Hunt v. Warden, 111 Nev. 1284, 1285, 903 P.2d 826, 827 (1995).

15
Id.

16
Contrary to the State's assertions, concerns of judicial economy and case management actually weigh
against the adoption of the State's interpretation of NRS 173.115.
118 Nev. 199, 205 (2002) State v. Kopp
Leavitt, J., concurs.
Maupin, C. J., dissenting:
I would reverse and remand this matter for trial on all of the charges in district court.
Article 6, Section 6 of the Nevada Constitution was amended in 1978 to provide, inter alia,
[t]he District Courts . . . have original jurisdiction in all cases excluded by law from the
original jurisdiction of the justices' courts.
1
In K.J.B. we made the general statement that
this amendment eliminated concurrent jurisdiction between the district and justice courts in
this state. However, that statement was made in the context of unlawful detainer actions and
the question of a statute defining the power of a district court to entertain criminal matters
was not before the court in K.J.B. With that in mind, I will turn to the question of whether the
statutory construct litigated in this matter is in compliance with Article 6 of the Nevada
Constitution.
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.
This statute, enacted in 1967 before Article 6 was amended, refers to indictments and
informations, pleadings which can only commence criminal prosecutions in Nevada district
courts. The use of the term misdemeanor by its terms includes gross and simple
misdemeanor offenses. Thus, NRS 173.115 clearly and specifically gives the district court
jurisdiction to hear both categories of offenses when all relate to a single transaction, as is the
case here. This satisfies NRS 4.370(3), which provides that:
Justices' courts have jurisdiction of all misdemeanors and no other criminal offenses
except as otherwise provided by specific statute.
As noted, NRS 173.115 specifically creates an exception to the general requirement of NRS
4.370(3). Because Article 6 gives the state legislature the power to define the jurisdiction of
the various levels of our trial court system, the specific legislative exception in NRS 173.115
to the general statement of justice court jurisdiction in NRS 4.370(3) is not unconstitutional.
That NRS 173.115
__________

1
See K.J.B. Inc. v. District Court, 103 Nev. 473, 475, 745 P.2d 700, 701 (1987).
118 Nev. 199, 206 (2002) State v. Kopp
173.115 was enacted prior to the amendment to Article 6 should not, at least in my view,
change this analysis. Had the legislature determined that the intervening amendment to the
Constitution rendered the statute nugatory, it could have effected a repealer at any time since
1978. The continuing existence of the provision simply indicates the will of the legislature
that it was unnecessary to repeal NRS 173.115 because there is nothing in that provision that
is inconsistent with Article 6, Section 6, as amended. Simply stated, NRS 173.115 clearly and
specifically gives the district court jurisdiction over misdemeanors under limited
circumstances.
The majority is concerned that the State's position will have an adverse effect on district court
dockets and will considerably lighten the burden that now exists on municipal and justice
courts in this state. This should not be a consideration at this juncture. First, there is nothing
in this record to suggest such a result. Second, the public policy consideration arising from
the majority's concern, the allocation of judicial resources, should be resolved by the
legislature, and not by us.
Thus, as noted, I would reverse the dismissal of the misdemeanor counts in this case.
____________
118 Nev. 206, 206 (2002) State v. Weddell
THE STATE OF NEVADA, Appellant, v. ROLLAND P. WEDDELL, Respondent.
No. 34832
April 10, 2002
43 P.3d 987
En banc reconsideration of State v. Weddell, 117 Nev. 651, 27 P.3d 450 (2001). Appeal from
a district court order granting the respondent's pretrial motion to dismiss the criminal
information. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
In a prosecution for assault with a deadly weapon and discharging a firearm at another, the
district court granted defendant's pretrial motion to dismiss the criminal information. State
appealed. The supreme court, Agosti, J., 117 Nev. 651, 27 P.3d 450 (2001), reversed and
remanded. Defendant petitioned for en banc reconsideration, and his petition was granted.
The supreme court, en banc, Agosti, J., held that, as matters of first impression: (1) private
person, when arresting another person pursuant to statute governing private arrest, may use no
more force than is necessary and reasonable to secure the arrest;
necessary and reasonable to secure the arrest; and (2) use of deadly force by defendant, who
was private citizen, to make an arrest was unreasonable, as a matter of law, unless he was
threatened with serious bodily injury to himself or others, and whether he was so threatened
was a question of fact reserved for trial.
Rose, J., with whom Maupin, C. J., and Young, J., agreed, dissented in part.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney, and
Anne M. Langer, Deputy District Attorney, Carson City, for Appellant.
Fred Hill Atcheson, Reno; Day R. Williams, Carson City, for Respondent.
1. Arrest.
Private person, when arresting another person pursuant to statute governing private arrest, may use no more force than is
necessary and reasonable to secure the arrest. NRS 171.126.
2. Homicide.
Deadly force is, as a matter of law, unreasonable unless the deadly force is used in defense of self or others against a threat of
serious bodily injury.
3. Statutes.
When a statute is repealed, court presumes that the legislature intended a substantial change in the law.
4. Arrest.
By repealing the codification of the fleeing-felon rule and leaving the citizen's arrest statute and the defense of others statute
intact, the legislature has abrogated the common law fleeing-felon rule while at the same time affirming that private persons may
perform arrests. NRS 171.126, 171.1455, 200.160(3) (repealed).
5. Arrest.
Use of deadly force is, as a matter of law, unreasonable, unless the arrestee poses a threat of serious bodily injury to the private
arrestor or others. Like the affirmative defense of self-defense, the State bears the burden to prove that the use of deadly force by
private arrestor was not reasonable and necessary. NRS 171.126.
6. Arrest.
Private citizen had no absolute common law or statutory right to use deadly force in making an arrest. NRS 171.126.
7. Arrest.
Private citizen's use of deadly force to make an arrest was unreasonable, as a matter of law, unless he was threatened with
serious bodily injury to himself or others, and whether he was so threatened was a question of fact reserved for trial. NRS 171.126.
OPINION ON EN BANC RECONSIDERATION
The State appeals from an order of the district court granting a motion to dismiss a criminal
information against respondent Rolland P. Weddell. In a unanimous opinion, a three-justice
panel of this court reversed the district court's order and remanded this case for further
proceedings.
1
Weddell petitioned for rehearing, and the panel denied the petition, with one
justice dissenting from the order denying rehearing. Weddell then filed a petition for en banc
reconsideration. This court determined that en banc reconsideration was warranted, and the
petition was granted. Having reconsidered this appeal, a majority of the full court has now
concluded that this opinion upon en banc reconsideration should issue, reaffirming the panel's
initial holding.
In this case, we are asked to determine whether a private person may use deadly force in
making what is commonly referred to as a citizen's arrest.
2
Weddell contends that private
persons have a common law right to use whatever force is necessary, including deadly force,
to accomplish the arrest of and/or prevent the escape of a fleeing felon. We reject Weddell's
contention for several reasons. Primarily, we conclude that the legislature indicated its
disapproval of the use of deadly force by private persons when it repealed NRS 200.160(3) in
1993 and at the same time enacted NRS 171.1455. NRS 200.160(3) had been a codification
of the common law fleeing-felon rule.
3
NRS 171.1455 limits the use of deadly force by
police officers when making or attempting a felony arrest.
__________

1
See State v. Weddell, 117 Nev. 651, 27 P.3d 450 (2001).

2
NRS 171.126 sets out the circumstances under which private persons may arrest individuals.

3
NRS 200.160 stated as follows:
Homicide is also justifiable when committed either:
1. In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of
any other person in his presence or company, when there is reasonable ground to apprehend a design on
the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any
such person, and there is imminent danger of such design being accomplished;
2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon
or in a dwelling, or other place of abode in which he is; or
3. By any person, when committed upon the person of another who is engaged in the commission of a
felony or an attempted felony, or who after the commission or attempted commission of any such felony
is fleeing from the premises or resisting lawful pursuit and arrest within 20 miles of the premises where
such felony was committed or attempted to be committed.
use of deadly force by police officers when making or attempting a felony arrest.
4
Furthermore, in enacting NRS 171.1455, which restricts an officer's use of deadly force and
circumscribes the application of the common law fleeing-felon rule to law enforcement, the
legislature has disavowed the unbridled use of deadly force. We also note that the policies
supporting the fleeing-felon rule have been eroded as a result of modern, more arbitrary
distinctions between misdemeanors and felonies.
[Headnotes 1, 2]
With these considerations in mind, we hold that a private person, when arresting another
person pursuant to NRS 171.126, may use no more force than is necessary and reasonable to
secure the arrest. We further hold that deadly force is, as a matter of law, unreasonable, unless
the deadly force is used in defense of self or others against a threat of serious bodily injury.
FACTS
Weddell operates a construction business in Carson City. On the evening of October 16,
1997, a person, whom Weddell believes was James Bustamonte, was a passenger in a
late-model Chevrolet Blazer that entered his business's grounds. Not recognizing the truck,
John Cole, an employee of Weddell, approached it. As he did, the truck accelerated, turned
toward Cole, and struck him. The passenger threatened Cole and asked about Weddell's
daughter's whereabouts. Although dazed, Cole was able to relate the incident to the police
and Weddell, and was able to report a partial license plate number for the truck.
By the next day, Weddell learned that the Bustamonte brothers were looking for Weddell's
daughter regarding an alleged drug transaction. Weddell learned the Bustamontes' address
from his daughter and provided it to a detective at the Carson City Sheriff's Office.
Unsatisfied with the detective's response, Weddell proceeded to the address. When he noticed
that there was a Blazer at the residence which matched Cole's description, Weddell called
police dispatch.
After fifteen minutes had passed the police had not arrived. At that time, Bustamonte and a
woman exited the house and walked toward the Blazer. Weddell then parked his car behind
the Blazer to prevent its departure. While pointing his gun at Bustamonte, Weddell ordered
him to place his hands on the hood.
__________

4
NRS 171.1455 reads as follows:
If necessary to prevent escape, an officer may, after giving a warning, if feasible, use deadly force to
effect the arrest of a person only if there is probable cause to believe that the person:
1. Has committed a felony which involves the infliction or threat of serious bodily harm or the use of
deadly force; or
2. Poses a threat of serious bodily harm to the officer or to others.
Weddell ordered him to place his hands on the hood. After a disputed verbal exchange,
Bustamonte turned and ran and Weddell shot at him several times.
5

Weddell was arrested and charged with assault with a deadly weapon and discharging a
firearm at another. After a preliminary hearing, Weddell was bound over to the district court
on both counts.
Weddell filed a motion to dismiss the charges in the district court. After a hearing, the district
court granted the motion. At this hearing, the district court admitted the preliminary hearing
transcript and other documents into evidence and allowed witness testimony. In dismissing
the charges against Weddell, the district court made express findings of fact and conclusions
of law.
In granting Weddell's motion to dismiss, the district court first recognized that Nevada law
permits private persons to arrest a felon even if the felony is committed outside his or her
presence. Second, it determined that Bustamonte committed a felony by striking Cole. Third,
it found that Weddell was attempting to arrest Bustamonte for the felony. Fourth, it
recognized that the legislature had repealed the statute justifying a person's use of deadly
force when attempting to arrest a fleeing felon and had enacted a statute limiting a police
officer's use of deadly force. Finally, the court concluded that as a matter of law, Weddell was
not guilty of assault or discharging a firearm in public because an individual ha[s] the right
to use whatever force [i]s necessary to effect the arrest of a fleeing felon. The State appeals
from that dismissal.
6

DISCUSSION
The State contends that the district court erroneously determined that Weddell's use of deadly
force to effect a citizen's arrest was permissible under Nevada law. We agree.
Nevada, like many other states, permits a private person to arrest a person suspected of
committing a felony. NRS 171.126 provides that a private person may arrest another person
in three situations: (1) when an offense was committed or attempted in the arrestor's presence,
(2) when the person committed a felony offense although outside the arrestor's presence,
__________

5
Weddell's account of the interaction is substantially different from that of two eyewitnesses. According to
Weddell, Bustamonte made threatening gestures toward him. Contending that his sole motivation was to protect
the public from this dangerous man, Weddell claims that he would not have shot at Bustamonte had he not felt
threatened. Wanda Gambill and her daughter, Laura Dunn, testified that although they could not hear the
conversation, Bustamonte did not approach Weddell or make any threatening moves toward him.

6
A district court's order dismissing a criminal information is appealable to this court. NRS 177.015(1)(b).
offense although outside the arrestor's presence, and (3) when a felony has in fact been
committed and the arrestor has reasonable cause to believe that the person to be arrested has
committed it.
Nevada statutes and case law do not address the amount of force permissible to effect an
arrest. Some amount of force is necessarily implied in the statute, however, since the act of
arresting another would seem to require a modicum of force. This case requires us to
determine, as a matter of first impression, what amount of force is allowed under NRS
171.126.
At common law, the fleeing-felon rule permitted a private person to use deadly force to
apprehend a felon.
7
The use of deadly force was permitted to prevent the commission of a
felony or to arrest someone who had committed one. The rule was developed at a time when
felonies were only the very serious, violent or dangerous crimes and virtually all felonies
were punishable by death.
8
As the United States Supreme Court noted, Though effected
without the protections and formalities of an orderly trial and conviction, the killing of a
resisting or fleeing felon resulted in no greater consequences than those authorized for
punishment of the felony of which the individual was charged or suspected.'
9

Today, however, many crimes which are punished as felonies do not involve dangerous
conduct or violence and are not punishable by death. As the United States Supreme Court
observed in Tennessee v. Garner, the modern distinction between felonies and misdemeanors
is minor and often arbitrary.
10
For example, a person who works at a voter registration
agency and who wears a Vote for Jane Johnson button at work is guilty of a felony.
11
A
person who steals $255 worth of bedding from a hotel is guilty of a felony.
12
A person who
buys $250 worth of food stamps from someone when not authorized to do so is guilty of a
felony.
13
These felons, like many others, will not receive the death penalty.
14
Society would
not tolerate the use of deadly force to prevent the commission of any of these crimes or to
apprehend someone suspected of any of these crimes. The modern arbitrary and expanded
classification of crimes as felonies has undermined the rationale for the old common law
fleeing-felon rule, which, as mentioned,
__________

7
Tennessee v. Garner, 471 U.S. 1, 12 (1985).

8
Id. at 13.

9
Id. at 13-14 (quoting Model Penal Code 3.07 cmt. 3 at 56 (American Law Inst., Tentative Draft No. 8,
1958)).

10
Id. at 14.

11
NRS 293.5045.

12
See NRS 205.220; NRS 205.222; NRS 193.130.

13
NRS 207.340.

14
NRS 193.130.
mentioned, was to prevent the escape of a felon by inflicting the punishment that was
inevitably to come.
15

In 1931, Nevada codified the common law fleeing-felon rule by amending the justifiable
homicide statute, which is currently codified as NRS 200.160.
16
In 1993, the legislature
repealed Nevada's codification of the fleeing-felon rule when it passed A.B. 209.
17
In that
same bill, the legislature enacted NRS 171.1455, which limits an officer's use of deadly force
upon a fleeing suspect.
18
The minutes of the Senate and Assembly Judiciary Committees'
hearings on the drafting of that bill reveal the legislative intent to adopt the United States
Supreme Court's holding in Garner. While the committees were primarily concerned with the
cost of defending a suit like the one in Garner, the minutes also inform us that the drafters
were concerned with a private person's use of force against a fleeing felon.
19

The State argues that when the legislature repealed NRS 200.160(3) and simultaneously
enacted NRS 171.1455, it meant to eliminate the justified use of deadly force by private
persons when arresting a felon.
Weddell argues that private persons have a common law right to use deadly force to arrest a
fleeing felon. As such, he contends that the repeal of NRS 200.160(3) and enactment of NRS
171.1455 had no effect on the right to use deadly force.
20

[Headnotes 3, 4]
We resolve this dispute by addressing the effect of the legislature's repeal of its earlier
codification of the fleeing-felon rule.
21

__________

15
Garner, 471 U.S. at 14.

16
Compare 1931 Nev. Stat., ch. 96, 1, at 160, with 1929 Nev. Compiled Laws 10080, and Crimes and
Punishments Act of 1911 133, reprinted in 1912 Nev. Rev. Laws 6398.

17
1993 Nev. Stat., ch. 329, 4, at 932.

18
Id. 1, at 931.

19
Hearing on A.B. 209 Before the Senate Comm. on Judiciary, 67th Leg. (Nev., May 14, 1993); see also
Hearing on A.B 209 Before the Assembly Comm. on Judiciary, 67th Leg. (Nev., June 22, 1993); Hearing on
A.B. 209 Before the Assembly Comm. on Judiciary, 67th Leg. (Nev., March 3, 1993).

20
Weddell also contends that since the right to use deadly force exists at common law, the State may not
prosecute him for using deadly force while attempting to arrest a fleeing felon, absent a criminal statute
proscribing this conduct.
This contention is unfounded because the unlawful use (and attempted use) of force upon another is already
prohibited by statute. See, e.g., NRS 200.010; NRS 200.400; NRS 200.471. The former NRS 200.160(3) made
these crimes justifiable, thereby providing a defense to prosecutionnot an immunity from prosecution.

21
See Chapman Industries v. United Insurance, 110 Nev. 454, 874 P.2d 739 (1994); Clark Co. v. State,
Equal Rights Comm'n, 107 Nev. 489, 813 P.2d 1006 (1991); Chapman v. City of Reno, 85 Nev. 365, 455 P.2d
618 (1969).
When a statute is repealed, we presume that the legislature intended a substantial change in
the law.
22
Thus, in repealing NRS 200.160(3), the legislature indicated its disapproval of
private persons using deadly force when arresting or attempting the arrest of a person
suspected of a felony. In addition, by simultaneously enacting NRS 171.1455 the legislature
obviously meant to limit the use of deadly force to police officers and to limit the
circumstances under which police officers could employ such force. To conclude otherwise
would be unreasonable. The legislature could not have meant to repose what might easily
amount to vigilante justice in the hands of private persons while restricting the use of force in
making an arrest by those who are charged by law with duties of public safety and protection.
23
By repealing the codification of the fleeing-felon rule and leaving the citizen's arrest statute
and the defense of others statute intact, the legislature has abrogated the common law
fleeing-felon rule while at the same time affirming that private persons may perform arrests.
Other jurisdictions similarly provide by statute that a private person may make an arrest, but
do not dictate the amount of force that is allowable.
24
While we recognize that some
jurisdictions allow the use of deadly force when necessary to prevent the escape of a fleeing
felon,
25
we conclude that a rule authorizing arrest by any necessary means contravenes our
legislature's clear intent to restrict private persons' use of deadly force as evidenced by its
repeal of the former NRS 200.160(3). We also observe that some jurisdictions limit the use of
deadly force despite the absence of an explicit legislative mandate to do so.
In Prayor v. State,
26
the Georgia Court of Appeals determined that,
__________

22
Equal Rights Comm'n, 107 Nev. at 491, 813 P.2d at 1006 (citing McKay v. Bd. of Supervisors, 102 Nev.
644, 730 P.2d 438 (1986)).

23
While enacting A.B. 209, the legislature left intact NRS 171.126, which authorizes private persons to arrest
criminal suspects in certain situations. As noted earlier, implied in an arrest is the use of force necessary to
secure it. NRS 171.138 expressly permits the breaking of a door or window in order to arrest a concealed
suspected felon. We presume that the legislature was aware of these statutes when it enacted A.B. 209. See City
of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985) (It is presumed that in
enacting a statute the legislature acts with full knowledge of existing statutes relating to the same subject.
(citing Ronnow v. City of Las Vegas, 57 Nev. 332, 366, 65 P.2d 133, 146 (1937))).

24
See, e.g., Ga. Code. Ann. 17-4-60 (1997); Mich. Comp. Laws 764.16 (2000).

25
See State v. Cooney, 463 S.E.2d 597 (S.C. 1995) (holding that a private person may use reasonably
necessary force to make an arrest and rejecting trial court's determination that using deadly force upon an
unarmed fleeing felon is per se unreasonable); People v. Hampton, 487 N.W.2d 843 (Mich. Ct. App. 1992)
(holding that, if necessary, private persons may use deadly force to prevent the escape of a fleeing felon).

26
456 S.E.2d 664 (Ga. Ct. App. 1995).
that, pursuant to a statute similar to Nevada's, private citizens may not use more force than is
reasonable under the circumstances. The Georgia appellate court also determined that a
private person may only use deadly force to effect an arrest when acting in self-defense or
when it is necessary to prevent a forcible felony.
Similarly, in State v. Johnson,
27
the New Mexico Court of Appeals rejected the argument
that private persons may use whatever force is necessary to prevent a fleeing felon's escape.
Instead, the court held that a private citizen's use of force in apprehending a fleeing felon
must be reasonable and necessary. Although New Mexico statutes provide that a homicide
committed by a private person in the course of an arrest is justifiable when necessarily
committed . . . by lawful ways and means,' the court held that a private person may use
deadly force only when the citizen has probable cause to believe that he or she is threatened
with serious bodily harm or the use of deadly force.
28

[Headnote 5]
Given our legislature's evident disapproval of the fleeing-felon doctrine, and given our
concern that the rationale for the rule at common law no longer exists, and given the
abandonment of this common law rule in other states, we hold that, in securing or attempting
an arrest under NRS 171.126, a private person may only use the amount of force that is
reasonable and necessary under the circumstances. Further, we hold that the use of deadly
force is, as a matter of law, unreasonable, unless the arrestee poses a threat of serious bodily
injury to the private arrestor or others. Like the affirmative defense of self-defense, the State
bears the burden to prove that the use of deadly force was not reasonable and necessary.
29

CONCLUSION
[Headnotes 6, 7]
The district court erred by dismissing the information filed against Weddell. Weddell has no
absolute common law or statutory right to use deadly force in making an arrest. Weddell's use
of deadly force to make an arrest was unreasonable, as a matter of law, unless he was
threatened with serious bodily injury to himself or others. Whether Weddell was so
threatened is a question of fact reserved for trial. Accordingly, we reverse the district court's
order and remand this matter for reinstatement of the information and for trial upon the
charges.
__________

27
954 P.2d 79 (N.M. Ct. App. 1997).

28
Id. at 86 (quoting NMSA 1978, 30-2-7(C) (1963)).

29
See Barone v. State, 109 Nev. 778, 858 P.2d 27 (1993).
Shearing, Leavitt and Becker, JJ., concur.
Rose, J., with whom Maupin, C. J., and Young, J., agree, concurring in part and dissenting in
part:
The majority opinion holds that the repeal of the fleeing-felon rule does not result in the rule's
continued existence by virtue of NRS 1.030, the statute that mandates the application of the
common law where not abrogated by an express statute. I believe the majority reaches the
correct analysis of the applicable statutes, but that the court is announcing a new rule in the
process. And as Weddell argues, a new rule should not be applied to him in the present case.
1

After the legislature repealed NRS 200.160(3), which contained the fleeing-felon rule,
Nevada law still permitted a citizen to arrest a suspected fleeing felon pursuant to NRS
171.126. Some use of force is obviously foreseen by this statute, but exactly what force a
citizen can use is not stated. Other jurisdictions with similar statutes have concluded that
resort to the common law was appropriate to determine what force could be used, and that
resulted in the application of the fleeing-felon rule.
2
Unless our situation is changed by
having enacted the fleeing-felon rule and then repealing it, the same reasoning should apply
to this case.
In the majority opinion, it is determined that the repeal of the fleeing-felon rule and the
simultaneous enactment of a statute permitting police to use deadly force showed a legislative
intent to limit deadly force in apprehending felons to police officers. I concur in that analysis,
but it seems to me that we have announced a new rule based on our interpretation of what the
legislature intended, not what the statutes expressly stated.
A criminal statute should clearly state what conduct is prohibited and the penalty for its
violation.
3
In this case, we have a statute that did not specify the force a citizen can use in
apprehending a fleeing felon, we have the repeal of the fleeing-felon rule and the enactment
of a statute permitting only police the use of deadly force in apprehending fleeing felons, and
we also have a statute that directs the common law be applied where not specifically
abrogated by statute.
__________

1
See Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) (If a judicial construction of a criminal statute
is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,'
it must not be given retroactive effect. (quoting Hall, General Principles of Criminal Law 61 (2d ed. 1960))).

2
See, e.g., State v. Cooney, 463 S.E.2d 597 (S.C. 1995); People v. Hampton, 487 N.W.2d 843 (Mich. Ct.
App. 1992).

3
Lyons v. State, 105 Nev. 317, 320, 775 P.2d 219, 221 (1989) ( The Constitutional requirement of
definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute.' (quoting United States v. Harriss, 347 U.S. 612, 617
(1954))).
a statute that directs the common law be applied where not specifically abrogated by statute.
With all these variables in play, our law was not so express that it can be said to be clear and
unambiguous. The majority had to reject the applicability of NRS 1.030, and then resort to
legislative intent and the desire to reach a reasonable result to eventually decide this case. But
when reasonable ambiguity exists in a statute or series of statutes, the benefit of interpretation
should favor the accused.
4

Accordingly, I think the majority correctly answers the legal question posed by this case, but
in the process has announced a new rule that should not be applied in the present case. I
would affirm the district court's order because the new rule should not apply to Weddell.
____________
118 Nev. 216, 216 (2002) Hewitt v. Allen
MARGRET E. HEWITT, Personal Representative of the Estate of NANCY BILLHARTZ,
Deceased, Appellant, v. DAVID ALLEN, a Nevada Professional Corporation, dba
DAVID ALLEN AND ASSOCIATES; and DAVID M. JONES, Respondents.
No. 35965
April 10, 2002
43 P.3d 345
Appeal from an order granting summary judgment in a legal malpractice action. Eighth
Judicial District Court, Clark County; Mark R. Denton, Judge.
Client brought legal malpractice action against attorney. The district court granted summary
judgment for attorney. After client's death, the personal representative of her estate appealed.
The supreme court, Becker, J., held that client did not abandon her legal malpractice cause of
action by voluntarily dismissing appeal from underlying action.
Maupin, C. J., with whom Agosti, J., agreed, dissented.
Carl M. Hebert and David Hamilton, Reno, for Appellant.
Raleigh Hunt McGarry & Drizin and Bert E. Wuester Jr., Las Vegas, for Respondents.
__________

4
Sheriff v. Lang, 104 Nev. 539, 542, 763 P.2d 56, 58 (1988) (noting our long-held policy that ambiguous
penal statutes must be construed liberally in favor of an accused).
1. Judgment.
Summary judgment should be entered where there exists no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. A genuine issue of material fact exists where the evidence is such that a reasonable jury could return a
verdict for the non-moving party. NRCP 56.
2. Judgment.
The proof offered to the trial court on motion for summary judgment must be construed in a light most favorable to the
non-moving party. NRCP 56.
On appeal, the supreme court must determine whether the district court erred in concluding that an absence of genuine issues of
material fact justified the granting of summary judgment. NRCP 56.
4. Limitation of Actions.
As a general rule, a legal malpractice action does not accrue until the plaintiff knows, or should know, all the facts relevant to
the elements of a legal malpractice action and damage has been sustained.
In the context of litigation malpractice, that is, legal malpractice committed in the representation of a party to a lawsuit, damages
do not begin to accrue until the underlying legal action has been resolved.
When legal malpractice is alleged to have caused an adverse ruling in an underlying action, the malpractice action does not
accrue while an appeal from the adverse ruling is pending. This rule is based on the rationale that apparent damage may vanish with
successful prosecution of an appeal and ultimate vindication of an attorney's conduct by an appellate court.
7. Action.
Client did not abandon her cause of action for legal malpractice by voluntarily dismissing appeal from underlying case; appeal
would have been futile.
8. Action.
A party does not abandon the right to pursue a claim of legal malpractice against counsel by voluntarily dismissing an appeal
from an adverse judgment where the judgment is not likely to be reversed due to a finding of judicial error.
OPINION
By the Court, Becker, J.:
This appeal asks whether an action for litigation legal malpractice is automatically deemed
abandoned when the plaintiff voluntarily dismisses the appeal taken from the underlying civil
action where the legal malpractice is alleged to have occurred. We conclude that a party does
not always abandon his or her right to pursue a claim for litigation legal malpractice when he
or she voluntarily dismisses a civil appeal. When the appeal of the underlying action would
be fruitless or without merit,
underlying action would be fruitless or without merit, the voluntary dismissal of the appeal
does not constitute abandonment of the litigation legal malpractice action. We therefore
conclude that the district court erred in granting summary judgment on behalf of David Allen
and Associates.
1
Accordingly, we reverse the order of the district court and remand for
further proceedings consistent with this opinion.
FACTS
On May 9, 1995, a stolen vehicle operated by a minor without a license sped away from a gas
station in Utah. The Utah State Highway Patrol (USHP) set up a roadblock to apprehend the
speeding felon. With the stolen vehicle in sight, USHP allowed Nancy Billhartz
2
to pass
through the roadblock. The road was closed behind Billhartz. The stolen vehicle hit the
roadblock at a speed in excess of 100 miles per hour, causing the driver to lose control and
strike Billhartz's vehicle from the rear. Billhartz suffered multiple injuries as a result of the
accident.
Billhartz retained respondent David Allen and Associates (DAA) to represent her in the
personal injury action. In turn, DAA retained local counsel in Cedar City, Utah (Utah
Counsel), to file a complaint for personal injuries. Utah Counsel filed a complaint that named
the following government entities as defendants: (1) the State of Utah, Department of Public
Safety (DPS); (2) Millard County, Utah; (3) Utah County, Utah; and (4) Beaver County,
Utah.
DPS moved to dismiss Billhartz's complaint for failure to comply with the Utah notice of
claim statutes. Under the Utah Governmental Immunity Act, Billhartz was required to file
notice of her claim with DPS.
3
The notice needed to contain certain information.
__________

1
David M. Jones is an attorney employed by David Allen and Associates.

2
Appellant Billhartz died six months after filing her notice of appeal in this case. Appellant's counsel filed a
motion in district court substituting her sister, Margret Hewitt, executrix of Billhartz's will, as Billhartz's
personal representative. At the time of this appeal, the district court had not ruled on the motion to substitute,
which was unopposed. In the interests of simplicity, appellant is referred to as Billhartz throughout the course
of this opinion.

3
See Utah Code Ann. 63-30-12 (1989), which provided, in pertinent part:
A claim against the state, or against its employee for an act or omission occurring during the
performance of his duties, within the scope of employment, or under color of authority, is barred unless
notice of claim is filed with the attorney general and the agency concerned within one year after the claim
arises, or before the expiration of any extension of time granted under Section 63-30-11, regardless of
whether or not the function giving rise to the claim is characterized as governmental.
information.
4
The Utah trial court granted the motion, finding that the notices sent to DPS
did not contain all of the required information. Subsequently, the remaining governmental
entities were also dismissed for the same reason. Billhartz appealed.
While the Utah appeal was pending, Billhartz filed a complaint in Nevada for legal
malpractice against DAA, alleging professional negligence and breach of contract. Billhartz
asserted that the notices DAA sent to the governmental agencies were fatally deficient,
resulting in the dismissal of her Utah causes of action. Billhartz maintained that Utah courts
require strict compliance with the notice requirements, even in instances where the
government has actual notice.
5
Billhartz contends that the Utah trial court had no choice and
was required to dismiss the claims against the governmental entities as a result of DAA's
malpractice.
On November 23, 1999, Billhartz and Utah Counsel attended mandatory mediation. The State
of Utah offered to release its claims for costs and attorney fees in return for a full dismissal of
the Utah appeal, with prejudice. Utah Counsel recommended accepting this offer and
communicated his recommendation to DAA and Billhartz. Utah Counsel opined that there
was no basis, under Utah law, for pursuing an appeal. Based upon this recommendation,
Billhartz voluntarily dismissed the appeal, as it would have been futile under Utah law.
6

When Billhartz dismissed the Utah appeal, DAA filed a motion to dismiss the malpractice
action, alleging that Billhartz was required to prosecute her appeal in the Utah Court of
Appeals to a conclusion prior to filing a legal malpractice claim.
__________

4
Utah Code Ann. 63-30-11(3)(a) (1991) directed that:
The notice of claim shall set forth:
(i) a brief statement of the facts;
(ii) the nature of the claim asserted; and
(iii) the damages incurred by the claimant so far as they are known.

5
See Great West Casualty v. Utah Department of Transportation, 21 P.3d 240, 243 n.6 (Utah Ct. App. 2001),
which concluded that strict compliance is still required except in situations involving cases of multiple
claimants with standing to sue on the same claim: [T]he rule requiring strict compliance' with the notice
requirements of the Governmental Immunity Act does not come from the language of the act itself . . . . Instead,
the strict compliance' standard was first applied to [the act] by the Utah Supreme Court in Scarborough v.
Granite School District, 531 P.2d 480, 482 (Utah 1975). See also Rushton v. Salt Lake County, 977 P.2d 1201,
1203 (Utah 1999).

6
For the first time on appeal, Billhartz argues that DAA was given the option of pursuing the Utah appeal at
its expense and that the firm's attorney never warned her that they would argue abandonment. Therefore,
Billhartz asserts that DAA should be estopped from claiming abandonment. This court does not consider issues
raised for the first time on appeal. A party may not raise a new theory for the first time on appeal, which is
inconsistent with or different from the one raised below. Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92
(1989). Therefore, we decline to consider this issue. Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5,
668 P.2d 1081, 1085 n.5 (1983).
required to prosecute her appeal in the Utah Court of Appeals to a conclusion prior to filing a
legal malpractice claim. According to DAA, because she had voluntarily dismissed the Utah
appeal, Billhartz had abandoned her malpractice claim. The district court granted DAA's
motion to dismiss, treating the motion as one for summary judgment. In its decision, the
district court stated:
Unfortunately, [Billhartz] deprived the Utah appellate court of the opportunity to rule
on the matter and effectively abandoned her cause of action when she stipulated to the
dismissal of the Utah appeal. The Court finds no genuine issue of material fact on such
point.
The district court also found that the opinion of Utah Counsel was insufficient to establish
that pursuing the appeal would have been futile.
Billhartz timely appealed, asserting that the district court erred by ruling, as a matter of law,
that she abandoned her malpractice claim by voluntarily dismissing the appeal in her
underlying Utah action.
DISCUSSION
[Headnotes 1-3]
Summary judgment should be entered where there exists no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.
7
A genuine issue of material fact
exists where the evidence is such that a reasonable jury could return a verdict for the
non-moving party.
8
The proof offered to the lower court must be construed in a light most
favorable to the non-moving party.
9
This court conducts a de novo review of an order
granting summary judgment.
10
On appeal, this court must determine whether the district
court erred in concluding that an absence of genuine issues of material fact justified the
granting of summary judgment.
11

[Headnotes 4-6]
This court has concluded that legal malpractice is premised upon an attorney-client
relationship, a duty owed to the client by the attorney,
__________

7
See NRCP 56; see also Dermody v. City of Reno, 113 Nev. 207, 210, 931 P.2d 1354, 1357 (1997) (citing
Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 665 (1985)).

8
Dermody, 113 Nev. at 210, 931 P.2d at 1357 (citing Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d
1278, 1282 (1989)).

9
Id. (citing Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986)).

10
See Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

11
See Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
the attorney, breach of that duty, and the breach as proximate cause of the client's damages.
12
As a general rule, a legal malpractice action does not accrue until the plaintiff knows, or
should know, all the facts relevant to the foregoing elements and damage has been sustained.
13
In the context of litigation malpractice, that is, legal malpractice committed in the
representation of a party to a lawsuit, damages do not begin to accrue until the underlying
legal action has been resolved.
14
Thus, when the malpractice is alleged to have caused an
adverse ruling in an underlying action, the malpractice action does not accrue while an appeal
from the adverse ruling is pending. The general rule regarding legal malpractice actions and
appeals is based on the rationale that [a]pparent damage may vanish with successful
prosecution of an appeal and ultimate vindication of an attorney's conduct by an appellate
court.
15

[Headnote 7]
Billhartz argues that the general rule should not apply when litigants voluntarily dismiss their
appeals after determining that appeal is futile. Billhartz contends that Semenza v. Nevada
Medical Liability Insurance Co.
16
does not apply to cases involving the voluntary dismissal
of a futile appeal. We agree. In Semenza, we concluded that when malpractice is predicated
upon actions involving the handling of litigation, a cause of action for malpractice could not
accrue until the underlying cause of action has been finally resolved.
17
A voluntary
dismissal is a final resolution. Thus, Semenza is not controlling.
DAA argues that we should establish a bright-line rule requiring litigants who file appeals in
the underlying action to pursue those appeals to their conclusion before proceeding with a
legal malpractice action. DAA asserts that this rule will promote judicial economy and
prevent the remote or speculative litigation discussed in Semenza. DAA contends that once an
appeal is filed, a court should make the final determination about the validity of the appeal,
thus alleviating the speculation that the damages were proximately caused by judicial error
rather than attorney misconduct.
__________

12
Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185 (1988) (citing
Warmbrodt v. Blanchard, 100 Nev. 703, 706-07, 692 P.2d 1282, 1285 (1984)).

13
Id. at 668, 765 P.2d at 185-86 (citing Jewett v. Patt, 95 Nev. 246, 247, 591 P.2d 1151, 1152 (1979)).

14
Kopicko v. Young, 114 Nev. 1333, 971 P.2d 789 (1998).

15
Semenza, 104 Nev. at 668, 765 P.2d at 186 (citing Amfac Distribution Corp. v. Miller, 673 P.2d 795, 796
(Ariz. Ct. App. 1983)).

16
Id. at 666, 765 P.2d at 184.

17
Id. at 668, 765 P.2d at 185.
Billhartz contends that we should treat a decision to voluntarily dismiss an appeal in the same
way as a decision not to pursue an appeal. If an appeal would be a futile gesture, that is, the
appeal would most likely be denied, then litigants should be able to forgo an appeal, or
dismiss a pending appeal, without abandoning their legal malpractice actions. We agree.
In cases where no appeal from an adverse ruling was filed, the defendants in the legal
malpractice action are able to assert, as an affirmative defense, that the proximate cause of the
damages was not the attorney's negligence, but judicial error that could have been corrected
on appeal. This issue is commonly raised under theories of abandonment or failure to mitigate
damages, but can also be asserted as part of a claim that the malpractice action is premature.
18
Moreover, because the issue is raised in the context of an affirmative defense, the attorney
defendant has the burden of proof to establish that an appeal would have been successful.
19
Finally, whether an appeal is likely to succeed is a question of law to be determined by the
trial court.
20
We believe the same reasoning should apply to the voluntary dismissal of an
appeal.
__________

18
See 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 21.5, 21.12 (5th ed. 2000), concluding
that the defenses of waiver and abandonment arise from the unilateral acts of the client:
If the error appealed is charged to the lawyer, then an appeal will resolve whether the lawyer or the trial
court erred. Even if the appeal is abandoned, the defense remains, presenting an issue of law that would
be the same even if the client did not appeal. If the appeal provided the opportunity for the client to
mitigate damages, then the failure to appeal concerns whether the abandonment of the effort was
reasonable under the circumstances.
See also id. 21.16 (regarding compromise with a third party as a partial defense in the reduction of damages
where a client settled with or released a third party involved in the underlying claim or cause of action); Steven
K. Ward, Developments in Legal Malpractice Liability, 31 S. Tex. L. Rev. 121 (1990). See generally Lenahan
v. Russell L. Forkey, P.A., 702 So. 2d 610, 611 (Fla. Dist. Ct. App. 1997) (concluding that circumstances in
which a client's subsequent actions constitute an abandonment of a legal malpractice claim, as a matter of law,
are very narrow in a case involving the voluntary dismissal of the underlying suit); Segall v. Segall, 632 So. 2d
76, 78 (Fla. Dist. Ct. App. 1993) (involving dismissal of an appeal for failure to comply with local discovery
rules).

19
See generally 3 Mallen & Smith, supra note 18, 21.1-21.20 (regarding defenses which can reduce the
amount of damages for which an attorney may be liable in a malpractice action); Pennsylvania Ins. Guar. Ass'n
v. Sikes, 590 So. 2d 1051, 1052-53 (Fla. Dist. Ct. App. 1991). The Sikes court stated:
A reversal of a trial court's order that denies an attorney the opportunity to cure a nonprejudicial defect
and enters a judgment for the opposing side because of the alleged defect, determines, essentially, that
there was judicial error rather than legal malpractice.
590 So. 2d at 1052.

20
See generally Eastman v. Flor-Ohio, Ltd., 744 So. 2d 499 (Fla. Dist. Ct. App. 1999); Sikes, 590 So. 2d
1051.
We concur with the analysis of this issue set forth by the Florida Court of Appeals in
Eastman v. Flor-Ohio, Ltd.
21
That court concluded, as a matter of law, that a voluntary
dismissal of a pending appeal, following a settlement agreement, did not bar the plaintiff's
right to pursue a legal malpractice action.
The facts of Eastman are very similar to the facts of the case at hand. In Eastman, a mobile
home park owner hired a law firm to effectuate rental rate increases to the homeowners on its
lots.
22
However, the notices sent by the firm failed to comply with Florida law.
23
The
homeowners brought suit, and the court entered summary judgment in their favor, citing the
unlawful and invalid notice by the park owner as its reasoning.
24
After an appeal was filed,
the park owner entered into a settlement with the homeowners.
25
Upon settlement, the park
owner voluntarily dismissed its pending appeal.
26
However, when the park owner filed a
legal malpractice action against the firm, the firm argued that the park owner had abandoned
its legal malpractice claim by voluntarily dismissing its appeal.
27

The Florida appellate court concluded that the park owner's actions did not constitute
abandonment.
28
The court refused to adopt the bright-line rule that the filing and prosecution
of an unsuccessful appeal in a related case was a condition precedent to the subsequent filing
of a legal malpractice claim.
29
The court also noted that Florida law at the time required that
the notice requirements be strictly construed and that the notice to the homeowners was
statutorily required.
30
The court concluded that the trial court had properly entered summary
judgment in the underlying action and there was no reason to believe the summary judgment
would have been reversed on appeal.
31
Therefore, the court concluded that the park owner
did not abandon his right to pursue a claim of legal malpractice by dismissing his appeal.
32
Finally, the Florida court concluded that serious policy reasons support not liberalizing the
abandonment theory:
__________

21
744 So. 2d 499.

22
Id. at 500.

23
Id. at 501.

24
Id.

25
Id.

26
Id.

27
Id.

28
Id. at 502.

29
Id. at 503.

30
Id. at 504.

31
Id.

32
Id.
Before concluding our discussion of the abandonment theory, we comment on the
serious policy reasons which militate against liberalizing the abandonment theory
beyond the narrow parameters set forth in Sikes.
[33]
Perhaps the least compelling
reason is the negative effect such a ruling would have on the work load of the appellate
courts. If we were to issue a ruling that appeals are required in all cases in order to
preserve the client's right to subsequently pursue a claim for legal malpractice, meritiess
[sic] appeals would be prosecuted by litigants solely for the purpose of preserving their
right to later assert a malpractice claim. Of course, such a ruling would also discourage
parties from settling pending appeals and would be inconsistent with the party's legal
duty to mitigate their damages.
34

[Headnote 8]
A party does not abandon his right to pursue a claim of legal malpractice against counsel by
voluntarily dismissing his appeal from an adverse judgment where the judgment is not likely
to be reversed due to a finding of judicial error. In so doing, we adopt, as a narrow exception
to the general rule regarding legal malpractice claims, the rationale of Eastman.
35

In this case, as in Eastman, counsel for Billhartz failed to strictly adhere to Utah's statutorily
required notice provisions prior to filing her personal injury claim in Utah. As a result, the
Utah trial court dismissed Billhartz's suit. In the opinion of Utah Counsel, the pursuit of the
appeal would have been futile because Utah law requires strict compliance with the notice
statutes, and the Utah case law cited by Billhartz certainly indicates there is a basis for Utah
Counsel's conclusion that the order of dismissal would not have been reversed on appeal. The
district court erred in granting summary judgment to DAA because, under the existing Utah
case law, the Utah appeal was not likely to succeed and, as a matter of law, Billhartz's
voluntary dismissal did not constitute abandonment.
CONCLUSION
We conclude that a party does not abandon his right to pursue a claim of legal malpractice by
voluntarily dismissing his appeal from an adverse judgment where the judgment is not likely
to be reversed due to a finding of judicial error. Accordingly, we reverse the district court's
order granting summary judgment and remand for further proceedings consistent with
this opinion.
__________

33
Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So. 2d 1051 (Fla. Dist. Ct. App. 1991).

34
Eastman, 744 So. 2d at 504.

35
Id.
the district court's order granting summary judgment and remand for further proceedings
consistent with this opinion.
Young, Shearing, Rose and Leavitt, JJ., concur.
Maupin, C. J., with whom Agosti, J., agrees, dissenting:
The majority correctly states the general rule that damages do not legally begin to accrue in
the context of litigation-based legal malpractice until the underlying action has been resolved.
In my view, once an appeal is commenced in the underlying matter, that matter is not
resolved until the appeal is concluded on its merits. I would therefore adopt a bright-line
rule requiring a litigant who files an appeal in an underlying action to pursue the appeal to
conclusion before proceeding with a malpractice complaint.
I realize that the actual filing of an appeal in the underlying action is not a prerequisite to
standing to commence malpractice proceedings. However, the lodging of an appeal is
generally, or at the very least should be, based upon a considered decision to pursue the
matter further. Once that decision is made, the question of judicial error should be pursued in
that forum. In this way, whether the client's damages were caused by judicial error rather than
malpractice is determined prior to the institution of malpractice proceedings. Because the
client is not required to pursue an appeal in the underlying matter to gain standing to
commence a malpractice action, the rule I suggest here would not, in any way, force litigants
with colorable malpractice claims to file and prosecute to conclusion meritless appeals.
As noted, the approach I suggest eliminates the necessity of litigating, in the subsequent
malpractice action, a defense that the client's damages were the result of judicial error rather
than malpractice. This is important because that determination will be more objective, the
focus in the underlying case primarily being the legal issue itself, while the focus in the
subsequent malpractice action may be altered by the fait accompli that the underlying case
has been lost.
I would affirm the judgment.
____________
118 Nev. 226, 226 (2002) Windham v. State
ALFONSO RICO WINDHAM, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36920
April 10, 2002
43 P.3d 993
Appeal from a judgment of conviction, pursuant to a guilty plea, of resisting a public officer
with the use of a deadly weapon. Second Judicial District Court, Washoe County; Steven R.
Kosach, Judge.
Defendant pleaded guilty in the district court to resisting public officer with use of deadly
weapon, and he appealed. The supreme court, en banc, held that: (1) under either substantial
compliance standard or strict compliance standard, defendant's packet of documents, which
he sent to Nevada authorities, was insufficient to trigger protections of Interstate Agreement
on Detainers; (2) although first packet of documents was insufficient to trigger protections of
Interstate Agreement on Detainers, defendant fully complied with Interstate Agreement on
Detainers, under either strict compliance standard or substantial compliance standard, when
he sent second packet of documents; and (3) although there was delay of over four years from
time that defendant was charged, defendant's Sixth Amendment right to speedy trial was not
violated because majority of the delay could be attributed to defendant.
Affirmed.
M. Jerome Wright, Reno, for Appellant.
1. Statutes.
In construing statutes, court first looks to plain language of statute.
2. Statutes.
If statutory language is ambiguous or fails to address issue before court, court will construe it according to that which reason and
public policy would indicate legislature intended.
3. Extradition and Detainers.
Under either substantial compliance standard or strict compliance standard, California prisoner's packet of documents, which he
sent to Nevada authorities, was insufficient to trigger protections of Interstate Agreement on Detainers since documents in packet failed
to apprise Nevada authorities of the time already served, the time remaining to be served, amount of good time credits earned, time of
parole eligibility, and any decision of the state parole agency relating to prisoner. NRS 178.620.
Although first packet of documents that California prisoner sent to Nevada authorities was insufficient to trigger
protections of Interstate Agreement on Detainers
Nevada authorities was insufficient to trigger protections of Interstate Agreement on Detainers because packet of documents failed to
apprise Nevada authorities of time already served and time remaining to be served, prisoner fully complied with Agreement, under
either strict compliance standard or substantial compliance standard, when he sent second packet of documents that contained written
notice to warden that he was requesting final disposition of Nevada charges and, thus, invoking Agreement's provisions. NRS 178.620.
5. Criminal Law.
When determining whether defendant's Sixth Amendment right to speedy trial has been violated, court should consider the
length of delay, reason for delay, defendant's assertion of the right, and prejudice to defendant. U.S. Const. amend. 6.
6. Criminal Law.
Although there was delay of over four years from time that defendant was charged, defendant's Sixth Amendment right to
speedy trial was not violated because majority of the delay could be attributed to defendant; after being released by Nevada police,
defendant immediately fled to California, and thereafter, he was arrested on new felony charges, convicted, and sentenced to serve term
of imprisonment in California prison, and defendant's first packet of documents, which were sent to Nevada authorities, did not comply
with Interstate Agreement on Detainers, thereby creating further delay. U.S. Const. amend. 6; NRS 178.620.
OPINION
Per Curiam:
On August 23, 2000, Alfonso Rico Windham pleaded guilty in the Second Judicial District
Court, Washoe County, Nevada, to one count of resisting a public officer with the use of a
deadly weapon. His plea came approximately four years after this crime had occurred.
Windham was serving a term of imprisonment in the California State Prison on other felony
charges while the Nevada charges were pending. Pursuant to the Interstate Agreement on
Detainers (Agreement), Windham demanded disposition of the Washoe County charges.
Windham appeals his conviction, claiming, among other things, that he substantially
complied with the Agreement's requirements, that the prosecutor failed to bring him to trial
within 180 days as required by the Agreement, and that his Sixth Amendment right to a
speedy trial was violated. We conclude that none of Windham's assignments of error warrant
relief, and we affirm the judgment of conviction.
FACTS
On August 18, 1996, Windham was involved in a shootout in Reno, Nevada. Windham was
apprehended by police officers and transported to the Reno police department for questioning.
Although he was subsequently released, on August 27, 1996, the State issued a criminal
complaint and arrest warrant for Windham. After being released, Windham immediately left
Reno and went to California. In California, Windham was arrested on other felony charges,
convicted, and sentenced to a term of imprisonment in the California State Prison.
Prior to July 14, 1998, Washoe County lodged a detainer with the California State Prison,
pursuant to the Agreement, to place a hold on Windham so that Washoe County could
prosecute him.
On November 4, 1999, Windham submitted the documents that he contends constitute a valid
demand for disposition under the Agreement (first packet). The packet was sent to
Washoe County Superior [sic] Court. The packet contained several different documents
that appear to have been completed by Windham himself. Aside from the signature of a
custodial representative as a witness, no other employee of the California State Prison appears
to have participated in completing the forms. In response to the first packet, the Washoe
County District Attorney sent Windham a letter. The letter stated that Windham needed to
contact the California prison authorities and complete the proper paperwork. Once Washoe
County received the proper paperwork, it would bring Windham to trial on the Washoe
County charges.
In complying with the district attorney's request, Windham sent another packet of documents
to the Washoe County District Attorney (second packet) on March 2, 2000. This packet
contained additional documents that were not included in the first packet, and the documents
appear to have been completed by California prison officials. However, one form was
incomplete, and as a result, Windham sent a third packet on March 14, 2000, which contained
the same titled documents as in the second packet but with all of the forms properly
completed. On July 8, 2000, Windham was transported from California and placed in the
Washoe County jail to await trial on the Nevada charges.
On July 19, 2000, Windham filed a motion to dismiss the Nevada charges claiming, among
other things, that the Agreement and his right to a speedy trial had been violated. The district
court denied Windham's motion to dismiss. Windham entered a guilty plea on August 23,
2000, but reserved the right to appeal from the district court's denial of his motion to dismiss
on all grounds.
DISCUSSION
Interstate Agreement on Detainers
[Headnotes 1, 2]
Resolution of this issue involves interpreting provisions of the Agreement,
Agreement, a question of law that we review de novo.
1
In construing statutes, we first look
to the plain language of the statute.
2
However, if the statutory language is ambiguous or fails
to address the issue before us, we will construe it according to that which reason and public
policy would indicate the legislature intended.'
3

The Agreement is codified at NRS 178.620. Article I of the Agreement outlines the basic
policy for the Agreement: to allow for the efficient disposition of outstanding charges against
prisoners in order to facilitate more effective rehabilitation.
Article III(a) of the Agreement requires prosecutors in the requesting state to bring all
pending charges, upon which detainers have been filed, to trial within 180 days from the
prisoner's request for final disposition. Under Article V(c), the requesting state's failure to
comply with the 180-day provision will result in dismissal of the charges, unless the trial
court grants a continuance for good cause.
Article III(a) describes the documents that a prisoner must file in order to take advantage of
the 180-day provision:
[H]e shall have caused to be delivered to the prosecuting officer and the appropriate
court of the prosecuting officer's jurisdiction written notice of the place of his
imprisonment and his request for a final disposition to be made of the indictment,
information or complaint . . . . The request of the prisoner shall be accompanied by a
certificate of the appropriate official having custody of the prisoner, stating the term of
commitment under which the prisoner is being held, the time already served, the time
remaining to be served on the sentence, the amount of good time earned, the time of
parole eligibility of the prisoner, and any decisions of the state parole agency relating to
the prisoner.
4

Additionally, Article III(b) sets forth the delivery procedures for the documents required in
Article III(a):
The written notice and request for final disposition referred to in paragraph (a) hereof
shall be given or sent by the prisoner to the warden, commissioner of corrections or
other official having custody of him, who shall promptly forward it together with the
certificate to the appropriate prosecuting official and court by registered or certified
mail, return receipt requested.
__________

1

2
Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513-14 (2000).

3
Id. at 1168, 14 P.3d at 514 (quoting State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d
1247, 1249-50 (1994)).

4
Emphases added.
ecuting official and court by registered or certified mail, return receipt requested.
5

Further, Article III(d) specifies that the notification sent by the official having custody of the
prisoner to the jurisdictions which have filed detainers must be accompanied by copies of
the prisoner's written notice, request, and the certificate.
Thus, according to sections (a), (b) and (d) of Article III, the Agreement contemplates a
prisoner giving his request for final disposition to an officer of the prison in which he is
confinednot sending the request himself. The officer then has the obligation to forward the
request, with the appropriate certificate, to the prosecuting officials of the state that lodged
the detainer.
Windham argues that the first packet constituted an effective invocation of his right to a trial
under the Agreement because he substantially complied with the Agreement. He argues
further that the purpose and spirit of the Agreement supports his argument that substantial
compliance is sufficient to trigger the protections of the Agreement.
This case presents an issue of first impression in Nevada: To what degree must a prisoner
comply with the procedural requirements of the Agreement in order to receive the protections
of the Agreement? Courts in other jurisdictions have addressed this issue and are split on
whether strict or substantial compliance with the procedural requirements of the Agreement is
necessary to trigger the 180-day dispositional period.
Many courts have adopted a strict compliance standard for determining whether a prisoner
has properly invoked his rights under the Agreement.
6
Under a strict compliance standard,
prisoners invoking their rights under the Agreement must deliver to the warden or custodial
official a written notice and request for final disposition as provided by Article III(b). The
warden or custodial official then forwards the prisoner's request for a final disposition and a
certification containing information regarding the prisoner's incarceration, as stated in Article
III(a), to the appropriate court and the prosecuting officer in the state that issued the detainer.
When strict compliance is required, prisoners cannot trigger the 180-day disposition period by
personally communicating with the officials in the state that issued the detainer, because the
documents must go through the warden or custodial official to ensure that the necessary
information in Article III(a) is certified and sent by the appropriate custodial official.
__________

5
Emphases added.

6
See, e.g., U.S. v. Dent, 149 F.3d 180, 185-86 (3d Cir. 1998); Johnson v. Stagner, 781 F.2d 758, 760 n.3 (9th
Cir. 1986); People v. Lavin, 106 Cal. Rptr. 2d 40, 45 (Ct. App. 2001); People v. Garner, 274 Cal. Rptr. 298,
301-02 (Ct. App. 1990); Johnson v. People, 939 P.2d 817, 819-20 (Colo. 1997); State v. Greenwood, 665
N.E.2d 579, 581 (Ind. 1996); Eckard v. Com., 460 S.E.2d 242, 247 (Va. Ct. App. 1995).
and sent by the appropriate custodial official. These cases are based on the rationale that strict
compliance with the Agreement provides an effective system to rapidly adjudicate the claims
of prisoners challenging extradition.
7
Indeed, under a strict compliance standard, prosecutors
will know precisely when the Agreement has been invoked, without the burden of analyzing
with a fine-tooth comb every correspondence from a prisoner.
8

On the other hand, other courts require only substantial compliance with the procedural
requirements of the Agreement before a prisoner is deemed to have validly activated his
rights under the Agreement. Some of these courts allow a prisoner to trigger the 180-day
provision himself by sending the notice to the officials of the state that issued a detainer
without notifying the officials in the state where he is housed, as required by the Agreement.
9
These courts have noted, however, that once the prisoner himself decides to give notice to the
state that issued the detainer, the notice he sends must strictly comply with the Agreement.
For instance, the Alabama Court of Criminal Appeals requires only substantial compliance:
It has generally been held that strict compliance with the agreement is not required, but
rather a good faith, diligent effort by a prisoner to invoke the statute' by giving written
notice to the official having custody of him.'
10
The court qualified this, however: once an
inmate bypasses the statutory procedure, the burden is on the prisoner to demonstrate strict
compliance with the notification and certification requirements of Sections (a) and (b) of art.
III.
11

[Headnotes 3, 4]
It is unnecessary to decide whether a prisoner must strictly or substantially comply with the
Agreement's procedural requirements because we conclude that under either standard
Windham's first packet, which he sent himself, was insufficient to trigger the protections of
the Agreement. Specifically, the first packet sent to "Washoe County Superior [sic] Court"
__________

7
See Norton v. Parke, 892 F.2d 476, 481 (6th Cir. 1989); Stagner, 781 F.2d at 760 n.3.

8
See Johnson, 939 P.2d at 821.

9
See McCallum v. State, 407 So. 2d 865, 869 (Ala. Crim. App. 1981); Palmer v. Williams, 897 P.2d 1111,
1115 (N.M. 1995); see also State v. Burrus, 729 P.2d 926 (Ariz. Ct. App. 1986) (holding that prisoner's letter
requesting final disposition sent to the state that issued the detainer was effective for purposes of the Agreement
where the letter (1) requested relief under the Agreement; (2) stated his place of imprisonment; (3) stated his
term of commitment; (4) stated the amount of time already served; (5) stated the time remaining; and (6) stated
his parole eligibility).

10
McCallum, 407 So. 2d at 869 (quoting People v. Daily, 360 N.E.2d 1131, 1137 (Ill. App. Ct. 1977)).

11
Id.; accord Phillips v. State, 695 S.W.2d 388, 390 (Ark. Ct. App. 1985); Palmer, 897 P.2d at 1115.
Washoe County Superior [sic] Court failed to apprise the Washoe County authorities of the
time already served, the time remaining to be served, the amount of good time credits earned,
the time of parole eligibility, and any decision of the state parole agency relating to Windham.
12
However, we conclude that Windham fully complied with the Agreement, under either
standard, on March 2, 2000, when Windham sent his second packet. In his second packet, he
sent written notice to the warden that he was requesting final disposition of the Nevada
charges, and thus, invoking the Agreement's provisions.
Speedy trial
Windham contends that the delay of over four years from the time he was charged was in
violation of his right to a speedy trial under the Sixth Amendment to the United States
Constitution. In particular, Windham asserts that a four-year delay is presumptively
prejudicial and, therefore, he need not demonstrate how the delay prejudiced him.
[Headnote 5]
The Sixth Amendment provides, in pertinent part, that [i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.
13
The United States Supreme
Court has established that the right to a speedy trial is a fundamental right, which is imposed
upon the states through the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.
14
Accordingly, the Supreme Court in Barker v. Wingo
15
established a
four-part balancing test a court must conduct in order to determine whether the defendant's
Sixth Amendment right to a speedy trial has been violated. The court should consider the
[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant.
16

[Headnote 6]
We conclude that Windham's right to a speedy trial was not violated, because the majority of
the delay can be attributed to Windham. After being released by Reno police, Windham
immediately fled to California, and thereafter he was arrested on new felony charges,
convicted, and sentenced to serve a term of imprisonment in the California State Prison. In
addition, Windham's first packet did not comply with the Agreement, creating further
delay.
__________

12
See NRS 178.620, Article III(a).

13
U.S. Const. amend. VI.

14
See Barker v. Wingo, 407 U.S. 514, 515 (1972).

15
Id. at 530.

16
Id.; accord Doggett v. United States, 505 U.S. 647, 651-52 (1992) (confirming the four-part balancing
test); see also Leonard v. State, 117 Nev. 53, 83, 17 P.3d 397, 416 (2001) (applying the Barker factors).
Windham's first packet did not comply with the Agreement, creating further delay.
We have considered Windham's other claimed constitutional errors and conclude that they are
without merit.
CONCLUSION
We conclude that Windham's assignments of error do not warrant relief. Accordingly, we
affirm the judgment of conviction.
____________
118 Nev. 233, 233 (2002) Kirkpatrick v. Dist. Ct.
BRUCE KIRKPATRICK, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
HONORABLE ROBERT E. GASTON, District Judge, Family Court Division,
Respondents, and SIERRADAWN KIRKPATRICK CROW, Real Party in Interest.
No. 37593
April 11, 2002
43 P.3d 998
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. The supreme court, Agosti, J., held that: (1) father had
standing to challenge validity of statute that permitted a minor under age sixteen to marry
with consent of one parent and authorization from district court; (2) statute satisfied
substantive due process; (3) statute violated father's procedural due process rights by not
providing him notice and an opportunity to be heard; and (4) order that authorized marriage
was manifest abuse of discretion in absence of a meaningful inquiry into, and express written
findings about, whether marriage was mandated by exceptional circumstances and was in
minor's best interests.
Petition granted.
Rehearing granted; opinion withdrawn; petition for mandamus denied. 119 Nev.
----
,
64 P.3d 1056 (2003).
Young, J., and Shearing, J., with whom Maupin, C. J., agreed, dissented.
Gayle F. Nathan, Las Vegas, for Petitioner.
Bruce I. Shapiro, Henderson; Rebecca L. Burton, Las Vegas, 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. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS 34.160.
2. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of state supreme court to determine if a petition will be
considered. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS 34.160.
3. Marriage.
Father had standing to challenge validity of statute under which fifteen-year-old daughter was permitted to marry with consent
of only one parent and authorization from district court, even though another statute stated that a marriage was voidable only on the
insistence of one of the parties to the marriage; father complained of loss of parent-child relationship without benefit of due process,
there was a causal connection between that injury and the marriage statute as applied, and a ruling in father's favor would remedy the
injury. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14;
NRS 122.025,125.320(1).
4. Action.
To establish standing, party must show that he has suffered an injury in fact, that there is a causal connection between the injury
and the conduct complained of, and that it is likely that the injury will be redressed by a favorable decision. (Per Agosti, J., with two
justices concurring and one justice concurring in result.)
5. Mandamus.
Father's petition for writ of mandate to compel district court to vacate order that authorized daughter's marriage, under allegedly
unconstitutional statute permitting minors under age sixteen to marry with consent of one parent and court authorization, was not moot
even though daughter had turned sixteen and was no longer subject to that statute's provisions, because claim involved a matter capable
of repetition yet evading review. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS 122.025.
6. Mandamus.
Substantive and procedural due process challenges raised by father to statute under which minors under sixteen years old were
permitted to marry with consent of only one parent and authorization by district court would be considered in mandamus proceeding to
compel district court to vacate order authorizing marriage of fifteen-year-old daughter, though father had not raised those arguments to
district court in motion to vacate that order. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const.
art. 1, 8(5); U.S. Const. amend. 14; NRS 122.025.
Substantive due process ensures that state action is not random and unpredictable. It restricts the government's ability to
interfere with a person's life, liberty, or property. (Per Agosti, J., with two justices concurring and one justice concurring in result.)
Const. art. 1, 8(5); U.S. Const. amend. 14.
A liberty interest is deemed fundamental, and thus protected by Due Process Clause of Fourteenth Amendment, if it is deeply
rooted in nation's history and tradition. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1,
8(5); U.S. Const. amend. 14.
9. Child Custody; Parent and Child.
Custody, care, and nurture of child reside first in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder. (Per Agosti, J., with two justices concurring and one justice concurring in result.)
For due process purposes, biology alone does not create a fundamental liberty interest in the parent-child relationship; the
parental relationship must show a greater connection with the child. (Per Agosti, J., with two justices concurring and one justice
concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14.
For due process purposes, 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. (Per Agosti,
J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14.
For purposes of due process, divorce does not change the nature of a parent's fundamental liberty interest in parent-child
relationship. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend.
14.
13. Constitutional Law; Marriage.
Father who was divorced from minor's mother ten years earlier had fundamental liberty interest in parent-child relationship, for
purposes of due process challenge to statute under which minor was permitted to marry at less than sixteen years of age with only
mother's consent and authorization from district court, where father had consistently demonstrated paternal commitment to minor
through custody and visitation. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5);
U.S. Const. amend. 14; NRS 122.025.
At least with respect to minors close to sixteen years old, statute that allows minors under age sixteen to marry with consent of
one parent and authorization from district court satisfies substantive due process with respect to non-consenting parent; statute
attempts to strike balance between a minor's limited interest in marriage, the consenting parent's and the state's interest in the minor's
welfare, and the common reality of single-parent household, and it does not seek to intrude on parent-child relationship of any parent.
(Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14; NRS
122.025.
To state a claim for violation of procedural due process, the claimant must allege facts showing that the state has deprived him
or her of a liberty interest and has done so without providing adequate procedural protections. (Per Agosti, J., with two justices
concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14.
Due process is not a technical conception with a fixed content unrelated to time, place, and circumstances; rather, it is flexible
and calls for such procedural protections as the particular situation demands. (Per Agosti, J., with two justices concurring and one
justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14.
Most basic requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. (Per
Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14.
To determine what procedure satisfies due process, the specific case must be analyzed using three-part balancing test: (1) the
private interest impacted by the government action, (2) the chance that the procedures used will result in an improper deprivation of the
private interest and the likely value of added procedural protections, and (3) the government's interest in the proceedings and the cost
of additional procedural protections. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1,
8(5); U.S. Const. amend. 14.
To satisfy procedural due process, under statute allowing minors under age sixteen to marry with consent of one parent and
authorization of district court, it is only in those cases where non-consenting parent has an on-going relationship with minor,
established through personal, financial, or custodial responsibility, that notice and a chance to participate must be provided to
non-consenting parent. (Per Agosti, J., with two justices concurring and one justice concurring in result.) Const. art. 1, 8(5); U.S.
Const. amend. 14; NRS 122.025.
Great care must be taken by the district court when deciding whether a non-consenting parent is entitled, under Due Process
Clause, to notice of minor's intended marriage under statute allowing a minor under sixteen years old to marry with consent of one
parent and authorization from district court, in view of possibility that parent's failure to create requisite parent-child relationship to
warrant constitutional protection has been through no fault of his or her own. (Per Agosti, J., with two justices concurring and one
justice concurring in result.) Const. art. 1, 8(5); U.S. Const. amend. 14; NRS 122.025.
Father who had maintained active role in daughter's life since divorce from mother ten years earlier was entitled, under Due
Process Clause, to notice and opportunity to be heard with respect to fifteen-year-old daughter's petition to obtain judicial authorization
for marriage to forty-eight-year-old man, as asserted under statute permitting a minor under sixteen years of age to marry with consent
of one parent and authorization of district court. (Per Agosti, J., with two justices concurring and one justice concurring in result.)
Const. art. 1, 8(5); U.S. Const. amend. 14; NRS 122.025.
22. Statutes.
Words in a statute should be given their plain meaning unless this violates the spirit of the act. (Per Agosti, J., with two justices
concurring and one justice concurring in result.)
23. Statutes.
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself
the courts are not permitted to search for its meaning beyond the statute itself (Per Agosti, J., with two justices concurring and one
justice concurring in result.)
24. Statutes.
Ambiguity exists if reasonable persons can ascribe different meanings to a statute. (Per Agosti, J., with two justices concurring
and one justice concurring in result.)
25. Statutes.
Once a statute is termed ambiguous, the plain meaning rule has no application, and the leading rule of statutory construction is
to ascertain the intent of the legislature in enacting the statute. (Per Agosti, J., with two justices concurring and one justice concurring
in result.)
26. Statutes.
Legislative intent will prevail over the literal sense of the words in cases where a statute is ambiguous, and the entire subject
matter and policy may be involved as an interpretive aid. (Per Agosti, J., with two justices concurring and one justice concurring in
result.)
27. Statutes.
Provisions in an ambiguous statute should be construed in line with what reason and public policy dictate. (Per Agosti, J., with
two justices concurring and one justice concurring in result.)
28. Marriage.
Term extraordinary circumstances, as used in statute permitting a district court, in extraordinary circumstances, to authorize
marriage of a person less than sixteen years of age if court finds that marriage will serve that person's best interests and one of that
person's parents has given consent, necessarily requires that the court find something out of the ordinary justifying the marriage. (Per
Agosti, J., with two justices concurring and one justice concurring in result.) NRS 122.025.
29. Marriage.
While extraordinary circumstances, as required by statute for an order authorizing marriage of a minor under age sixteen, must
necessarily be determined on case-by-case basis, some possibilities include: (1) prospective spouse is in armed services or is relocating
abroad for a career opportunity; (2) it is common practice in culture of minor's family for minors under age sixteen to marry; (3) minor
is terminally ill and wishes to marry before dying; or (4) minor is not supported physically, financially, or emotionally by parents and
demonstrates requisite maturity to engage in marital relationship. (Per Agosti, J., with two justices concurring and one justice
concurring in result.) NRS 122.025.
30. Marriage.
Since statute that permits district court, in extraordinary circumstances and with consent of one parent, to authorize the marriage
of a minor under age sixteen does not limit the youngest age at which a minor may seek judicial permission to marry, greater judicial
protection is required for younger minors. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS
122.025.
31. Marriage.
District court may not authorize marriage of a minor under age sixteen, under statute permitting such an order in extraordinary
circumstances if one parent has consented and marriage will serve minor's best interests, without first expressly finding the existence of
extraordinary circumstances. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS 122.025.
32. Marriage.
Order that authorized marriage of fifteen-year-old minor to forty-eight-year-old man, pursuant to statute permitting district court
to authorize marriage of a minor less than sixteen years of age under extraordinary circumstances if one parent has consented and
marriage will serve minor's best interests, was abuse of discretion, where district court failed to meaningfully inquire into, and make
written findings about, whether marriage was mandated by exceptional circumstances and was in minor's best interests, but instead
relied on conclusory affidavit from minor's mother to find good cause. (Per Agosti, J., with two justices concurring and one justice
concurring in result.) NRS 122.025.
33. Marriage.
District court, in authorizing marriage of a minor under age sixteen under statute permitting such an order under certain
circumstances, must make written findings to support its conclusion that the best interests of the minor are served by permitting minor
to marry. (Per Agosti, J., with two justices concurring and one justice concurring in result.) NRS 122.025.
34. Marriage.
Until a marriage has been annulled in a proper proceeding, it is presumed valid. (Per Agosti, J., with two justices concurring and
one justice concurring in result.)
OPINION
In this case we are asked to determine the constitutionality of NRS 122.025, which permits a
minor under the age of sixteen to marry with the consent of one parent and the district court's
authorization. Under that statute, the district court permitted petitioner's fifteen-year-old
daughter to marry a forty-eight-year-old man. Although the daughter's mother had provided
consent, petitioner had no knowledge that his daughter was planning to and ultimately did
undergo a marriage in Nevada. Because petitioner, who had an on-going personal and
custodial relationship with his daughter, was provided neither notice nor an opportunity to be
heard before his daughter was given judicial permission to marry, NRS 122.025 was
unconstitutionally applied in this instance. Additionally, the district court manifestly abused
its discretion when it failed to identify any extraordinary circumstances warranting the
marriage and failed to expressly consider the daughter's best interests. Accordingly, we grant
this petition for extraordinary relief.
FACTS
Fifteen-year-old SierraDawn Kirkpatrick Crow (Sierra) is the daughter of Karen Karay and
petitioner Bruce Kirkpatrick. In 1990, Karay and Kirkpatrick were divorced in California.
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 Sierra. In 1992,
Karay and Sierra moved from California to New Mexico. After the divorce, Kirkpatrick
maintained a relationship with his daughter through telephone conversations, and visits with
her in New Mexico and California. Sierra spent the 2000 Christmas holiday with Kirkpatrick
in California. The record suggests that Kirkpatrick may have had physical custody of Sierra in
California during the late 1990s.
In late December 2000, shortly after Sierra turned fifteen years old, she informed her mother
that she desired to marry her guitar teacher, forty-eight-year-old Sauren Crow. Under New
Mexico law, a minor under the age of sixteen is not permitted to marry unless the marriage
legitimizes a child born out of wedlock or the minor is pregnant.
1
Because Sierra was not
pregnant and had no children, she could not marry Crow in New Mexico. In Nevada,
however, a minor under the age of sixteen may marry if he or she has the consent of one
parent and the district court's authorization.
2
Thus, Sierra, her mother and Crow traveled to
Las Vegas so that Sierra could take advantage of Nevada's marriage consent law and seek
judicial permission to marry Crow.
On December 29, 2000, Karay filed a petition with the Clark County district court to obtain
judicial authorization for Sierra's marriage. With the petition, Karay filed a conclusory
affidavit consenting to the marriage, in which she simply stated that Sierra and Crow were
right for each other, that they had very real life plans, and that their talents [would] be
most effectively utilized by [the] marriage.
3
Without conducting a hearing or interviewing
Karay, Sierra or Crow,
__________

1
N.M. Stat. Ann. 40-1-5; N.M. Stat. Ann. 40-1-6(B).

2
NRS 122.025.

3
Karay's affidavit stated, in full, as follows:
I, Karen Karay, have completed the Court filing process and been assigned a case number and Family
Court Department Judge. My party and I tried every option possible to complete the award of Court
Approval for the Marriage of my Minor Daughter Under the age of 16, by this Court. When we were to
appear before the Judge, there were none to be found, anywhere, due to the long weekend.
For business and professional reasons I am unable to remain in Las Vegas through the long New
Year's weekend, and finish the business on Tuesday.
I, as parent of SIERRADAWN KIRKPATRICK have fully granted consent to her marriage to
SAUREN CROW. It is my sincere desire for the two to be married, as planned, as I have seen no other
couple so right for each other.
SIERRA and SAUREN have very real life plans at home, in the town in which we all reside. Their
partnership and their talents will be most effectively utilized by this marriage.
viewing Karay, Sierra or Crow, the district court summarily found that good cause existed
under Nevada law for the marriage, and ordered that a marriage license be issued to Sierra
and Crow. On January 3, 2001, Sierra and Crow were married in Las Vegas.
When Kirkpatrick first learned of Sierra'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 Sierra.
Four days later, however, the court rescinded its order because it found that Sierra's marriage
was valid under Nevada law, and that Sierra was emancipated as a result of the marriage.
4

Kirkpatrick then moved the Clark County district court to vacate its earlier order authorizing
Sierra's marriage. Kirkpatrick also sought to have the marriage annulled. Following a hearing,
during which Kirkpatrick was present and Sierra and Crow were physically absent, but were
represented by counsel, the district court entered an order denying Kirkpatrick's motion,
concluding that the marriage complied with Nevada law and determining 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 Sierra's marriage, and to annul the marriage.
DISCUSSION
Propriety of writ relief
[Headnotes 1, 2]
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.
5
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.
6
Additionally, a writ of mandamus is not available if the petitioner has a plain, speedy,
and adequate remedy in the ordinary course of law.
__________
Please grant this request before you, to SIERRA and SAUREN, also before you, who will be
completing this Approval, per compliance with Court consent just after the New Year. Your timely
approval will allow SIERRA to be back in school, when it resumes on January 8, 2001.

4
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
sixteen 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.

5
NRS 34.160.

6
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (citation omitted).
damus is not available if the petitioner has a plain, speedy, and adequate remedy in the
ordinary course of law.
7
Mandamus is an extraordinary remedy, and it is within the
discretion of this court to determine if a petition will be considered.
8
Here, Kirkpatrick's
petition is appropriate because he has no other plain, speedy, and adequate remedy.
Standing
[Headnote 3]
The district court concluded that Kirkpatrick lacked standing to challenge Sierra's marriage.
Indeed, NRS 125.320(1) states that a marriage is voidable only on the insistence of one of the
parties to the marriage. Here, however, the question of standing goes to whether Kirkpatrick
is entitled to have us decide the merits of his petitionwhether he was denied his right to due
process under the circumstances and whether the district court failed to follow legal
requirements in granting Sierra permission to marry.
[Headnote 4]
To establish standing, Kirkpatrick must show that he has suffered an injury in fact, that there
is a causal connection between the injury and the conduct complained of, and that it is likely
that the injury will be redressed by a favorable decision.
9
Here, Kirkpatrick complains of the
loss of his parent-child relationship without the benefit of due process. There is a causal
connection between this injury and Nevada's marriage consent statute as applied in this case,
and a ruling in Kirkpatrick's favor by this court will remedy the injury. Accordingly, we
conclude that Kirkpatrick has standing to challenge the validity of Nevada's marriage consent
statute.
Constitutional challenges to the marriage consent statute
[Headnotes 5, 6]
As mentioned, NRS 122.025 permits a minor less than sixteen years old to marry if the minor
has the consent of one parent and authorization from the district court.
10
In his petition,
Kirkpatrick asserts that,
__________

7
NRS 34.170.

8
Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991).

9
Allen v. Wright, 468 U.S. 737, 751 (1984); see also Elley v. Stephens, 104 Nev. 413, 416, 760 P.2d 768,
770 (1988).

10
NRS 122.025 provides in full:
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.
asserts that, because the consent of only one parent was required, he was deprived of his
fundamental right to the parent-child relationship without a compelling reason.
11
In effect,
Sierra's marriage places her beyond his parental control and releases him, without opportunity
to be heard, from his obligations as her father. He may no longer enforce parental rules and
restrictions upon her, as he no longer has parental rights and responsibilities for her care,
custody, control and support. Likewise, Sierra may no longer look to him for her care and
support. Additionally, Kirkpatrick maintains that his procedural due process rights were
infringed upon because he was not provided with notice and an opportunity to be heard and 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.
12

Substantive due process
[Headnote 7]
The Federal and Nevada Constitutions provide that no person shall be deprived of life,
liberty, or property without due process of law.
13
Essentially, the State owes to each
individual that process which, in light of the values of a free society, can be characterized as
due.
14
Substantive due process ensures that state action is not random and unpredictable; it
restricts the government's ability to interfere with a person's life, liberty, or property.
__________
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.
Pregnancy alone does not establish that the best interests of such person will be served by marriage, nor
may pregnancy be required by a court as a condition necessary for its authorization for the marriage of
such person.

11
We note that although Sierra has turned sixteen and is no longer subject to the provisions of NRS 122.025,
this petition is not moot because Kirkpatrick's claim falls within an exception to the mootness doctrine for
matters that are capable of repetition, yet evading review. See Binegar v. District Court, 112 Nev. 544, 548, 915
P.2d 889, 892 (1996).

12
Although the parties addressed these issues in the petition and answer filed in this court, Sierra 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).

13
U.S. Const. amend. XIV, 1; Nev. Const. art. 1, 8(5).

14
Boddie v. Connecticut, 401 U.S. 371, 380 (1971).
ment's ability to interfere with a person's life, liberty, or property.
15

[Headnotes 8, 9]
A liberty interest is deemed fundamental, and thus protected by the Fourteenth Amendment,
if it is deeply rooted in this Nation's history and tradition.
16
The United States Supreme
Court has recognized certain family privacy rights as fundamental rights,
17
and has
decisively declared that a parent has a fundamental liberty interest in the care, custody, and
management of his or her child.
18
It is cardinal with [the Supreme Court] that the custody,
care and nurture of the child reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor hinder.
19

[Headnotes 10-13]
A fundamental parental interest in the integrity of the family unit is not automatic, however.
20
Biology alone does not create a fundamental liberty interest in the parent-child relationship;
the parental relationship must show a greater connection with the child.
__________

15
See Licari v. Ferruzzi, 22 F.3d 344 (1st Cir. 1994); John E. Nowak & Ronald D. Rotunda, Constitutional
Law 11.4, at 382 (5th ed. 1995).

16
Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

17
See id. at 498-500 (concluding that the fundamental right of family privacy includes a right of persons
related by blood, adoption, or marriage to live together as a family); Pierce v. Society of Sisters, 268 U.S. 510,
534-35 (1925) (holding that a parent has a fundamental right to oversee the upbringing and education of his or
her child); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (announcing a liberty interest to engage in any of the
common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children).

18
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 children . . . is perhaps the
oldest of the fundamental liberty interests recognized by this Court); Parham v. J.R., 442 U.S. 584, 602 (1979)
(Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad
parental authority over minor children.).

19
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

20
See Michael H. v. Gerald D., 491 U.S. 110, 124 (1989) (denying legal paternity where biological father's
relationship with mother was unsubstantial); Lehr v. Robertson, 463 U.S. 248, 261 (1983) (noting that the mere
existence of a biological link to a child is insufficient to give the unwed father protection under due process if he
has not demonstrated a parental relationship); Caban v. Mohammed, 441 U.S. 380, 392 (1979) (recognizing that
an unwed father does not have a right to block the adoption of his biological child by the child's stepfather when
the unwed father has not participated in the rearing of the child); Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(holding that the rights of the unwed father were not violated by the court's refusal to allow him to block
adoption by the stepfather of an eleven-year-old child, where the unwed father had not previously participated in
the child's life).
child.
21
[T]he 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.
22
Thus, divorce does not
change the nature of the right.
23
Because Kirkpatrick has consistently demonstrated paternal
commitment to Sierra, through custody and visitation, he has a fundamental liberty interest in
the parent-child relationship. The existence of this liberty interest does not end our analysis,
however.
Outside of the family law context, the Supreme Court generally utilizes a two-tier system for
analyzing claims alleging that the state has violated substantive due process rights.
24
If the
challenged legislation impinges upon a fundamental constitutional right, the Court will
strictly scrutinize the statute. The statute must serve a compelling state interest and be
narrowly tailored to serve the compelling interest in order to survive the scrutiny.
25
If,
however, no fundamental right is involved, then the state only has to show that the action
supports a legitimate objective and is rationally related to accomplishing the objective.
26
In
family privacy cases, however, the Court has deviated from the usual two-tiered scheme.
27
Various child rearing and custody cases demonstrate the Court's application of a more
flexible reasonableness" test,
__________

21
See Michael H., 491 U.S. at 123; see also Lehr, 463 U.S. at 262 (stating that [t]he significance of the
biological connection is that it offers the natural father an opportunity that no other male possesses to develop a
relationship with his offspring).

22
Hodgson v. Minnesota, 497 U.S. 417 (1990) (striking down statutory requirement that both parents of a
minor be notified before minor undergoes abortion); accord Stanley v. Illinois, 405 U.S. 645, 658 (1972)
(invalidating Illinois statute declaring children of unwed fathers wards of the state upon their mothers' death
without regard to the fathers' parental fitness).

23
Prisco v. U.S. Dept. of Justice, 851 F.2d 93, 97 (3d Cir. 1988) (recognizing that a divorced father has a
significant due process interest if his child is placed in the Witness Protection Program), overruled on other
grounds by Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994).

24
The Court has created an exception and applies a different standard in cases involving abortion. See, e.g.,
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876 (1992) (plurality opinion) (utilizing an
intermediate level of scrutiny which applies an undue burden test on state actions regarding abortion).

25
See Washington v. Glucksberg, 521 U.S. 702, 721 (1997); 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 Nowak & Rotunda, supra note 15,
10.6(a), at 348.

26
Glucksberg, 521 U.S. at 728.

27
See generally David D. Meyer, The Paradox of Family Privacy, 53 Vand. L. Rev. 527 (2000).
ableness test, which implicitly calibrat[es] the level of scrutiny in each case to match the
particular degree of intrusion upon the parents' interests.
28

With this more flexible approach in mind, we turn to NRS 122.025 which provides that the
minor must obtain the consent of one parent or a guardian; then, in extraordinary
circumstances, the district court may authorize the marriage if the court finds that it will serve
the minor's best interests.
29
Here, the marriage consent statute, as applied to minors under
sixteen, is not intended to infringe upon the non-consenting parent's liberty interest in his or
her relationship with the minor. The statute's primary purpose is to provide restricted
circumstances in which a minor under the age of sixteen may marry. Thus, the statute
recognizes that minors have some limited interest in applying for permission to marry.
30
By
requiring the consent of only one parent,
31
the statute implicitly recognizes the common
reality of modern families: a significant percentage of children under the age of eighteen live
in single-parent households.
32
In other words, the statute attempts to strike a balance
between a minor's limited interest in marriage,
__________

28
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, 838-42 (1999) (discussing whether
the Supreme Court in family privacy cases applies a strict scrutiny standard or a reasonableness test) [hereinafter
Faultless Father].

29
NRS 122.025. For a thorough discussion of the statute's requirements, see infra text accompanying notes
42-61.

30
The Supreme Court has stated that adults have a fundamental right to marry; the Court has also made clear
that states can regulate marriage with respect to bigamy, incest or under-age marriages. See Zablocki v. Redhail,
434 U.S. 374, 392 (1978) (Stewart, J., concurring); id. at 399 (Powell, J., concurring); id. at 404 (Stevens, J.,
concurring).

31
Prior to 1975, the statute required the consent of both parents. See 1975 Nev. Stat., ch. 764, 3, at
1817-18. The statute was amended in 1977 to allow either parent to consent. See 1977 Nev. Stat., ch. 145, 2, at
279. The legislative history reveals the change was supported by the Nevada wedding chapel industry. Because
the earlier version required the consent of both parents, minors who had traveled to Nevada with only one parent
to provide consent were being turned away, unable to obtain the necessary judicial authorization. See Hearing on
A.B. 298 Before the Assembly Committee on Commerce, 59th Leg. (Nev., February 10, 1977). Clearly, when
the Legislature adopted the 1977 amendment, it did not consider the possible due process consequences for the
non-consenting parent which we examine today. The Legislature was obviously attempting to devise a procedure
for a minor under the age of sixteen to apply to marry when obtaining the consent of both parents is an onerous
burden or an impossible task. By continuing to require judicial oversight and by allowing judicial authorization
only in extraordinary circumstances, the Legislature sought to protect the child's best interests.

32
See Troxel, 530 U.S. at 63 (noting that in 1996, 28 percent of all children in the United States under the age
of eighteen lived with only one parent).
strike a balance between a minor's limited interest in marriage, the consenting parent's and the
state's interest in the minor's welfare, and the status of families today.
[Headnote 14]
Because Nevada's statute attempts to strike a balance between various interests, and since its
purpose is not to intrude on the parent-child relationship of any parent, we conclude that, at
least with respect to minors close to sixteen years old, it is a reasonable framework for
regulating the marriage of such minors. Thus, the marriage consent statute passes substantive
due process scrutiny, as applied to this case. Turning to an analysis of procedural due process,
however, we conclude that NRS 122.025, as applied, deprived Kirkpatrick of procedural due
process protection to which he was entitled.
Procedural due process
[Headnotes 15-17]
To state a procedural due process violation claim under the Fourteenth Amendment's Due
Process Clause, the claimant must allege facts showing that the state has deprived him or her
of a liberty interest and has done so without providing adequate procedural protections.
33
Once a court has determined that a protected liberty interest has been impaired, the question
remains what process is due.
34
As the Supreme Court has recognized, [f]or all its
consequence, due process' has never been, and perhaps never can be, precisely defined.
35
Accordingly, exactly what procedure is required in any given case depends upon the
circumstances. Due process is not a technical conception with a fixed content unrelated to
time, place and circumstances.
36
Rather, it is flexible and calls for such procedural
protections as the particular situation demands.
37
The most basic requirement of due
process, however, is the opportunity to be heard at a meaningful time and in a meaningful
manner.'
38

[Headnote 18]
To determine what procedure satisfies due process, the specific case must be analyzed using
the three-part balancing test delineated by the Supreme Court in Mathews v. Eldridge:
__________

33
Nowak & Rotunda, supra note 15, 13.1, at 510.

34
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

35
Lassiter v. Department of Social Services, 452 U.S. 18, 24 (1981).

36
Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961) (quoting Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring)) (quotation marks omitted), overruled on other
grounds by Board of Regents v. Roth, 408 U.S. 564 (1972).

37
Morrissey, 408 U.S. at 481.

38
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
case must be analyzed using the three-part balancing test delineated by the Supreme Court in
Mathews v. Eldridge: (1) the private interest impacted by the government action; (2) the
chance that the procedures used will result in an improper deprivation of the private interest
and the likely value of added procedural protections; and (3) the government's interest in the
proceedings and the cost of additional procedural protections.
39

Private interest
Kirkpatrick has maintained an active role in Sierra's life. Their relationship has been
continuous since the 1990 divorce. As established previously, Kirkpatrick has a protected
liberty interest in his relationship with his daughter. While the intent of the statute is to allow,
under extraordinary circumstances, the marriage of minors under the age of sixteen, the
statute's application here terminated Kirkpatrick's right to the care, custody and control of his
daughter without first providing him the opportunity to be heard.
[Headnotes 19, 20]
The statute recognizes that minors like Sierra are not able to make the decision to marry
independently. The district court is charged with the responsibility to evaluate these minors'
best interests, and the existence of extraordinary circumstances. The law's concept of the
family rests on a presumption that parents possess what a child lacks in maturity, experience,
and capacity for judgment required for making life's difficult decisions.'
40
Consequently,
providing the non-consenting but interested parent an opportunity to be heard on the marriage
issue serves both the interests of that parent and the minor. We stress that not all
non-consenting parents have a protected liberty interest that requires them to receive
notification and an opportunity for participation. Only in those cases with a non-consenting
parent who has an on-going relationship, established through personal, financial, or custodial
responsibility, must notice and a chance to participate be provided.
41
Here, affording
Kirkpatrick an opportunity for meaningful participation in the court's authorization decision
does not impinge on Sierra's limited interest in applying for permission to marry.
__________

39
424 U.S. at 335.

40
Troxel, 530 U.S. at 68 (quoting Parham, 442 U.S. at 602).

41
We note that the Supreme Court has recognized a liberty interest in the parent-child relationship of the
father who actively participates in the child's life, see Caban, 441 U.S. 380, and has declined to recognize a
liberty interest in the father who has failed to demonstrate a significant bond with the child, see Lehr, 463 U.S.
248; Quilloin, 434 U.S. 246. The Court has not, however, addressed the situation where the parent has failed,
through no fault of his or her own, to create the requisite relationship with the child to warrant constitutional
protection. See Faultless Father, supra note 28, at 763-64. Accordingly, great care must be taken by the district
court when deciding whether a non-consenting parent is entitled to notice.
impinge on Sierra's limited interest in applying for permission to marry.
Chance that procedures resulted in improper deprivation
Given the utter lack of procedural protections under the circumstances, the risk that
Kirkpatrick was improperly deprived of his liberty interest with respect to his daughter is
great. Moreover, procedural safeguards would not only enhance the likelihood that
Kirkpatrick's rights as Sierra's parent are not substantively altered without his knowledge, but
also ensure that Sierra's best interests are served.
Government's interest and the cost of additional protections
Finally, the burden on the district court to provide the non-consenting parent an opportunity
to participate in the proceedings is minimal. The district court, in deciding whether to
authorize the minor's marriage, must necessarily determine whether the minor's best interests
are served by the proposed marriage. Including the non-consenting parent in appropriate cases
will not create a significant additional administrative or judicial burden on the court. Notably,
the non-consenting parent does not have veto power over the proceedings, but simply must be
permitted the opportunity to participate in a meaningful way in the important decision of
whether the minor should be granted permission to marry.
[Headnote 21]
In sum, 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 whether Sierra could marry. Kirkpatrick was denied such
protections, however, and his due process rights were violated.
Interpretation of Nevada's marriage consent statute
In his petition, Kirkpatrick asserts that the district court manifestly abused its discretion when
it failed to identify any extraordinary circumstances warranting Sierra's marriage to a
forty-eight-year-old man, and when it failed to expressly consider Sierra's best interests.
As explained previously, in Nevada, a child under the age of sixteen is legally incapable of
contracting to marry without the consent of one parent or the legal guardian, and
authorization from a district court; these requirements are set forth in NRS 122.025.
42
Under
this statute, a two-tiered approach has been adopted.
__________

42
See also NRS 122.010 (stating that marriage is a civil contract that requires the consent of the parties
capable in law of contracting).
adopted. Specifically, the minor must obtain the consent of one parent or a guardian; 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.
43
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.
44
Thus, under the statute, any judicial authorization must be based
on the court's determination that extraordinary circumstances warranting the marriage exist,
and that the minor's best interests will be served. The court cannot base these determinations
on pregnancy alone.
Kirkpatrick contends that the district court manifestly abused its discretion when it failed to
independently inquire as to what extraordinary circumstances existed to warrant a
fifteen-year-old marrying, and how it is in Sierra's best interest to marry a forty-eight-year-old
man. Sierra argues that the district court complied with the statutory provision when it
obtained Karay's consent for Sierra's marriage and subsequently authorized the marriage.
[Headnotes 22-27]
We have not previously examined the language of the marriage consent statute. Our statutory
construction rules are well established, however. When interpreting a statutory provision, the
words in a statute should be given their plain meaning unless this violates the spirit of the
act.
45
Thus, [w]here the language of a statute is plain and unambiguous, and its meaning
clear and unmistakable, there is no room for construction, and the courts are not permitted to
search for its meaning beyond the statute itself.
46
Ambiguity exists if reasonable persons
can ascribe different meanings to a statute.
47
Once a statute is termed ambiguous, the plain
meaning rule has no application, and [t]he leading rule of statutory construction is to
ascertain the intent of the legislature in enacting the statute. This intent will prevail over the
literal sense of the words. . . . The entire subject matter and policy may be involved as an
interpretive aid.
48
When interpreting an ambiguous statute,
__________

43
NRS 122.025(2)(a).

44
NRS 122.025.

45

46
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quotation
omitted), overruled on other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).

47
McKay, 102 Nev. at 649, 730 P.2d at 442.

48
Id. at 650-51, 730 P.2d at 443 (citation omitted).
ambiguous statute, the provisions should be construed in line with what reason and public
policy' dictate.
49

Black's Law Dictionary defines extraordinary circumstances as out of the ordinary.
50
While the dictionary provides a clear definition of the term, the parties contend that the term
as used in the statute can be read two ways and is therefore ambiguous. Specifically,
Kirkpatrick asserts that the term extraordinary circumstances refers to something unusual
arising that necessitates the marriage of someone under sixteen. Sierra maintains that
extraordinary circumstances exist any time someone under the age of sixteen wishes to
marry. As the parties point out, it is unclear from the language of the statute whether
extraordinary circumstances exist merely because the minor is so young, or whether the term
is intended to limit the district court's discretion in giving authorization.
Thus, we turn to the statute's legislative history for guidance. In 1957, the Legislature
originally adopted Nevada's marriage consent statute for persons less than sixteen years of
age; it provided that the district court may authorize the marriage of females under the age of
16 years or males under the age of 18 years upon the written consent of the parents or
guardian of any such person.
51
Although this version gave the district court discretion to
authorize a marriage, it provided no express guidance to the district court in exercising its
discretion.
Nearly twenty years later, in 1975, the Legislature amended the statute.
52
The amendment
eliminated the gender distinctions and specifically addressed the circumstances in which a
minor under the age of sixteen could petition the court to marry. The statutory amendment
expressly provided that in extraordinary circumstances the district court could, after
considering the minor's best interests and obtaining parental consent, grant permission for the
minor to marry.
53
The 1975 amended version of the statute read much like the current
version, except that the earlier version required the consent of both parents, or the custodial
parent if the minor was living with only one parent.
54

The legislative history reveals that the 1975 amendment was intended, in large part, to
address the Legislature's concern with minors under the age of sixteen marrying.
55
During
the hearings, one senator stated that
__________

49
Id. at 649, 730 P.2d at 442 (quoting Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959
(1983)).

50
Black's Law Dictionary 406 (abr. 6th ed. 1991).

51
1957 Nev. Stat., ch. 225, 1, at 316.

52
1975 Nev. Stat., ch. 764, 3, at 1817-18.

53
Id.

54
Id.

55
See Hearing on S.B. 433 Before the Senate Committee on Judiciary, 58th Leg. (Nev., April 3, 1975).
one senator stated that the intent of the bill was that persons over 18 could be married;
persons between the ages of 16 and 18 needed parental consent; and persons under 16 needed
both parental consent and a decree from the district court, with the understanding that this
would be given only under extraordinary circumstances.
56
At a subsequent hearing, another
senator stated that he understood from the committee's discussion that the committee desired
to restrict the marriage of persons under the age of 16 as much as possible.
57
In 1977, the
Legislature again amended the statute, to its current form, which only requires the consent of
one parent.
58
The amendment in no way affected the requirement that the district court find
extraordinary circumstances and that the marriage is in the minor's best interest.
[Headnotes 28-32]
Based on the Legislature's clear directive that minors under the age of sixteen be permitted to
marry in only very limited situations, we conclude that the term extraordinary
circumstances necessarily requires that the court find something out of the ordinary
justifying the marriage of a minor under the age of sixteen. Although extraordinary
circumstances must necessarily be determined on a case-by-case basis, some possibilities,
though not exhaustive, include: (1) the prospective spouse is in the armed services or is
relocating abroad for a career opportunity; (2) it is the common practice in the culture of the
minor's family for minors under the age of sixteen to marry; (3) the minor is terminally ill and
wishes to marry before dying; or (4) the minor is not supported physically, financially or
emotionally by his or her parents and demonstrates the requisite maturity to engage in a
marital relationship. Since the statute does not limit the youngest age at which a minor may
seek judicial permission to marry, greater judicial protection is required for younger minors.
Although the statute is silent as to whether the court must make express written findings that
extraordinary circumstances exist, we conclude that the court may not authorize the marriage
without first expressly finding such circumstances.
59
Here, it is unknown whether
extraordinary circumstances existed to warrant Sierra's marriage to a forty-eight-year-old
man. Because the district court failed to explain that anything out of the ordinary would
justify Sierra's marriage,
__________

56
Id.

57
Hearing on S.B. 433 Before the Senate Committee on Judiciary, 58th Leg. (Nev., May 17, 1975).

58
1977 Nev. Stat., ch. 145, 2, at 279.

59
See Anastassatos v. Anastassatos, 112 Nev. 317, 913 P.2d 652 (1996) (concluding that child support
statutory guidelines demand that the district court make specified written findings of fact when a deviation from
the statutory formula is necessary).
Sierra's marriage, we conclude that the district court manifestly abused its discretion in
authorizing it.
Even after the district court makes a threshold determination that extraordinary circumstances
exist, the court must find that the marriage is in the minor's best interests. Considerations of
the minor's maturity, his or her family relationships, his or her future plans, the length and
stability of the minor's relationship with the prospective spouse, the minor's ability and the
prospective spouse's ability to provide care and support for the marital unit, the suitability and
fitness of the prospective spouse, and whether the minor or prospective spouse is pregnant, as
well as other pertinent factors, may assist the court in determining whether a proposed
marriage is in the minor's best interests.
In addition, the district court must consider input from the minor's parents or guardian,
including any non-consenting parent with an established parent-child relationship. The
parents or guardian can offer the court valuable insight, as they have firsthand knowledge
about the minor's history, disposition, maturity, self-esteem and personality.
60
Information
gathered by the district court from the parents or guardian of the minor child is necessary for
the court to make an informed decision as to whether the marriage is in the minor's best
interests. Even after considering the parents' or guardian's observations, however, the court
must make an independent decision regarding the minor's best interests. Judicial oversight is
required by the statute to ensure that the minor's parents or guardian act with the minor's best
interests in mind, and that based upon the evidence, the minor's life will be enhanced by the
marriage.
61
The district court's determination to permit a minor under sixteen years of age to
marry is a substantive one to be made only after careful inquiry. Here, the district court made
its decision without conducting a hearing, or even interviewing Sierra, Crow, Karay, or
Kirkpatrick. The court only considered Karay's conclusory affidavit.
[Headnote 33]
The marriage consent statute is silent as to whether the district court must make express
written findings that the marriage is in the minor's best interests. Nevertheless, the enormity
of the decision to marry and the state's interest in ensuring that the marriage is in the minor's
best interests
__________

60
Developments in the LawThe Constitution and the Family, 93 Harv. L. Rev. 1156, 1353-54 (1980)
(stating that the closeness of the familial relationship provides strong assurance that parents will use their
special knowledge of the child to act in his best interests).

61
See generally Lynn D. Wardle, Rethinking Martial Age Restrictions, 22 J. Fam. L. 1 (1983-84); Comment,
Capacity, Parental Power, and a Minor's Right to Remain Married, 22 Santa Clara L. Rev. 447 (1982); Sandra
J. Chan, Note, The Constitutionality of Parental Consent Requirements in Minor Marriages, 12 U.C. Davis L.
Rev. 301 (1979).
is in the minor's best interests necessitate that the district court make written findings to
support its conclusion concerning whether the best interests of the child are served by
permitting the child to marry. The child's best interests are too important and fundamental to
countenance our approval of the district court's lack of inquiry in this case. The statute exists
for the obvious reason that children under sixteen years of age are considered, absent
extraordinary circumstances, to be too immature to make such a weighty decision in life
without a parent's consent. Judicial oversight is required by the statute to ensure that the
child's parent(s), who consent to the marriage, are acting with the child's best interests in
mind. Here, the district court summarily, without a hearing, and with nothing but a deficient
affidavit before it, found that good cause exists under the statute for the marriage and ordered
the issuance of a marriage license so that Sierra could marry Crow. The district court did not
indicate whether and why the marriage was in Sierra's best interests.
In sum, the district court manifestly abused its discretion by failing to meaningfully inquire
into and make express written findings as to whether the marriage was mandated by
exceptional circumstances and in Sierra's best interests. The district court's failure to address
in any meaningful way these issues amounted to an abrogation of its duties under the statute.
CONCLUSION
[Headnote 34]
As applied in this case, NRS 122.025 violated Kirkpatrick's due process rights because his
protected liberty interest in the parent-child relationship was infringed upon without notice
and a meaningful opportunity to be heard. Additionally, the district court manifestly abused
its discretion when it authorized Sierra's marriage without expressly finding that
extraordinary circumstances existed and that the marriage was in Sierra's best interests.
Because the consent to marry was not properly obtained from the district court, the marriage
of Sierra and Crow is void.
62
Accordingly, we grant Kirkpatrick's petition and direct the
clerk of this court to issue a writ of mandamus compelling the district court to vacate its order
authorizing a marriage license and to annul the marriage.
63

__________

62
NRS 125.320(1) states that [w]hen the consent of the . . . district court, as required by NRS 122.020 or
122.025, has not been obtained, the marriage is void from the time its nullity is declared by a court of competent
jurisdiction.

63
See NRS 125.300. We note that this opinion should not be read to suggest that all marriages previously
authorized under NRS 122.025 are now void. Until a marriage has been annulled in a proper proceeding, it is
presumed valid. See Kirby v. Gilliam, 28 S.E.2d 40 (Va. 1943); see generally
Rose and Leavitt, JJ., concur.
Becker, J., concurring:
I agree with the majority that petitioner's due process rights were compromised in the
application of the Nevada marriage consent statute. I write separately to make two points.
First, petitioner's separate attack claiming that the district court abused its discretion with
regard to the merits of the petition to approve his daughter's marriage, standing alone, was
rendered moot by the subsequent marriage of his daughter pursuant to the district court's
order. This is because, until attacked, the district court's order enjoyed presumptive validity
and the marriage was likewise presumptively valid. This marriage effectively emancipated the
daughter and cut off petitioner's parental rights. Thus, the only vehicle for petitioner to assert
standing was the separate due process challenge that has been embraced by our majority
today. It was therefore necessary to reach the constitutional question in order to grant relief.
Second, the majority suggests that notice to both parents, and an opportunity to be heard, is
required before a court may grant permission for a minor to marry under the statute. While I
agree that any objections of a committed and concerned parent are best raised before a
petition to marry is granted, I conclude that a parent's constitutional interests are protected if
he or she is given the opportunity to challenge a petition before or after it has been granted. In
this connection, I would underscore the fact that we have not declared the marriage consent
statute constitutionally infirm, except in its particular application here.
Young, J., dissenting:
I respectfully disagree.
NRS 122.025 has existed as the law in Nevada in its present form for the past twenty-five
years without incident. This is, to some extent, the sign of a good piece of legislation,
balancing the needs of society and judicial economy. The majority now brings uncertainty
into application of the statute where none before existed.
The statute provides that a person under the age of sixteen must obtain the consent of either
parent and court approval before he or she may marry. Here, the court was presented with an
affidavit signed by Sierra's mother consenting to the marriage. The court approved of the
marriage. In my view, the court complied with NRS 122.025 and the couple is married. NRS
125.320(2) provides that the marriage may be annulled only when a minor fails to comply
with NRS 122.025. Whether we personally agree or disagree with the propriety of the
marriage is not the issue before uswe should respect this union.
__________
Picarella v. Picarella, 316 A.2d 826 (Md. Ct. Spec. App. 1974); State ex. rel. v. Farmer, 523 S.E.2d 840 (W.
Va. 1999).
disagree with the propriety of the marriage is not the issue before uswe should respect this
union.
Marriage is a constitutionally protected right.
1
It is the cornerstone of the family and our
civilization.
2
As marriage comprises the most sacred of relationships,
3
the decision of
whom and when to marry is highly personal, often involving reasons that are complex and
vary from individual to individual. There is no one set of criteria that can be set forth as a
litmus test to determine if a marriage will be successful. The decision to marry should rest
primarily in the hands of the individual, with little government interference.
4

Naturally, however, as a society we recognize that reasonable constraints on the right to
marry are appropriate,
5
especially when the marriage involves a minor. To serve this end, the
Legislature of Nevada required that a minor who wishes to marry obtain the consent of either
parent and court approval.
6
Yet, recognizing the varied circumstances and reasons that may
exist in motivating minor applicants to petition the court for permission to marry, the
Legislature left the phrase extraordinary circumstances undefined in order to afford the
broadest possible discretion to the courts to exercise their judgment. The statute expressly
provides that pregnancy alone is not to be a deciding factor either way. If the Legislature
intended to limit what constitutes extraordinary circumstances, it certainly could have done
so.
If NRS 122.025 is outdated or requires an amendment, this is the responsibility of the
Legislature, not the judiciary. The role of the judiciary is to interpret law,
7
not rewrite it.
Ironically, here, the majority acknowledges that the statute is silent as to whether the court
must make express written findings that extraordinary circumstances exist. Yet, the majority
proceeds to fault the court for not making any such express findings. The majority also holds
that an absentee parent must be given notice and an opportunity to be heard. However, the
effect of such a requirement is to involve input from two parents in the decision-making
process, where the Legislature clearly required only one. In essence, the majority is rewriting
the statute by requiring new procedural requirements the Legislature did not intend.
__________

1
Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

2
Id.

3
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

4
See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974).

5
See Zablocki, 434 U.S. at 392 (Stewart, J., concurring in judgment).

6
NRS 122.025.

7
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
A balancing of interests is conducted to determine when procedural due process protections
are warranted.
8
These are the private interests impacted by the government action, the chance
that the procedure used will result in an erroneous deprivation, the likely value of added
protections, and the financial and administrative burdens of additional protections.
9

Here, in applying the balancing test, the majority emphasizes the loss to Kirkpatrick's liberty
interests in his parent-child relationship as the result of Sierra's marriage without notice or his
consent. However, the United States Supreme Court has stated that a two-parent notification
requirement is an oddity among state and federal consent provisions governing the health,
welfare, and education of children.
10

Additionally, what is the value of having Kirkpatrick appear and voice objection to a
marriage when he would still be without any legal authority to prevent the marriage? Sierra's
mother consented to the marriage. The United States Supreme Court has stated that there is a
presumption that fit parents act in the best interests of their children.
11
Here, there is no
evidence that Sierra's mother is an unfit parent. Deference should be given to her judgment.
12

The majority also states that [i]ncluding the non-consenting parent in appropriate cases will
not create a significant additional . . . burden on the court. However, judicial notice is taken
of the fact that 130 minors have filed petitions seeking court approval for marriage in Clark
County over the past three years.
13
The majority now requires notice to two parents, a full
hearing, and the court to make written findings. Such requirements give rise to a number of
problems. For example, what happens when the absent parent cannot be located or the parties
cannot afford an attorney? What is the effect on the marriages that have already occurred
under NRS 122.025? Increased litigation and burdens on an already backlogged judiciary are
foreseeable.
The legislative history of NRS 122.025 shows that it was specifically amended in 1977 to
require that minors wishing to marry must obtain the consent of either parent.
14
The
Legislature recognized the domestic reality that a growing number of minors live in
single-parent homes
__________

8
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).

9
Id. at 335.

10
Hodgson v. Minnesota, 497 U.S. 417, 454 (1990).

11
Troxel v. Granville, 530 U.S. 57, 68 (2000).

12
See Yoder v. Yoder, 721 P.2d 294, 297 (Kan. Ct. App. 1986).

13
Statistics compiled by the Eighth Judicial District Court, Family Division, show the number of minors
petitioning for marriage are the following: forty-seven in 1999; forty in 2000; and forty-three in 2001.

14
See Hearing on A.B. 298 Before the Assembly Commerce Committee, 59th Leg. (Nev., February 23,
1977).
live in single-parent homes
15
and that requiring the consent of two parents causes a lot of
problems.
16

Moreover, I would be remiss not to recognize that the Legislature also considered Nevada's
economic interest in attracting couples who wish to marry.
17
Many states require only
one-parent consent for minors to marry in varying circumstances.
18
Why would couples
come to Nevada to marry if our law is burdensome? Nevada depends on tourism. The
Legislature did not want Nevada at a disadvantage with other states.
Sierra is now sixteen years old and can remarry without court approval. This issue is therefore
moot and the majority decision achieves nothing, other than in some ways to disrupt the
marriage. Only time, not the law, will be the true judge of whether the marriage ultimately
serves Sierra's best interest. This case represents less than one percent of petitions filed in
Clark County in the past three years for minors to marry. Left alone, a similar issue will
perhaps not arise for another twenty-five years. Our energies can better serve public interest if
directed elsewhere.
Shearing, J., with whom Maupin, C. J., agrees, dissenting:
I agree with Justice Young's dissent and would also deny Bruce Kirkpatrick's petition for a
writ of mandamus. The district court was correct in determining that Kirkpatrick lacked
standing to challenge the validity of his daughter's marriage.
__________

15
See Hodgson, 497 U.S. at 437 (Approximately one out of every two marriages ends in divorce.).

16
Hearing on A.B. 298 Before the Assembly Commerce Committee, 59th Leg. (Nev., February 23, 1977)
(statement of George Flint, Nevada Wedding Association).

17
See Hearing on A.B. 298 Before the Senate Judiciary Committee, 59th Leg. (Nev., March 18, 1977).

18
Ariz. Rev. Stat. Ann. 25-102(A) (West 2000 & Supp. 2001) (parent having custody); Cal. Fam. Code
302 (West 1994); Colo. Rev. Stat. Ann. 14-2-106(I) (2001) (parent having custody); Conn. Gen. Stat.
46b-30(a), (b) (2001); Fla. Stat. Ann. 741.0405(3) (West Supp. 2002) (no parent consent when pregnancy
involved); Ga. Code Ann. 19-3-2(2), 19-3-37(a)(2)(B) (Harrison 1998) (parent having custody); Iowa Code
Ann. 595.2(4)(a) (West 2001) (parent having custody); Kan. Stat. Ann. 23-106 (Supp. 2001); Md. Code
Ann., Fam. Law 2-301(b)(1)(2) (Supp. 2000) (when pregnancy involved); Mich. Comp. Laws Ann. 551.103
(West 1988); Mo. Ann. Stat. 451.090(2) (West 1997) (parent having custody); Neb. Rev. Stat. 42-105
(1998) (parent having custody); NRS 122.025; N.H. Rev. Stat. Ann. 457:6 (1992) (parent having custody);
N.M. Stat. Ann. 40-1-10 (Michie 1999); N.C. Gen. Stat. 51-2(a) (1999) (parent having custody); N.D. Cent.
Code 14-03-17(1)(a)(2) (2001) (parent having custody); Okla. Stat. Ann. tit. 43, 3 (West 2001) (when
pregnancy involved); Or. Rev. Stat. 106.060 (2001) (no consent of non-resident parents when minor is
resident); S.C. Code Ann. 20-1-300 (Law. Co-op. 1985) (when pregnancy involved); S.D. Codified Laws
25-1-9 (Michie 1999); Tex. Fam. Code Ann. 2.102(b) (Vernon 1998); Utah Code Ann. 30-1-9(2)(a)(ii)
(Supp. 2001) (parent having custody); Vt. Stat. Ann. tit. 18, 5142(1), (2) (2000); W. Va. Code Ann.
48-2-301(d) (Michie 2001) (parent having custody); Wis. Stat. Ann. 765.02(2) (West 2001) (parent having
custody).
court was correct in determining that Kirkpatrick lacked standing to challenge the validity of
his daughter's marriage. Although NRS 125.320 states that a marriage is voidable at the
insistence of one of the parties to the marriage, it does not grant the parents of the parties the
right to contest the marriage. Kirkpatrick's daughter's mother consented to the marriage,
which the district court, therefore, properly authorized in accordance with NRS 122.025(2), a
constitutional statute.
The majority holds that NRS 122.025(2) deprived Kirkpatrick of his due process rights
because it did not give him notice that his daughter was seeking to marry. The majority
suggests that the father's right to be notified of his daughter's petition for permission to marry
is secured by the Fourteenth Amendment of the United States Constitution and Article 1,
Section 8, Clause 5 of the Nevada Constitution, which provides that [n]o person shall be
deprived of life, liberty, or property, without due process of law. I find it difficult to fathom
how NRS 122.025(2) implicates any of Kirkpatrick's due process rights. I cannot see how the
district court's failure to notify Kirkpatrick of his daughter's wish to marry, constitutes a
deprivation of either life, liberty, or property. We have come a long way since children were
regarded as the property of their parents, subject to their absolute control. And if anyone's
liberty interest is at stake here, it is that of Sierra Crow, not her father.
The majority holds that Kirkpatrick has a fundamental right to make decisions concerning the
care, custody, and control of his daughter. Basically, the majority holds that he has a
fundamental right to complete control of his fifteen-year-old daughter. The majority relies on
the Due Process Clause of the Nevada Constitution and the Due Process Clause of the
Fourteenth Amendment of the United States Constitution to support its decision. The United
States Supreme Court decisions regarding the Fourteenth Amendment do not support the
conclusion here. The majority cites United States Supreme Court decisions in support of its
position, while ignoring other decisions that are more on point but against its position.
The United States Supreme Court decisions that the majority cites in support of its holding all
involve a dispute between a parent and the state, not a dispute between a parent and a child
asserting her rights. I agree with the majority that parents have a fundamental right to control
their children when the state seeks to interfere unreasonably.
1
However, parental rights are
not without limits,
__________

1
See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (declaring unconstitutional a state statute which gave
courts broad discretion to override parental decisions over visitation); Santosky v. Kramer, 455 U.S. 745 (1982)
(requiring a heightened standard of review for termination of parental rights cases); Stanley v. Illinois, 405 U.S.
645 (1972) (declaring unconstitutional a statute depriving unwed fathers of rights to their children).
limits, especially here, where we have a dispute between a parent and his daughter, who has
fundamental rights of her own.
The United States Supreme Court, in numerous cases, including Loving v. Virginia
2
and
Zablocki v. Redhail,
3
has established that the right to marry is a fundamental right. In
Zablocki, the Court, quoting Loving, explained that:
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.
4

When Wisconsin sought to restrict the right to marry, the Supreme Court further explained in
Zablocki that:
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. . . .
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.
5

The United States Supreme Court has made it clear that constitutional rights apply to children
as well as adults.
6
As the Court said in In re Gault, neither the Fourteenth Amendment nor
the Bill of Rights is for adults alone.
7
The Supreme Court said in Planned Parenthood of
Missouri v. Danforth, 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.
8

__________

2
388 U.S. 1 (1967).

3
434 U.S. 374 (1978).

4
Id. at 383 (quoting Loving, 388 U.S. at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942))).

5
Id. at 386.

6
In re Gault, 387 U.S. 1 (1967).

7
Id. at 13.

8
428 U.S. 52, 74 (1976).
In this case, we have a clash between two sets of rightsthe rights of a parent to control his
daughter and the right of a daughter to marry. The United States Supreme Court has
established that these rights are fundamental, but not absolute. The United States Supreme
Court has held that the state has an interest in the welfare of children and may limit parental
authority.
9
The Supreme Court has even held, where justified by clear and convincing
evidence, that parents can be totally deprived of their children forever.
10
If the state can
completely eliminate all parental rights, it can certainly limit those rights when the competing
rights of the child are involved.
The Supreme Court has made it clear that in certain circumstances a child has the right to
make autonomous decisions that may limit or overcome state and parental intervention. In
Carey v. Population Services International,
11
the Court indicated that states cannot prohibit
a child from procuring contraceptives. In Hodgson v. Minnesota,
12
the Supreme Court
declared a two-parent notification requirement unconstitutional, explaining that the state's
interest in protecting a parent's interest in shaping a child's values and lifestyle cannot
overcome the liberty interests of a minor acting with the consent of a single parent or court.
13

The United States Supreme Court has often balanced the rights of children with the rights of
parental control and intervention and held in favor of children's rights. Numerous states have
enacted single parent consent laws for marriage of minors, and none has been declared
unconstitutional by the United States Supreme Court.
14
The Nevada statute, as well as the
other numerous state statutes, provides the appropriate balance between the right of the child
to marry and the right of parental control by requiring the consent of one parent and the
approval of the court for a minor to marry.
NRS 122.025(2) does not, as Kirkpatrick alleges, deprive him of a parent-child relationship
with his daughter. It deprives him only of control over his daughter during the remainder of
her minority. Kirkpatrick still has all the other legal and social attributes of parenthood.
__________

9
Lassiter v. Department of Social Services, 452 U.S. 18 (1981); see also Prince v. Massachusetts, 321 U.S.
158, 166 (1944) (state may require school attendance, vaccination, and medical treatment, and regulate or
prohibit child labor).

10
Santosky v. Kramer, 455 U.S. 745, 768-69 (1982).

11
431 U.S. 678 (1977).

12
497 U.S. 417 (1990). In Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976), and Bellotti v.
Baird, 443 U.S. 622 (1979), the Court declared that a minor has a right to decide to have an abortion free from
parental interference.

13
497 U.S. at 452.

14
See dissenting opinion by Justice Young ante p. 257 n.18.
utes of parenthood. Contrary to what is apparently Kirkpatrick's and the majority's view, the
parental relationship does not end with emancipation of the child.
The loss that results from his daughter's emancipation is totally unlike the loss suffered by
parents in cases where parental rights are terminated. In Santosky v. Kramer, for example, the
parents faced the permanent loss of any rights with regard to their biological children and
grandchildren.
15
Had their parental rights been terminated, they would have henceforth been
regarded in the law as strangers to their biological children as well as to their grandchildren,
with the permanent loss of care, companionship, inheritance, visitation, and continuation of
the parental name. There is no comparison between that drastic deprivation, which was held
by the United States Supreme Court to implicate the Santoskys' due process rights, and the
very short period of loss of control over his daughter that Kirkpatrick faces here.
The majority also contends that the marriage is voidable because the district court did not
follow NRS 122.025(2). I disagree. The district court made the determinations required by
NRS 122.025(2); namely, that in the extraordinary circumstances, the marriage was in the
best interests of Sierra Crow and that she had the required consent. The statute has no
requirement, as the majority suggests, for a hearing, oral testimony, or written findings of
fact. The majority only imposes these requirements on the statute so as to reach a desired
result.
Whatever our personal opinion of a fifteen-year-old woman marrying a forty-eight-year-old
man, we must defer to the findings of the district court. The district court did not abuse its
discretion by accepting the judgment of Sierra Crow's mother 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, and that [t]heir partnership and their talents will be most effectively
utilized by this marriage.
Although NRS 122.025(2) deprives the non-consenting parent of some modicum of control
over his or her child, it does not deprive the parent of life, liberty, or property, such that the
parent's due process rights, under either the Nevada or United States constitutions, are
implicated. Kirkpatrick, therefore, lacks standing to seek an annulment of his daughter's
marriage, and his petition should be denied.
__________

15
455 U.S. 745.
____________
118 Nev. 262, 262 (2002) Vaile v. Dist. Ct.
CISILIE A. VAILE, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE CYNTHIA DIANNE STEEL, District Judge, Family Court Division,
Respondents, and R. SCOTLUND VAILE, Real Party in Interest.
No. 36969
April 11, 2002
44 P.3d 506
Original petition for a writ of mandamus or prohibition challenging portions of a divorce
decree relating to child custody and visitation and seeking to compel the district court to
make a determination regarding the habitual residence of two minor children pursuant to
the Hague Convention on the Civil Aspects of International Child Abduction.
Nonresident wife brought motion to set aside fraudulently obtained divorce and brought
motion under Hague Convention on the Civil Aspects of International Child Abduction for
the return of children to Norway. The district court denied the motions. Wife petitioned for
writ of mandamus or prohibition. The supreme court, Agosti, J., held that: (1) husband did
not reside in Nevada; (2) divorce decree was voidable; (3) wife was judicially estopped
from voiding the divorce decree; (4) trial court lacked subject matter jurisdiction over child
custody issues; and (5) husband wrongfully removed children from their habitual residence,
for purposes of Hague Convention on the Civil Aspects of International Child Abduction.
Petition granted.
[Rehearing denied September 5, 2002]
Maupin, C. J., and Young, J., with whom Shearing, J., agreed, dissented.
Marshal S. Willick, Las Vegas, for Petitioner.
Rawlings Olson Cannon Gormley & Desruisseaux and Peter M. Angulo, Las Vegas, for Real
Party in Interest.
1. Courts.
A person cannot return to his place of residence, within meaning of statute providing that a person's absence from Nevada is
not considered in determining the fact of residence for jurisdictional purposes if the person absents himself from the jurisdiction of his
residence with the intention in good faith to return without delay and continue his residence, if one never lived in the alleged place of
residence. NRS 10.155.
2. Divorce.
Residence, as requirement for jurisdiction in a divorce action, encompasses not simply an intent to reside in Nevada for an
indefinite period of time,
period of time, but actual, physical presence in the state for six weeks prior to the filing of the complaint for divorce. NRS 10.155,
125.020(2).
3. Divorce.
Husband did not reside in Nevada, as required for trial court's personal jurisdiction and subject matter jurisdiction in divorce
action based on husband's actual physical presence in state for six weeks prior to filing of divorce complaint, where husband signed
verified complaint for divorce only five days after he had arrived in Nevada, and husband had never resided in Nevada at any other
prior point in time. NRS 10.155, 125.020(2).
4. Divorce.
Affidavit which stated that affiant had known husband for more than six weeks and that affiant had seen husband physically
present in Clark County, Nevada, on an average of 3-4 times weekly unless [husband was] stationed out of the state with his
employer did not establish husband's residence in Nevada, based on actual physical presence in state for six weeks prior to husband's
filing of divorce complaint, as basis for trial court's personal jurisdiction and subject matter jurisdiction in divorce action. NRS 10.155,
54.010, 125.020(2).
5. Divorce.
The district court may grant a divorce upon affidavit and without a hearing only if the defendant spouse has defaulted or if the
parties have filed a joint petition for divorce that complies with the statutory requirements for summary proceedings for divorce. NRS
125.123, 125.181 et seq.
6. Divorce.
Residency, in a divorce action, is a question of fact to be determined by the district court. NRS 125.020.
7. Divorce.
Courts are obligated to determine that the residency requirement for divorce action has actually been met and that residency is
not being established by fraudulent means. NRS 125.020.
8. Divorce.
Divorce decree was not void, and instead was merely voidable, where husband's verified divorce complaint and the affidavit of
his resident witness, on their face, provided district court with evidence legally tending to show jurisdiction over the marital res, though
husband's statement in his complaint that he had been physically present in Nevada for more than six weeks before filing the complaint
was false, and though the cleverly drafted affidavit provided only slight and inconclusive proof of residency for six weeks. NRS
10.155, 54.010, 125.020(2).
9. Divorce.
District court's improper treatment of the divorce action as a summary proceeding constituted a procedural irregularity that
rendered the divorce decree voidable rather than void. NRS 125.123, 125.181 et seq.
10. Divorce.
Nevada has a strong interest in protecting its valid divorce decrees.
11. Divorce.
Wife was judicially estopped from contending, by a motion to set aside divorce decree, that divorce decree was voidable because
of trial court's lack of subject matter jurisdiction and personal jurisdiction, where wife was not coerced nor under duress when she
signed answer to husband's divorce complaint admitting husband's residence in Nevada, nor was she coerced or under duress when she
signed agreement regarding child custody
ing child custody in which it was also agreed that divorce action would be filed in Nevada, and wife had relied upon the agreement
when she took custody of children and had relied on validity of the divorce decree when she decided to remarry.
12. Courts.
Parties may not confer subject matter jurisdiction upon the court by their consent when jurisdiction does not otherwise exist.
13. Child Custody.
Agreement of husband and wife selecting Nevada as their forum for divorce did not confer subject matter jurisdiction for the
trial court as to child custody and visitation, where subject matter jurisdiction did not otherwise exist. NRS 125A.050.
14. Child Custody.
Simply because a court might order one spouse to pay child support to another in the exercise of its personal jurisdiction over
the parties in a divorce action does not permit the court to extend its jurisdiction to the subject matters of child custody and visitation.
NRS 125A.050.
15. Child Custody.
A provision in a divorce decree adjudicating child custody and visitation in the absence of subject matter jurisdiction is void.
16. Child Custody; Treaties.
The primary purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to preserve the status
quo and to deter parents from crossing international boundaries in search of a more sympathetic court.
A court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction has
jurisdiction to decide the merits of the wrongful removal claim, but not the underlying child custody dispute.
Courts must look to the past experiences of the parties, and not to the parties' future intentions, when determining the habitual
residence of children, for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. 42 U.S.C.
11601-11610; Hague Convention on the Civil Aspects of International Child Abduction, art. 1 et seq.
The focus is on the child, not the parents, when determining a child's habitual residence under the Hague Convention on the
Civil Aspects of International Child Abduction. Thus, any subjective intentions that the parents harbor regarding where the child is to
live are irrelevant. 42 U.S.C. 11601-11610; Hague Convention on the Civil Aspects of International Child Abduction, art. 1 et seq.
Any change in geography that would affect a child's habitual residence, for purposes of the Hague Convention on the Civil
Aspects of International Child Abduction, must occur before the allegedly wrongful removal at issue. 42 U.S.C. 11601-11610;
Hague Convention on the Civil Aspects of International Child Abduction, art. 1 et seq.
Although the child's physical whereabouts are central to an inquiry regarding the child's habitual residence, for purposes of the
Hague Convention on the Civil Aspects of International Child Abduction, one parent's questionable removal of the child is
not determinative when ascertaining habitual residence;
parent's questionable removal of the child is not determinative when ascertaining habitual residence; courts also look to where the child
has a degree of settled purpose, which is the place where the child has been physically present for an amount of time sufficient for
acclimatization. 42 U.S.C. 11601-11610; Hague Convention on the Civil Aspects of International Child Abduction, art. 1 et seq.
22. Child Custody.
Ordinarily, a determination of habitual residence, for purposes of the Hague Convention on the Civil Aspects of International
Child Abduction, is a question of fact that the appellate court will not disturb. 42 U.S.C. 11601-11610; Hague Convention on the
Civil Aspects of International Child Abduction, art. 1 et seq.
Two children had habitual residence in Norway before their wrongful removal by father, for purposes of Hague Convention on
the Civil Aspects of International Child Abduction, where the children had moved from London, England, to Norway when they were
seven and three years old respectively, they remained in Norway for 22 months before father removed them to United States, children
were registered under Norwegian law as residents of Norway while they were in Norway, and children attended school and otherwise
conducted their lives as normal children during their stay in Norway, though parents may have intended that the children would move
to United States at some time in future. 42 U.S.C. 11601-11610; Hague Convention on the Civil Aspects of International Child
Abduction, art. 1 et seq.
Father wrongfully removed children from Norway, which was the country of their habitual residence for purposes of Hague
Convention on the Civil Aspects of International Child Abduction, where father took custody of the children in Norway by using an
invalid court order from a Nevada court, which he had obtained by making a false representation to the Nevada court regarding the
residency of the children, and mother was properly exercising custody rights over the children when father arrived in Norway. 42
U.S.C. 11601-11610; Hague Convention on the Civil Aspects of International Child Abduction, art. 1 et seq.
OPINION
In this original petition for extraordinary relief we are asked to decide two questions: (1)
whether the district court had jurisdiction over one of the parties and over the subject matter
when it entered a decree of divorce; and (2) whether the district court correctly concluded that
it need not make determinations pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction
1
regarding the children's habitual residence and whether the
children were wrongfully removed from their habitual residence.
__________

1
The Hague Convention on the Civil Aspects of International Child Abduction will be referred to throughout
this opinion as the Hague Convention or simply as the Convention.
whether the children were wrongfully removed from their habitual residence.
I.
In 1989, Petitioner, Cisilie Vaile, a citizen of Norway, met the Real Party in Interest, Scotlund
Vaile, a United States citizen, in Norway. Both were twenty years old. The couple became
engaged in early 1990, two weeks after Scotlund, who is fluent in the Norwegian language,
had completed his duties as a missionary in Norway. Shortly after becoming engaged,
Scotlund returned to live with his father and stepmother in the state of Ohio where he had
earlier lived before his assignment to Norway. Cisilie followed within a short period of time.
The couple married in Utah in 1990 and then returned to Ohio while Scotlund attended Ohio
State University. Scotlund completed his graduate program in 1996; the family then moved to
Virginia for Scotlund's employment as an engineer. The couple's children, Kaia and Kamilla,
were born in the United States in 1991 and 1995, respectively. Because of their parents'
nationalities, the children enjoy dual Norwegian and United States citizenship. In August
1997, the family relocated to London, England, where Scotlund's engineering firm had
transferred him.
By the autumn of 1997, Scotlund and Cisilie were experiencing grave difficulties in their
marriage. In the spring of 1998, the couple agreed to divorce. Fearing Scotlund would take
the children to the United States, Cisilie turned to the British courts. She ultimately obtained
an agreement from Scotlund upon which the British court based an order dated June 8, 1998.
The order prohibited Scotlund from removing the children from the United Kingdom and also
prohibited him from removing the children from Cisilie's care until July 8, 1998, when the
matter could be heard. On July 7, 1998, Scotlund presented Cisilie with a twenty-three-page
written agreement. Cisilie signed the agreement, which purported to settle the couple's
property and financial affairs, and which also purported to settle matters of child custody,
support and visitation. The agreement contained a provision that the parties would obtain a
divorce in Nevada, where Scotlund's mother and stepfather had relocated from Maine in the
spring of 1998.
After a hearing in the British court on July 8, 1998, at which both Scotlund and Cisilie
appeared, the court entered a written order on July 9 in which Cisilie was granted physical
custody of both children and received permission to remove the children permanently from
Britain. Scotlund was permitted to have his passport returned to him. The order noted that
Scotlund had departed the United Kingdom to go the United States on the morning of July 9,
1998. Cisilie and the children traveled to Norway on July 13, 1998, and remained there for
nearly two years, until May 2000.
years, until May 2000. On July 14, 1998, Scotlund signed a verified complaint for divorce,
which was filed in the Eighth Judicial District Court in Clark County, Nevada, on August 7,
1998. Cisilie's answer, in proper person, was filed the same day. Scotlund departed Las Vegas
on July 22, 1998, and after vacationing briefly in California, returned during the first week of
August 1998 to his work in London.
Scotlund's complaint alleged that he, the plaintiff, was a resident of Nevada and that he had
been physically present in Nevada for more than six weeks prior to the filing of the complaint
and that he had the intention of making Nevada his home for an indefinite period of time. Of
course, this was not true.
The district court in Clark County, without a hearing, entered a decree of divorce on August
10, 1998. The decree incorporated the terms of the parties' twenty-three-page agreement.
Among other things, the agreement provided for joint legal custody, with Cisilie to have
physical custody until each child is ten years old, after which each child would live for a year
with Scotlund and then for a year with Cisilie until each child turned twelve, at which time
the child would choose which parent would be the residential parent. The agreement also
obligated Cisilie to move after July 1, 1999, to the United States during the times when she
was to be the residential parent, and maintain a residence in proximity to Scotlund's
residence.
In November 1999, Scotlund informed Cisilie that he intended to relocate from London,
England, to Las Vegas. Scotlund demanded, pursuant to the agreement, that Cisilie relocate
with the children to Las Vegas as well. Cisilie then commenced legal proceedings in Norway
to allow her to remain with the children in Norway. Scotlund participated in the Norwegian
proceedings.
In February 2000, Scotlund filed a motion in the district court in Clark County, seeking
physical custody of the children, a finding that Cisilie was in contempt of the court and an
order for the immediate production of the children.
Cisilie did not respond to Scotlund's Nevada motion. Instead she sought, from the Norwegian
court, an order for the award of physical custody of the children to her. The Norwegian court
appears to have been fully apprised of all the legal actions taken by each party up to that
point. The Nevada district court does not appear to have been so informed.
The Norwegian court ordered Scotlund to respond to Cisilie's complaint. Scotlund instead
requested an extension of time to respond. Scotlund meanwhile pursued his Nevada motion.
On March 29, 2000, the district court in Nevada entered an order granting Scotlund's motion,
no opposition having been filed. The order granted Scotlund custody of the children and held
Cisilie in contempt.
In May 2000, Scotlund and his girlfriend met Cisilie and her fianc and the children at a hotel
in Oslo, Norway. After dining, the four adults and the children went to Scotlund's hotel suite
because Scotlund said he wanted to give Kaia a birthday gift. Once inside the suite, Scotlund
and his girlfriend took the children into an adjoining room to give them a surprise. Cisilie
and her fianc waited out of view of the children. After a period of time, Cisilie entered the
adjoining room and discovered that her children were gone. The room was empty. At the
front desk, Cisilie was given an envelope left by Scotlund, which contained the Nevada
court's order. Cisilie contacted the Norwegian police, who treated the incident as a
kidnapping. She then filed a petition with the Norwegian court, seeking to enjoin Scotlund
from leaving Norway with the children. Scotlund filed a response in opposition to her
petition, and the Norwegian court swiftly issued an injunction forbidding Scotlund from
taking the children out of Norway. Scotlund had already left Norway, however, and had
earlier removed the children from Norway and sent them to his new residence in Texas.
2

On September 21, 2000, Cisilie filed in the Clark County district court a motion for the
Immediate Return of Internationally Abducted Children and Motion to Set Aside
Fraudulently Obtained Divorce. In the alternative, Cisilie moved to set aside the order
granting Scotlund custody and holding her in contempt and also sought rehearing.
On October 10, 2000, and on October 17, 2000, the district court held an evidentiary hearing.
On October 25, 2000, the court entered its order denying Cisilie's motions. Among other
things, the district court found that Scotlund had satisfied Nevada's residency requirement,
even though Scotlund had never lived in Nevada, and had not even been physically present in
Nevada for the requisite six-week period. The district court therefore refused to set aside the
divorce decree for lack of jurisdiction.
II.
The first question before us is whether the district court had jurisdiction to enter its decree of
divorce in 1998. We conclude that the district court did not have personal jurisdiction over
either party, nor did it have subject matter jurisdiction over the marital status of the parties
when it entered the decree.
[Headnote 1]
NRS 125.020(2) states, in pertinent part, no court has jurisdiction to grant a divorce
__________

2
The Norwegian court did not decide the issue of custody in its order enjoining Scotlund from removing the
children from Norway. Rather, the court acknowledged the Nevada court's order and determined that a full
hearing was necessary to address the custody issue.
diction to grant a divorce unless either the plaintiff or defendant has been resident of the state
for a period of not less than 6 weeks preceding the commencement of the action. In addition,
NRS 54.010 states that when the court's jurisdiction depends upon the residence of one of the
parties to the action, the court shall require corroboration of the evidence. NRS 10.155 states
that the legal residence of a person with reference to his right to maintain a lawsuit is that
place where he has been physically present within the state during all of the period for which
residence is claimed by him. The statute specifically states that [s]hould any person absent
himself from the jurisdiction of his residence with the intention in good faith to return
without delay and continue his residence, the time of such absence is not considered in
determining the fact of residence. The statute requires actual, physical presence in Nevada
during all of the period for which residency is claimed. The only exception is for absence
with a good faith intention of returning without delay. We note that one cannot return to a
place of residence if one never lived there.
[Headnote 2]
It is a well-settled principle of law in Nevada that residency under NRS 10.155 encompasses
not simply an intent to reside in Nevada for an indefinite period of time, but actual, physical
presence in this state for six weeks prior to the filing of the complaint for divorce. In Fleming
v. Fleming,
3
this court had the opportunity to interpret a statute identical in all material
aspects to NRS 10.155; we stated:
[I]t was the intention of the legislature to prescribe that actual, physical presence should
be imminently essential to constitute a residence for the purpose of making that
residence legal, where the party had any right dependent on residence . . . .
Giving to the word resided, as used in the statute, its plain, ordinary significance, it
must necessarily be construed to require an actual living in the county for six months
preceding the filing of the suit. The word resided in its general acceptation carries
with it the idea of permanency as well as continuity. It does not mean living in one
place and claiming a home in another; it does not mean a constructive or imaginary
residence in Washoe County, while actually living or abiding or being in some other
county.
4

In Aldabe v. Aldabe,
5
this court cited Fleming and a host of other Nevada cases for the
proposition that [r]esidence is synonymous with domicile
__________

3
36 Nev. 135, 134 P. 445 (1913).

4
Id. at 138-40, 134 P. at 447 (citation omitted).

5
84 Nev. 392, 396, 441 P.2d 691, 694 (1968).
onymous with domicile and it is consonant with the many decisions of our court that the fact
of presence together with intention comprise bona fide residence for divorce jurisdiction.
[Headnote 3]
Applying the principle of actual presence to Scotlund, it is clear that he had not established a
residence in Nevada at the time the complaint was filed sufficient to confer upon the court
jurisdiction to grant a divorce. Scotlund signed the verified complaint for divorce only five
days after he had arrived in Nevada. Scotlund never resided in Nevada at any other, prior
point in time. Scotlund's statement in his verified complaint that he was physically present in
Nevada for more than six weeks prior to the commencement of the action is false.
[Headnote 4]
Scotlund also filed the affidavit of a witness to corroborate his residency as required by NRS
54.010. The affiant swore as follows: for more than six weeks I have known Plaintiff and
have seen Plaintiff physically present in Clark County, Nevada on an average of 3-4 times
weekly, unless stationed out of the state with his employer. (Emphasis added.) Essentially,
the resident witness swore under penalty of perjury that she had known Scotlund for more
than six weeks but not that she had seen him in Nevada for more than six weeks. This
affidavit does not sufficiently corroborate Scotlund's claim of residency. Also, though not
raised in this court by either party, we note that the district court's reliance upon the affidavit
was improper for an additional reason.
[Headnote 5]
Scotlund filed a complaint for divorce and secured and filed Cisilie's proper person answer.
The district court may grant a divorce upon affidavit and without a hearing when the
defendant has defaulted
6
or when the parties have filed a joint petition for divorce that
complies with the summary proceedings for divorce set forth at NRS 125.181 to NRS
125.184. In no other circumstances do the domestic relations statutes permit the court to enter
a decree of divorce without a hearing.
7
The district court was required to hear the live
testimony of both Scotlund and his resident witness before entering its decree of divorce. We
raise this point because it appears the district court was misled by the language of the
complaint and the affidavit. A hearing might have uncovered the truth and the jurisdictional
defect in this case.
__________

6
NRS 125.123.

7
WDCR 41 permits the submission of an uncontested divorce without a hearing if the parties stipulate to
waive the hearing and if the district court approves the waiver. We are unaware of a similar rule in the Eighth
Judicial District Court.
[Headnotes 6, 7]
Residency is a question of fact to be determined by the district court.
8
Courts in this state are
obligated to determine that the residency requirement has actually been met and that
residency is not being established by fraudulent means.
9

[Headnote 8]
In this case, the district court declined to set aside the decree of divorce based upon its
determinations that Scotlund was in fact a resident, and that the court therefore had personal
as well as subject matter jurisdiction. Since we conclude that the court did not have
jurisdiction because Scotlund was not a resident, the question becomes whether the decree is
void or merely voidable.
To answer this question, we turn to Moore v. Moore.
10
In that case, the appellant argued that
the divorce decree was void because the plaintiff in the divorce proceeding had not satisfied
Nevada's residency requirement.
11
The court determined, however, that because evidence
was presented to the district court in the form of testimony from the plaintiff showing that he
did, in fact, satisfy Nevada's residency requirement, the divorce decree in that case was not
void, but merely voidable.
12
Quoting an 1875 United States Supreme Court decision, the
court stated:
[T]hat if there be a total defect of evidence to prove the essential fact, and the court
find it without proof, the action of the court is void; but when the proof exhibited has a
legal tendency to show a case of jurisdiction, then, although the proof may be slight and
inconclusive, the action of the court will be valid until it is set aside by a direct
proceeding for that purpose. Nor is the distinction unsubstantial, as in the one case the
court acts without authority, and the action of the court is void; but in the other the
court only errs in judgment upon a question properly before the court for adjudication,
and of course the order or decree of the court is only voidable.
13

Accordingly, we concluded in Moore that although inconsistent evidence had been presented
to the district court regarding the plaintiff's residency,
__________

8
See Woodruff v. Woodruff, 94 Nev. 1, 3, 573 P.2d 206, 207 (1978).

9
McKim v. District Court, 33 Nev. 44, 52, 110 P. 4, 5 (1910) (It is the duty of courts in divorce proceedings
to see that the proof of residence is clear and convincing, and that a fraud is not being perpetrated upon the
court.).

10
75 Nev. 189, 336 P.2d 1073 (1959).

11
See id. at 191-92, 336 P.2d at 1074.

12
See id. at 193, 336 P.2d at 1075.

13
Id. (emphases added) (quoting Lamp Chimney Co. v. Brass & Copper Co., 91 U.S. 656, 659-60 (1875)).
plaintiff's residency, the divorce decree was not void, but, instead, merely voidable.
14

Likewise, we refer to our decision in Smith v. Smith.
15
In that case, although it initially
appeared to the district court that all the requirements for service of process were met, it was
later determined that the defendant had not been properly served due to a procedural
irregularity.
16
We determined that this procedural irregularity did not render the judgment
void, but that the decree was merely voidable.
17

[Headnote 9]
In the instant case, the evidence presented to the district court consisted of Scotlund's verified
complaint and the affidavit of his resident witness. These documents provided the district
court, at the time it entered the decree, with evidence legally tending to show a case of
jurisdiction. On their face, these documents supported a finding that the district court had
jurisdiction over the marital res. We so conclude, despite the inadequacy of the resident
witness's affidavit. We note the affidavit was cleverly drafted but also legally tends to show a
case of jurisdiction even though the proof is slight and not conclusive. Based upon the
representations contained in the documents, a colorable case for jurisdiction was made;
therefore, the decree is voidable rather than void. Finally, the district court's treatment of the
case as a summary proceeding for divorce constituted a procedural irregularity that also
renders the decree voidable rather than void.
[Headnote 10]
We are compelled to observe that Nevada has a strong interest in protecting its valid divorce
decrees. We recognize that Nevada's liberal six-week residency period makes this state an
attractive forum in which to obtain a divorce. It is a sad reality of human nature as evidenced
by Scotlund's conduct, that despite the liberality of the law, some will seek to speed their
cause along in order to achieve a divorce in a time frame that suits their convenience rather
than the requirements of the law. The district courts must be willing and prepared to
diligently review each divorce action to remain assured that the integrity of any decrees
entered is preserved, and should not hesitate to order the taking of testimony where necessary
or desirable.
18
We are mindful that divorce decrees granted by our courts affect "collateral
rights and interests of third persons.
__________

14
Id. at 193, 336 P.2d at 1075.

15
82 Nev. 384, 419 P.2d 295 (1966).

16
See id. at 385, 419 P.2d at 296.

17
See id. at 386, 419 P.2d at 296.

18
See NRS 125.123 (providing that the district court is not required to accept a case for default divorce upon
submission; court has the discretion to order a hearing and require the presence of the plaintiff and the resident
witness).
decrees granted by our courts affect collateral rights and interests of third persons.
19
As a
matter of policy, district courts should be very interested in ascertaining whether jurisdiction
actually exists before granting the decree so that decrees are valid and enforceable and
interested persons can rely on them. Other individual's rights and interests may be
significantly affected when a divorce decree is granted but subsequently declared to be void.
[Headnote 11]
Having concluded that the decree is voidable, we determine whether the decree ought to be
set aside. The district court found merit in Scotlund's argument that Cisilie is judicially
estopped from asserting that the court lacked jurisdiction to enter the decree of divorce. The
district court was not required to reach the issue of judicial estoppel raised by Scotlund since
the court had already determined that it had jurisdiction over both the parties and the subject
matter. Nevertheless, the district court considered Cisilie's claim that she had been coerced or
was under duress when she signed the answer to the complaint and the agreement. The
district court determined as a matter of fact that Cisilie was not coerced or operating under
duress. In fact, Cisilie had signed an answer to the complaint which admitted the fact of
Scotlund's residence. Based upon these findings, which we will not disturb, the district court
determined that Cisilie was estopped from attacking the decree's validity.
The rule of judicial estoppel is recognized in Nevada's case law. In Sterling Builders, Inc. v.
Fuhrman,
20
we noted that according to the rule of judicial estoppel, a party who has stated an
oath in a prior proceeding, as in a pleading, that a given fact is true, may not be allowed to
deny the same fact in a subsequent action. In that case, the court indicated that one of the
rule's purposes is to prevent parties from deliberately shifting their position to suit the
requirements of another case concerning the same subject matter.
As mentioned, Cisilie's answer to Scotlund's complaint admitted that Scotlund was a resident
of Nevada. She now asserts a contrary fact in order to support her motion in the trial court
to set aside the decree of divorce.
__________

19
Self v. Self, 893 S.W.2d 775, 778 (Ark. 1995). In Self, the Supreme Court of Arkansas stated:
We have stated that judgments in matrimonial cases should be more stable than in others, because
matrimonial status draws with it so many collateral rights and interests of third persons. However, we
have also held that when divorces have a mail-order appearance, we shall not hesitate to set them aside,
even though the divorced party remarries in the meantime, as we cannot permit such frauds to be
practiced upon the courts of this state.
Id. (citations omitted).

20
80 Nev. 543, 549-50, 396 P.2d 850, 854 (1964).
trary fact in order to support her motion in the trial court to set aside the decree of divorce.
We note that she relied upon the validity of the divorce decree when she decided to remarry.
Because the district court determined that she was not operating under duress and was not
coerced but did voluntarily sign the answer, her representations of fact contained within the
answer are the proper subject for the application of the rule of judicial estoppel. Therefore,
the voidable decree of divorce will not be set aside.
Two separate dissents have been written in this case. Both question our conclusion that
Cisilie is judicially estopped from obtaining an order setting aside the decree of divorce based
upon the district court's lack of jurisdiction. In brief response, we reiterate that the district
court concluded as matters of fact that she was neither coerced nor under duress when she
signed the answer and the agreement. The dissent points out that she did not prepare the
answer she signed, and the record discloses no evidence that she was aware of Nevada's
residency requirement. However, she knew that Scotlund had not resided in Nevada for six
weeks when she signed the answer. She took advantage of those aspects of the agreement
which allowed her to take custody of the children and she depended upon the decree's validity
when she planned to marry again.
We realize that the posture of this case is unusual and unique since we are refusing to void a
decree which was entered, as it turns out, by a court which had no jurisdiction over the
parties. However, to reiterate, the decree was entered when the court believed it had
jurisdiction. Any person who might review the district court filings would have no reason but
to trust the validity of the court's decree. Under these circumstances, the law and the policies
which support it permit no result other than that the decree is voidable, not void. As
mentioned and for the reasons previously stated, we decline to declare the decree void.
Ironically, were we to adopt the reasoning of either dissent, then the fears of Justice Young
that Scotlund might profit from a fraud upon the court would become a reality. As we will
discuss next, we do declare void that portion of the decree which purports to determine the
custody and visitation rights of the parties. However, because the decree is voidable and
because we decline to declare it void, we are able to require the district court to make a Hague
Convention determination, as we will also discuss in this opinion. Scotlund, as noted, resides
now in Texas and he has possession of the children. Were we to set aside the decree in its
entirety, we would not be in a position to order the Hague determination. Cisilie would be put
in the position of having to begin anew and commence, if she can, a proceeding against
Scotlund in Texas.
The district court, in refusing to set aside the decree of divorce, also properly determined that
it had no jurisdiction over the children. The court nevertheless determined that it had
jurisdiction over the parties' conduct toward each other with regard to the agreement under a
contract theory. Based upon that analysis, the district court did not set aside the custody
provisions of the divorce decree, and it erred in this regard. The children have never lived in
Nevada. Neither party has ever lived in Nevada. The children have never had any contact with
Nevada, much less substantial contact with the state. Neither do the parents have substantial
contact with Nevada. The district court had no subject matter jurisdiction over the issue of
child custody.
21

[Headnotes 12-14]
Parties may not confer jurisdiction upon the court by their consent when jurisdiction does not
otherwise exist.
22
The provision in the parties' agreement selecting Nevada as their forum for
a divorce does not bind the court, nor does it confer jurisdiction upon the court. The court
may not assume jurisdiction over matters of child custody and visitation based upon its
perception of a contract theory or upon its view that because it has asserted personal
jurisdiction over the parties, it can order them to do or not do certain things. Because the
voidable decree has not been set aside, the court had colorable personal jurisdiction over the
parties and the subject matter of their marital status. Simply because a court might order one
party to pay child support to another in the exercise of its personal jurisdiction over the
parties does not permit the court to extend its jurisdiction to the subject matters of child
custody and visitation.
[Headnote 15]
Unless the court can properly exercise subject matter jurisdiction according to the terms of
the Uniform Child Custody Jurisdiction Act (UCCJA), which Nevada has adopted, it is
without authority to enter any order adjudicating the rights of the parties with respect to
custody and visitation. A provision in a divorce decree adjudicating custody and visitation in
the absence of subject matter jurisdiction is void, as we held in Swan v. Swan.
23

In Swan, the father moved to Nevada from Utah and, after several months, filed a complaint
for divorce in Nevada. After filing his complaint, he returned to Utah, took the children and
returned to Nevada with them. The mother filed an answer and contested the Nevada court's
subject matter jurisdiction,
__________

21
NRS 125A.050 (setting forth the factors for determining whether a court has jurisdiction to determine child
custody).

22
Finley v. Finley, 65 Nev. 113, 120, 189 P.2d 334, 337 (1948).

23
106 Nev. 464, 796 P.2d 221 (1990).
the Nevada court's subject matter jurisdiction, but made no further filings or appearances in
the action. The court granted the father a divorce and, based upon his testimony that the
children resided with him, granted him custody. One and a half years later, the mother moved
to vacate the custody provisions of the decree on the basis that the Nevada court had no
jurisdiction over the subject matter under the UCCJA. Her motion was denied, but the district
court's decision was reversed on appeal. We analyzed the facts under Nevada's version of the
UCCJA and determined first, that Nevada was not the children's home state; second, that the
children's residence in Nevada for forty days did not constitute a significant connection with
this state; and third, even if dual jurisdiction existed, Utah was the more appropriate forum.
Consequently, we concluded that the district court had incorrectly awarded custody as an
incident of the default decree without having subject matter jurisdiction, and that the custody
portion of the decree was void.
24
In our opinion, we noted that subject matter jurisdiction
cannot be waived and may be raised at any time, or sua sponte by a court of review.
25

NRS 125A.050, which was adopted as a part of the UCCJA, sets out those circumstances
under which a Nevada court has jurisdiction to make a child custody determination by initial
or modifying decree. Under NRS 125A.050(1)(a), this state must be the home state of the
children or have been the home state within six months before the action commenced. Neither
is the case here. Under NRS 125A.050(1)(b), a Nevada court may exercise jurisdiction if it is
in the children's best interest to do so because the children and at least one of their parents
have a significant connection with Nevada and substantial evidence is available in Nevada
concerning the children's present and future care, protection, training and personal
relationships. As neither the children nor the parents have ever lived here or have a significant
relationship with Nevada, virtually no information is available in this state to even arguably
create jurisdiction under this provision. NRS 125A.050(1)(c) does not apply because it
requires the presence of the children in Nevada. Finally, under NRS 125A.050(1)(d), Nevada
may exercise jurisdiction if no other state would have jurisdiction or if another state has
declined to exercise jurisdiction on the ground that Nevada is the appropriate forum and it is
in the child's best interest that Nevada assume jurisdiction. This section of the statute also
provides no basis for the Nevada court's exercise of jurisdiction. At the time the decree was
entered, the children's last significant contacts with any state were with Ohio and Virginia.
After living in Ohio and then Virginia, the children moved to the United Kingdom and
Norway.
__________

24
Id. at 469, 796 P.2d at 224.

25
Id.
Virginia, the children moved to the United Kingdom and Norway. Under NRS 125A.050,
these countries are both considered states.
26
Neither Ohio nor Virginia has declined to
exercise jurisdiction. Norway and the United Kingdom have both been involved in custody
disputes between the parties.
The district court lacked subject matter jurisdiction over matters of custody and visitation
when it entered the decree of divorce in 1998, and therefore the provisions of the decree
which purport to fix the obligations of the parties with respect to custody and visitation are
void.
III.
Next, we address petitioner's argument that the district court was required to make a
determination, under the Hague Convention on the Civil Aspects of International Child
Abduction, regarding the children's habitual residence, and whether the children were
wrongfully removed from their habitual residence as those terms are construed under the
Convention. The district court incorrectly concluded that it need not make such a
determination. First, we note that Nevada has jurisdiction to make the determination. The
United States Congress has implemented the Convention by enacting the International Child
Abduction Remedies Act (ICARA).
27
Under both the Convention and ICARA, an
aggrieved party may institute judicial proceedings in the country to which the children have
been removed.
28
State and federal courts have concurrent jurisdiction over such disputes.
29
Additionally, we conclude, as a matter of law, that the habitual residence of the children was
Norway, and that the children were wrongfully removed from that country. Accordingly, the
Hague Convention mandates that the children be promptly returned to Norway so that the
courts there can determine the issue of custody.
[Headnote 16]
The Hague Convention on the Civil Aspects of International Child Abduction, to which the
United States and Norway are signatories,
__________

26
NRS 125A.030 is captioned Application of chapter to decrees of other nations. The statute states:
The general policies of this chapter extend to other nations. The provisions of this chapter relating to the
recognition and enforcement of custody decrees of other states apply to custody decrees and decrees
involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of
other nations if reasonable notice and opportunity to be heard were given to all affected persons.

27
42 U.S.C. 11601-11610 (1988).

28
Hague Convention, arts. 8, 11, 29; 42 U.S.C. 11601 (1988).

29
42 U.S.C. 11603 (1988).
natories,
30
seeks to secure the prompt return of children wrongfully removed to or retained
in any Contracting State.
31
Furthermore, the primary purpose of the Hague Convention is
to preserve the status quo and to deter parents from crossing international boundaries in
search of a more sympathetic court.
32
The Hague Convention is meant to protect children
internationally from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of habitual residence.
33

[Headnote 17]
To achieve these goals, the Convention requires that, subject to certain exceptions, children
who habitually reside in a signatory country and are removed to or retained in another
signatory country in breach of the left-behind parent's custody rights shall be promptly
returned to the country of their habitual residence.
34
The Convention provides that only after
the children are returned to the country of their habitual residence will a custody
determination be made.
35
Therefore, a court considering a petition under the Convention has
jurisdiction to decide the merits of the wrongful removal claim, but not the underlying
custody dispute.
36

In this case, the district court determined that it was unnecessary to make a Hague
Convention determination. The district court said that if it were to make a determination
under the Convention, it would find that the children's habitual residence is Nevada, and that
Cisilie had wrongfully retained the children in Norway. We disagree with these findings,
based upon the uncontroverted fact that neither parent has ever lived in Nevada. We also
conclude that the district court should have made a determination under the terms of the
Convention.
Habitual residence
First, we examine the question of which country serves as the children's habitual residence.
We begin by observing that although a court must identify which country is the children's
habitual residence,"
__________

30
The United States ratified the Convention in 1988, while Norway ratified the Convention in 1989.

31
Hague Convention, art. 1.

32
Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (Friedrich I).

33
Hague Convention, preamble.

34
Hague Convention, arts. 12, 13.

35
Id. art. 19.

36
Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (Friedrich II).
residence, this term is nowhere defined in the Convention.
37
Instead, the term is intended by
the Convention's drafters to be applied to the facts and circumstances of each case in a
nontechnical manner.
38

[Headnotes 18-21]
We are not without guidance, however. Other courts that have addressed this issue have
stated that when determining a child's state of habitual residence, courts must look back in
time, not forward.
39
In other words, courts must look to the past experiences of the parties,
and not to the parties' future intentions.
40
Furthermore, when conducting this inquiry, the
focus is on the child, not the parents.
41
Therefore, any subjective intentions that the parents
harbor regarding where the child is to live are irrelevant. Additionally, any change in
geography that would affect a child's habitual residence must occur before the removal at
issue.
42
Although the child's physical whereabouts are central to an inquiry, one parent's
questionable removal of the child is not determinative when ascertaining habitual
residence. Courts also look to where children have a degree of settled purpose.
43
Under
this analysis, the child has a degree of settled purpose in the place where he or she has been
physically present for an amount of time sufficient for acclimatization.
44

[Headnotes 22, 23]
Ordinarily, a determination of habitual residence is a question of fact which we will not
disturb. After reviewing the facts and circumstances of this case, however, we conclude, as a
matter of law, that only one country could possibly be the habitual residence.
__________

37
See Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Friedrich I, 983 F.2d at 1400.

38
See Friedrich I, 983 F.2d at 1401 (quoting In Re Bates, No. CA 122.89, High Court of Justice, Family
Div'n Ct. Royal Court of Justice, United Kingdom (1989) (quoting Dicey & Morris, The Conflicts of Laws 166
(11th ed.))), which explained:
It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules
as to habitual residence, which might make it as technical a term of art as common law domicile. The
facts and circumstances of each case should continue to be assessed without resort to presumptions or
pre-suppositions.

39
Friedrich I, 983 F.2d at 1401.

40
Id.

41
Id.

42
Id.

43
Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995).

44
Id.
dence. The children's state of habitual residence prior to their removal was Norway. The
record in this case reveals that in July 1998, when the children were three and seven years of
age, they moved from London, England, where they were residing at the time, to Norway.
They remained in Norway for twenty-two months until they were removed to the United
States by Scotlund in May 2000. While in Norway, the children were registered under
Norwegian law as residents of that country. And during their stay in Norway, the children
attended school and otherwise conducted their lives as normal children. The children, while
living in Norway, had a degree of settled purpose to remain there.
Although there is some evidence in the record that Cisilie and Scotlund may have intended
that the children would move to the United States at some time in the future,
45
the courts are
not bound, as we have previously stated, by the intentions of the parents regarding future
events.
46
Furthermore, Scotlund's unilateral act of removing the children from Norway
cannot change their state of habitual residence. Therefore, the children's state of habitual
residence was Norway at the time Scotlund removed them from that country. Their habitual
residence could be nowhere else. It could not be Nevada, as neither they nor their parents ever
lived here. It could not be Great Britain, as no evidence exists in the record to support a
finding that upon the family's departure from Great Britain, either parent ever expected to
return.
Wrongful removal
[Headnote 24]
Having concluded that the children's habitual residence was Norway, we must next determine
whether Scotlund wrongfully removed the children from that country. Under the Hague
Convention, removal or retention of a child is wrongful if it violates the custody rights of
another person which were actually being exercised at the time of the removal or retention or
would have been exercised but for the removal or retention.
47

__________

45
The children have dual American and Norwegian citizenship.

46
Based upon our thorough review of the record, we harbor grave concerns regarding the validity of Scotlund
and Cisilie's agreement. In any event, because we have determined that the portion of the divorce decree that
incorporated the custody and visitation provisions of the agreement is void, we are not bound by those terms.

47
Hague Convention, art. 3. This article reads:
The removal or retention of a child is to be considered wrongful where
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly
or alone, under the law of the State in which the child was habitually resident immediately before the
removal or retention; and
In the underlying case, the district court concluded that it need not make a Hague Convention
determination because Scotlund had not wrongfully removed the children from Norway.
Instead, the district court found that Cisilie had wrongfully retained the children in Norway
contrary to their agreement. The district court's determination that Scotlund had not
wrongfully removed the children from Norway was improper.
Scotlund arrived in Norway with an order from the district court finding Cisilie in contempt
for violating the terms of the Nevada divorce decree. Specifically, the district court had
determined that Cisilie was violating the parties' agreement, which had been incorporated into
the terms of the divorce decree and which required her to return the children to Scotlund.
Accordingly, the district court granted Scotlund custody of the children.
The district court, however, relied upon Scotlund's untruthful representation when it issued its
order granting him custody of the children. At the hearing held to decide whether Cisilie was
in contempt of court for failing to bring the children to the United States as contemplated by
the parties' agreement, the district court asked Scotlund how long he and the children had
lived in Nevada. Scotlund responded that they had lived in Nevada all their lives. The
district court then issued its order holding Cisilie in contempt. This order further stated that
Cisilie was to immediately return the children to Scotlund's custody.
Had the district court been apprised of the true facts, the order compelling Cisilie to return the
children to Scotlund's custody might not have been granted. Moreover, the underlying basis
for the order, the provision in the divorce decree incorporating the parties' agreement as to
custody and visitation, is void and unenforceable.
Accordingly, when Scotlund traveled to Norway to take custody of the children, he did so
under an invalid order. Further, Cisilie was properly exercising custody rights over the
children when Scotlund arrived in Norway. Because Scotlund removed the children from
their habitual residence while Cisilie was validly exercising custody rights over the children,
and because he removed the children under the false pretense of a valid custody order,
Scotlund wrongfully removed the children from Norway. Under the terms of the Hague
Convention, the children must be returned to Norway so that any decision regarding custody
can be made in the courts of that country.
48

__________
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.

48
Hague Convention, art. 12. We also note in passing that after Cisilie filed her petition in this court,
Scotlund informed us that the Norwegian court determined that it does not have jurisdiction to determine
custody. The
IV.
In this case, the district court lacked subject matter jurisdiction over custody and visitation.
Furthermore, the district court manifestly abused its discretion by failing to make a
determination under the Hague Convention on the Civil Aspects of International Child
Abduction regarding the children's state of habitual residence. As the children's state of
habitual residence was, as a matter of law, Norway, and as Scotlund wrongfully removed the
children from that country, the district court was required to make these determinations.
Accordingly, we grant the petition and direct the clerk of this court to issue a writ of
mandamus compelling the district court to vacate those portions of its decree relating to
custody and visitation and to order the children's return to Norway, where custody
determinations can be made.
Rose, Leavitt and Becker, JJ., concur.
Maupin, C. J., dissenting:
I would grant the petition and declare the voidable divorce decree void in its entirety. In
granting the petition, I would further conclude that the district court was not authorized to
grant relief under NRS 125A.050, nor was it authorized to make findings under the Hague
Convention on the Civil Aspects of International Child Abduction.
It is true that petitioner judicially admitted the facts alleged in the original divorce complaint
in support of the real party in interest's residency, and thus the primary fact in support of
subject matter jurisdiction over the marriage and the issues related thereto. The majority now
concludes that this admission constitutes a judicial estoppel, which relieves the district court,
and therefore this court, from the obligation to declare as void, in its entirety, the admittedly
voidable divorce decree. I disagree.
Once the facts of voidability became known, it was incumbent on the district court to void the
decree for want of subject matter jurisdiction. As the majority points out, actions of the
parties cannot confer subject matter jurisdiction on a court when none otherwise exists.
Application of the doctrine of judicial estoppel to these facts would do just that. Since the
district court determined that it did have jurisdiction, it is incumbent upon this court to now
declare the underlying decree void in its entirety.
1

__________
Norwegian court's decision placed decisive emphasis upon the parties' twenty-three-page agreement and the
district court's decree of divorce. The Norwegian court obviously presumed that the decree was valid in all
respects. The crucial provisions of the decree upon which the Norwegian court relied are void.

1
See NRCP 12(h)(3) (Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.).
The majority's reliance on our published opinion in Sterling Builders, Inc. v. Fuhrman
2
is
misplaced. This is because our application of judicial estoppel in Sterling had nothing to do
with subject matter jurisdiction. Sterling merely applied the rule of estoppel to prevent a party
from denying that a partnership existed in the context of a factual dispute.
3
The Sterling
decision did not apply the doctrine of judicial estoppel to confer jurisdiction where there was
none, and we should not do so now.
The estoppel argument was not sufficient to give any continuing life to the decree. I realize
that, under this view, there would be collateral effects on these parties with regard to their
post-decree actions and their status as divorced persons. This is particularly unfortunate with
regard to petitioner who, at the very least, was a victim of the post-divorce behavior of the
real party in interest. This does not, however, alter the fact that the decree was actually
voidable in all respects and should be so declared.
No other remedies are available to petitioner under Nevada law. NRS 125A.050, the Nevada
version of the UCCJA, cannot provide relief since Nevada is neither the home state of the
children of the parties, nor was it their home state at any time. In point of fact, these children
have never had any significant connection with the state. It therefore appears that the district
court was seriously misled in its deliberations below, given the real party in interest's
statement that the children had lived in Nevada all their lives.
The district court also does not have jurisdiction to make findings under the Hague
Convention on the Civil Aspects of International Child Abduction. This is because actions
under the Convention must be made in a court which has jurisdiction of such action[s] and
which is authorized to exercise its jurisdiction in the place where the child is located at the
time the petition is filed.
4

Young, J., with whom Shearing, J., agrees, dissenting:
I disagree with the majority's conclusion that the decree of divorce is voidable, not void; and I
also disagree with the majority that Cisilie is judicially estopped from questioning the decree
obtained through Scotlund's fraud.
__________

2
80 Nev. 543, 396 P.2d 850 (1964).

3
Id. at 549-50, 396 P.2d at 854.

4
42 U.S.C. 11603(b) (1995) (emphasis added).
It does appear from the record of this case that these children were wrongfully removed from Norway, that
Norway was their habitual residence at the time of their abduction and that, under the Convention, they should
be returned to the Norwegian tribunal for the appropriate custody determination. It also appears that the
Norwegian court was misled into deferring to the voidable Nevada decree.
1. The decree of divorce is void, not voidable
In the majority opinion, my colleagues hold that the decree fraudulently obtained by Scotlund
without establishing residency is voidable, not void. This holding is contrary to
long-established law in this state and undermines Nevada's statutory scheme requiring a
six-week residency.
For many years, it has been well settled that a divorce decree issued by a district court without
jurisdiction is void.
1
Here, the majority relies on Smith v. Smith
2
where the plaintiff's good
faith failure to properly serve the defendant constituted a procedural irregularity rendering the
judgment merely voidable, not void.
Smith is factually distinguishable from the instant case because in that case there was no
fraud, merely a procedural irregularity. The plaintiff in Smith established residency for the
requisite period in Nevada; the testimony of the resident witness was not flawed. A default
had been taken after thirteen days from service of process instead of the requisite twenty days.
In contrast, here, Scotlund did not attempt to comply with Nevada law requiring six-week
residency. Scotlund had resided in Nevada only five days when he signed the complaint.
Thus, this case does not involve a mere procedural irregularity as in Smith. The majority's
reliance on Smith is misplaced because here the district court clearly lacked jurisdiction and
the decree of divorce was void.
3

Additionally, the majority relies on Moore v. Moore.
4
In Moore, the husband obtained a
decree of divorce after he had physically resided in Nevada for more than six weeks.
5
Later,
the husband and wife sought to void the decree saying that although the husband had been
physically present in Nevada and contrary to his testimony in court, he really had not intended
to make Nevada his residence.
6
To determine whether the decree of divorce was void or
voidable, we reviewed the manner in which the trial court had exercised its authority to
resolve the factual problem confronting it [the issue of residency].
7
Specifically, we noted
that a decree is void when there is
__________

1
Milton v. Gesler, 107 Nev. 767, 771, 819 P.2d 245, 248 (1991) (holding that because the district court acted
without jurisdiction, the decree of divorce is void); La Potin v. La Potin, 75 Nev. 264, 266, 339 P.2d 123,
123-24 (1959) (same); Perry v. District Court, 42 Nev. 284, 288, 174 P. 1058, 1059 (1918) (same).

2
82 Nev. 384, 419 P.2d 295 (1966).

3
See Milton, 107 Nev. at 771, 819 P.2d at 248; La Potin, 75 Nev. at 266, 339 P.2d at 123-24; Perry, 42 Nev.
at 288, 174 P. at 1059.

4
75 Nev. 189, 336 P.2d 1073 (1959).

5
Id. at 192, 336 P.2d at 1074.

6
Id. at 190-92, 336 P.2d at 1073-74.

7
Id. at 193, 336 P.2d at 1075.
is void when there is a total defect of evidence to prove the essential fact, and the court
find[s] it without proof.'
8
Under such circumstances, the court acts without authority,
and the action of the court is void.'
9
In Moore, the husband's testimony that he had been a
bona fide resident in Nevada for more than six weeks was sufficient to make the decree of
divorce merely voidable.
10

In contrast, the facts before this court indicate that there was a total defect of evidence
proving that Scotlund was a resident of Nevada. Three facts are significant. First, the majority
admits that Scotlund's statement concerning residency in the verified complaint was false. In
fact, when the complaint was signed, Scotlund had been in the state for a period of only five
days. Second, the affidavit of the resident witness did not corroborate Scotlund's claim of
residency by clear and convincing evidence as required by law.
11
The affidavit was
cleverly worded to indicate that the affiant had known Scotlund for six weeksbut not
during the six weeks he was claiming residency in Nevada. The affiant further stated that she
had seen Scotlund physically present in Nevada on an average of 3-4 times weekly. It was
signed when Scotlund had been in Nevada only six days, not for a period of six weeks. Third,
the district court entered the decree in chambers without a hearing. At the time the decree was
signed, Scotlund was thousands of miles away in England. It is abundantly clear that Scotlund
had not established a residence in Nevada at the time the complaint was filed sufficient to
confer jurisdiction upon the district court to grant a divorce.
Unlike Moore, there was a total defect in the evidence presented to the district court. Hence,
based on the lack of residency, the decree of divorce is void, not merely voidable.
Adopting the majority's view would undermine Nevada's statutory scheme requiring a
six-week residency. A non-resident plaintiff seeking an expedient divorce could travel to
Nevada, file a complaint the same day, and obtain a decree of divorce immediately. The
problem with holding that such a decree is voidable, as we are urged to do in the majority
opinion, is that individuals could commit fraud upon our courts and reap the dubious benefits
of a voidable divorce decree, which is what Scotlund is doing here.
__________

8
Id. (quoting Lamp Chimney Co. v. Brass & Copper Co., 91 U.S. 656, 659-60 (1875)).

9
Id. (quoting Lamp Chimney, 91 U.S. at 660).

10
Id. at 192-93, 336 P.2d at 1074-75.

11
McKim v. District Court, 33 Nev. 44, 52, 110 P. 4, 5 (1910).
2. Judicial estoppel
Scotlund attempts to breathe life into a void decree by alleging that Cisilie is judicially
estopped to question the validity of the void decree. If we hold the decree of divorce to be
void, we need not reach the question of whether Cisilie is judicially estopped. However, since
the majority reached this question, I feel obliged to convey my concerns about the application
of judicial estoppel under the circumstances before this court.
The United States Supreme Court has stated that judicial estoppel is designed to protect the
integrity of the judicial process'
12
in order to prohibit[ ] parties from deliberately
changing positions according to the exigencies of the moment.'
13
It follows that the
doctrine of judicial estoppel is an equitable doctrine applied by a court at its discretion.
14

In this case, I submit the district court erred by finding that Cisilie was not coerced or
operating under duress when she signed the answer (prepared by Scotlund's Nevada divorce
attorney) admitting to Scotlund's claim of residency.
15
The record shows that Scotlund had
threatened Cisilie that he would take the couple's children away from her if she did not
cooperate with the divorce.
16
It was a threat that was later carried out when Scotlund
kidnapped the children in Norway by trickery and deceit and flew to the United States. The
district court abused its discretion by invoking the doctrine of judicial estoppel against
Cisilie.
Moreover, a court has discretion not to apply judicial estoppel when a party's prior position
was based on inadvertence or mistake.'
17
In this case, Cisilie is not judicially estopped
because there is no evidence to suggest that she was aware of Nevada's residency
requirement. In fact, she had never resided in Nevada. The answer that she signed was
prepared by her husband's attorney in Nevada and sent by airmail to her in Norway for
immediate signature. She had planned on remarriage; but when an attorney in Norway
advised her that there might be some doubt as to the validity of the Nevada decree, Cisilie
cancelled the marriage ceremony.
__________

12
New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d
595, 598 (6th Cir. 1982)).

13
Id. at 750 (quoting U.S. v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)).

14
Id.

15
When Cisilie received the answer, she was unknowingly recruited by Scotlund to participate in the
perpetration of fraud upon the district court. I see no evidence to the contrary.

16
Cisilie could reasonably believe that Scotlund would carry out his threats and that she would never see her
children again based on Scotlund's family history. Cisilie was aware that Scotlund's mother had kidnapped him
and his siblings to another state, changed their last name, and the father kidnapped them back.

17
New Hampshire, 532 U.S. at 753 (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29
(4th Cir. 1995)).
validity of the Nevada decree, Cisilie cancelled the marriage ceremony. She has spent
thousands of dollars in fees and travel expenses in an effort to set aside the admittedly
fraudulent decree and will presumably have to spend thousands of additional dollars to regain
custody of her children illegally taken from her in Norway by Scotlund. Thus, the district
court incorrectly applied the doctrine of judicial estoppel because Cisilie's admission to
Scotlund's claim of residency was not knowingly made and certainly not a representation that
Scotlund could rely on to prove his residency under Nevada law or prevent her from
questioning the residency requirement.
Finally, we have stated that the purpose of the doctrine of judicial estoppel is to suppress
fraud . . . and to eliminate the prejudice that would result to the administration of justice if a
litigant were to swear one way one time and a different way another time.'
18
In this case,
invoking judicial estoppel against Cisilie protects Scotlund from the consequences of his
fraud upon the district court and inhibits the administration of justice. Scotlund was the sole
architect of the scheme to perpetrate fraud on the district court. He should not be allowed to
harvest the benefits of such fraud. Our court should not close the doors of justice to the
innocent and reward the wrongdoer in the name of judicial estoppel.
3. Digression (the state of our legal system)
I am disturbed about the conduct of Scotlund's divorce attorney in this case. The attorney
prepared a complaint that falsely alleged Scotlund's residency in Nevada. The divorce
attorney knew or should have known that Scotlund had not been a resident of Nevada for six
weeks when he signed the complaint.
19
Further, the affidavit signed by the resident witness
was cleverly drafted by the divorce attorney in a misleading manner in an effort to
corroborate residency.
CONCLUSION
I strongly disagree with the conclusion of the majority that the decree of divorce was merely
voidable, not void. The decree of divorce is void because the district court lacked jurisdiction
to grant a divorce. To hold the decree voidable will lead to absurd results and undermines
Nevada's statutory scheme requiring residency of at least six weeks.
__________

18
Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 550, 396 P.2d 850, 854 (1964) (quoting 31 C.J.S.
Estoppel 121, at 649, 650).

19
The record indicates that the divorce attorney and Scotlund were communicating about the divorce case
when Scotlund was living in England, just days before he flew to Las Vegas.
dency of at least six weeks. Moreover, in my opinion, the court need not reach the question of
judicial estoppel because the decree is void. Nonetheless, I strongly disagree with the
conclusion that Cisilie is somehow judicially estopped. She was the victim, not the
wrongdoer. Finally, the district court lacked subject matter jurisdiction to make findings
under the Hague Convention. Scotlund lied to the district court, during the custody hearing,
when he testified that the children had lived in Nevada all their lives. The fact is that the
children had never resided in Nevada and apparently after being kidnapped in Norway were
flown to Texas where presumably they now live.
20

____________
118 Nev. 288, 288 (2002) Chavez v. Sievers
MIGUEL CHAVEZ, Appellant, v. GAIL SIEVERS, an Individual; PROSOURCE SALES &
MARKETING, INC., a Nevada Corporation; and TODD HUNT, an Individual, Respondents.
No. 34580
MIGUEL CHAVEZ, Appellant, v. GAIL SIEVERS, an Individual; PROSOURCE SALES &
MARKETING, INC., a Nevada Corporation; and TODD HUNT, an Individual, Respondents.
No. 34932
April 12, 2002
43 P.3d 1022
Consolidated appeals from an order granting respondents' motion for summary judgment and
from an order granting respondents' motion for attorney fees. Second Judicial District Court,
Washoe County; Steven P. Elliott, Judge.
Hispanic employee brought action against his former employer, its general manager, and its
president, alleging that he worked in environment hostile to Hispanics and that manager and
president conspired to deprive him of equal protection. The district court entered summary
judgment for employer, manager, and president and awarded them attorney fees, and
employee appealed. The supreme court, Shearing, J.
__________

20
I would refer this matter to the State Bar of Nevada for investigation of the conduct of Scotlund's divorce
lawyer. See NCJC Canon 3D(2) (imposing upon a judge an affirmative obligation to take appropriate action
upon receiving information indicating substantial likelihood that a lawyer has committed a violation of the
Nevada Rules of Professional Conduct). Furthermore, I am disturbed with Scotlund's behavior. Accordingly, I
would refer this matter to the Clark County District Attorney's Office for investigation. The clerk of this court
shall provide a copy of this opinion and dissent to the State Bar of Nevada and to the Clark County District
Attorney's Office.
supreme court, Shearing, J., held that: (1) there is no public policy exception to the at-will
employment doctrine for alleged racial discrimination at small businesses, and (2) employee
did not establish claim under statute prohibiting conspiracy to interfere with civil rights.
Affirmed.
Jeffrey A. Dickerson, Reno, for Appellant.
Douglas Roman Hill, Reno, for Respondents.
1. Civil Rights.
Since legislature has provided a remedy for racial discrimination in employment only to those who work for employers with
fifteen or more employees and since court must respect the legislature's limitation, there is no common law cause of action for
employment discrimination based on race, even when the employer has fifteen employees or less. NRS 613.330(1).
2. Conspiracy.
Statute prohibiting conspiracy to interfere with civil rights does not provide a cause of action for employment discrimination. 42
U.S.C. 1985(3).
3. Judgment.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.
4. 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.
5. Judgment.
On summary judgment, the evidence is viewed in the light most favorable to the non-movant.
6. Civil Rights.
Since legislature has provided that the remedies for racial discrimination in employment are limited to employees who work for
employers with fifteen or more employees and that small businesses should not be subject to racial discrimination suits, there is no
public policy exception to the at-will employment doctrine for alleged racial discrimination at small businesses. NRS 613.310(2).
7. Civil Rights; Constitutional Law.
Legislature, which provided that the remedies for racial discrimination in employment are limited to employees who work for
employers with fifteen or more employees, was free to make a distinction between large and small businesses for equal protection
purposes. U.S. Const. amend. 14; NRS 613.310(2).
8. Conspiracy.
A complaint asserting a cause of action under statute prohibiting conspiracy to interfere with civil rights must allege with
particularity that the defendants conspired to carry out a deprivation of equal protection, or equal privileges and immunities, and were
motivated by some racial or otherwise invidiously discriminatory animus.
or otherwise invidiously discriminatory animus. U.S. Const. amend. 14; 42 U.S.C. 1985(3).
9. Conspiracy.
Statute prohibiting conspiracy to interfere with civil rights is not intended to apply to all tortious, conspiratorial interferences
with the rights of others. 42 U.S.C. 1985(3).
10. Civil Rights; Conspiracy.
Claim brought under statute prohibiting conspiracy to interfere with civil rights may not be brought to redress violations of
employment rights created by Title VII. 42 U.S.C. 1985(3); 42 U.S.C. 2000e et seq.
11. Conspiracy.
Statute prohibiting conspiracy to interfere with civil rights is a purely remedial statute, providing a civil cause of action when
some otherwise defined federal rightto equal protection of the laws or equal privileges and immunities under the lawsis breached
by a conspiracy in the manner defined by the statute. U.S. Const. amend. 14; 42 U.S.C. 1985.
12. Conspiracy.
Whether a remedy under statute prohibiting conspiracy to interfere with civil rights is available depends on whether a federally
established right to equal protection under the law or the equal enjoyment of privileges and immunities of citizenship has been
violated, and whether a remedial framework for the violation of that right already exists. U.S. Const. amend. 14; 42 U.S.C. 1985(3).
13. Conspiracy.
Hispanic employee, who alleged that he was discriminated against on basis of his race, failed to establish that there was a
conspiracy by employer's president and general manager to do anything unlawful, and therefore, employee did not establish claim
under statute prohibiting conspiracy to interfere with civil rights. 42 U.S.C. 1985(3).
14. Costs.
Whether to award attorney fees, pursuant to offer of judgment statute and rule, lies within the discretion of the district court.
NRS 17.115; NRCP 68.
15. Costs.
In exercising discretion regarding allowance of attorney fees under statute and rule governing offers of judgment, trial court
must evaluate whether plaintiff's claim was brought in good faith, whether defendants' offer of judgment was reasonable and in good
faith in both timing and amount, whether plaintiff's decision to reject offer and proceed to trial was grossly unreasonable or in bad
faith, and whether fees sought by offeror are reasonable and justified in amount. NRS 17.115; NRCP 68.
16. Costs.
Employer and its managers, who prevailed on employee's employment discrimination claim, were entitled to attorney fees based
on former employee's rejection of employer's and managers' three separate offers in employment discrimination action; employee made
the first offer of judgment in the amount of $9,999, and thereafter, employer and its managers made three separate offers of judgment
that employee rejected, and each offer was in the amount of $1,001. NRS 17.115; NRCP 68.
OPINION
[Headnotes 1, 2]
In these appeals, we are asked to recognize a common law tortious discharge action based
upon alleged racial discrimination. Under NRS 613.330(1), the Nevada Legislature has
provided a remedy for racial discrimination in employment only to those who work for
employers with fifteen or more employees. Since we must respect the legislature's limitation,
we decline to recognize a common law cause of action for employment discrimination based
on race, even when the employer has fifteen employees or less. Additionally, we agree with
the district court's conclusion that 42 U.S.C. 1985(3) does not provide a cause of action for
employment discrimination. Thus, we affirm the district court's order granting respondents
summary judgment. We further conclude that the district court properly awarded attorney fees
to respondents under NRCP 68 and NRS 17.115.
FACTS
In 1995, appellant Miguel Chavez began working for respondent ProSource Sales &
Marketing as an at-will employee. Gail Sievers, owner and president of ProSource, stated that
she had known Chavez from a previous employer and had sought him out to work for her
company. Sievers also insisted that she was fully aware of Chavez's ethnicity at the time she
hired him. According to Sievers, Chavez was fired on August 15, 1997, for incompetence. At
the time Chavez was fired, he had attained the position of warehouse manager.
Thereafter, Chavez filed a complaint against respondents (ProSource, Sievers, and ProSource
general manager Todd Hunt) asserting that he was wrongfully terminated from his job on the
basis of his race. Chavez's claims for relief included assault, intentional infliction of
emotional distress, and tortious discharge. Chavez later amended the complaint to include a
claim for violation of his civil rights under Title VII of the Civil Rights Act of 1964.
1

In his complaint, Chavez contended that he worked in an environment hostile to Hispanics.
Specifically, Chavez contended that Sievers referred to Hispanic employees as stupid, and
was demeaning toward them in the workplace. Moreover, Chavez asserted that Hunt once
referred to him as a fing Mexican moron. Chavez also claimed that on another occasion
Hunt said, "Mexicans are stupid,"
__________

1
42 U.S.C. 2000e et seq. (1994).
Mexicans are stupid, and allegedly burped into Chavez's face. Chavez further maintained
that Sievers tolerated Hunt's openly racist conduct toward the Hispanic employees.
Respondents moved the district court for summary judgment on the basis that the company
does not employ fifteen or more employees and is therefore not subject to the federal laws
regarding employment discrimination, or NRS 613.330, governing unlawful employment
practices. Moreover, respondents contended that Nevada case law does not support a cause of
action for intentional infliction of emotional distress and tortious discharge when the
termination is allegedly for racial reasons.
Chavez opposed the motion, and again moved to amend the complaint to include a claim for
conspiracy against Sievers and Hunt under 42 U.S.C. 1985(3). Chavez also sought an
extension to continue discovery on the number of ProSource employees. The district court
granted Chavez's motion to amend and granted a ninety-day continuance. In an amended
complaint, Chavez added a claim that Sievers and Hunt conspired under 42 U.S.C. 1985(3)
to deprive him of equal protection under the Fourteenth Amendment to the United States
Constitution. He also withdrew the assault and Title VII claims. Respondents renewed their
motion for summary judgment, and the district court granted the motion.
2

Respondents then moved the district court for attorney fees under NRCP 68 and NRS 17.115.
During the proceedings, four separate offers of judgment had been made. Chavez made the
first offer of judgment in the amount of $9,999.00. Thereafter, respondents made three
separate offers of judgment that Chavez rejected. Each offer was in the amount of $1,001.00.
The district court granted respondents' motion for attorney fees based on Chavez's rejection of
these offers. Chavez then appealed.
DISCUSSION
[Headnotes 3-5]
Summary judgment is appropriate if there is no genuine issue of material fact
__________

2
In its order granting summary judgment, the district court treated Chavez's claims for intentional infliction of
emotional distress and tortious discharge in tandem, and granted summary judgment on both claims on the basis
that there is no cause of action for harassment or termination for racial reasons unless the employer has fifteen or
more employees. On appeal, Chavez does not challenge the portion of the district court's order dismissing the
claim for intentional infliction of emotional distress. Accordingly, this issue is not before us. See Vega v. Eastern
Courtyard Assocs., 117 Nev. 436, 439 n.5, 24 P.3d 219, 220 n.5 (2001) (noting that this court will not consider
an issue when resolution of the issue would not affect the outcome of a case); Badillo v. American Brands, Inc.,
117 Nev. 34, 42, 16 P.3d 435, 440 (2001) (stating that this court need not consider an issue that has not been
fully raised by appellant or meaningfully briefed by either party).
of material fact and the moving party is entitled to judgment as a matter of law.
3
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.
4
The evidence is viewed in the light most favorable to the
non-movant.
5
We review summary judgment anew.
6

Employment discrimination
Under Nevada's employment discrimination statute, it is unlawful for an employer to
discharge any person, or otherwise to discriminate against any person with respect to his
compensation, terms, conditions or privileges of employment, because of his race, color,
religion, sex, sexual orientation, age, disability or national origin.
7
The statute defines
employer as any person who has 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar year.
8

Chavez concedes that respondent ProSource employs fewer than fifteen employees and that
he does not have an action under federal or state discrimination statutes. Nevertheless,
Chavez urges this court to recognize a common law tortious discharge cause of action when
an employee is discharged allegedly because of race. Although we recognize that racial
discrimination is fundamentally wrong and undoubtedly against Nevada's public policy,
9
we
are constrained by the legislature's decision to address the issue through legislation and to
provide statutory remedies for only certain employees.
__________

3
See NRCP 56(c); Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985).

4

5
Id. at 452, 851 P.2d at 442.

6
Dermody v. City of Reno, 113 Nev. 207, 210, 931 P.2d 1354, 1357 (1997); see also SIIS v. United
Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993) (summarizing authority for the conclusion
that matters of law are reviewed de novo).

7
NRS 613.330(1)(a).

8
NRS 613.310(2).

9
See NRS 233.010(1) (setting forth Nevada's public policy against discrimination in employment and
housing). The dissent raises issues concerning our decision in Bigelow v. Bullard, 111 Nev. 1178, 901 P.2d 630
(1995). The Bigelow opinion did not address tortious discharge based on race and therefore is not pertinent here.
Bigelow concerned an employee's refusal to participate in the employer's alleged illegal conduct; although the
employee was not fired because of his race, he was apparently fired because he objected to his employer's
racially discriminatory policies. While Bigelow is not relevant to the issues raised in this appeal, we join the
dissent's criticism of Bigelow, which concluded that an employee must go to ridiculously great lengths in
objecting to an employer's questionable conduct to prevail on a claim for tortious discharge.
through legislation and to provide statutory remedies for only certain employees.
10

[Headnote 6]
The Nevada Legislature has provided that the remedies for racial discrimination in
employment are limited to employees who work for employers with fifteen or more
employees. The legislature sets the public policy of this state regarding racial discrimination
in employment. Since the legislature determined that small businesses should not be subject
to racial discrimination suits, we decline to create an exception to the at-will doctrine for
alleged racial discrimination at these businesses.
11

[Headnote 7]
The concurring justices contend that the employment discrimination statute violates the equal
protection clauses of both the federal and state constitutions.
12
They insist that no rational
basis exists for the legislature to recognize the difference in the economic impact of litigation
between large and small businesses and to limit the statutory remedy to "large"
businesses on that basis.
__________

10
See Nev. Const. art. 3, 1(1); Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967) (recognizing that
the legislature has the sole power to frame and enact legislation); see also Passenger Corp. v. Passengers Assn.,
414 U.S. 453, 458 (1974) (noting that [a] frequently stated principle of statutory construction is that when
legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the
statute to subsume other remedies); Badillo, 117 Nev. at 42, 16 P.3d at 440 (stating that [a]ltering common
law rights, creating new causes of action, and providing new remedies for wrongs is generally a legislative, not a
judicial, function); Rupert v. Stienne, 90 Nev. 397, 399-404, 528 P.2d 1013, 1014-17 (1974) (recognizing that
this court has the power to modify or abrogate a common law cause of action; however, such power should be
narrowly construed and exercised with caution).

11
Jennings v. Marralle, 876 P.2d 1074 (Cal. 1994) (refusing to allow a wrongful discharge cause of action
for age discrimination in violation of a public policy found in the California Fair Employment and Housing Act,
when the statute explicitly exempts employers with fewer than five employees from the statutory scheme);
Brown v. Ford, 905 P.2d 223, 228 (Okla. 1995) (stating that because the plaintiff's sexual harassment claim
does not fall within the statute's criteria for actionabilityher workplace having less than fifteen
employeesshe is not shielded by any legislatively articulated public policy protection) (emphasis omitted);
Burton v. Exam Center Indus. & General Med., 994 P.2d 1261 (Utah 2000) (holding that the Utah legislature's
statutory exclusion of small employers from the scope of the anti-discrimination statute was intentional, and
small employers would continue to be exempt from the reach of the statute barring further legislation); Roberts
v. Dudley, 993 P.2d 901, 912-17 (Wash. 2000) (Madsen, J., dissenting) (accusing the majority of exceeding its
legitimate powers by using a state discrimination statute as a source for public policy for recognizing an
exception to the employment at-will doctrine when the legislature explicitly exempted small employers from the
statute's scope).

12
U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.
nesses and to limit the statutory remedy to large businesses on that basis. Chavez has not
challenged the employment discrimination statute on constitutional grounds.
13
Even so, the
legislature is free to make the distinction between large and small businesses.
14

Section 1985(3)
[Headnotes 8-10]
Under 42 U.S.C. 1985(3), if two or more people conspire, for the purpose of depriving,
either directly or indirectly, any person the equal protection of the laws or equal privileges
and immunities under the law, the party deprived may have an action for the recovery of
damages against the conspirators. A complaint asserting a cause of action under 1985(3)
must allege with particularity that the defendants conspired to carry out a deprivation of equal
protection, or equal privileges and immunities, and were motivated by some racial or
otherwise invidiously discriminatory animus.
15
Section 1985(3) is not intended to apply to
all tortious, conspiratorial interferences with the rights of others.
16
Moreover, a 1985(3)
claim may not be brought to redress violations of employment rights created by Title VII.
17

[Headnotes 11, 12]
The United States Supreme Court has concluded that 1985 creates no rights. It is a purely
remedial statute, providing a civil cause of action when some otherwise defined federal
rightto equal protection of the laws or equal privileges and immunities under the lawsis
breached by a conspiracy in the manner defined by the section.
18
Therefore, whether a
1985(3) remedy is available depends on whether a federally-established right to equal
protection under the law or the equal enjoyment of privileges and immunities of citizenship
has been violated, and whether a remedial framework for the violation of that right already
exists.
19

__________

13
This court has repeatedly held that it will not consider constitutional issues that are unnecessary to the
court's determination of the case. See, e.g., Spears v. Spears, 95 Nev. 416, 596 P.2d 210 (1979).

14
See Allen v. State, Pub. Emp. Ret. Bd., 100 Nev. 130, 136-37, 676 P.2d 792, 796 (1984) (noting that
legislation necessarily involves line drawing, and if there is a rational basis for the distinction drawn, the
legislation will be upheld).

15
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971).

16
Id. at 101.

17
Great American Fed. S. & L. Assn. v. Novotny, 442 U.S. 366, 378 (1979).

18
Id. at 376.

19
See Griffin, 403 U.S. at 102; Novotny, 442 U.S. at 376-78.
[Headnote 13]
Chavez contends that the district court erred in granting respondents' motion for summary
judgment after determining that a claim under 1985(3) did not exist. The district court
concluded that Chavez failed to establish that there was a conspiracy by respondents to do
anything unlawful, and that 1985(3) does not provide a cause of action for employment
discrimination. We agree. The record supports the district court's determination that Chavez
failed to establish that there was a genuine issue for trial concerning respondents' alleged
conspiracy under 1985(3). Moreover, respondents demonstrated that they were legally
entitled to judgment, because 1985(3) creates no rights; it is only a remedial statute. Thus,
the district court did not err in granting respondents' motion for summary judgment as to the
1985(3) cause of action.
Attorney fees
[Headnotes 14-16]
NRCP 68 and NRS 17.115 govern offers of judgment and provide that the district court may
award attorney fees to a party who makes an offer of judgment when the offeree rejects the
offer and the judgment ultimately obtained by the offeree is less favorable than the offer.
NRCP 68(c)(1) and NRS 17.115(6) allow for a joint offer made by multiple offerors. Whether
to award attorney fees, pursuant to NRCP 68 and NRS 17.115, lies within the discretion of
the district court.
20
When exercising this discretion, the district court is required to evaluate
the following factors from Beattie v. Thomas:
21

(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendants'
offer of judgment was reasonable and in good faith in both its timing and amount; (3)
whether the plaintiff's decision to reject the offer and proceed to trial was grossly
unreasonable or in bad faith; and (4) whether the fees sought by the offeror are
reasonable and justified in amount.
Chavez contends that the district court erred in awarding attorney fees because respondents
made improper, unapportioned offers of judgment. Chavez also contends that the judgment
was not more favorable than the offers of judgment, because respondents did not recover a
monetary judgment.
Both NRCP 68 and NRS 17.115 provide for multiple parties making a joint offer of
judgment. These provisions were amended in 199S
__________

20
See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 722 (1993); Beattie v. Thomas, 99 Nev.
579, 588, 668 P.2d 268, 274 (1983).

21
99 Nev. at 588-89, 668 P.2d at 274.
in 1998 to allow for unapportioned offers of judgment under certain circumstances.
22
In the
present case, respondents' first offer of judgment was made in 1998, before the amendments
that specifically permit such offers; however, the two later offers (identical to respondents'
first offer) fall within the current rule and statutory provision. In addition, the district court
weighed the Beattie factors before awarding attorney fees to respondents. Accordingly, the
district court did not abuse its discretion in awarding these fees.
CONCLUSION
Nevada's Legislature has created statutory remedies for employment discrimination and has
explicitly exempted small employers from the remedies available. Accordingly, we decline to
recognize a public policy exception to the employment at-will doctrine based on race
discrimination with respect to small employers. Further, we conclude that the district court
did not err in granting respondents' motion for summary judgment as to the 1985(3) cause
of action. Finally, the district court did not abuse its discretion in awarding attorney fees.
Therefore, we affirm the district court's orders.
Young, Agosti and Becker, JJ., concur.
Rose, J., with whom Maupin, C. J., and Leavitt, J., agree, concurring:
In Bigelow v. Bullard,
1
we recognized that in some cases racial discrimination runs counter
to Nevada's public policy, and we provided an extremely limited remedy for those who suffer
such employment discrimination. Our Bigelow decision has been widely and rightfully
criticized, most recently by Nevada's very own Boyd School of Law.
2

This court now has the opportunity to correct this error and provide a meaningful remedy for
those proven to be the victims of racial discrimination. However, the majority chooses to
defer to the Legislature and let Bigelow stand without modification. We should not let pass
the opportunity to overrule Bigelow.
A fundamental value of our nation is that racial discrimination is wrong.
__________

22
See 1999 Nev. Stat., ch. 258, 1-3, at 1102-05 (setting forth the amendment to NRS 17.115 and providing
that the amendment does not apply to an offer of judgment that was made prior to the effective date of the act,
May 24, 1999); NRCP 68 (replaced, effective October 27, 1998).

1
111 Nev. 1178, 901 P.2d 630 (1995).

2
J. Wade Kelson, Note, Public Policy and Wrongful Discharge: The Continuing Tragedy of Bigelow v.
Bullard, 1 Nev. L.J. 249, 273 (2001) (The [Bigelow] result silences employees' voices, empowers unreasonably
the employer, and breaks down the safeguard against abuse of the at-will employment doctrine.).
is wrong. The Fourteenth Amendment to the United States Constitution forbids enactments
that deny to any person . . . the equal protection of the laws. Article 4, Section 21, of our
own constitution echoes that principle, requiring that all laws be general and of uniform
operation throughout the State. A multitude of federal and state statutes prohibit racial
discrimination, and most provide meaningful remedies to those who suffer such
discrimination. But racial discrimination in employment is perhaps the worst form because it
often prevents a person from earning a decent livelihood and destroys the chance to improve
one's lot in life.
Nevada recognizes that discrimination in employment is wrong, but provides a remedy for
this discrimination only if an employer has fifteen or more employees. Those employees who
work for a business with less than fifteen employees have no remedy for racial
discrimination. The economic concerns the Legislature seeks to address by distinguishing
small and large businesses are negligible and do not amount to the rational basis required to
justify creating the two classes.
3
Thus, the distinction clearly violates the equal protection
clauses of our federal and state constitutions.
4
To rule otherwise would permit the
Legislature to declare racial discrimination illegal, but arbitrarily provide a remedy to some,
but not to all, employees who are victims of this insidious practice. This, we should not do.
My proposal to the majority would be to take the obvious step and declare racial
discrimination in employment against our public policy. We have declared that forcing an
employee to work in an unsafe workplace
5
and firing an employee in retaliation for filing a
workers' compensation claim are against our public policy.
6
Surely, racial discrimination in
employment is on an equal footing with these other declared violations of public policy.
__________

3
See State Farm v. All Electric, Inc., 99 Nev. 222, 225, 660 P.2d 995, 997 (1983) (Legislative classifications
must apply uniformly to all who are similarly situated, and the distinctions which separate those who are
included within a classification from those who are not must be reasonable, not arbitrary.), overruled on other
grounds by Wise v. Bechtel Corp., 104 Nev. 750, 753-54, 766 P.2d 1317, 1319 (1988).

4
See id. (holding that a statute of repose providing immunity after six-year period for architects and
contractors, while denying such immunity to owners and material suppliers, was unconstitutional as violative of
equal protection because no rational basis supported treating the classes differently); Laakonen v. District Court,
91 Nev. 506, 538 P.2d 574 (1975) (holding that a statute barring an automobile guest passenger from any
recovery for injury attributable to negligent driving by his host violated the equal protection clauses of the
federal and state constitutions).

5
D'Angelo v. Gardner, 107 Nev. 704, 719, 819 P.2d 206, 216 (1991).

6
Hansen v. Harrah's, 100 Nev. 60, 64, 675 P.2d 394, 397 (1984).
Once recognizing that racial discrimination in employment is against Nevada's public policy,
I would reject the narrow Bigelow remedy and permit all those suffering racial discrimination
in employment the right to file suit if legislation does not otherwise provide them an adequate
remedy.
7
This would send a clear and unmistakable message throughout Nevada that racial
discrimination, in all its ugly forms, is against Nevada's public policy and that an adequate
remedy will be provided for all our citizens who suffer this discrimination in the workplace.
Even after overruling Bigelow, I would nevertheless conclude that Chavez brought forth
insufficient facts to establish racial discrimination. Accepting his facts as true, we have only
Chavez's statements that during the course of his employment the general manager made
several offensive remarks regarding Hispanic people. This is not sufficient to establish
wrongful termination because of racial discrimination, and we have previously said that
uncorroborated allegations of an employer's verbal statements are insufficient to overcome
the presumption of at-will employment.
8

Accordingly, I concur in the result reached by the majority, but certainly do not agree with the
reasoning used to reach this result.
____________
118 Nev. 299, 299 (2002) Rubin v. State Farm Mut. Auto. Ins. Co.
ANNA RUBIN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Respondent.
No. 36631
April 12, 2002
43 P.3d 1018
Certified questions from the United States Court of Appeals for the Ninth Circuit.
Insured brought state-court action against automobile insurer to recover no-fault benefits after
she became required to repay the workers' compensation carrier from a tort recovery. The
insurer removed the case. The United States District Court for the District of Nevada entered
summary judgment in favor of the insurer. The United States Court of Appeals for the Ninth
Circuit, 222 F.3d 750 (9th Cir. 2000), certified questions. The supreme court, Maupin, C. J.,
held that exclusion of coverage for medical expenses to the extent workers' compensation was
required to be payable did not apply after workers' compensation carrier was reimbursed.
__________

7
See Sands Regent v. Valgardson, 105 Nev. 436, 440, 777 P.2d 898, 900 (1989) (refusing to recognize a
tortious discharge cause of action based on age discrimination where the employee could recover under federal
and state age discrimination statutes).

8
Yeager v. Harrah's Club, Inc., 111 Nev. 830, 836, 897 P.2d 1093, 1096 (1995).
payable did not apply after workers' compensation carrier was reimbursed.
First question answered.
Patti & Sgro, Las Vegas, for Appellant.
Christian & Petersen, Las Vegas; Lewis & Roca and James E. Berchtold and Von S. Heinz,
Las Vegas; Pearson, Patton, Shea, Foley & Kurtz, Las Vegas; Lewis & Roca and David Gass
and Susan M. Freeman, Phoenix, Arizona, for Respondent.
1. Insurance.
Automobile policy exclusion of coverage for medical expenses to the extent workers' compensation was required to be payable
did not apply after workers' compensation carrier was reimbursed out of insured pedestrian's recovery from third-party tortfeasors. The
exclusion contained a latent ambiguity as applied to paid, but subsequently reimbursed, workers' compensation benefits and needed to
be construed in favor of the insured. Because of the carrier's subrogation rights, the benefits were never payable to the insured.
2. Insurance.
In determining an insurance policy's meaning, a court should examine the language from a layperson's viewpoint.
3. Insurance.
An insurer that intends to restrict a policy's coverage must use language that clearly communicates the scope of the limitation to
the insured.
4. Insurance.
Any ambiguity or uncertainty in the policy must be construed against the insurer and in favor of coverage for the insured.
OPINION
By the Court, Maupin, C. J.:
In this case, we are asked by the United States Court of Appeals for the Ninth Circuit to
answer two certified questions:
1. Under Nevada law, does a provision in an automobile insurance policy excluding coverage
for medical expenses resulting from bodily injury for which workers' compensation is payable
apply to medical expenses that are paid by workers' compensation but recovered from a
third-party tortfeasor?
2. If the exclusionary clause is interpreted to apply to those expenses, does it violate Nevada
public policy?
As we conclude that the policy exclusion at issue does not apply to medical expenses initially
paid by workers' compensation but ultimately reimbursed from the insured's third-party
recovery, we answer the first question in the negative and need not address the second
question.
answer the first question in the negative and need not address the second question.
FACTS
On February 15, 1994, Anna Rubin was struck by a vehicle while walking near the loading
dock of a grocery store. At the time, she was acting within the course and scope of her
employment. The State Industrial Insurance System (SIIS),
1
paid Rubin's medical bills,
which totaled more than $11,500.00. When SIIS realized that Rubin's injuries resulted from
the negligent acts of one or more third-party tortfeasors, it notified Rubin that it would seek
full reimbursement from any third-party recoveries obtained by Rubin. NRS 616C.215 gives
SIIS a right to reimbursement by creating a lien on the total proceeds that an injured
employee recovers from third persons, which might include recovery for non-economic as
well as economic damages.
2

After receiving this notice from SIIS, Rubin sought insurance proceeds from the third-party
driver and the owner of the grocery store where the injury occurred (collectively the
tortfeasors). She also filed a claim with her personal automobile insurance carrier, State
Farm Mutual Automobile Insurance Company, for medical payment benefits.
Rubin ultimately engaged in prolonged litigation with the tortfeasors and eventually settled
with both. According to Rubin's affidavit, after she settled with both tortfeasors, SIIS required
her to reimburse it eighty percent of the amount that it had asserted as its lien. Rubin and SIIS
were still negotiating over the remaining twenty percent at the time she signed her affidavit.
3

As previously noted, Rubin also sought compensation from State Farm for the full amount of
her medical expenses. State Farm, however, denied coverage, citing an exclusionary clause in
her policy:
THERE IS NO COVERAGE:
. . . .
4. FOR MEDICAL EXPENSES FOR BODILY INJURY:
. . . .
b. TO THE EXTENT WORKER'S COMPENSATION BENEFITS ARE REQUIRED
TO BE PAYABLE . . . .
__________

1
In July 2000, SIIS was renamed Employer's Insurance Company of Nevada. For purposes of this opinion,
however, we will continue to refer to the entity as SIIS.

2
Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986).

3
Under Breen, 102 Nev. at 84-85, 715 P.2d at 1073-74, SIIS must contribute a proportionate share of
litigation expenses. Negotiations over the remaining twenty percent of SIIS's lien may have concerned the
respective amounts Rubin and SIIS owe for these expenses.
State Farm took the position that because SIIS paid Rubin's medical bills, the exclusion was
triggered and any coverage from State Farm would result in a double recovery of medical
expenses.
In light of this position, Rubin filed an action against State Farm in Nevada state court,
alleging breach of contract and bad faith denial of coverage. Rubin's amended complaint
alleged that she suffered the full amount of damages, $11,759.07, and thus requested damages
in an amount in excess of $10,000.00, as well as punitive damages.
State Farm successfully removed the matter to federal district court and filed a motion for
summary judgment, which Rubin opposed. The federal district court granted the motion,
concluding that State Farm's exclusion controlled and that State Farm was entitled to
judgment as a matter of law because Rubin could not prove that she had any medical bills that
were not paid or payable by SIIS.
Rubin appealed to the Ninth Circuit, which concluded that the issue determined by the district
court should instead be considered by the Nevada Supreme Court. Accordingly, the Ninth
Circuit certified its two questions to this court.
4

DISCUSSION
Does a provision in an automobile insurance policy excluding coverage for medical expenses
resulting from bodily injury for which workers' compensation is payable apply to medical
expenses that are paid by workers' compensation but recovered from a third-party
tortfeasor?
[Headnote 1]
The first question certified by the Ninth Circuit asks us to determine whether State Farm's
exclusion applies, as a matter of contract interpretation, to medical expenses that are paid by
workers' compensation but subsequently reimbursed from the insured's third-party recovery.
To resolve the question, we must examine the policy's language.
[Headnotes 2-4]
We have held that in determining an insurance policy's meaning, we should examine the
language from a layperson's viewpoint.
5
Additionally, an insurer that intends to restrict a
policy's coverage must use language that clearly communicates the scope of the limitation to
the insured.
6
Finally, any ambiguity or uncertainty in the policy must be construed against
the insurer and in favor of coverage for the insured.
__________

4
See Rubin v. State Farm Mut. Auto. Ins. Co., 222 F.3d 750 (9th Cir. 2000).

5
National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984).

6
Id.
tainty in the policy must be construed against the insurer and in favor of coverage for the
insured.
7

In this case, the exclusion states that [t]here is no coverage . . . for medical expenses for
bodily injury: . . . to the extent worker's compensation benefits are required to be payable.
Rubin contends that the required to be payable language refers to benefits that are
non-returnable or non-refundable to SIIS. Therefore, Rubin argues that because the medical
benefits initially advanced to Rubin by SIIS were, in large part, reimbursed through her later
third-party recoveries, her medical expenses were not within the exclusion. State Farm, for its
part, asserts that the exclusion is unambiguous and applies because the workers'
compensation benefits were payable.
The exclusion's language is clear when considered in the usual workers' compensation
context, when an insured is injured on the job and receives workers' compensation benefits.
The primary purpose of this anti-duplication clause is to memorialize that SIIS is the primary
source of payment when an insured is involved in a work-related automobile accident, and to
prevent double recovery by the insured for the same element of loss.
8
The clause in question
is designed for simple application in ordinary situations when SIIS has the sole obligation to
pay medical benefits, and when a third party is not legally responsible for the accident. Here,
however, we are asked to determine whether the clause is enforceable when the insured has in
some way been forced to reimburse the workers' compensation carrier out of personal assets.
Under the construction urged by State Farm, we are asked to enforce this other insurance
clause as an escape clause
9
when the insured has been rendered out-of-pocket.
Even though the exclusion, read alone, is clear, the exclusion contains a latent
ambiguityone that exists when the exclusion is applied to the facts at issue and an
uncertainty results.
10
The State Farm exclusion, when considered in the factual context
presented in Rubin's case, is unclear with respect to paid but subsequently reimbursed
workers' compensation benefits. Even though the benefits were not only payable, but paid,
they were ultimately reimbursed through SIIS's statutory subrogation rights; accordingly, they
may be considered payable under the exclusion, or not payable since Rubin did not retain
them once SIIS was reimbursed from her third-party settlement.
__________

7
Id. at 365, 682 P.2d at 1383 (citing Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 219-20, 606 P.2d
1095, 1098 (1980)).

8
See Phelps v. State Farm Mut. Auto. Ins., 112 Nev. 675, 917 P.2d 944 (1996).

9
See Lamb-Weston, Inc. v. Oregon Automobile Insurance Co., 341 P.2d 110 (Or. 1959).

10
2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d 21.12, at 21-21 (1997).
bursed from her third-party settlement. Because of SIIS's subrogation rights, Rubin has been
placed in the position of one for whom workers' compensation benefits were never payable.
Thus, it is not clear that the exclusion was meant to apply in her situation.
From a layperson's pragmatic viewpoint, the exclusion was never meant to apply when the
workers' compensation carrier is reimbursed, as such reimbursement nullifies the initial
payment. As Rubin points out, under these circumstances, SIIS's initial payments were more
akin to an advance. The exclusion's latent ambiguity must be construed against State Farm;
accordingly, we conclude that it does not apply in situations such as Rubin's. Our conclusion
is consistent with the exclusion's purpose, to avoid duplicate first-party benefits for medical
expenses. When workers' compensation benefits have been reimbursed, any concern about
duplicative payments disappears. As the Ninth Circuit pointed out in its certification order,
[w]here there is a recovery from a third-party tortfeasor, the ultimate payment of medical
expenses is not by worker's compensation, but by the injured party herself.
11

We note that although many courts have concluded that such exclusions apply to situations
like Rubin's,
12
other courts have recognized that such exclusions or offset provisions lose
their meaning when the workers' compensation insurer successfully asserts its subrogation
rights on third-party proceeds.
13
The Florida Court of Appeal noted, in South Carolina
Insurance Co. v. Arnold,
14
that an insured in this situation is in the same position as one who
never had any workers' compensation benefits paid:
__________

11
Rubin, 222 F.3d at 752.

12
See generally Job A. Sandoval, Annotation, Insured's Receipt of or Right to Workmen's Compensation
Benefits As Affecting Recovery Under Accident, Hospital, or Medical Expense Policy, 40 A.L.R.3d 1012, 1027
(1971 & Supp. 2001).

13
See, e.g., Antram v. Stuyvesant Life Insurance Company, 287 So. 2d 837, 840 (Ala. 1973) (reasoning that
when an injured employee received a third-party recovery in excess of workers' compensation benefits and any
benefits paid by workers' compensation were reimbursed, there was no liability on the compensation carrier to
pay workers' compensation benefits); South Carolina Ins. Co. v. Arnold, 467 So. 2d 324 (Fla. Dist. Ct. App.
1985) (construing state statutes governing workers' compensation benefits); Grello v. Daszykowski, 379 N.E.2d
161 (N.Y. 1978) (concluding that if workers' compensation carrier executes on lien, no-fault carrier must bear
loss since reimbursed amount is not an amount recovered or recoverable under workers' compensation); see also
Moeller v. Associated Hospital Service, 106 N.E.2d 16, 18-19 (N.Y. 1952) (Fuld, J., dissenting) (noting that
reimbursed workers' compensation benefits are temporary and urging that insurance policy excluding benefits
provided for under workers' compensation was not intended to exclude benefits only temporarily provided).

14
467 So. 2d 324 (Fla. Dist. Ct. App. 1985).
The fact remains that since [the workers' compensation carrier's] subrogation lien has
been satisfied from [the insured's] funds, [the insured] is in the same posture that he
would have been if the workers' compensation payments had never been made. [The
insured] should not be penalized simply because he was hurt on the job.
15

As recognized by the Florida court, Rubin's unique factual circumstances place her in the
same situation as one who never received workers' compensation benefits. Accordingly, we
answer the first certified question in the negative: the State Farm exclusion at issue does not
apply with respect to workers' compensation benefits paid but ultimately reimbursed from the
insured's third-party recovery. In light of this conclusion, we need not address the second
certified question.
16

Young, Shearing, Rose, Leavitt and Becker, JJ., concur.
____________
118 Nev. 305, 305 (2002) Klein v. Warden
NOLAN E. KLEIN, Appellant, v. WARDEN, ELY STATE PRISON, E.K. McDANIEL,
Respondent.
No. 32960
April 16, 2002
43 P.3d 1029
Proper person appeal from an order of the district court denying a post-conviction petition for
a writ of habeas corpus. Second Judicial District Court, Washoe County; Charles M. McGee,
Judge.
Following the affirmance of his convictions for two counts of robbery with use of deadly
weapon and other crimes, 105 Nev. 880, 784 P.2d 970 (1989), petitioner sought
post-conviction writ of habeas corpus, alleging State's post-trial destruction of exculpatory
DNA evidence. The district court denied the petition. Petitioner appealed. The supreme court
held that: (1) petitioner's trial court motions requesting additional findings of fact and
requesting that trial court alter or amend the order or judgment did not toll or extend the time
to file notice of appeal from the order denying the petition; (2) thirty-day period for filing the
notice of appeal did not begin to run because clerk of district court did not separately serve
petitioner, at petitioner's address, with notice of entry of trial court's order; and (3) petitioner
did not establish good cause and prejudice, as required for allowing untimely filing of
successive post-conviction petition for writ of habeas corpus.
__________

15
Id. at 326; accord Moeller, 106 N.E. 2d at 19 (Fuld, J., dissenting).

16
The Honorable Deborah A. Agosti, Justice, voluntarily recused herself from participation in the decision of
this matter.
untimely filing of successive post-conviction petition for writ of habeas corpus.
Affirmed.
Nolan E. Klein, Carson City, in Proper Person.
Attorney, Washoe County, for Respondent.
1. Habeas Corpus.
The thirty-day period for petitioner to file notice of appeal from trial court's denial of post-conviction petition for writ of habeas
corpus did not begin to run, though clerk of district court properly served on petitioner's counsel a notice of entry of district court's
order denying the petition, where the clerk did not separately serve petitioner at petitioner's address. NRS 34.575(1), 34.830.
2. Habeas Corpus.
Petitioner's trial court motions requesting additional findings of fact and requesting that the trial court alter or amend the order
or judgment did not toll or extend the time to file a notice of appeal from the trial court's order denying post-conviction petition for writ
of habeas corpus. NRS 34.575(1); NRAP 4(a)(2); NRCP 52(b), 59(e).
3. Habeas Corpus.
Trial court's denial of petitioner's motions, requesting additional findings of fact and requesting that the trial court alter or
amend the order denying the post-conviction petition for writ of habeas corpus, was not independently appealable. NRCP 52(b), 59(e).
4. Habeas Corpus.
The civil procedure rule tolling the time for filing a notice of appeal if the appellant makes a trial court motion requesting
additional findings of fact or requesting that the trial court alter or amend the order or judgment does not apply to statutory procedures
governing the litigation of post-conviction habeas corpus petitions. NRS 34.780(1); NRCP 52(b), 59(e).
5. Habeas Corpus.
Petitioner did not establish good cause, as element for allowing untimely filing of successive post-conviction petition for writ of
habeas corpus, alleging the loss of possibly exculpatory DNA evidence because of State's post-trial destruction of two cigarette butts
found at crime scene that had been admitted into evidence in the prosecution for robbery; trial court's order in earlier post-conviction
proceeding, which was issued more than four years before the discovery that the cigarette butts were missing, and which prohibited
invasive testing of victims, did not preclude testing of cigarette butts to ascertain whether they matched petitioner's DNA. NRS
34.726(1).
6. Habeas Corpus.
Petitioner did not establish prejudice, as element for allowing untimely filing of successive post-conviction petition for writ of
habeas corpus, alleging the loss of possibly exculpatory DNA evidence because of State's post-trial destruction of two cigarette butts
found at crime scene that had been admitted into evidence in the prosecution for robbery; defendant did not present evidence of State's
bad faith in destroying evidence, as alternative basis for finding due process violation, substantial independent evidence established
defendant's identity as the perpetrator,
and the handling of the cigarette butts by petitioner's sister, after trial and before their destruction, raised serious questions regarding
potential contamination of evidence. U.S. Const. amend. 14; NRS 34.726(1)(b).
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying a post-conviction
petition for a writ of habeas corpus. We hold that: (1) the statutory appeal period in
post-conviction habeas corpus proceedings is not subject to the tolling provisions of NRAP
4(a)(2); (2) although the time to file the notice of appeal in this instance was not tolled under
NRAP 4(a)(2), appellant Nolan Edward Klein's notice of appeal was nevertheless timely filed
because Klein was not properly served with notice of entry of the district court's decision
denying his petition; (3) Klein failed to demonstrate good cause and prejudice to overcome
the procedural defaults barring consideration of his claims; and (4) the district court properly
denied Klein's petition.
FACTS
On March 16, 1989, the district court convicted appellant Nolan Edward Klein, pursuant to a
jury verdict, of two counts of robbery with the use of a deadly weapon, and one count each of
burglary and sexual assault with the use of a deadly weapon. The district court sentenced
Klein to serve two consecutive terms of life with the possibility of parole, plus consecutive
terms totaling thirty years in the Nevada State Prison. Klein filed a direct appeal, and on
December 28, 1989, this court affirmed his conviction, concluding in part that eyewitness
testimony of the victims, positively identifying Klein as their assailant, supported the jury's
findings of guilt.
1
Thereafter, Klein filed numerous post-conviction petitions and motions in
the district court challenging his conviction and sentence. In each instance, the district court
denied relief, Klein appealed the district court's decisions, and this court affirmed each
decision on appeal.
2

__________

1
Klein v. State, 105 Nev. 880, 784 P.2d 970 (1989).

2
See Klein v. State, Docket No. 24174 (Order Dismissing Appeal, filed November 24, 1993, holding that the
district court did not err in dismissing appellant's post-conviction petition); Klein v. State, Docket No. 22597
(Order Dismissing Appeal, filed February 4, 1994, holding that the district court did not err in dismissing
another of appellant's post-conviction petitions); Klein v. State, Docket Nos. 27514 and 27675 (Order
Dismissing Appeals, filed May 19, 1998, concluding that the district court did not err in dismissing appel
On October 15, 1996, Klein filed yet another proper person post-conviction petition for a writ
of habeas corpus in the district court. In this petition, he sought dismissal of the charges
against him or a new trial on the ground that the filters on two cigarette butts that were
admitted into evidence at his trial were discovered missing in November of 1995, while in the
care and custody of the district court's exhibit clerk. He claimed that the State's post-trial loss
of the filters prejudiced him and denied him due process of law because, if they had not been
lost, he could have had them tested and that such testing might have revealed exculpatory
DNA evidence with a different DNA signature than his.
The district court appointed counsel to represent Klein, and conducted an evidentiary hearing
on April 7, 1998. On May 6, 1998, the district court entered written findings of fact,
conclusions of law, and a judgment denying Klein's petition. On May 14, 1998, Klein filed a
proper person motion in the district court citing to NRCP 52(b) and 59(e) and requesting the
district court to make additional findings of fact and/or to alter or amend order and/or
judgment. Klein's motion essentially asked the district court to reconsider its decision, and
complained that counsel who had been appointed to represent him on the instant petition was
ineffective. On August 24, 1998, the district court denied Klein's motion. On September 2,
1998, Klein filed a notice of appeal stating, in pertinent part, that [t]his appeal is to all issues
of law and fact presented to the district court within the above-entitled matter.
DISCUSSION
Preliminary jurisdictional concerns
[Headnotes 1, 2]
As a preliminary matter, we note that Klein's appeal was timely filed and that this court has
jurisdiction to consider this appeal only because the clerk of the district court did not properly
serve Klein individually with notice of entry of the district court's order of May 6, 1998,
denying the petition.
3
In Lemmond v. State, this court held
__________
lant's third post-conviction petition and his motion to correct his allegedly illegal sentence); Klein v. State,
Docket No. 32107 (Order of Remand, filed August 27, 1998, holding that the district court did not err in
dismissing appellant's fourth post-conviction petition, but concluding that the applicable statutes did not permit
the district court to order the forfeiture of appellant's good time credits as a sanction for presenting frivolous
claims for relief); Klein v. State, Docket No. 37336 (Order Dismissing Appeal, filed February 22, 2001,
dismissing appeal from an order of the district court denying appellant's motion for evidentiary hearing and
order restricting access to evidence).

3
See, e.g., Scherer v. State, 89 Nev. 372, 513 P.2d 1232 (1973) (holding that the timely filing of a notice of
appeal is jurisdictional and is an essential prerequisite to the perfection of an appeal).
court held that under NRS 34.575(1) and NRS 34.830, the time to file a notice of appeal from
an order denying a post-conviction habeas petition does not commence to run until notice of
entry of an order denying the petition has been separately served by the district court on both
the petitioner and the petitioner's counsel, if any.
4
In the instant case, the clerk of the district
court properly served notice of entry of the district court's order of May 6, 1998, on
petitioner's counsel, but did not separately serve petitioner at petitioner's address. Therefore,
the thirty-day appeal period provided by NRS 34.575(1) never commenced to run, and under
our holding in Lemmond, Klein's notice of appeal of September 2, 1998, must be considered
timely from the order of May 6, 1998, denying his petition. As discussed below, however, we
emphasize that Klein's notice of appeal was not rendered timely as a result of the proper
person motion he filed in the district court on May 14, 1998. We expressly hold today that
this proper person motion did not toll or extend the time to file the notice of appeal from
the district court's judgment of May 6, 1998.
Under NRAP 4(a)(2), the running of the time for filing a notice of appeal in some civil cases
is terminated by certain timely tolling motions. Under the rule, the time for filing a notice
of appeal commences to run from the date of service of notice of entry of an order of the
district court resolving specified timely motions filed pursuant to NRCP 50(b), 52(b), or 59.
5

[Headnotes 3, 4]
In this case, Klein's motion of May 14, 1998, purported to seek relief pursuant to NRCP 52(b)
and 59(e) by requesting the district court to make additional findings of fact and/or to alter
or amend order andJor judgment.
__________

4
114 Nev. 219, 954 P.2d 1179 (1998).

5
NRAP 4(a)(2) provides:
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion
filed in the district court by any party pursuant to the Nevada Rules of Civil Procedure hereafter
enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and
is to be computed from the date of service of written notice of entry of any of the following orders made
upon a timely motion under such Rules: (i) granting or denying a motion for judgment under N.R.C.P.
50(b); (ii) granting or denying a motion under N.R.C.P. 52(b) to amend or make additional findings of
fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) granting
or denying a motion under N.R.C.P. 59 to alter or amend the judgment; (iv) granting or denying a motion
for a new trial under N.R.C.P. 59. A notice of appeal filed before the formal disposition of any timely
post-judgment motion enumerated in this subdivision shall have no effect. A notice of appeal must be
filed after the entry of a written order of the district court resolving any of the post-judgment motions
enumerated in this subdivision and no later than thirty (30) days from the date of service of written notice
of entry of that order.
amend order and/or judgment.
6
In those civil cases to which NRAP 4(a)(2) is applicable, a
proper and timely motion under these provisions would have tolled the time to file the notice
of appeal. However, this court has consistently and repeatedly held that rules of civil
appellate procedure are not applicable to appeals from statutory post-conviction habeas
corpus proceedings.
7
In order to clarify any potential ambiguity relating to this court's
jurisdictional rules governing these types of appeals, we now specifically clarify our prior
rulings to preclude the application of the civil tolling provisions of NRAP 4(a)(2) to appeals
from orders and judgments of the district courts resolving post-conviction habeas corpus
petitions. We expressly hold that the civil tolling provisions of NRAP 4(a)(2) are inconsistent
with and inapplicable to the statutory procedures governing the litigation of post-conviction
habeas corpus petitions.
8
In sum, we continue to adhere to our firmly established holdings
that the jurisdictional prerequisites in appeals from orders of the district court resolving
post-conviction habeas corpus petitions are governed exclusively by the specific statutes
and rules regulating criminal post-conviction appeals.
__________

6
As the district court found in its order denying Klein's motion of May 14, 1998, Klein argued among other
things that counsel who was appointed to represent him in the instant matter had provided ineffective assistance
by ignoring the legal strategy that Klein and his sister wanted to pursue, by failing to maintain appropriate
contact with Klein, and by failing to bring to the district court's attention the mental and physical impairment
that Mr. Klein was suffering as the result of his allegedly being starved by jail and prison employees. It appears
that Klein's motion can be more aptly characterized as a motion to reconsider and as an improper attempt to raise
arguments not previously presented in his petition. In any event, the order of the district court denying the
motion is not an independently appealable determination. See Phelps v. State, 111 Nev. 1021, 900 P.2d 344
(1995) (holding that there is no right to appeal from an order denying a motion for reconsideration); Uniroyal
Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 787 n.1 (1995) (no appeal may be taken from an
order denying a motion to alter or amend a judgment); French v. French, 91 Nev. 248, 250, 533 P.2d 1357,
1358 (1975) (an order denying a motion pursuant to NRCP 52(b) is not an appealable order).

7
See Mazzan v. State, 109 Nev. 1067, 863 P.2d 1035 (1993) (holding that rules pertaining to appeals from
orders changing or refusing to change the place of trial of civil actions do not apply to post-conviction habeas
proceedings); Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985) (refusing to apply
certain civil rules relating to filing of notices of appeal to post-conviction habeas proceedings); Hill v. Warden,
96 Nev. 38, 604 P.2d 807 (1980) (holding that jurisdictional rules governing criminal appeals, rather than civil
appeals, applied to appeals from orders resolving post-conviction habeas proceedings); see also Beets v. State,
110 Nev. 339, 871 P.2d 357 (1994) (holding that the civil rules of procedure allowing for a motion for summary
judgment do not apply to post-conviction habeas proceedings under NRS chapter 34).

8
See NRS 34.780(1) (except to the extent that they are inconsistent with the statutory provisions, the rules of
civil procedure apply to post-conviction habeas proceedings).
exclusively by the specific statutes and rules regulating criminal post-conviction appeals.
9

Klein's petition was procedurally barred
[Headnote 5]
Klein's petition was filed nearly seven years after the remittitur issued in his direct appeal.
Moreover, Klein's petition was successive because he had previously filed numerous petitions
and motions seeking post-conviction relief. Thus, the instant petition was procedurally barred
absent a demonstration of good cause and prejudice excusing his failure to previously assert
his claims relating to DNA testing of the cigarette filters in a timely manner.
10

In an attempt to demonstrate good cause to excuse his procedural defaults and his failure to
previously assert the claims relating to DNA testing of the allegedly exculpatory missing
evidence, Klein argued that an order issued by the district court on April 11, 1991, permitted
him:
the option and right . . . to have forensic/DNA testing done on the physical and
biological evidence in another independent lab, providing that [Klein] could find a
forensic laboratory that could conduct reliable DNA testing without the necessity of
compelling the victim or her husband to submit to the drawing of blood samples.
Klein's argument is repelled by the record.
The actual text of the district court's order of April 11, 1991, critically differs from Klein's
characterization of the meaning and impact of this ruling. The district court's order stated:
The Court will not compel the victim, nor her husband to undergo invasive blood tests,
nor will the Court require the Washoe County Forensics Laboratory to vary from
whatever are its accepted policies and procedures. If the Washoe County Forensic Lab
can do a DNA test of the semen in this case without other blood draws and if that test is
not contrary to its normal policies and procedures, then it will be so ordered. If counsel
or Petitioner wishes to submit the Petitioner's blood and/or semen to another lab for
testing, that, too, will be allowed. Otherwise, the Motion may be, and hereby is,
DENIED.
__________

9
See NRS 34.575, NRS 34.830, and NRAP 4(b).

10
See NRS 34.726(1) (providing that in the absence of a showing of good cause for the delay and prejudice, a
post-conviction petition for a writ of habeas corpus must be filed within one year after issuance of the remittitur
on direct appeal); NRS 34.810(2), (3) (providing that in the absence of a showing of good cause and prejudice,
the district court shall dismiss a petition if new and different claims are raised that could have been raised in the
prior proceedings).
Even assuming that the district court's order could be construed as permitting DNA testing to
proceed years after the order was issued, the order only addressed DNA testing of semen or
blood, not saliva on the filters of cigarette butts. The fact remains that Klein never previously
raised in any proceeding any claims relating to the potential exculpatory value of DNA testing
of the cigarette filters prior to November of 1995, when they were discovered missing. Thus,
the district court's order of April 11, 1991, does not establish good cause to excuse Klein's
procedural defaults.
At the district court's April 7, 1998, evidentiary hearing on the instant petition, Klein also
asserted that he did not pursue DNA testing of the cigarette filters prior to their disappearance
in 1995 because he was incarcerated and could not find a laboratory to do the testing. As
noted, however, Klein did not previously raise any claims relating to the alleged exculpatory
value of the filters prior to trial, at trial, on direct appeal, or in his prior post-conviction
proceedings.
11
He could have sought testing of the filters prior to or during his trial or at any
time prior to their disappearance, but he did not do so. He could have alleged in his prior
post-conviction petitions and motions that the filters might have exculpatory value and that
his trial counsel was ineffective for not having the filters tested, but he did not do so.
12
Instead, the record before this court reveals that Klein did not claim that DNA testing of the
cigarette filters might have exculpatory value until well after the filters were discovered
missing in November of 1995, when testing was no longer possible.
13

__________

11
NRS 34.810(3) (petitioner bears the burden of pleading and proving specific facts that demonstrate good
cause for failure to present the claim or for presenting the claim again, and actual prejudice).

12
Although Klein did not raise the ineffective assistance of trial counsel claim in the instant petition, at the
evidentiary hearing below, Klein's counsel, Joseph Plater III, argued that Klein's trial counsel was ineffective for
failing to have the filters tested prior to trial. Plater, who represented Klein in his first post-conviction petition,
argued that the reason he did not raise this argument in Klein's first petition was because the district court had
ordered that it would not subject the victims to invasive testing of their blood. Assuming that DNA testing of the
cigarette filters was ever feasiblea hypothesis that Klein never even attempted to establish through credible
scientific evidence in the proceedings belowthe district court's order prohibiting invasive testing of the victims
did not preclude testing of the filters to ascertain whether they matched Klein's DNA. Thus, counsel did not
establish in the instant matter good cause for failing to allege ineffective assistance of trial counsel on this basis
in the first petition.

13
We note that Klein's claim fits Category 4 of the National Institute of Justice's hierarchy of cases involving
post-conviction DNA testing. Category 4 encompasses cases in which biological evidence was never collected,
or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested.
In such cases, postconviction relief on the basis of DNA testing is not possible. Nat'l Comm'n on the Future
[Headnote 6]
In addition, Klein failed to demonstrate prejudice.
14
As noted, Klein claimed to have been
prejudiced and denied due process of law by the post-trial disappearance of the filters. In
Sheriff v. Warner, however, this court stated:
This court has consistently held that [i]n order to establish a due process violation
resulting from the state's loss or destruction of evidence, a defendant must demonstrate
either (1) that the state lost or destroyed the evidence in bad faith, or (2) that the loss
unduly prejudiced the defendant's case and the evidence possessed an exculpatory value
that was apparent before the evidence was destroyed.
15

Klein had the burden of establishing bad faith on the part of the State or prejudice, i.e., that
it could be reasonably anticipated that the evidence . . . would be exculpatory and material to
[Klein's] defense.'
16
It is not sufficient that the showing disclose merely a hoped-for
conclusion from examination of the destroyed evidence, nor is it sufficient . . . to show only
that examination of the evidence would be helpful.'
17

As the district court found, Klein did not argue or present any evidence below that the filters
were lost as a result of bad faith on the part of the court staff or state agents. Rather, he
merely demonstrated that the evidence was missing. Additionally, as discussed below, Klein
did not demonstrate that the evidence was material, i.e., that there existed a reasonable
probability that, had the evidence been available to the defense, the result of the proceedings
would have been different,
18
or that it could have been reasonably anticipated that the
evidence possessed an exculpatory value that was apparent before the evidence was
destroyed.
One of the cigarette butts in question was retrieved from the general area of the scene of the
crime. Additionally, more than a week after the crime was committed, Klein was
apprehended near the crime scene lurking under some bushes smoking a cigarette.
__________
of DNA Evidence, U.S. Dep't of Justice, Postconviction DNA Testing: Recommendations for Handling Requests
52 (1999).

14
See NRS 34.726(1)(b).

15
112 Nev. 1234, 1239-40, 926 P.2d 775, 778 (1996) (quoting State v. Hall, 105 Nev. 7, 9, 768 P.2d 349,
350 (1989)).

16
Id. at 1240, 926 P.2d at 778 (quoting Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)).

17
Id. (quoting Boggs, 95 Nev. at 913, 604 P.2d at 108).

18
Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998) (citing State v. Ware, 881 P.2d 679, 685
(N.M. 1994) and United States v. Bagley, 473 U.S. 667 (1985)).
rette. The evidence at trial never conclusively established that the cigarette butt found at the
crime scene was left by the perpetrator, nor was it conclusively determined to have been
smoked by Klein. To the contrary, at the evidentiary hearing on the instant petition, Klein's
counsel could only point to one reference in the transcript of the trial where the evidence was
mentioned briefly by the prosecutor during closing argument in conjunction with other
circumstantial evidence tending to show that at the time Klein was apprehended lurking in the
bushes, he fit the general description of the perpetrator. Even this reference by the prosecutor
emphasized that the cigarette evidence was innocuous and in and of itself, does not
amount to anything.
This court has previously held that to determine whether lost evidence is material, it
must be evaluated in the context of the entire record.'
19
Here, even assuming that testing of
the cigarette filter found at the crime scene could have established a DNA signature different
than Klein's, the record of Klein's trial reveals substantial, independent evidence establishing
Klein's guilt beyond a reasonable doubt. For example, prior to trial, one of the victims
identified Klein as the perpetrator from a police photograph. At trial, both of the victims
positively identified Klein as the robber and assailant. Klein's former girlfriend also testified
that she had no doubt that it was Klein's voice on a police tape recording of a telephone call
that the perpetrator made to police reporting the crimes on the night they occurred. In
addition, as the district court noted in its order denying this petition, Klein's trial lawyer
testified credibly in Klein's first state court habeas proceeding in 1991 that, following his
conviction, he admitted the crimes to her.
In sum, even if Klein had demonstrated that the lost filters could have been tested and that
they would have revealed a DNA signature different from Klein's, the results would have
been neither material nor exculpatory.
20
Thus, Klein failed to establish prejudice
excusing his failure to previously present any claims relating to the alleged potential
exculpatory value of the filters. Further, for the same reasons stated above, it is apparent from
the record that Klein did not establish a fundamental miscarriage of justice sufficient to
excuse his procedural defaults.
__________

19
Sparks v. State, 104 Nev. 316, 319, 759 P.2d 180, 182 (1988) (quoting United States v. Agurs, 427 U.S. 97,
112-13 (1976)).

20
Klein's sister, Tonja Brown, testified at the evidentiary hearing below that she had been to the courthouse
on at least four separate occasions between April 1989 and November 1995 to view, handle, and photocopy the
evidence. As the district court noted, Brown testified that she personally handled the cigarette butts on at least
one occasion and examined them to see if they contained a brand name. We agree with the district court that,
even assuming that extraction and meaningful DNA analysis of saliva from the filters was scientifically feasible
under the circumstances, Brown's handling of the evidence raises serious questions regarding potential
contamination of the evidence that could only be answered by qualified expert testimony, which again, Klein did
not even attempt to present.
from the record that Klein did not establish a fundamental miscarriage of justice sufficient to
excuse his procedural defaults.
21

CONCLUSION
We hold that the provisions set forth in NRAP 4(a)(2) relating to the tolling of the time for
filing a notice of appeal in certain civil cases do not apply to appeals from orders of the
district courts resolving post-conviction habeas corpus petitions. Although the time to file the
notice of appeal was not tolled in this instance under NRAP 4(a)(2), Klein's notice of appeal
was nevertheless timely filed because Klein was not properly served with notice of entry of
the district court's decision denying his petition. We further conclude that Klein failed to
demonstrate good cause, actual prejudice, or a fundamental miscarriage of justice sufficient to
overcome the procedural bars applicable to the post-conviction habeas petition Klein filed
nearly seven years after this court affirmed his conviction and issued the remittitur in his
direct appeal. Accordingly, for the reasons stated above, we affirm the judgment of the
district court denying Klein's petition.
22

____________
118 Nev. 315, 315 (2002) Morgan v. Las Vegas Sands, Inc.
DAVID D. MORGAN, Appellant, v. LAS VEGAS SANDS, INC., a Nevada Corporation,
dba SANDS HOTEL AND CASINO, Respondent.
No. 35738
April 16, 2002
43 P.3d 1036
Appeal from a district court order dismissing action for failure to bring to trial within five
years of filing as required by NRCP 41(e). Eighth Judicial District Court, Clark County; Gene
T. Porter, Judge.
Plaintiff filed suit against casino, alleging breach of an agreement under which plaintiff
supplied roadside billboard advertising for casino in exchange for a monthly fee. After
mandatory court-annexed arbitration resulted in award against casino, casino requested trial
de novo. The district court dismissed action for failure to bring to trial within five years.
Plaintiff appealed. The supreme court, Agosti, J., held that: (1) as a matter of first impression,
time spent in mandatory court-annexed arbitration is included in five-year period within
which plaintiff must bring an action to trial;
__________

21
See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (recognizing that a colorable showing
of actual innocence may excuse a failure to demonstrate cause to excuse procedural bars under the fundamental
miscarriage of justice standard).

22
We have considered all proper person documents filed or received in this matter and have concluded that
the relief requested is not warranted.
included in five-year period within which plaintiff must bring an action to trial; and (2)
request for trial de novo superseded arbitration proceeding, and thus arbitration award would
not be reduced to judgment.
Affirmed.
Leavitt, J., with whom Maupin, C. J., and Rose, J., agreed, dissented.
Law Offices of Gus W. Flangas and Dimitri P. Dalacas, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Dana A. Kleiber and G. Lance Coburn, Las Vegas, for
Respondent.
1. Pretrial Procedure.
Time spent in mandatory court-annexed arbitration is included in five-year period within which a plaintiff must bring an action
to trial to avoid dismissal for want of prosecution. NRCP 41(e).
Language of rule requiring that case be brought to trial within five years is mandatory, and the trial court has no discretion to
exercise. The action must be dismissed if it is not brought to trial within five years, except if the parties agree to extend the period.
NRCP 41(e).
Defendant, as the party having requested the trial de novo after mandatory court-annexed arbitration, was under no obligation to
take measures to ensure a timely trial setting, and thus plaintiff's failure to prosecute case required dismissal of case. NRCP 41(e).
4. Arbitration.
Once request for trial de novo is filed following mandatory court-annexed arbitration, it supersedes arbitration proceeding, and
thus arbitration award for plaintiff would not be reduced to judgment after action was dismissed for failure to bring action to trial after
defendant filed request for trial de novo. NRCP 41(e).
5. Arbitration.
After a request for a trial de novo is filed, arbitration award is never revived for any purpose absent a situation implicating
exceptions that apply when request is stricken for failure to pay arbitrator's fees, participate in arbitration in good faith, or to determine
if sanctions are warranted for requesting party's failure to improve on award in formal district court proceedings.
OPINION
This appeal concerns whether time spent in mandatory court-annexed arbitration is included
under the NRCP 41(e) five-year period within which a plaintiff must bring an action to
trial.
period within which a plaintiff must bring an action to trial. Appellant David D. Morgan filed
suit against respondent Las Vegas Sands in the district court, claiming breach of an agreement
under which Morgan supplied roadside billboard advertising for the Sands in exchange for a
monthly fee. The matter was referred to mandatory court-annexed arbitration under the
Nevada Arbitration Rules. Approximately one year later, the arbitrator issued an award
against the Sands in the amount of $11,200.00, plus interest and attorney fees. Rather than
pay the award, the Sands requested a trial de novo in district court.
1
Very little litigation
activity occurred thereafter.
The district court ultimately dismissed the matter under NRCP 41(e), which requires
involuntary dismissal of any civil case not brought to trial within five years following its
commencement. Morgan appeals on the primary theory that the time period during which the
matter was pending in arbitration should not be counted against the NRCP 41(e) prescriptive
period. In the alternative, Morgan argues that, upon dismissal under NRCP 41(e), the
arbitration award should be revived and reduced to judgment. Whether the NRCP 41(e)
prescriptive period is tolled while matters are subject to mandatory court-annexed arbitration
is an issue of first impression. We conclude that the five-year period is not tolled during
mandatory court-annexed arbitration proceedings. We also conclude that dismissal under
NRCP 41(e) does not revive the arbitrator's award.
FACTS
Although the merits of this controversy are of paramount importance to the parties, the
substantive nature of the dispute is not germane to this appeal. Rather, we are asked to decide
important issues relating to the dismissal of this matter on procedural grounds. Thus, we will
restrict the recitation of the facts to the procedural history of the case.
Morgan commenced his action against the Sands on April 7, 1994. The Sands filed its answer
on April 28, 1994. Because the amount in controversy did not exceed $25,000.00, the matter
was automatically referred to the Nevada mandatory non-binding court-annexed arbitration
program.
2
Under the Nevada Arbitration Rules (NAR), non-exempt cases that qualify for
automatic referral must proceed to final arbitration award before the proceedings may resume
in the district court.
__________

1
See NAR 18.

2
See NAR 3(A) (amended 1997). The 1995 Legislature raised the jurisdictional amount for mandatory
referral to the Nevada court-annexed arbitration program to $40,000.00 for counties with populations of 100,000
or more. This court promulgated its conforming rule amendment on December 24, 1997.
may resume in the district court.
3
In actuality, all matters in which monetary damages are
sought, regardless of the amount in controversy, are presumed to be subject to arbitration
pursuant to the NAR. Mandatory non-binding arbitration under the NAR in monetary
damages cases may only be avoided by filing a request for exemption under NAR 5(A).
Exemptions of claims for money damages are granted if the discovery or arbitration
commissioner determines that probable recoverable damages exclusive of comparative
liability issues
4
exceed the jurisdictional amount. That was not the case here because the
claim was for liquidated damages within the jurisdictional limit for mandatory arbitration.
5
Thus, no matter seeking monetary relief may be brought to trial in district court until it either
proceeds through the arbitration process or is initially exempted from the program. During
arbitration proceedings, the NAR governs rather than the Nevada Rules of Civil Procedure
(with some exceptions not relevant here).
6

While the matter was pending in the program, the arbitration hearing was continued on at
least one occasion at the request of the Sands. Ultimately, on April 6, 1995, the arbitrator
entered an award in favor of Morgan in the amount $11,200.00, plus interest and attorney
fees. On May 1, 1995, the Sands filed its request for trial de novo in district court.
7
From
then on the matter was subject to the Nevada Rules of Civil Procedure governing proceedings
in district court,
8
including the case management provisions of NRCP 16.1.
Thereafter, the Eighth Judicial District's Discovery Commissioner ordered the parties to
appear in court on June 14, 1995, for a discovery conference. The purpose of the conference
was to discuss the failure to comply with applicable court rules, NRCP 16.1 early case
conference requirements, discovery and the issuance of a scheduling order. Once a request for
trial de novo has been filed, NRCP 16.1 requires the parties to meet and confer, agree to
discovery exchanges and file an early case conference report describing the nature and scope
of the action. Under NRCP 16.1 and EDCR 2.60, a scheduling order advises the parties of the
time period to be allowed for discovery and the earliest date after which the district court
may set an individual matter for trial.
__________

3
See NAR 3, 5, 17 & 18.

4
See NRS 41.141.

5
See NAR 3(A), 5. There are, of course, categories of cases that are automatically exempted from the
program under NAR 3(A), e.g., probate matters, but those types of exemptions are not pertinent to this appeal.

6
See NAR 4(C).

7
See NAR 18.

8
See NAR 4(C).
est date after which the district court may set an individual matter for trial.
On June 13, 1995, Morgan's counsel provided written confirmation that the case was settled.
The minutes of the discovery commissioner proceedings note that the June 14, 1995, meeting
was vacated because of the settlement.
Unfortunately, the settlement offer was withdrawn and no activity or interaction of record
occurred between the parties for almost two and one-half years. On December 11, 1997,
Morgan's counsel filed a motion to strike the Sand's request for trial de novo, which was
formally denied by written order of January 20, 1998. As of that time, there had been no
formal compliance with the early case conference and reporting requirements of NRCP 16.1.
It was not until February 4, 1998, that an Arbitration Conference was held, at which time
the parties were ordered to file the NRCP 16.1 case conference report on or before February
27, 1998. The report was ultimately filed in late March of 1998.
Morgan's counsel then filed a motion for summary judgment on the merits of his claim
against the Sands, which was denied by written order on May 5, 1998. At this point, the
matter had been pending slightly more than four years, and three years since the request for
trial de novo was filed.
On June 2, 1998, the district court set the matter for trial in January of 2000. This trial date
fell some eight months outside the NRCP 41(e) five-year prescriptive period. Morgan failed
to object to the trial date, and did not move to expedite. Morgan's action was later dismissed
under NRCP 41(e).
DISCUSSION
NRCP 41(e) provides in pertinent part as follows:
Want of Prosecution. . . . Any action heretofore or hereafter commenced shall be
dismissed by the court in which the same shall have been commenced or to which it
may be transferred on motion of any party, or on the court's own motion, after due
notice to the parties, unless such action is brought to trial within five years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the
time may be extended. . . . A dismissal under this subdivision (e) is a bar to another
action upon the same claim for relief against the same defendants unless the court
otherwise provides.
As stated, Morgan contends on appeal that the NRCP 41(e) prescriptive period should not
include the time during which a matter is pending in the mandatory court-annexed arbitration
program. He alternatively contends that the arbitration award should be revived and reduced
to judgment if this court concludes that the time consumed by the arbitration process
that the time consumed by the arbitration process must be counted against the five-year
NRCP 41(e) prescriptive period.
Application of NRCP 41(e)
[Headnotes 1, 2]
The language of NRCP 41(e) is mandatory. The district court has no discretion to exercise;
the action must be dismissed if it is not brought to trial within five years,
9
except if the
parties agree to extend the period.
10
The rule is silent, however, as to whether any time
periods are excluded from the calculation of the five-year period. This court has recognized
only two events that toll the NRCP 41(e) prescriptive period: the time during which a medical
malpractice case is pending before a medical screening panel,
11
and a court-ordered stay of
district court proceedings.
12
Because a matter referred to the mandatory court-annexed
arbitration program cannot proceed to trial in district court until the arbitration proceedings
are concluded, Morgan argues that this case is subject to the same public policy
considerations in support of tolling as the two exceptions noted immediately above. We
disagree.
We note at the outset NAR 21's admonition that cases requiring a trial de novo not be given
preference on the trial calendar simply because the case is subject to arbitration under the
rules governing the court-annexed arbitration program. NAR 21 also provides that trials de
novo will be processed in the ordinary course of the district court's business. In this case,
although the settlement negotiations fell through shortly after proceedings re-commenced in
district court, some two and one-half years elapsed between the cancelled discovery
conference in June of 1995 and the motion to strike the request for trial de novo in December
of 1997.
13
No attempts were made during those two and one-half years to re-stimulate the
16.1 process, which could easily have accommodated a trial setting within the NRCP 41(e)
prescriptive period. As noted, in June of 1998, the district court entered an order setting the
trial in the apparent ordinary course of its trial calendar some eighteen months later in January
of 2000.
__________

9
Lindauer v. Allen, 85 Nev. 430, 435, 456 P.2d 851, 854 (1969); see also Home Sav. Ass'n v. Aetna Cas. &
Surety, 109 Nev. 558, 563, 854 P.2d 851, 854 (1993); Thran v. District Court, 79 Nev. 176, 380 P.2d 297
(1963) (granting writ of mandamus compelling district court to dismiss action under NRCP 41(e)).

10
NRCP 41(e).

11
Baker v. Noback, 112 Nev. 1106, 922 P.2d 1201 (1996).

12
Boren v. City of North Las Vegas, 98 Nev. 5, 638 P.2d 404 (1982).

13
The motion to strike included the contention that the defendant, here the Sands, had not itself made any
efforts to obtain a timely trial date. As noted below, this claim was without merit and the district court properly
denied the motion to strike insofar as it was based upon this particular argument.
We conclude that, had the NRCP 16.1 procedures been resorted to in a timely fashion,
sufficient time was available within which to ensure placement of the matter upon the trial
calendar prior to the expiration of the NRCP 41(e) five-year prescriptive period for
involuntary dismissal. Certainly, as indicated, once these procedures were invoked, the
district court was able to set the trial within eighteen months. While NAR 21 prohibits the
giving of preference on district court trial calendars, that provision refers only to the setting of
cases under the NRCP 16.1 case management provisions in a timely fashion. We also observe
that courts throughout this state, when circumstances warrant it, have set trials on the
calendar to avoid NRCP 41(e) problems. However, the district court is not compelled to
monitor for a potential NRCP 41(e) problem, sua sponte, giving a case any preference in
setting the trial prior to a deadline pursuant to NRCP 41(e).
[Headnote 3]
Morgan also argues that the request for trial de novo should have been stricken because the
Sands, as the party having requested the trial de novo, was under an obligation to take
measures to ensure a timely trial setting. Morgan misperceives the obligation of the defending
party in civil actions. It is the obligation of the plaintiff to ensure compliance with the NRCP
41(e) prescriptive period.
14

We therefore conclude that Morgan's failure to prosecute the case to trial caused the dismissal
of his case rather than any inherent unfairness with regard to the requirements of the NAR or
of NRCP 41(e).
Viability of arbitration award following request for trial de novo
[Headnote 4]
Morgan contends that the arbitration award should now be reduced to judgment because the
Sands sought to continue the proceedings into district court via its request for trial de novo
and did nothing to move the matter forward to trial within the prescriptive period provided
under NRCP 41(e). First, as noted, a defendant in a civil case is under no obligation to
affirmatively prosecute a case toward trial. Thus, even if it was the party that requested trial
de novo, the defendant's rights under NRCP 41(e) are not altered in any way.
15

[Headnote 5]
Going further, the essence of the Nevada court-annexed arbitration program is
__________

14
See Johnson v. Harber, 94 Nev. 524, 527, 582 P.2d 800, 801 (1978) (It is the duty of each plaintiff to be
sufficiently diligent to preclude entry of a 41(e) dismissal.).

15
See supra notes 13 and 14 and accompanying text.
tration program is, of course, to resolve as many matters in the arbitration process as possible.
However, arbitrations under the program were made non-binding under the rules because of
the constitutional right to a jury trial in civil cases.
16
The program automatically diverts all
civil cases that are not exempted from the program into non-binding arbitration. Once a party
to an arbitration award has requested a trial de novo in district court, the arbitration award is
sealed
17
and the matter is processed under NRCP 16.1 case management as if the arbitration
proceeding had not occurred. The only exceptions to this are when the request is stricken for
failure to pay the arbitrator's fees
18
or participate in the arbitration in good faith,
19
or to
determine if sanctions are warranted for the requesting party's failure to improve on the award
in the formal district court proceedings.
20
Thus, we conclude that once a request for trial de
novo is filed, it supersedes the arbitration proceeding subject only to the exceptions discussed
immediately above. This means that the arbitration award is never revived for any purpose
absent a situation implicating one of these exceptions.
We therefore affirm the judgment of the district court.
21

Shearing and Becker, JJ., and Breen, D. J., concur.
Leavitt, J., with whom Maupin, C. J., and Rose, J., agree, dissenting:
The language of NRCP 41(e) is mandatory. The district court has no discretion to exercise;
1
if an action is not brought to trial within five years, it must be dismissed.
2
However, the rule
does not mention whether any time periods may be excluded from the five-year period. This
court has allowed two time periods to toll the mandatory dismissal period under the rule: the
time a medical malpractice case is pending before a medical screening panel,
__________

16
Nev. Const. art. 1, 3; Williams v. Williams, 110 Nev. 830, 877 P.2d 1081 (1994).

17
See NAR 20(A).

18
See NAR 18(C).

19
See NAR 22(A).

20
See NAR 20.

21
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor
to sit in place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 4.

1
Lindauer v. Allen, 85 Nev. 430, 435, 456 P.2d 851, 854 (1969); see also Thran v. District Court, 79 Nev.
176, 380 P.2d 297 (1963) (granting writ of mandamus compelling district court to dismiss action under NRCP
41(e)).

2
Home Sav. Ass'n v. Aetna Cas. & Surety, 109 Nev. 558, 563, 854 P.2d 851, 854 (1993).
ical malpractice case is pending before a medical screening panel,
3
and the time a case is
stayed by district court order.
4

Once a case is referred to the mandatory court-annexed arbitration program, it cannot proceed
to trial in district court until the arbitration proceedings are finalized. NAR 21 provides that
trials de novo will be processed in the ordinary course of the district court's calendar and will
not be given preference as to trial settings. A plaintiff is bound by the five-year limitation
period, yet can do nothing to expedite the case while it is still in the court-annexed arbitration
program.
In Boren v. City of North Las Vegas, we determined that a court-imposed stay order tolled the
running of the five-year period under NRCP 41(e).
5
We concluded that [f]or a court to
prohibit the parties from going to trial and then to dismiss their action for failure to bring it to
trial is so obviously unfair and unjust as to be unarguable.
6
There is no distinction between
Boren and this case. Public policy favors a trial on the merits. The time during which a party
is prevented from obtaining a trial setting should toll the period under the five-year rule and
avoid the harsh result of a dismissal where a plaintiff is prohibited from moving a matter to
trial in the district court. I would reverse the district court's order and remand this case for
trial.
____________
118 Nev. 323, 323 (2002) Osburn v. State
FREDERICK ALLEN OSBURN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36650
April 25, 2002
44 P.3d 523
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of possession
of burglary tools, and four counts of possession of visual presentation depicting sexual
conduct of a person under sixteen years of age. Eighth Judicial District Court, Clark County;
Mark W. Gibbons, Judge.
Following the denial of his suppression motion, defendant entered a guilty plea in the district
court to one count of possession of burglary tools and four counts of possession of visual
presentation depicting sexual conduct of a person under sixteen years of age. Defendant
appealed. The supreme court, Agosti, J., held that, as a matter of first impression, the conduct
of the police in attaching an electronic monitoring device to the bumper of defendant's
vehicle
__________

3
Baker v. Noback, 112 Nev. 1106, 922 P.2d 1201 (1996).

4
Boren v. City of North Las Vegas, 98 Nev. 5, 638 P.2d 404 (1982).

5
Id. at 6, 638 P.2d at 405.

6
Id. at 5-6, 638 P.2d at 404.
attaching an electronic monitoring device to the bumper of defendant's vehicle to track
defendant's movements, without first obtaining a search warrant, was not an unreasonable
search under the Nevada Constitution.
Affirmed.
Rose, J., with whom Young, J., agreed, dissented.
Wolfson & Glass and Jay L. Siegel, Las Vegas, for Appellant.
James Tufteland and Christopher J. Laurent, Chief Deputy District Attorneys, Clark County,
for Respondent.
1. Searches and Seizures.
In order for an unreasonable search or seizure to exist, the complaining individual must have a reasonable expectation of
privacy, which requires both a subjective and an objective expectation of privacy in the place searched or the item seized. Const. art. 1,
18.
2. Telecommunications.
Rape suspect had neither subjective nor objective expectation of privacy in bumper of his vehicle, and thus, the conduct of
police in attaching electronic monitoring device to the bumper to track suspect's movements, without first obtaining a search warrant,
was not an unreasonable search under Nevada Constitution; suspect did not take any steps to shield or hide the area from inspection by
others, and vehicle was parked in plain view on street. Const. art. 1, 18.
OPINION
As part of a serial rape investigation, the police attached an electronic monitoring device to
the bumper of Frederick Osburn's vehicle in order to track his movements as he traveled the
public streets of Las Vegas. The police did not obtain a warrant prior to attaching the device
to the bumper of Osburn's vehicle, which was parked on the street outside his residence.
Eventually, through visual surveillance, and with the aid of the electronic monitoring device,
Osburn was observed committing voyeuristic activities. The police then obtained a search
warrant and searched Osburn's residence and vehicle. As a result of the search, the police
found burglary tools and child pornography. Subsequently, Osburn was arrested and charged
with three counts of open or gross lewdness, two counts of possession of burglary tools, two
counts of use of a minor in producing pornography and fifty-seven counts of possession of
visual presentations
fifty-seven counts of possession of visual presentations depicting sexual conduct of a person
under sixteen years of age.
After his indictment, Osburn filed a motion to suppress the evidence obtained from the
execution of the search warrant. In his motion, Osburn argued that the attachment of the
electronic monitoring device to his vehicle violated his Fourth Amendment right to be free
from warrantless searches. Because the police failed to obtain a court order before attaching
the device to his vehicle, Osburn requested that the district court suppress all evidence found
by the police as a result of the search warrant. The district court denied Osburn's motion.
Osburn then pleaded guilty to six of the counts, reserving his right to appellate review of the
order denying his motion to suppress. This appeal ensued.
On appeal, Osburn argues that the attachment of an electronic monitoring device to the
exterior of his vehicle constituted an unreasonable search and seizure within the meaning of
the Nevada Constitution. Since the information obtained from the use of the electronic
monitoring device was included in the application and affidavit for the search warrant,
Osburn asserts that the evidence discovered as a result of the execution of the search warrant
on September 20, 1997, should be suppressed as fruit of the poisonous tree.
1

While Osburn acknowledges that federal law may permit the warrantless attachment of an
electronic monitoring device to the exterior of a person's vehicle,
2
Osburn asks this court to
consider whether the attachment of an electronic monitoring device to the exterior of a
vehicle constitutes an unreasonable search and seizure within the meaning of the Nevada
Constitution. This is an issue of first impression. Article 1, Section 18 of the Nevada
Constitution addresses unreasonable searches and seizures, and states as follows:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable seizures and searches shall not be violated; and no 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.
Although the Nevada Constitution and the United States Constitution contain similar search
and seizure clauses, the United States Supreme Court has noted
__________

1
See Costello v. United States, 365 U.S. 265, 280 (1961) (noting that evidence obtained from or as a
consequence of lawless official acts is excluded as fruit of the poisonous tree).

2
See U.S. v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999) (holding that the warrantless attachment of an
electronic tracking device to the undercarriage of a vehicle did not constitute an unreasonable search or seizure).
States Supreme Court has noted that states are free to interpret their own constitutional
provisions as providing greater protections than analogous federal provisions.
3

Osburn urges us to interpret the Nevada Constitution as providing greater protection than the
United States Constitution. As persuasive authority, Osburn cites to the Oregon Supreme
Court's holding in State v. Campbell.
4
In Campbell, the police, without a warrant, attached
an electronic tracking device to the underside of a burglary suspect's vehicle to aid the police
in their visual surveillance of the suspect.
5
On appeal, the Oregon Supreme Court was asked
to decide whether the warrantless attachment of the electronic tracking device constituted an
unreasonable search and seizure within the meaning of the Oregon Constitution. In construing
the Oregon Constitution, the Oregon Supreme Court ruled that searches should not be defined
in terms of reasonable expectations or privacy, but in terms of substantive privacy rights,
regardless of society's expectations.
6
The Oregon Supreme Court concluded that the
attachment of tracking devices improperly infringed upon this privacy right and, therefore,
that such an attachment constituted a search under Article I, Section 9 of the Oregon
Constitution.
7

In contrast, the Ninth Circuit Court of Appeals reached a different conclusion when presented
with the same issue in United States v. McIver.
8
In McIver, the police attached an electronic
tracking device to the undercarriage of a suspect's vehicle as part of a drug investigation.
9
On
appeal, McIver argued that the act of placing the transmitter onto the undercarriage of his
vehicle constituted an unreasonable search and seizure under the United States Constitution.
The Ninth Circuit disagreed, stating that there is no reasonable expectation of privacy in the
exterior of a car because [t]he exterior of a car, of course, is thrust into the public eye, and
thus to examine it does not constitute a search. '
10
Additionally, the court held that the
attachment of the transmitter to the undercarriage of McIver's vehicle did not constitute a
seizure because McIver failed to show that such attachment "deprived him of dominion
and control" of his vehicle.
__________

3
See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

4
759 P.2d 1040 (Or. 1988).

5
Id. at 1041-42.

6
Id. at 1044.

7
Id. at 1048-49.

8
186 F.3d at 1126-27.

9
Id. at 1123.

10
Id. at 1126 (quoting New York v. Class, 475 U.S. 106, 114 (1986)); see also Gama v. State, 112 Nev. 833,
838, 920 P.2d 1010, 1013-14 (1996) (stating that a narcotics-trained dog's sniff of the exterior of a vehicle does
not constitute a search).
such attachment deprived him of dominion and control of his vehicle.
11

[Headnotes 1, 2]
We agree with the analysis employed by the Ninth Circuit Court of Appeals in McIver, and
accordingly, we decline to invoke the analysis used by the Oregon Supreme Court. Instead,
we shall adhere to our prior decisions that hold that in order for an unreasonable search or
seizure to exist, the complaining individual must have a reasonable expectation of privacy,
which requires both a subjective and an objective expectation of privacy in the place searched
or the item seized.
12
Here, we conclude that Osburn had neither a subjective nor an objective
expectation of privacy in the bumper of his vehicle. First, as in McIver, there is no indication
that Osburn had a subjective expectation of privacy in the exterior of his vehicle because
Osburn did not take any steps to shield or hide the area from inspection by others. Moreover,
the vehicle was parked in plain view on the street. Second, even if Osburn had manifested a
subjective expectation of privacy, no objective expectation of privacy exists under these
circumstances. The exterior of a vehicle, including its bumper, is open to public view and
susceptible to casual inspection by the passerby. In fact, the safe and lawful operation of a
modern automobile would be impossible without certain highly visible exterior features, such
as headlights, turn signals, license plates and brake lights. Moreover, manufacturers, dealers
and owners often take advantage of this public visibility by displaying model names,
company logos, decals and bumper stickers on the exteriors of automobiles. In light of these
facts, we can see no objective expectation of privacy in the exterior of an automobile.
Based on the above, we conclude that Osburn did not have a reasonable expectation of
privacy because he lacked both a subjective and an objective expectation of privacy in the
exterior of his vehicle. Therefore, the attachment of the electronic tracking device to the
bumper of Osburn's vehicle did not constitute an unreasonable search or seizure under the
Nevada Constitution. Accordingly, we conclude that the district court properly denied
Osburn's motion to suppress, and we affirm the judgment of conviction.
Maupin, C. J., Shearing, Leavitt and Becker, JJ., concur.
Rose, J., with whom Young, J., agrees, dissenting:
The protection against unreasonable searches and seizures is a fundamental principle to
prevent intrusion by the government
__________

11
McIver, 186 F.3d at 1127.

12
State v. Taylor, 114 Nev. 1071, 1077, 968 P.2d 315, 320 (1998); Young v. State, 109 Nev. 205, 211, 849
P.2d 336, 340 (1993).
fundamental principle to prevent intrusion by the government into the most personal or
private areas of a citizen's life without first establishing probable cause for, and the extent of,
the intrusion. Our forefathers believed so strongly in this protection that the prohibition
against governmental searches and seizures appears not only in the United States
Constitution, but also in the state constitutions of each state.
1
The issue in this case presents
one of those few situations where the federal analysis falls short in protecting citizens from
unreasonable searches and seizures. This court should hold that placing an electronic monitor
on a vehicle that permits the continuing surveillance of the vehicle is a search under the
Nevada Constitution.
When interpreting a constitutional protection that appears in both the United States and
Nevada Constitutions, we will usually defer to and follow the interpretations of the federal
courts. The Ninth Circuit Court of Appeals has held that placing an electronic monitor on a
vehicle is not a search and seizure under the established law that focuses on a citizen's
expectation of privacy.
2
The majority follows this traditional analysis. However, we are
entitled to construe our Nevada Constitution to give more protection when the federal
interpretation falls short in fully recognizing the right or remedy given to our citizens.
3

If we focus only on a person's expectation of privacy for his bumper or auto frame and the
place where the monitor is placed, I believe we are missing the real impact of the intrusion on
a person's privacy. The automobile's use is a necessity in most parts of Nevada, and placing a
monitor on an individual's vehicle effectively tracks that person's every movement just as if
the person had it on his or her person. I consider this a substantial invasion of an individual's
privacy and, in effect, a continuing monitoring or effective continuing search of an individual.
In State v. Campbell,
4
the Oregon Supreme Court recognized that the use of an automobile
monitor by law enforcement is an invasion of a citizen's fundamental right to privacy, and
declared that it constitutes an illegal search under the Oregon Constitution's prohibition
against unreasonable searches and seizures. The court first explained that under its state
constitution, the protection is not the privacy that one reasonably expects but the privacy to
which one has a right.
5
Based on this, the court framed the issue as whether the practice, if
engaged in wholly at the discretion of the government,
__________

1
See, e.g., Nev. Const. art. 1, 18.

2
U.S. v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999).

3
See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

4
759 P.2d 1040, 1049 (Or. 1988).

5
Id. at 1044.
at the discretion of the government, will significantly impair the people's' freedom from
scrutiny, for the protection of that freedom is the principle that underlies the prohibition on
unreasonable searches' set forth under the Oregon Constitution.
6
The court observed that if
the government's position were correct:
[N]o movement, no location and no conversation in a public place would in any
measure be secure from the prying of the government. There would in addition be no
ready means for individuals to ascertain when they were being scrutinized and when
they were not. That is nothing short of a staggering limitation upon personal freedom.
7

The court then held:
We hold that the use of the radio transmitter to locate defendant's automobile was a
search under Article I, section 9, of the Oregon Constitution. Because the police did not
have a warrant to use the transmitter, and because no exigency obviated the need to
obtain a warrant, use of the transmitter violated defendant's rights under Article I,
section 9.
8

The fact that few cases have followed this reasoning does not make the Oregon Supreme
Court's analysis invalid. I consider the federal court's analysis too categorical and myopic.
Oregon's approach recognizes a new form of technology as a hi-tech search that significantly
invades a person's privacy without any judicial safeguard.
To best understand the extent of this intrusion, we should consider what the majority is now
permitting law enforcement to do without any oversight whatsoever. The police will be able
to place a vehicle monitor on any vehicle, for any reason, and leave it there for as long as they
want. There will be no requirement that the monitor be used only when probable causeor
even a reasonable suspicionis shown, and there will be no time limit on how long the
monitor will remain.
I am sure that the vehicle monitor will be used by the police in many cases when there is
probable cause to suspect illegal activity and for only as long as is absolutely necessary. But I
fear that in some instances, the monitor will be used to continually monitor individuals only
because law enforcement considers them dirty. In the future, innocent citizens, and perhaps
elected officials or even a police officer's girlfriend or boyfriend, will have their whereabouts
continually monitored simply because someone in law enforcement decided to take such
action. This gives too much authority to law enforcement and permits the police to use the
vehicle monitor without any showing of necessity and without a limit on the duration of
the personal intrusion.
__________

6
Id. at 1048.

7
Id. at 1049.

8
Id.
the vehicle monitor without any showing of necessity and without a limit on the duration of
the personal intrusion.
For these reasons, I respectfully dissent.
____________
118 Nev. 330, 330 (2002) Fore v. State
BYRON JAMES FORE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39097
May 6, 2002
45 P.3d 404
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of possession
and/or control of a dangerous weapon or facsimile by a prisoner. Seventh Judicial District
Court, White Pine County; Steve L. Dobrescu, Judge.
Defendant was convicted in the district court, pursuant to guilty plea, of possession and/or
control of a dangerous weapon or facsimile by a prisoner. Defendant appealed. The supreme
court held that defendant's knowing possession of a piece of sharpened wire approximately
six inches in length was punishable by law.
Affirmed.
Steven G. McGuire, State Public Defender, and James P. Logan, Chief Deputy Public
Frankie Sue Del Papa, Attorney General, and Kevin R. Briggs, Deputy Attorney General,
Carson City; Richard W. Sears, District Attorney, White Pine County, for Respondent.
Convicts.
Prisoner's knowing possession and/or control of a piece of sharpened wire approximately six inches in length was punishable
under statute making it a crime for a prisoner to possess a dirk, dagger, switchblade knife or sharp instrument or other similar
weapon. NRS 212.185(1)(c), (g).
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one felony count
of possession and/or control of a dangerous weapon or facsimile by a prisoner, a violation of
NRS 212.185. The district court sentenced appellant Byron James Fore to serve a prison
term of 12-30 months,
118 Nev. 330, 331 (2002) Fore v. State
to serve a prison term of 12-30 months, and ordered the sentence to run consecutively to all
prior terms of incarceration.
Citing to Witter v. State
1
for support, Fore contends that being a prisoner in possession or
control of a shank (an inmate-made weapon) is not punishable under Nevada law.
2
In Witter,
this court stated:
While a prisoner may have a Sixth Amendment right to counsel at a disciplinary
hearing when the charge involves conduct that is punishable under state law, Witter's
possession of the shank is not a punishable offense under the laws of Nevada.
3

Fore argues that based on the above language, his conviction should be reversed. The
statement in Witter to which Fore refers was made in error. Certainly, under NRS 212.185,
possession of a shank by a prisoner is indeed punishable under Nevada law.
4
Therefore, we
conclude that Fore's reliance on Witter is misplaced and that his contention is without merit.
Fore was charged by way of an amended criminal information of violating NRS
212.185(1)(c) or (g), which states in part:
1. A person who is incarcerated in the state prison . . . and who possesses or has in his
custody or control any:
. . .
(c) Dirk, dagger, switchblade knife or sharp instrument;
. . . or
(g) Other similar weapon, instrument or device,
is guilty of a category B felony.
According to the charges in the information to which Fore ultimately pleaded guilty, he
knowingly was in possession and/or control of a piece of sharpened wire approximately six
inches in length. We conclude that based on the plain language of the statute, Fore's
possession of this implement is punishable under Nevada law, and further that it is
unreasonable to assume that possession of such a weapon is not a punishable offense under
the laws of Nevada.
__________

1
112 Nev. 908, 921 P.2d 886 (1996), receded from on other grounds by Byford v. State, 116 Nev. 215, 994
P.2d 700 (2000).

2
This issue was specifically identified and preserved for appellate review in the written guilty plea agreement.
See NRS 174.035(3).

3
112 Nev. at 920-21, 921 P.2d at 895 (citations omitted).

4
We note that under the facts of Witter, the quoted statement is not central to the ultimate holding of the case
and is not pertinent authority for the proposition that possession of a shank by a prisoner is not a punishable
offense in this state.
118 Nev. 330, 332 (2002) Fore v. State
CONCLUSION
Having considered Fore's contention and concluded that it is without merit, we affirm the
judgment of conviction.
____________
118 Nev. 332, 332 (2002) State v. Contreras
THE STATE OF NEVADA, Appellant, v. JULIAN C. CONTRERAS, CLINT GARETT
MALONE, ROCKY NEIL BOICE, JR., FREDERICK GENE FRED, LEW ROBERT
DUTCHY, JESSICA EVANS, JARON MALONE, ELVIN LEE FRED, SYLVIA
JOY FRED, and MICHAEL KIZER, Respondents.
No. 35800
May 15, 2002
46 P.3d 661
Appeal from a district court order granting respondents' motion to dismiss a first-degree
felony-murder charge. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
State charged defendants with first-degree murder and other offenses. The district court
dismissed that part of the information charging first-degree murder under felony-murder rule.
State appealed. The supreme court, Becker, J., held that underlying felony of burglary with
intent to commit battery does not merge into a homicide committed during the burglary
involving same intent and thus may support felony-murder charge.
Shearing, J., with whom Rose and Leavitt, JJ., agreed, dissented.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney, and
Matthew L. Jensen, Deputy District Attorney, Carson City, for Appellant.
Allison W. Joffee, Carson City, for Respondent Rocky Neil Boice, Jr.
Crowell Susich Owen & Tackes, Carson City, for Respondent Michael Kizer.
Fred Hill Atcheson, Reno, for Respondent Frederick Gene Fred.
John E. Oakes, Reno, for Respondent Jessica Evans.
Laurence Peter Digesti, Reno, for Respondent Clint Garett Malone.
Loren Graham, Stateline, for Respondent Elvin Lee Fred.
Nathan Tod Young, Minden, for Respondent Lew Robert Dutchy.
Paul E. Quade, Reno, for Respondent Sylvia Joy Fred.
Robert B. Walker, Carson City, for Respondent Julian C. Contreras.
Steven L. Sexton, Reno, for Respondent Jaron Malone.
1. Homicide.
Under felony-murder rule, felonious intent involved in the underlying felony is deemed, by law, to supply the malicious intent
necessary to characterize the killing as a murder, and because felony murder is defined by statute as first-degree murder, no proof of
the traditional factors of willfulness, premeditation, or deliberation is required for a first-degree murder conviction. NRS
200.030(1)(b).
2. Criminal Law; Homicide.
Underlying felony of burglary with intent to commit battery does not merge into a homicide committed during the burglary involving
the same intent, and thus that underlying felony may support a felony-murder charge. NRS 200.030(1)(b), 205.070.
OPINION
The State appeals from a district court pretrial order granting respondents' motion to dismiss a
first-degree felony-murder charge. The district court dismissed that part of the information
charging first-degree murder under the felony-murder rule. The district court held that a
felony-murder charge is inappropriate when the underlying felony is a burglary committed
with the intent to commit a battery. We reverse the district court order.
FACTS
This case arises out of an incident at the Roundhouse Motel in Carson City on August 23,
1998. Based on the limited record submitted, it appears that prior to the incident resulting in
the charged crimes, respondent Evans was involved in a separate altercation at the motel. The
police arrived and investigated that incident. Later that evening, apparently in retaliation for
the previous altercation, respondent Evans allegedly gathered the other respondents, and they
proceeded back to the motel with metal and wooden clubs. Respondents knocked on a motel
room door, and when the door opened,
when the door opened, rushed into the room and proceeded to beat Samuel Resendiz and
Carlos Lainez. Resendiz died as a result of his injuries.
The State charged respondents with open murder with the use of a deadly weapon, battery
with the use of a deadly weapon, burglary, and conspiracy to commit battery. One of the two
specified alternatives in the open murder charge was first-degree felony murder. On this
charge, the State alleged that the defendants:
[D]id, acting in concert and by preexisting plan, willfully and unlawfully, with malice
aforethought, kill and murder one SAMUEL RESENDIZ, a human being, during the
perpetration of a burglary, by entering a motel room with the intent then and there to
apply force and violence with wooden or metal clubs and/or fists against the person of
some or all of the occupants therein.
(Emphasis added.) Respondents filed a motion to dismiss the first-degree felony-murder
charge based on the merger doctrine. The district court granted respondents' motion to
dismiss the felony-murder charge. The State appeals.
DISCUSSION
[Headnote 1]
Nevada's statutory scheme has long recognized the felony-murder rule.
1
NRS 200.030(1)(b)
defines first-degree felony murder as a murder that is committed in the perpetration or
attempted perpetration of certain enumerated crimes, including burglary. The felonious intent
involved in the underlying felony is deemed, by law, to supply the malicious intent necessary
to characterize the killing as a murder, and because felony murder is defined by statute as
first-degree murder, no proof of the traditional factors of willfulness, premeditation, or
deliberation is required for a first-degree murder conviction.
2

In this case, the prosecutor charged both traditional second-degree murder, requiring proof of
malicious intent (without premeditation and deliberation), and first-degree felony murder,
based on the allegation that the defendants entered the premises with the intent then and
there to apply force and violence and thereby alleging the felony of burglary. The district
court relied on the merger doctrine to dismiss the felony-murder charge, holding that the
burglary merged into the homicide because both involved the same intent
__________

1
NRS 200.030(1)(b); see, e.g., State v. Gray, 19 Nev. 212, 8 P. 456 (1885) (decision under former similar
statute, cited in 1 Compiled Laws of Nevada 2323, at 560 (Bonnifield & Healy 1873)).

2
Collman v. State, 116 Nev. 687, 713, 7 P.3d 426, 442 (2000), cert. denied, 532 U.S. 978 (2001); Ford v.
State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983).
involved the same intentthe defendants' intent to apply force and violence to the victims.
In so holding, the district court relied on the California Supreme Court's decision in People v.
Wilson.
3
In Wilson, the defendant was charged with felony murder based on burglary.
4
The
burglary was alleged to have occurred when the defendant broke into his wife's home with the
intent to assault her with a deadly weapon.
5
The California court stated:
[T]he only basis for finding a felonious entry is the intent to commit an assault with a
deadly weapon. When, as here, the entry would be nonfelonious but for the intent to
commit the assault, and the assault is an integral part of the homicide and is included in
fact in the offense charged, utilization of the felony-murder rule extends that doctrine
beyond any rational function that it is designed to serve.' We have heretofore
emphasized that the felony-murder doctrine expresses a highly artificial concept that
deserves no extension beyond its required application.
6

The California court concluded that the purpose of the felony-murder rule, to deter felons
from killing negligently or accidentally, was not met when the underlying felony has the same
general mental purpose as the homicideto physically harm the victim.
7
Therefore, in
Wilson, the California Supreme Court merged the two crimes and held that a felony-murder
conviction was not appropriate because the intent in committing the burglary was the same as
the intent in committing the homicide.
8

The California Supreme Court's decision in Wilson was an extension of the merger doctrine
as previously applied by California and other states. California and many other states have
applied the merger doctrine as a limitation on felony murder when a prosecutor has attempted
to charge felony murder based on a felonious assault or battery that culminates in a homicide.
9
In these cases, the courts have held that the battery merges into the homicide. Absent such
merger, virtually every homicide would be felony murder,
__________

3
462 P.2d 22 (Cal. 1969).

4
Id. at 27.

5
Id.

6
Id. at 28 (quoting People v. Phillips, 414 P.2d 353, 360 & n.5 (Cal. 1966) (quoting People v. Washington,
402 P.2d 130, 134 (Cal. 1965)), overruled on other grounds by People v. Flood, 957 P.2d 869 (Cal. 1998)).

7
Id.

8
Id. at 28-29.

9
Robert L. Simpson, Annotation, Application of Felony-Murder Doctrine Where the Felony Relied upon Is
an Includible Offense with the Homicide, 40 A.L.R.3d 1341, 1345-46 (1971 & Supp. 2001).
felony murder, and the traditional factors of willfulness, premeditation and deliberation
would never be required for a first-degree murder conviction.
10
This application of the
merger doctrine has not been considered in Nevada because NRS 200.030(1)(b), the
felony-murder statute, does not include assault or battery as crimes that support a
felony-murder charge.
Not all courts, however, have followed California's approach in felony-murder cases based on
burglary with intent to assault. For example, the New York Court of Appeals in People v.
Miller held that any burglary, including one based on intent to assault, justifies application of
the felony-murder rule.
11
The New York court's rationale was that homicide is more likely to
result when the assault is committed within the victim's home rather than in the street, even if
the criminal intent in both locations is the same.
12
The court stated:
It should be apparent that the Legislature, in including burglary as one of the
enumerated felonies as a basis for felony murder, recognized that persons within
domiciles are in greater peril from those entering the domicile with criminal intent, than
persons on the street who are being subjected to the same criminal intent. . . . When the
assault takes place within the domicile, the victim may be more likely to resist the
assault; the victim is also less likely to be able to avoid the consequences of the assault,
since his paths of retreat and escape may be barred or severely restricted by furniture,
walls and other obstructions incidental to buildings. Further, it is also more likely that
when the assault occurs in the victim's domicile, there will be present family or close
friends who will come to the victim's aid and be killed. Since the purpose of the
felony-murder statute is to reduce the disproportionate number of accidental homicides
which occur during the commission of the enumerated predicate felonies by punishing
the party responsible for the homicide not merely for manslaughter, but for murder, the
Legislature, in enacting the burglary and felony-murder statutes, did not exclude from
the definition of burglary, a burglary based upon the intent to assault, but intended that
the definition be satisfied if the intruder's intent, existing at the time of the unlawful
entry or remaining, is to commit any crime.
13

This court has not previously ruled on whether the merger doctrine applies where the felony
underlying the felony murder is burglary with the intent to commit battery.
__________

10
See People v. Moran, 158 N.E. 35, 36 (N.Y. 1927).

11
297 N.E.2d 85, 87-88 (N.Y. 1973).

12
Id. at 87.

13
Id. at 87-89 (footnote and citations omitted).
burglary with the intent to commit battery. This court has traditionally recognized the merger
doctrine only when an offense is included within another offense.
14
This court has also
refused to apply the merger doctrine in determining whether double jeopardy applies to a
prosecution for both felony murder and the underlying felony.
15
NRS 205.070 expressly
provides that [e]very person who, in the commission of a burglary or invasion of the home,
commits any other crime, may be prosecuted for each crime separately.
Although Nevada's statutory scheme is basically the same as California's, and the purpose of
the felony-murder statute has been stated to be the same,
16
we find the reasoning of the New
York court on this issue more persuasive. The Nevada Legislature has specifically included
burglary as one of the crimes that can escalate a homicide to first-degree murder without the
necessity of proving premeditation and deliberation. There is a rational basis for including
burglary in the felony-murder statute, even when the criminal intent behind the burglary is
assault or battery. In People v. Wilson, the California court minimizes the impact of the
location of an assault.
17
Yet the likelihood of harm to individuals is greater when they are
encountered in a dwelling or an enclosed space where escape or outside intervention is less
likely than if they are encountered on the street. In the instant case, it certainly appears that
the attack in a motel room held greater risk of homicide for the victims than if they had been
outside and better able to escape or receive help.
[Headnote 2]
We do not believe it is appropriate to apply the merger doctrine to felony murder when the
underlying felony is burglary, regardless of the intent of the burglary. The legislative language
is clear, and we are not persuaded that any policy considerations should override the
legislature's determination that burglary should be one of the enumerated felonies appropriate
to elevate a homicide to felony murder. We, therefore, hold that the district court was
incorrect in dismissing the felony-murder charge against the respondents.
Accordingly, the order of the district court is reversed, and the case remanded for further
proceedings consistent with this opinion.
__________

14
Cf. Barton v. State, 117 Nev. 686, 30 P.3d 1103 (2001).

15
See, e.g., Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986); Koza v. State, 100 Nev. 245, 681 P.2d 44
(1984); Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977).

16
See Payne v. State, 81 Nev. 503, 506, 406 P.2d 922, 924 (1965) (citing California law regarding the
purpose of the felony-murder rule).

17
462 P.2d at 28.
Young and Agosti, JJ., concur.
I write separately to address a point made by the dissent. The criminal intent and inherent
danger underlying battery is, for purposes of merger, indistinguishable from the other
felonious predicate crimes of burglary. In my view, the deterrence of accidental or negligent
killings by felons is only one of the policies served by the felony-murder rule. To me, the
fundamental purpose of the felony-murder rule is to prevent innocent deaths likely to occur
during the commission of inherently dangerous felonies.
1

Indeed, each predicate crime specifically enumerated in Nevada's felony-murder statute,
2
including burglary, is inherently dangerous to human life. This statutory scheme demonstrates
a legislative recognition that [t]he heinous character of these enumerated felonies
justi[fies] the omission of the requirements of premeditation and deliberation.
3
While a
burglary charge may be based upon an intent to commit any felony when entering a structure,
the burglary statute specifically includes assault or battery on any person as a felony that
may underlie a burglary.
4

Thus, the legislature, when it included burglary as a predicate crime of felony murder, was
clearly aware that a burglary charge may be based upon the intent to commit a felonious
assault or battery. The legislature, in light of this awareness, did not specifically exclude
burglary perpetrated with the intent to commit assault or battery as a basis for felony murder.
This, in turn, indicates that the legislature never intended the merger doctrine to operate under
such circumstances.
As noted by the majority, other jurisdictions have refused to preclude a felony-murder charge
stemming from a burglary the predicate crime for which is battery, or assault.
__________

1
See, e.g., People v. Washington, 402 P.2d 130, 139 (Cal. 1965) (Burke, J., dissenting) (recognizing that
deterring the undertaking of inherently dangerous felonies is an equally cogent purpose of the felony-murder
rule); State v. Williams, 254 So. 2d 548, 550 (Fla. Dist. Ct. App. 1971) (citing this policy as the obvious
ultimate purpose of the felony-murder rule).

2
See NRS 200.030(1) (Murder of the first degree is murder which is: . . . (b) [c]ommitted in the perpetration
or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual
abuse of a child, sexual molestation of a child under the age of 14 years or child abuse.).

3
Payne v. State, 81 Nev. 503, 506, 406 P.2d 922, 924 (1965).

4
NRS 205.060(1) provides:
A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store,
mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house
trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or
battery on any person or any felony, is guilty of burglary.
predicate crime for which is battery, or assault.
5
These jurisdictions recognize that the
legislature, rather than the court, has the authority to determine and define the scope of the
felony-murder rule. Here, the Nevada Legislature has specifically included, without
restriction, battery as one of the predicate crimes of burglary.
CONCLUSION
The crime of battery is as inherently dangerous as the other predicate felonies of burglary, if
not more so, and the legislature has not created any exceptions to the specifically enumerated
felonies that may serve as a predicate for burglary for the purpose of the felony-murder rule.
Thus, the majority correctly refrains from judicially creating distinctions between the
predicate crimes of burglary for these purposes.
Shearing, J., with whom Rose and Leavitt, JJ., agree, dissenting:
I would affirm the judgment of the district court dismissing the first-degree felony-murder
charge. The intent required to make the entry into the motel room a burglary, namely, the
intent to apply force and violence to the victims, is the same intent that supports the
felony-murder charge. The felony-murder rule raises a homicide to first-degree murder
without requiring the State to prove thetraditional first-degree murder elements of willfulness,
premeditation, and deliberation. The felonious intent involved in the underlying felony is
regarded as sufficient intent to raise the resulting homicide to first-degree murder. When the
felonious intent involved in committing the burglary is the same intent involved in the
resulting homicide, the felony-murder rule is expanded beyond the reason for its existence.
I agree with the California Supreme Court in People v. Wilson when it said:
[T]he only basis for finding a felonious entry is the intent to commit an assault with a
deadly weapon. When, as here, the entry would be nonfelonious but for the intent to
commit the assault, and the assault is an integral part of the homicide and is included in
fact in the offense charged, utilization of the felony-murder rule extends that doctrine
beyond any rational function that it is designed to serve.' We have heretofore
emphasized
__________

5
See, e.g., People v. Miller, 297 N.E.2d 85, 88 (N.Y. 1973) (refusing to extend the merger doctrine where
the [l]egislature, in enacting the burglary and felony-murder statutes, did not exclude from the definition of
burglary, a burglary based upon the intent to assault); People v. Lewis, 791 P.2d 1152, 1154 (Colo. Ct. App.
1989) ([T]here is no logic or reason to preclude a felony murder charge from being based upon a burglary
charge that, in turn, is premised upon . . . an intent to assault . . . .).
heretofore emphasized that the felony-murder doctrine expresses a highly artificial
concept that deserves no extension beyond its required application.
1

The California court concluded that the purpose of the felony-murder rule, to deter felons
from killing negligently or accidentally, is not met when the underlying felony has the same
general mental purpose as the homicideto physically harm the victim.
2
The court went on
to say:
In [People v. Ireland
3
], we rejected the bootstrap reasoning involved in taking an
element of a homicide and using it as the underlying felony in a second degree
felony-murder instruction. We conclude that the same bootstrapping is involved in
instructing a jury that the intent to assault makes the entry burglary and that the burglary
raises the homicide resulting from the assault to first degree murder without proof of
malice aforethought and premeditation. To hold otherwise, we would have to declare
that because burglary is not technically a lesser offense included within a charge of
murder, burglary constitutes an independent felony which can support a felony-murder
instruction. . . . [A] burglary based on intent to assault with a deadly weapon is included
in fact within a charge of murder, and cannot support a felony-murder instruction.
4

In Payne v. State, this court agreed with California as to the purpose of the felony-murder
rule, stating:
The original purpose of the felony-murder rule was to deter felons from killing
negligently or accidentally by holding them strictly responsible for the killings that are
the result of a felony or an attempted one. People v. Washington, 44 Cal.Rptr. 442, 402
P.2d 130 (1965). In the majority of jurisdictions, such a homicide acquires first degree
murder status without the necessity of proving premeditation and deliberation. The
heinous character of the felony is thought to justify the omission of the requirements of
premeditation and deliberation.
5

Here, when the defendants entered the building with the intent to harm the victims, the
purpose of the felony-murder rule was not implicated because the subsequent harm to the
victims was not negligent or accidental;
__________

1
462 P.2d 22, 28 (Cal. 1969) (quoting People v. Phillips, 414 P.2d 353, 360 & n.5 (Cal. 1966) (quoting
People v. Washington, 402 P.2d 130, 134 (Cal. 1965)), overruled on other grounds by People v. Flood, 957
P.2d 869 (Cal. 1998)).

2
Id.

3
450 P.2d 580 (Cal. 1969).

4
Wilson, 462 P.2d at 28-29 (citation omitted).

5
81 Nev. 503, 506, 406 P.2d 922, 924 (1965).
implicated because the subsequent harm to the victims was not negligent or accidental; harm
to the victims was the very reason for the defendants' entry into the motel room.
In Wilson, the California court reached a similar result, concluding that the felony-murder
rule does not apply to a murder that follows from an assault with a deadly weapon.
6
The
California court based its decision on the merger doctrine.
7
Although I agree with the
California court's conclusion, I do not agree that the merger doctrine applies.
Here, as NRS 205.070 specifically provides, each crime, the burglary and the homicide, can
be charged separately. However, because the burglary and the homicide share the same
underlying intent, the felony-murder rule should not apply. Application of the rule would
bootstrap the homicide into first-degree murder simply because of the location of the
homicide. Where, as here, the intent in both the underlying felony and the homicide is the
same, application of the felony-murder rule does not further the rule's intended purpose, to
prevent accidental or negligent killing, but rather, extends the rule unjustly.
Felony murder itself is an anomaly in that, unlike most felonies, it does not require that the
defendant intend the resulting harm; on the contrary, it addresses accidental or unintentional
killing. Application of the felony-murder rule when the underlying felony involves the intent
to do serious bodily harm defeats the purpose of the rule and unfairly elevates a crime to
first-degree murder without requiring the State to prove willfulness, deliberation, and
premeditation. The State here has every opportunity to prove second-degree murder.
____________
118 Nev. 341, 341 (2002) Nollette v. State
JAMES L. NOLLETTE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35926
May 17, 2002
46 P.3d 87
Appeal from a district court order denying a post-conviction petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Defendant filed post-conviction petition for a writ of habeas corpus, claiming his guilty plea
to open and gross lewdness was invalid and his counsel ineffective. The district court denied
the petition and defendant appealed. The supreme court, Becker, J., held that: (1) requirement
that defendant register as a sex offender and possible loss of professional licenses were
collateral consequences of guilty plea,
__________

6
462 P.2d at 28-29.

7
Id. at 29-30.
and possible loss of professional licenses were collateral consequences of guilty plea, and as
such, district court's failure to advise defendant of such consequences did not invalidate guilty
plea; and (2) attorney's failure to advise defendant of collateral consequences did not
constitute ineffective assistance of counsel.
Affirmed.
[Rehearing denied August 28, 2002]
[En banc reconsideration denied October 30, 2002]
Amesbury & Schutt, Las Vegas, for Appellant.
Brian S. Rutledge and James Tufteland, Chief Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Direct consequences, for purposes of determining whether a defendant was informed of the direct consequences of a guilty plea
before making the plea, are those ramifications that have a definite, immediate, and largely automatic effect on the range of the
defendant's punishment.
2. Criminal Law.
Collateral consequences of a guilty plea, which defendant is not required to be advised of before making plea, are consequences that
do not affect the length or nature of the punishment and are generally dependent on either the court's discretion, the defendant's future
conduct, or the discretion of a government agency.
3. Criminal Law.
Because collateral consequences of a criminal conviction are often limitless, unforeseeable or personal to the defendant, requiring an
advisement with respect to every conceivable collateral consequence would impose upon the trial court an impossible, unwarranted,
and unnecessary burden.
4. Criminal Law.
Requirement to register as a sex offender was a collateral consequence, rather than a direct consequence, of defendant's guilty plea to
open and gross lewdness, as it was not sufficiently punitive to have an immediate and direct effect on defendant's range of punishment,
and thus defendant's plea was not invalid on ground that he was not informed beforehand that he would be required to register as a sex
offender. NRS 179D.460, 179D.550.
5. Criminal Law.
Possible loss of defendant's professional licenses was a collateral consequence, rather than a direct consequence, of defendant's guilty
plea to open and gross lewdness, as it was not a form of punishment imposed by the trial court, and thus defendant's plea was not
invalid on ground that he was not informed beforehand that he might lose such licenses.
6. Criminal Law.
A defendant who pleads guilty upon the advice of counsel may attack the validity of the guilty plea by showing that he received
ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. Const. amend. 6.
7. Criminal Law.
Although it is a good practice for counsel to advise a client of all foreseeable consequences arising from a guilty plea irrespective of
whether they are direct or collateral, a showing that an attorney's performance was less than perfect is insufficient to prove
constitutionally ineffective assistance under Strickland. U.S. Const. amend. 6.
8. Criminal Law.
To succeed on a claim of ineffective assistance of counsel on a guilty plea, a defendant must prove both that: (1) counsel's performance
fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the defendant
would not have pleaded guilty. U.S. Const. amend. 6.
9. Criminal Law.
When considering counsel's advisements to a defendant under the stricture of Strickland, defense counsel has done all he must under
the Constitution when he advises his client of the direct consequences of a guilty plea. U.S. Const. amend. 6.
10. Criminal Law.
Defendant's counsel was not ineffective for failing to inform him that, by pleading guilty to open and gross lewdness, defendant would
be required to register as a sex offender and might lose his professional licenses. A lawyer's representation of a defendant does not rise
to the level of constitutionally ineffective assistance based solely on an abstract claim that a particular consequence was significant, as
only advisements of direct consequences are required. U.S. Const. amend. 6.
OPINION
Appellant James L. Nollette claims his guilty plea was constitutionally infirm and his counsel
was ineffective because he was not advised that, as a result of his conviction: (1) he would be
required to register as a sex offender; and (2) he could lose his professional licenses. We hold
that the requirement to register as a sex offender and the potential loss of a professional
license are collateral consequences of a guilty plea, and as such, the failure to advise Nollette
of these consequences does not invalidate the guilty plea or constitute ineffective assistance
of counsel.
FACTS
On June 4, 1998, Nollette, a seventy-year-old landlord, licensed family therapist and realtor,
entered the apartment of one of his tenants, a thirty-five-year-old female, and observed her
sleeping naked.
sleeping naked. Allegedly, upon seeing the naked woman, Nollette became aroused, took off
his clothes, and began caressing the victim, in the hope that she would awake and invite him
into bed. The victim, however, was still asleep when her boyfriend arrived at the apartment
and discovered Nollette naked in the victim's bedroom. Nollette fled the victim's apartment,
but was later arrested at his apartment located next door to the victim's.
On February 23, 1999, Nollette was charged with one count of open and gross lewdness.
Nollette pleaded guilty. On June 4, 1999, the district court sentenced Nollette to a jail term of
ten months, but then suspended execution of the sentence and placed Nollette on probation
for a period not to exceed three years. Nollette did not file a direct appeal. However, on
February 15, 2000, Nollette filed a post-conviction petition for a writ of habeas corpus,
arguing that his guilty plea was invalid and his counsel was ineffective. The State opposed the
petition. Without conducting an evidentiary hearing, the district court denied the petition.
Nollette appeals.
DISCUSSION
I. Validity of the guilty plea
[Headnotes 1-3]
This court has held that the totality of the circumstances must demonstrate that a defendant
pleaded guilty with knowledge of the direct consequences of his plea.
1
Direct consequences
are those ramifications that have a definite, immediate and largely automatic effect on the
range of the defendant's punishment.'
2
Collateral consequences, by contrast, do not affect
the length or nature of the punishment and are generally dependent on either the court's
discretion, the defendant's future conduct, or the discretion of a government agency.
3
Because collateral consequences of a criminal conviction are often limitless, unforeseeable or
personal to the defendant, requiring an advisement with respect to every conceivable
collateral consequence would impose upon the trial court an impossible, unwarranted and
unnecessary burden.
4
Thus, in this appeal we must determine whether two consequences of
Nollette's plea were direct or collateral consequences flowing from his conviction: namely,
the requirement that he register as a sex offender and the possibility that he would lose his
professional licenses. We address each consequence in turn.
__________

1
Little v. Warden, 117 Nev. 845, 851, 34 P.3d 540, 544 (2001).

2
Id. at 849, 34 P.3d at 543 (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988) (internal quotations
and citations omitted)).

3
People v. Williams, 721 N.E.2d 539, 544 (Ill. 1999).

4
State v. Fournier, 385 A.2d 223, 224 (N.H. 1978).
A. Sex offender registration and notification
[Headnote 4]
A majority of jurisdictions that have considered the issue hold that sex offender registration is
a collateral consequence of a guilty plea.
5
Most of these holdings are based on the conclusion
that registration requirements are not punitive, but instead serve a regulatory or remedial
purpose.
6
We agree with the majority of jurisdictions and hold that sex offender registration
is a collateral consequence of a guilty plea because it is not a penal consequence.
7

Under Nevada law, individuals convicted of certain enumerated sex offenses must register
with local law enforcement in the city or county in which they reside and in which they are
present for more than forty-eight hours.
8
To register, the sex offender must appear in person
and provide all information requested by the local law enforcement agency including
fingerprints and a photograph.
9
Failure to comply with the registration requirements is a
category D felony.
10

In addition to providing law enforcement with sex offender registration information, the
Nevada statutes also provide three levels of community notification based on an assessment
of the sex offender's risk of committing future crimes.
11
Notably, level-one offenders are not
subject to widespread community notification because such offenders pose a low risk of
future dangerousness.
12
Level-three offenders posing a high risk of future dangerousness, by
contrast,
__________

5
See, e.g., Robinson v. State, 730 So. 2d 252, 254 (Ala. Crim. App. 1998); State v. Young, 542 P.2d 20, 22
(Ariz. 1975); People v. Montaine, 7 P.3d 1065, 1067 (Colo. Ct. App. 1999); Collie v. State, 710 So. 2d 1000,
1008 (Fla. Dist. Ct. App. 1998); Ray v. State, 982 P.2d 931, 935-36 (Idaho 1999); People v. Taylor, 561 N.E.2d
393, 394 (Ill. App. Ct. 1990); State v. Timperley, 599 N.W.2d 866, 869 (S.D. 1999); State v. Ward, 869 P.2d
1062, 1075-76 (Wash. 1994); State v. Bollig, 605 N.W.2d 199, 206 (Wis. 2000); Johnson v. State, 922 P.2d
1384, 1387 (Wyo. 1996).

6
See Larry J. Richards, Case Comment, Criminal ProcedurePlea Withdrawal: Grounds for
AllowanceNorth Dakota Adopts the Minority Rule Regarding Court Notification of a Sex Offender's Duty to
Register, 74 N.D. L. Rev. 157, 161-62 (1998).

7
In so holding, we expressly reject the holdings in In re Birch, 515 P.2d 12, 14-17 (Cal. 1973) and State v.
Breiner, 562 N.W.2d 565, 567-68 (N.D. 1997) (plurality opinion), overruled on other grounds by State v. Burr,
598 N.W.2d 147 (N.D. 1999), which provide that a guilty plea may be constitutionally infirm due to the lack of
advisement about sex offender registration because it is a direct consequence of a guilty plea.

8
NRS 179D.460(1)-(4).

9
NRS 179D.460(5)(a), (b).

10
NRS 179D.550.

11
NRS 179D.730.

12
NRS 179D.730(1)(a).
by contrast, are subject to far-reaching community-notification provisions designed to reach
members of the public who are likely to encounter the sex offender.
13

Before a sex offender is sentenced, the district court is required to inform the offender of the
registration requirements.
14
The district court also is required to ensure that the defendant
reads and signs a form acknowledging that the registration requirements have been explained.
15
Notably, however, the legislature does not require the district court to advise a defendant
of the duty to register as a sex offender prior to accepting a guilty plea.
16
Further, the district
court's failure to advise a defendant that he must register as a sex offender does not affect the
duty of the defendant to register and to comply with all other provisions for registration.
17

Our review of the statutes themselves and the legislative history of the sex offender
registration and notification statutes indicates that they were not intended to impose a penal
consequence but were instead implemented to protect the community and assist law
enforcement in solving crimes.
18
As the record of the legislative hearings reflects, the
registration and notification requirements were designed to be civil in nature and not
punitive.
19

For example, the practical effects of the sex offender registration and notification provisions
are, for the most part, non-punitive.
20
The registration laws do not place an affirmative
disability or restraint on the sex offender. There is nothing in the text of the sex offender
registration act that would preclude the offender from living in any particular place or that
would place an undue restraint on an offender's right to travel.
__________

13
NRS 179D.730(1)(c).

14
NRS 176.0927(1)(b).

15
NRS 176.0927(1)(c).

16
Cf. NRS 174.035 (setting forth statutory advisements with respect to entry of pleas).

17
NRS 176.0927(2). Although the record before this court does not demonstrate that the district court
informed Nollette of the registration requirements prior to sentencing as required by NRS 176.0927, Nollette
does not contend that a failure to follow that statute invalidates his previously entered guilty plea. Accordingly,
we have not addressed the issue in this appeal.

18
See Hearing on S.B. 325 Before the Senate Comm. on Judiciary, 69th Leg. (Nev., May 1, 1997).

19
Hearing on S.B. 192 Before the Senate Comm. on Judiciary, 68th Leg., at 6 (Nev., February 7, 1995)
(statement of David F. Sarnowski, Chief Criminal Deputy Attorney General); see also Hearing on S.B. 192
Before the Assembly Comm. on Judiciary, 68th Leg., at 14 (Nev., April 12, 1995) (statement of David F.
Sarnowski, Chief Criminal Deputy Attorney General).

20
See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (setting forth factors to determine
whether legislation is punitive in purpose or effect in the context of an ex post facto challenge).
an undue restraint on an offender's right to travel.
21
Additionally, the limitations and
guidelines in place for dissemination of the registered person's information to the public,
namely the three-level classification system, ensure that community disclosure occurs to
prevent future harm where the risk of reoffense is high, not to punish past conduct.
22

Although Nollette argues that the community-notification requirement is punishment because
he will be stigmatized by dissemination of his personal information, we note that at least
some of the information provided, in particular, the nature of the offender's conviction, is a
matter of public record irrespective of the registration requirement.
23
Further, traditionally,
registration requirements for certain criminal offenders are viewed as a law enforcement
technique and are not designed to serve traditional aims of punishment, deterrence, and
retribution.
24
Although, admittedly, it is possible that registration might deter a registrant
from committing future offenses, that deterrence is more likely the result of the underlying
conviction and sentence, rather than the registration requirement.
25
Regardless, the mere
possibility of a secondary, deterrent effect does not, without more, make the statute punitive
in nature.
Based on the foregoing, we conclude that Nevada's sex offender registration and notification
requirement is a collateral consequence of a guilty plea because it is not sufficiently punitive
to have an immediate and direct effect on the defendant's range of punishment. Because
notification and advisement of a collateral consequence of a criminal conviction is not a
prerequisite to the entry of a constitutionally valid plea, we conclude that the district court's
failure to advise Nollette of the registration requirement before accepting his guilty plea does
not render it constitutionally infirm.
B. Potential loss of professional licenses
[Headnote 5]
We also conclude that the failure to advise Nollette that he might lose his professional
licenses does not invalidate his plea. Like other jurisdictions that have considered the issue,
we hold that the loss of a professional license or employment is not a direct consequence of
a guilty plea.
__________

21
Accord Ward, 869 P.2d at 1069.

22
See NRS 179D.730; accord Ward, 869 P.2d at 1069-72.

23
See 179A.100(1); accord State v. Pickens, 558 N.W.2d 396, 399 (Iowa 1997).

24
See Lambert v. California, 355 U.S. 225, 229 (1957); Burr, 598 N.W.2d at 154.

25
Accord Ward, 869 P.2d at 1073.
direct consequence of a guilty plea.
26
Our holding is based on the fact that the revocation of a
professional license is not a form of punishment imposed by the trial court.
27
Instead, like
other collateral consequences, the revocation of a professional license or the termination of
employment is the result of an action taken by a government agency or private entity. Such a
consequence is unrelated to the defendant's sentence and personal to the circumstances of
each defendant.
28

In so holding, we reject Nollette's contention that our prior precedent, particularly State v.
District Court, compels a conclusion that the potential loss of a professional certification or
license is a direct consequence of a guilty plea.
29
In District Court, we affirmed a district
court's ruling granting a presentence motion to withdraw a guilty plea, relying upon the fact
that presentence motions may be granted at the discretion of the district court for any reason
that is fair and just.
30
Notably, in District Court, we did not consider a post-sentencing
challenge to the validity of a guilty plea, or whether the potential loss of a license was a direct
or a collateral consequence of a guilty plea. Accordingly, District Court is inapplicable to the
instant matter.
Because we conclude that the potential loss of a professional license is a collateral
consequence of a guilty plea, an advisement with respect to this consequence is not
constitutionally compelled. Accordingly, we conclude that Nollette's guilty plea is not
constitutionally infirm due to the district court's failure to advise him of the likelihood of
losing his professional licenses.
II. Ineffective assistance of counsel
Even assuming that his guilty plea was valid, Nollette contends that reversal of his conviction
is warranted because his counsel was ineffective for failing to advise him of the consequences
of sex offender registration and the potential loss of his professional licenses. We disagree.
[Headnote 6]
A defendant who pleads guilty upon the advice of counsel may attack the validity of the
guilty plea by showing that he received ineffective assistance of counsel under the Sixth
Amendment to the United States Constitution.
__________

26
See, e.g., United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir. 1976); People v. Williams, 721 N.E.2d
539, 544 (Ill. 1999); Cox v. State, 819 P.2d 1241, 1243 (Kan. Ct. App. 1991).

27
See State v. Heitzman, 508 A.2d 1161, 1164 (N.J. Super. Ct. 1986).

28
See id.

29
85 Nev. 381, 455 P.2d 923 (1969).

30
Id. at 384-85, 455 P.2d at 925-26.
the United States Constitution.
31
The applicable test to determine whether counsel was
ineffective is set forth in Strickland v. Washington.
32
In analyzing the reasonableness of an
attorney's performance under the Strickland test, our inquiry does not focus on whether it
would have been a good idea or practice to inform Nollette about the collateral consequences
of his guilty plea.
33
Clearly, it would have been.
[Headnotes 7, 8]
Although it is a good practice for counsel to advise a client of all foreseeable consequences
arising from a guilty plea irrespective of whether they are direct or collateral, a showing that
an attorney's performance was less than perfect is insufficient to prove constitutionally
ineffective assistance under Strickland.
34
Rather, to succeed on such a claim, a defendant
must prove both that: (1) counsel's performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the
defendant would not have pleaded guilty.
35

[Headnotes 9, 10]
In applying the two-prong Strickland analysis, courts generally have rejected claims of
ineffective assistance that merely allege that counsel failed to provide unsolicited advice or
information to a defendant about collateral consequences. Those holdings are based on the
premise that such knowledge is not a prerequisite to a knowing and voluntary plea.
36
When
considering counsel's advisements to a defendant under the stricture of Strickland, we agree
with the Fifth Circuit Court of Appeals that [d]efense counsel has done all he must under the
Constitution when he advises his client of the direct consequences of a guilty plea.
37
In fact,
we have recently held that counsel was not ineffective for failing to inform a client about the
possibility of deportation because it was a collateral consequence of the client's guilty plea.
38
Similarly, we now hold that, because the consequences at issue here were collateral,
__________

31
U.S. Const. amend. VI; see also Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).

32
466 U.S. 668 (1984).

33
People v. Reed, 72 Cal. Rptr. 2d 615, 617 (Ct. App. 1998).

34
Id. at 617-18.

35
Kirksey v. State, 112 Nev. 980, 987-88, 923 P.2d 1102, 1107 (1996); see also Hill, 474 U.S. at 59.

36
See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.
1989).

37
Banda, 1 F.3d at 356.

38
Barajas v. State, 115 Nev. 440, 991 P.2d 474 (1999).
issue here were collateral, rather than direct, Nollette's counsel was not ineffective for failing
to inform him that, by pleading guilty, he would be required to register as a sex offender and
might lose his professional licenses. We cannot say that a lawyer's representation of a
defendant rises to the level of constitutionally ineffective assistance based solely on an
abstract claim that a particular consequence was significant: only advisements of direct
consequences are required.
39

CONCLUSION
We conclude that Nollette's guilty plea is not invalid due to the district court's failure to
inform him of the sex offender registration requirements and the potential loss of his
professional licenses because those are collateral consequences of his guilty plea.
Additionally, we conclude that Nollette's counsel was not ineffective for failing to provide
unsolicited information regarding those collateral consequences. We therefore affirm the
district court's order.
Shearing, J., concurs.
I concur in the majority's decision that the loss of a professional license is a collateral effect
of a guilty plea to a sex crime, but I conclude that NRS 176.0927 makes the requirement that
a sex offender register a direct consequence of a guilty plea to a sex crime. This statute
mandates that the district court inform the defendant of the registration requirements before
imposing sentence, and further mandates that the defendant read and sign a form
acknowledging the registration requirements.
By statute, a sex offender must be informed of the registration requirements before
sentencing. But a sentence is a direct result of a defendant's guilty plea. Thus, I would hold
that the legislature required that registration be acknowledged as a direct consequence of the
plea process, even before formal sentencing. Because Nollette was not informed of this direct
consequence before he pleaded guilty, his guilty plea is infirm and should be set aside and the
case remanded for trial.
__________

39
See Santos, 880 F.2d at 944-45.
____________
118 Nev. 351, 351 (2002) Mann v. State
RAYMOND CASEY MANN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36196
May 17, 2002
46 P.3d 1228
Proper person appeal from an order of the district court denying appellant's post-conviction
petition for a writ of habeas corpus. Fifth Judicial District Court, Nye County; John P. Davis,
Judge.
Petitioner sought habeas corpus relief on the ground that attorneys ignored request to appeal
conviction. The district court denied petition without evidentiary hearing. Petitioner appealed.
The supreme court held that: (1) ignoring request for an appeal creates presumption of
prejudice and is ineffective assistance of counsel, and (2) the record did not belie claim and
entitled petitioner to evidentiary hearing despite attorneys' affidavits.
Raymond Casey Mann, Carson City, in Proper Person.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney,
Nye County, for Respondent.
1. Criminal Law.
If counsel ignored defendant's request for an appeal, then defendant established ineffective assistance of counsel and was not required
to demonstrate anything further. U.S. Const. amend. 6.
2. Criminal Law.
Prejudice is presumed for purposes of establishing ineffective assistance of counsel when counsel's conduct completely denies a
convicted defendant an appeal. U.S. Const. amend. 6.
3. Habeas Corpus.
Record did not belie habeas petitioner's claim that attorneys ignored request for appeal, and thus, the petitioner was entitled to an
evidentiary hearing on his claim alleging ineffective assistance of counsel, even though attorneys' affidavits attached to State's answer
stated that petitioner never requested to appeal conviction; the affidavits did not make the claim false and were not part of the record at
the time of the claim. U.S. Const. amend. 6; NRS 34.770(1), 34.790.
4. Habeas Corpus.
A claim is not belied by the record just because a factual dispute is created by the pleadings or affidavits filed during the
post-conviction proceedings; rather, a claim is belied and thus does not warrant an evidentiary hearing when it is contradicted or
proven to be false by the record as it existed at the time the claim was made.
5. Habeas Corpus.
A district court ruling on a habeas corpus petition may not resolve a factual dispute created by affidavits without conducting an
evidentiary hearing.
118 Nev. 351, 352 (2002) Mann v. State
OPINION
Per Curiam:
Appellant Raymond Casey Mann filed a proper person post-conviction petition for a writ of
habeas corpus, alleging that his trial counsel provided ineffective assistance by failing to file a
direct appeal after Mann requested them to do so. In its answer, the State claimed that Mann
did not request an appeal and attached affidavits from trial counsel refuting Mann's
allegations. Without conducting an evidentiary hearing, the district court found Mann's
allegations did not warrant relief and denied his petition. We conclude that the district court
improperly denied the petition without conducting an evidentiary hearing.
FACTS
On April 15, 1999, Mann was convicted, pursuant to a jury verdict, of four counts of being an
ex-felon in possession of a firearm. Mann did not file a direct appeal. On December 21, 1999,
Mann filed a timely proper person post-conviction petition for a writ of habeas corpus. He
claimed, among other things, that his attorneys failed to file an appeal after he requested that
they do so. Specifically, Mann claimed that he sent a letter to trial counsel requesting them to
file an appeal, that counsel led Mann to believe that an appeal had been filed, and that Mann
did not become aware of his attorneys' failure to file a notice of appeal until Mann received a
letter to that effect from the clerk of this court. Mann attached documents supporting his
claims.
The record did not belie Mann's claim. To the contrary, it provided some support for Mann's
claim that his counsel were aware that he wished to pursue a direct appeal. For example, at
the beginning of the sentencing proceeding conducted on April 13, 1999, one of the two
attorneys who represented Mann during various stages of the proceedings in the district court
stated on the record that either Mann or Mann's father had expressed interest in an appeal.
Additionally, at a hearing conducted on July 13, 1999, defense counsel represented to the
court that an appeal had in fact been filed and that he was representing Mann in that appeal.
The State opposed the petition and attached affidavits from both trial counsel refuting Mann's
claims. Without conducting an evidentiary hearing, the district court rejected Mann's claims.
Specifically, the district court concluded:
[Mann's] self serving allegation and documentation purporting to show he requested an
appeal from his counsel and they did not do so does not overcome the presumption that his
counsel was adequate.
118 Nev. 351, 353 (2002) Mann v. State
his counsel was adequate. Even if [Mann's] counsel had ignored his request for an appeal,
[Mann] has not [shown] that his [attorneys'] performance fell below an acceptable level of
professionalism. He has not shown his case had any issues ripe for appeal. Further, [Mann]
has not shown prejudice: he has not shown that he would have been successful on appeal
had his counsel raised it.
Therefore, the district court denied Mann's petition. This appeal followed.
Our preliminary review of the record in this matter revealed that the district court may have
erroneously denied the petition without first conducting an evidentiary hearing. A petitioner is
entitled to a post-conviction evidentiary hearing when he asserts claims supported by specific
factual allegations not belied by the record that, if true, would entitle him to relief.
1
It
appeared that Mann had met this burden by alleging that his attorneys deprived him of a
direct appeal by failing to file his appeal after he requested that they do so. If true, Mann's
allegations would have entitled him to the remedy established in Lozada v. State.
2
Thus, on
November 19, 2001, this court ordered the State to show cause why the case should not be
remanded for an evidentiary hearing on Mann's ineffective assistance claim. In its response to
that order, the State contends that the district court properly considered both parties' affidavits
and supporting documents in lieu of holding an evidentiary hearing. We disagree.
DISCUSSION
[Headnotes 1, 2]
First, we conclude that the district court erred as a matter of law in ruling that, even if trial
counsel ignored Mann's request for an appeal, Mann was nevertheless required to
demonstrate: (1) that his attorneys' performance fell below an acceptable level of
professionalism; (2) that there were issues that were ripe for appeal; and (3) that Mann
would have been successful on appeal had his counsel filed one. In Lozada, this court held
that an attorney has a duty to perfect an appeal when a convicted defendant expresses a
desire to appeal or indicates dissatisfaction with a conviction.
3
Prejudice is presumed for
purposes of establishing ineffective assistance of counsel when counsel's conduct completely
denies a convicted defendant an appeal.
4
Thus, under Lozada, if Mann demonstrates that his
counsel in fact ignored his request for an appeal,
__________

1
See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).

2
110 Nev. 349, 359, 871 P.2d 944, 950 (1994).

3
Id. at 354, 871 P.2d at 947.

4
Id. at 357, 871 P.2d at 949.
118 Nev. 351, 354 (2002) Mann v. State
request for an appeal, then Mann has established ineffective assistance of counsel and is not
required to demonstrate anything further. To the contrary, the district court would be
obligated at that point to appoint counsel to represent and assist Mann in the preparation of a
post-conviction petition for a writ of habeas corpus asserting any issues that could have been
raised on direct appeal.
5
If the district court thereafter denies such a petition, Mann may
appeal the denial to this court.
6

[Headnote 3]
Second, it is clear from our review of the record that Mann was entitled to an evidentiary
hearing on his claim that his counsel ignored his request for an appeal. This court has long
recognized a petitioner's right to a post-conviction evidentiary hearing when the petitioner
asserts claims supported by specific factual allegations not belied by the record that, if true,
would entitle him to relief.
7
In Vaillancourt v. Warden,
8
we held that [w]here . . .
something more than a naked allegation has been asserted, it is error to resolve the apparent
factual dispute without granting the accused an evidentiary hearing.
The State contends that Mann's claim is belied by the record because, in affidavits filed in
response to the claims asserted in Mann's petition, Mann's trial attorneys attested that he did
not request an appeal. Basically, the State contends that the record includes any document
filed in the district court in response to the claims stated in a petition. If such a filed document
controverts Mann's factual allegations, the State contends, then Mann is not entitled to an
evidentiary hearing. We disagree.
[Headnote 4]
A claim is not belied by the record just because a factual dispute is created by the pleadings
or affidavits filed during the post-conviction proceedings. A claim is belied when it is
contradicted or proven to be false by the record as it existed at the time the claim was made.
For example, a petitioner's claim that he was not informed of the maximum penalty that he
could face before he pleaded guilty is belied if the transcript of the entry of plea shows that
the district court judge clearly informed the petitioner of the penalty. The instant situation is
different. Mann and his attorneys apparently disagree about whether he requested an appeal.
Neither Mann's claim, nor his attorneys' claims are belied by the record, and the fact that his
attorneys' affidavits refute Mann's claims does not mean Mann's contentions are
necessarily false.
__________

5
Id. at 359, 871 P.2d at 950.

6
Id.

7
See, e.g., Hargrove, 100 Nev. 498, 686 P.2d 222; Hatley v. State, 100 Nev. 214, 678 P.2d 1160 (1984).

8
90 Nev. 431, 432, 529 P.2d 204, 205 (1974).
118 Nev. 351, 355 (2002) Mann v. State
Mann's claims does not mean Mann's contentions are necessarily false.
Under the State's view, it would never be necessary to hold an evidentiary hearing. The
district court could instead accept affidavits from each party and thereafter resolve any factual
dispute created by the affidavits. The habeas rules set forth by statute do not contemplate the
district court resolving factual disputes in this fashion.
NRS 34.735 clearly dictates the form and content of a post-conviction petition for a writ of
habeas corpus. To avoid dismissal, a habeas petitioner who claims that the petitioner's
imprisonment is illegal must state facts which show that the restraint or detention is illegal.
9
If the petitioner challenges the constitutionality of a conviction or sentence, NRS 34.370(4)
also expressly requires the petitioner to attach affidavits, records, or other evidence
supporting the claims.
If, as in this case, the petition is the first one that the petitioner has filed challenging the
validity of his conviction or sentence, NRS 34.745(1) requires the district court to order an
answer from the State or to take other action deemed appropriate. NRS 34.760 mandates the
State, like the petitioner, to include specific information in its answer.
10
For example, the
State is obligated to inform the district court of any of the petitioner's other requests for relief
and to file a copy of the petitioner's previous appellate briefs and appellate court decisions, if
any.
11
The State must also inform the court of any transcripts that are available and must
attach relevant portions of the transcripts to the answer.
12
Aside from prior briefs, orders and
official records within the State's control, the habeas provisions do not permit the State to
attach documents that are not already in the original trial court record.
After receiving the petition, answer and supplemental pleadings filed by appointed counsel, if
any, the district court must determine whether an evidentiary hearing is necessary.
13
Only
after the district court decides to conduct an evidentiary hearing do the statutes allow for
expansion of the record.
14
Copies of documents in the expanded record must be submitted to
the opposing party, who must be given the opportunity to admit or deny their correctness.
15

__________

9
NRS 34.370(3); see also NRS 34.735.

10
See also NRS 34.430(2)-(5) (dictating the required contents of and attachments to the State's return).

11
NRS 34.760(1), (3).

12
NRS 34.760(2).

13
NRS 34.770(1).

14
NRS 34.790.

15
NRS 34.790(3).
118 Nev. 351, 356 (2002) Mann v. State
[Headnote 5]
Because the habeas provisions do not allow the State to expand the record via its answer
unless the district court orders an evidentiary hearing and because petitioners are entitled to
an evidentiary hearing if they plead specific facts not belied by the record that, if true, would
entitle them to relief, we specifically hold that it is improper for the district court to resolve a
factual dispute created by affidavits without conducting an evidentiary hearing. We conclude
that Mann's petition set forth sufficient allegations to entitle him to an evidentiary hearing.
Mann alleged that his trial counsel failed to file an appeal after Mann requested them to do
so. The record does not belie this allegation; rather, as noted above, the record provides some
support for his claim. Thus, the district court erred in failing to hold an evidentiary hearing on
this issue.
The State argues that the case should not be remanded for an evidentiary hearing because the
district court already had the opportunity to consider the issue. Referencing the district court's
order, the State argues that the court clearly found Mann incredible. If an evidentiary hearing
is ordered, the State predicts that Mann will repeat his allegation, his trial counsel will refute
it, and the court will deny relief.
While the State's predictions may be correct, this court has consistently recognized a habeas
petitioner's statutory right to have factual disputes resolved by way of an evidentiary hearing.
Moreover, Mann may be able to bolster his claim by presenting additional evidence or
testimony and by cross-examining and impeaching his trial attorneys. Also, by observing the
witnesses' demeanors during an evidentiary hearing, the district court will be better able to
judge credibility. Thus, we conclude that this case must be remanded for an evidentiary
hearing.
CONCLUSION
We reverse the district court's order in its entirety and remand this case for an evidentiary
hearing on the sole issue of whether Mann's counsel failed to file an appeal after Mann
expressed an interest in a direct appeal. The district court may exercise its discretion to
appoint counsel for the hearing.
16
If the district court determines that Mann was denied his
right to a direct appeal, it shall appoint counsel to represent Mann and allow him to file a
petition for a writ of habeas corpus raising issues appropriate for direct appeal. Conversely, if
the district court determines that Mann's appeal-deprivation claim lacks merit, the district
court shall enter a final order resolving all of the claims raised in the instant habeas petition.
__________

16
See NRS 34.750(1).
118 Nev. 351, 357 (2002) Mann v. State
instant habeas petition.
17
Mann or the State may then appeal from any adverse final,
appealable order.
18

____________
118 Nev. 357, 357 (2002) Vallery v. State
DeLOIS VALLERY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36586
May 17, 2002
46 P.3d 66
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of neglect of
the elderly causing substantial bodily harm and two counts of neglect of the elderly causing
death. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
The supreme court held that: (1) the 1993 elder abuse statute required the defendant to have
had actual knowledge that the older person was likely to suffer pain or mental suffering; (2)
the 1995 elder abuse statute did not require actual knowledge of the danger to an older
person; (3) the district court's decision to disallow testimony from several of defendant's
proffered witnesses was not an abuse of discretion; and (4) failure to instruct the jury on the
elder abuse statute's actual knowledge element, in effect at the time of defendant's offense,
warranted remand for a new trial on charge of neglect of the elderly causing substantial bodily
harm.
Affirmed in part, reversed in part and remanded.
Lee T. Hotchkin Jr., Reno, for Appellant.
Respondent.
1. Criminal Law.
Defendant was not entitled to dismissal of the charge of neglect of the elderly causing substantial bodily harm at the close of the
evidence at trial; the district court had no authority to dismiss a criminal action at the close of the evidence. NRS 200.5099.
__________

17
Because we conclude that an evidentiary hearing is necessary, we decline to reach the merits of any of the
other claims that Mann raised in the instant petition. We have also considered all proper person documents filed
or received in this matter, and we conclude that no further relief is warranted at this time. We also conclude that
oral argument and briefing are unwarranted in this matter. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d
910, 911 (1975).

18
See NRS 34.575.
2. Health.
The 1993 elder abuse statute, which made it a crime for an individual to willfully cause or permit an older person to suffer unjustifiable
physical pain or mental suffering as a result of neglect, required the defendant to have had actual knowledge that the older person was
likely to suffer pain or mental suffering. The phrase willfully causes or permits contemplated actual knowledge of a situation that
required action to prevent harm to an older person. NRS 200.5099 (1993); NRS 200.5092.
3. Health.
The 1995 elder abuse statute, which made it a crime for an individual who had assumed responsibility to care for an older person to
neglect the older person causing physical pain or mental suffering, allow the older person to suffer unjustifiable physical pain or mental
suffering, or permit the older person to be placed in a situation where they may suffer physical pain or mental suffering as the result of
abuse or neglect, did not require actual knowledge of the danger to an older person. Use of the words permit and allow only
required proof that an accused knew or had reason to know that an older person could suffer harm as a result of the accused's actions or
failure to act. NRS 200.5099 (1995); NRS 200.5092, 200.50925.
4. Criminal Law.
The district court's decision to disallow testimony from several of defendant's proffered witnesses was not an abuse of discretion, in
prosecution for elder abuse; the testimony from the witnesses regarding their satisfaction with the residential group care facilities
defendant operated was cumulative of testimony from other witnesses, and the satisfaction of current and prior clients and their
families was marginally relevant to whether defendant neglected to take the appropriate action in caring for residents, which formed the
basis of the charges against defendant.
5. Criminal Law.
A district court's decision to admit or exclude evidence rests within its sound discretion and will not be disturbed unless it is manifestly
wrong.
6. Criminal Law.
The district court's error in disallowing the testimony of defense witness who proposed to testify that elderly patients with Alzheimer's
are capable of turning off door alarms was harmless, in prosecution for elder abuse involving a resident who left a facility that had door
alarms.
7. Criminal Law.
Generally, 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.
8. Criminal Law.
The district court may refuse a jury instruction on the defendant's theory of the case that is substantially covered by other instructions.
In addition, a district court must not instruct a jury on theories that misstate the applicable law.
9. Health.
Defendant was not entitled to a jury instruction that stated that the residential group care facilities' contractual provisions relieved
defendant of her responsibilities as administrator of the facilities under the state regulations or statutes, in elder abuse trial; an
administrator could not contractually limit his or her statutory duties, defendant was the administrator of the facilities,
istrator of the facilities, and the statutes provided that an administrator could be held liable for harm to a resident even though the
administrator did not assume personal care over the individual. NRS 200.5099, 449.0355, 654.015, 654.155(7); NAC 449.2777(2),
449.2783(1)(a) (repealed).
10. Health.
Defendant was not entitled to a jury instruction that stated that criminal negligence was more than ordinary negligence, in prosecution
for elder abuse. Elder abuse statute referred to neglect, rather than negligence, and there was no requirement under the statute of ill will
or recklessness towards the older person. NRS 200.5092, 200.5099.
11. Health.
Defendant was not entitled to a jury instruction that defined proximate cause and criminal causation, in elder abuse trial, where the
concept of causation was covered by other jury instructions regarding statutory language of the elder abuse statute. NRS 200.5099.
12. Health.
Defendant was not entitled to a jury instruction on intervening, superseding acts, in prosecution for elder abuse involving a resident of
defendant's residential group care facility who suffered from an ulcer on his hip because the resident's caregivers' failure to seek
medical attention for resident was not a superseding cause since the caregivers testified that they notified defendant, as administrator of
the facility, of the resident's ulcer, and that defendant instructed them not to seek medical care for resident without defendant's
approval.
13. Health.
defendant's residential group care facility who died of organ failure due to hypothermia after he left facility without his caregiver's
knowledge. Possibility that resident died of cardiac arrest was not a superseding cause because there was no evidence that cardiac
arrest alone, without the hypothermia, was the sole cause of resident's death. Also, decision of resident's family to refuse extraordinary
resuscitation measures was not a superseding event because resident was already dead when the family refused treatment.
14. Health.
defendant's residential group care facility who died after suffering second-degree scald burns when defendant left resident alone in the
bathroom at facility. The refusal of resident's family to transfer resident to a burn unit for extensive and extremely painful medical
treatments was not a superseding act.
15. Criminal Law.
The district court's failure to instruct the jury on the elder abuse statute's actual knowledge element, in effect at the time of defendant's
offense, warranted remand for a new trial on charge of neglect of the elderly causing substantial bodily harm. Instruction that addressed
the amended elder abuse statute resulted in the court erroneously instructing the jury on the elements of abuse and neglect. NRS
200.5099.
OPINION
Per Curiam:
Appellant, DeLois Vallery, was convicted of one count of neglect of the elderly causing
substantial bodily harm and two counts of neglect of the elderly causing death resulting from
her failure to take action to prevent neglect of, or to properly supervise, elderly persons
residing in residential group care facilities administered by her. Vallery now appeals on
several grounds. However, the primary focus of her appeal involves the construction of
different versions of NRS 200.5099, Nevada's older person abuse prevention statute.
For the reasons set forth below, we conclude that the jury was improperly instructed on Count
I, neglect of the elderly causing substantial bodily harm. Count I involved an offense
committed before the effective date of the 1995 amendments to NRS 200.5099. We will refer
to that statute as the 1993 version of the statute. Counts II and III (neglect of the elderly
causing death) involved events that occurred subsequent to the effective date of the 1995
amendments to the statute.
1

The 1993 statute requires the State to prove that an individual actually knew that an older
person needed care or assistance and failed to provide the necessary care or assistance. In
contrast, under the 1995 and current versions of the statute, the State need only prove that the
individual knew or should have known that his or her actions, or failure to act, placed an
older person under their care in a position where the older person could be subjected to harm.
Both versions also require that the accused's actions result in harm to the older person.
The jury instructions did not distinguish between the two versions of the statute and were
based on language contained in the 1995 version of the statute. Accordingly, we conclude that
the jury was improperly instructed regarding neglect on Count I. We therefore reverse that
conviction and remand for a new trial on Count I. We further conclude that the jury
instructions properly informed the jury of the elements of the offenses alleged in Counts II
and III. We therefore affirm Vallery's convictions on those counts.
__________

1
The incidents resulting in the deaths charged in Counts II and III occurred in 1996 and 1997, before the
effective date of any legislative changes to NRS 200.5099 in the 1997 legislative session. Therefore, the 1995
version of the statute applies to these two counts. While minor amendments were made to the statutes involving
abuse or neglect of the elderly between 1995 and 2001, they did not affect the language of the statutes relevant
to this appeal. Therefore, the subsequent amendments would not change the result in this case.
FACTS
At the time of the incidents in question, Vallery was the president and sole shareholder of
Dee's Sleepy Hollow, Inc. The corporation operated residential group care facilities in
Washoe County. Sleepy Hollow was licensed to operate the facilities by the Nevada State
Health Division. Division representatives testified that, as part of the license, Sleepy Hollow
was required to designate an individual as the administrator of the facilities. Vallery was the
designated administrator for the Sleepy Hollow facilities. Pursuant to health division
regulations, Vallery was responsible for insuring that the facilities adhered to all relevant
codes and regulations governing such facilities.
Sleepy Hollow required the guardians or responsible persons for all residents to sign a group
care agreement that included the following recital: The home limits admissions to persons
who are ambulatory and only require the furnishing of food, shelter, assistance and limited
supervision.
This case involves individuals who resided in two of Sleepy Hollow's facilities, which are
residential style houses located on Koenig and Panther Streets in Reno, Nevada. The Koenig
house was licensed only as a standard residential group care facility. The Panther house had a
higher level of license. It was licensed as a twenty-four-hour supervision facility. Both
facilities were required to have live-in caregivers for the residents, but in the Panther house,
at least one caregiver had to be awake and on duty at all times. In addition, alarms were
required in the Panther house so that residents could not leave the house without the
knowledge of the caregivers.
The resident caregivers in the Koenig house were Louise Edwards, Vallery's sister-in-law,
and Addie Clarence Coleman, a man who had been raised by the same family as Vallery. The
resident caregivers at the Panther home were Lucas Mack, Vallery's husband, and Vallery
herself.
2

Vallery was charged with violations of NRS 200.5099, Nevada's elder abuse and neglect
prevention statute, as a result of the harm suffered by three individuals: Howard Thomas,
Daniel Barreto and Duffy Sullivan.
Count IHoward Thomas
Thomas, age eighty, suffered from senile dementia and Alzheimer's disease when he became
a resident of the Koenig house. At some point in March 1995, Thomas and his roommate
were not staying in their beds and sleeping at night. Instead, they would get up, ransack their
room, and eventually fall asleep on the floor.
__________

2
The State investigated and sought to charge Edwards, Coleman, and Mack with violations of the elder abuse
statutes. However, at the time of Vallery's trial, the State was not pursuing those charges.
would get up, ransack their room, and eventually fall asleep on the floor. As a result of
sleeping on the floor, Thomas developed a pressure sore on his hip. The record reflects that
such sores are common in older persons.
The sore first appeared as a red mark in early April. By April 11, the sore was an open wound
that required medical attention. Thomas' relatives were not advised of his condition until
April 21, nor did any representative of Sleepy Hollow seek medical attention for Thomas'
condition.
Conflicting testimony was presented as to Vallery's knowledge of Thomas' condition. Vallery
testified that she only found out about the serious nature of the sore on April 24, and she
informed Thomas' son that his father needed immediate medical attention. Vallery admitted
that Edwards had told her that Thomas was sleeping on the floor and that he had bruises but
denied that Edwards ever expressed concern for Thomas' condition. Edwards testified that she
notified Vallery more than once of Thomas' progressive condition because only Vallery was
authorized to contact Thomas' son or seek medical attention for Thomas.
In addition, on the audio track of a videotape of Thomas' condition filmed on April 11,
Coleman notes that one of the purposes of the tape was to document Thomas' condition due
to concerns that Vallery had not responded to Edwards' requests. Edwards was present when
the remark was made and did not contradict Coleman. There was also conflicting testimony
regarding whether Vallery viewed the videotape prior to Thomas' removal from the Koenig
home.
The State presented medical testimony indicating that when hospitalized on April 24, Thomas
had a large infected decubitus ulcer with cellulitis on his right hip. The medical testimony
also indicated that the ulcer created a substantial risk of death based on the possibility of
blood infection, i.e., sepsis, and was a painful condition. The record reflects that the ulcer
took three to six months to heal completely and caused permanent scarring. Vallery's medical
experts testified that the ulcer was not infected or life-threatening but conceded that the ulcer,
as depicted in the April 11 videotape, required medical attention.
Count IIDaniel Barreto
Barreto, age eighty-four, suffered from Alzheimer's disease and required twenty-four-hour
supervision prior to his admission to the Sleepy Hollow Panther residence. On December 21,
1996, Barreto left the residence without the knowledge of Vallery or Mack, both of whom
were present in the house. It was snowing. Vallery discovered that Barreto was missing and
began searching for him. Testimony indicated that about fifteen or twenty minutes passed
between the time Barreto was last seen and the time that Vallery noticed that Barreto
"wasn't where she could see him.
Vallery noticed that Barreto wasn't where she could see him. Caregivers spent five to ten
minutes looking for Barreto in the house before they proceeded to search outside the house.
Barreto was found covered in snow fifty to sixty feet outside the house under a tree.
Paramedics called to the scene were unable to ascertain any life signs in Barreto and instituted
resuscitative measures, which were unsuccessful. Because of the chilled condition of
Barreto's body, he was transported to a hospital as hypothermia cases may still respond if
given more extensive resuscitative efforts at a medical facility. At the hospital, his core
temperature was measured at seventy-nine degrees. Medical personnel advised Barreto's
family that there was little chance he could be successfully revived because of the length of
time he had been non-responsive and his temperature. In addition, the family was informed
that if he were revived he would have significant impairments. Barreto's family declined to
authorize extraordinary procedures, and Barreto was officially pronounced dead. An autopsy
report and medical testimony indicated the cause of death to be organ failure due to extreme
hypothermia.
Experts gave conflicting testimony regarding how long Barreto must have been outside to
obtain a body temperature of seventy-nine degrees. The periods ranged from twenty minutes
up to one hour.
Evidence was admitted that at least one other resident had left the Panther house without a
caregiver's knowledge. In addition, Barreto had eloped from the Sleepy Hollow facilities,
including the Panther house, three times prior to December 21, 1996.
Finally, evidence was admitted regarding the functioning of the door alarms. The exit doors at
the Panther residence were equipped with alarms to prevent a resident from leaving the house
without a caregiver's knowledge. Vallery and Mack testified that they did not hear the alarm.
However, they did not assert that the alarms were malfunctioning, and an expert testified that
there was nothing wrong with the alarms. The testimony raised three possible explanations
for the failure of the alarms to alert Vallery and Mack to Barreto's elopement: (1) the alarm
was improperly set on a soft chime mode that could not be heard, (2) the batteries on the
alarm were bad, and (3) Barreto or another resident had turned the alarm from the loud setting
to the chime setting.
Vallery and Mack testified that they did not leave the alarm on the loud setting at all times
because the loud alarm bothered the residents. Therefore, the alarms were only set on the loud
mode at night. Mack testified that he had checked the alarms that night. There was no
testimony that any resident had ever tampered with the alarms, though there was testimony
that the residents had fiddled with other fixtures in the house.
Count IIIDuffy Sullivan
Sullivan, age seventy-four, suffered from Alzheimer's disease and required twenty-four-hour
supervision prior to his admission to the Panther facility. On June 21, 1997, Vallery bathed
Sullivan. She removed him from the bathtub and left him sitting on the commode seat next to
the bathtub while she went downstairs to the laundry room to rinse out his clothing and get
him clean clothing. Vallery testified that while she was doing this she heard water running
upstairs. Vallery ran up the stairs and found Sullivan seated in the bathtub with his legs on
each side of the bathtub. Vallery removed him from the bathtub and noticed that his buttocks
were red. She put Sullivan in a hospital gown and took him to the hospital.
Sullivan was diagnosed with second-degree scald burns on his lower extremities. The
admitting physician testified that he was of the opinion that Sullivan was not properly
supervised, based upon his needs as an Alzheimer's patient, and the severity of the wounds he
sustained. The doctor indicated that people with advanced Alzheimer's cannot be left alone
around potentially dangerous conditions. Vallery was aware, from a prior scalding incident in
the same tub, that it was possible for residents to burn themselves, depending on how long
they were immersed in the hot water. Vallery testified that she thought it was safe to leave
Sullivan for a few minutes because he hated the tub and she never thought he would get into
it voluntarily.
Sullivan's family was informed that his mortality rate was 50 percent or greater, and that if he
were to have a chance at life, he would have to be transferred to a Las Vegas burn unit for
extensive, extremely painful treatment. Sullivan's wife declined to authorize the measures.
Sullivan died seven days following the burn incident. An autopsy, which was performed on
June 28, 1997, stated that Sullivan died from multiple organ failure as a result of burn
wounds to the back, buttocks and thighs.
Relevant procedural history
Vallery was charged, by indictment, with three counts of violating NRS 200.5099. Count I
involved the 1993 version of the statute and alleged that Vallery willfully caused or permitted
Thomas to suffer unjustifiable physical pain and/or mental suffering as a result of abuse,
neglect or exploitation. Count I also alleged that Thomas had suffered substantial bodily
harm.
3

__________

3
NRS 200.5099 (1993) provided, in pertinent part:
2. Any adult person who willfully causes or permits an older person to suffer unjustifiable physical
pain or mental suffering as a result of abuse, neglect or exploitation, or who willfully causes or permits an
older person to be placed in a situation where the person may suffer
Counts II and III were filed under the 1995 version of NRS 200.5099 and alleged that Vallery
had neglected Barreto and Sullivan, causing them to suffer physical pain resulting in death.
4

An eight-day trial began on May 1, 2000. At the close of the State's case-in-chief, Vallery
moved to dismiss the allegations in Count I. The motion was denied.
During the course of the trial, Vallery sought to admit the testimony of several witnesses
whose proposed testimony related to Vallery's character for truthfulness as well as the level of
care she rendered to relatives of the witnesses. Vallery argued that the proposed testimony
was offered to counter inferences that she had not been truthful to investigating authorities
and was not telling the truth about her knowledge of Thomas' condition. In addition, Vallery
wished to argue that the evidence of good care given to the witnesses' relatives established
that the incidents in question were unusual circumstances and unavoidable accidents. After
hearing an offer of proof on each witness, the district court disallowed seven of Vallery's
witnesses on the grounds that the proffered testimony was cumulative and repetitive.
The jury was instructed on language contained in the 1995 version of NRS 200.5099,
__________
unjustifiable physical pain or mental suffering as the result of abuse, neglect or exploitation, is guilty of a
gross misdemeanor unless a more severe penalty is prescribed by law for the act or omission which brings
about the abuse, neglect, danger or loss through exploitation.
3. A person who violates any provision of subsection 2, if substantial bodily or mental harm results to
the older person, shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 6 years.
1985 Nev. Stat., ch. 82, 57, at 249.

4
NRS 200.5099 (1995) provided, in pertinent part:
2. Except as otherwise provided in subsection 6, any person who abuses an older person, causing the
older person to suffer unjustifiable physical pain or mental suffering, is guilty of a . . . felony . . . .
3. Except as otherwise provided in subsection 7, any person who has assumed responsibility, legally,
voluntarily or pursuant to contract, to care for an older person and who:
(a) Neglects the older person, causing the older person to suffer physical pain or mental suffering;
(b) Permits or allows the older person to suffer unjustifiable physical pain or mental suffering; or
(c) Permits or allows the older person to be placed in a situation where the older person may suffer
physical pain or mental suffering as the result of abuse or neglect,
is guilty of a gross misdemeanor unless a more severe penalty is prescribed by law for the act or omission
which brings about the abuse or neglect.
. . . .
7. A person who violates any provision of subsection 3, if substantial bodily or mental harm or death
results to the older person, shall be punished for a category B felony . . . .
1995 Nev. Stat., ch. 607, 9, at 2253-54.
version of NRS 200.5099, as well as the 1995 statutory definitions of abuse, neglect,
permit, exploitation and allow applicable to NRS 200.5099. Following the trial, the
jury returned guilty verdicts on all three counts against Vallery. The judgment of conviction
indicates Vallery was found guilty under the neglect provisions of the statutes. Vallery was
sentenced to concurrent prison terms totaling nine to twenty-nine years, with the terms
suspended for a probationary period not to exceed five years.
DISCUSSION
Vallery raises several contentions on appeal. We specifically address only three of them: (1)
the district court's denial of the motion to dismiss portions of the Thomas allegations at the
conclusion of the State's case as it relates to the interpretation of the 1993 and 1995 versions
of NRS 200.5099, (2) the district court's decision to exclude the testimony of seven of
Vallery's witnesses, and (3) the district court's refusal to give several of Vallery's proffered
jury instructions.
5

I. Motion to dismiss and statutory construction
[Headnote 1]
Vallery's motion to dismiss raised several issues. Among them was a contention that the State
failed to introduce sufficient evidence in its case-in-chief to support allegations in Count I
that she abused or exploited Thomas within the meaning of NRS 200.5099. Although Vallery
did not specifically address the differences between the 1993 and 1995 versions of the statute,
her arguments on the motion involve construction of the 1993 statute. Vallery asserts that the
district court erred in refusing to grant her motion or accept her construction of the statute.
The State contends that the merits of the motion are irrelevant because a district court has no
authority to dismiss a criminal action at the close of evidence. We agree. We have previously
concluded that a district court may not dismiss a criminal allegation after the close of the
evidence, but instead is limited to giving an acquittal instruction or, after the jury returns a
verdict of guilt, entering a judgment of acquittal or granting a new trial.
6

While the district court did not err in refusing to grant the motion to dismiss, Vallery raised
several issues in the motion and in her brief on appeal discussing the motion,
__________

5
Vallery also asserts claims of error alleging: (1) insufficient notice of the grand jury proceedings, (2) a
double jeopardy violation as a result of the imposition of civil sanctions, (3) the improper denial of a motion to
sever the offenses, (4) prosecutorial misconduct, and (5) the improper admission of prior bad act evidence. We
conclude that these contentions are without merit.

6
See generally State v. Purcell, 110 Nev. 1389, 887 P.2d 276 (1994); NRS 175.381.
in her brief on appeal discussing the motion, regarding the construction of the elder abuse
prevention statutes. Because statutory construction affected the jury instructions, we will
address the substance of Vallery's statutory construction arguments. In addition, although
Vallery was not convicted of abusing or exploiting an older person, only of neglecting an
older person, we take this opportunity to address all three issues.
A. Abuse
In the 1993 version of NRS 200.5099, the elements of the offense required that the State
prove that an individual willfully caused or permitted an older person to suffer unjustifiable
physical pain or mental suffering as a result of abuse or that the individual willfully caused or
permitted an older person to be placed in a situation where the person may suffer unjustifiable
physical pain or mental suffering as a result of abuse. In 1995, the Legislature eliminated the
willfully caused or permitted language from the abuse provision of the statute and instead
simply stated that any person who abuses an older person, causing the older person to suffer
unjustifiable physical pain or mental suffering, is guilty of violating the statute.
7

The definition of abuse, however, did not change. Abuse, as used in any version of NRS
200.5099, is defined in NRS 200.5092:
1. Abuse means willful and unjustified:
(a) Infliction of pain, injury or mental anguish on an older person; or
(b) Deprivation of food, shelter, clothing or services which are necessary to maintain
the physical or mental health of an older person.
The term willful is not defined. Vallery asserts that we should interpret that word and the
phrase willfully causes or permits in the same way as we have interpreted the phrase
willfully caused in the child abuse and neglect statutes. We agree. The language of the
criminal child abuse and neglect statute
8
is very similar to the language used in the elderly
abuse and neglect statute. In interpreting the child abuse and neglect statute, we have stated
that a willful act is one that is done intentionally, not accidentally.
9
Moreover, we conclude
that the deletion of the words willfully causes from NRS 200.5099 during the 1995
legislative session does not change the basic definition of abuse. Under NRS 200.5092, abuse
involves willful and unjustified infliction or deprivation.
__________

7
1995 Nev. Stat., ch. 607, 9, at 2253.

8
NRS 200.508.

9
Smith v. State, 112 Nev. 1269, 1276, 927 P.2d 14, 18 (1996).
deprivation. The plain language of the statute reflects intentional acts.
10

B. Exploitation
The 1993 version of NRS 200.5099 speaks of exploitation causing physical pain or mental
suffering while exploitation was defined under NRS 200.5092(2) as wrongful use of an
older person or his money or property to the advantage of another.
11
The 1995 version
makes it clear that exploitation refers to actions involving the property or assets of an older
person. Exploitation is now unlawful under separate provisions of NRS 200.5099
12
and is
defined as
any act taken by a person who has the trust and confidence of an older person or any
use of the power of attorney or guardianship of an older person to obtain control,
through deception, intimidation or undue influence, over the older person's money,
assets or property with the intention of permanently depriving the older person of the
ownership, use, benefit or possession of his money, assets or property. As used in this
subsection, undue influence does not include the normal influence that one member
of a family has over another.
13

We conclude that the 1995 amendments merely clarify the Legislature's intent that
exploitation refers to the assets or property of an older person. Whereas the 1993 statute
requires that the exploitation result in physical pain or mental suffering, the 1995 statute
contains no such provision and makes it a crime to exploit the property of the older person
even when no pain or suffering is involved.
C. Neglect, Permit and Allow
As with abuse, the 1993 version of NRS 200.5099 made it a crime for an individual to
willfully cause or permit an older person to suffer unjustifiable physical pain or mental
suffering as a result of neglect. NRS 200.5092 defined neglect:
3. Neglect means the failure of:
__________

10
See Kirkpatrick v. Dist. Ct., 118 Nev. 233, 249, 43 P.3d 998, 1010 (2002) (citing McKay v. Bd. of
Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986) and 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)).

11
1983 Nev. Stat., ch. 505, 1, at 1359.

12
NRS 200.5099(3), (4).

13
NRS 200.5092(2).
(a) A person who has assumed legal responsibility or a contractual obligation for caring
for an older person . . . to provide food, shelter, clothing or services which are necessary
to maintain the physical or mental health of the older person.
14

Permit was defined in the body of NRS 200.5099 itself:
Permit means permission that a reasonable person would not grant and which
amounts to a neglect of responsibility attending the care and custody of an older person.
15

[Headnote 2]
Vallery again asserts that the phrase willfully causes or permits contemplates intentional
conduct. Vallery contends the statute requires that an individual must have actual knowledge
that an older person is in a situation where he or she is likely to suffer unjustifiable pain or
mental suffering in order to be convicted of violating the statute. The State argues that, when
combined with the definitions of neglect and permit, the statute does not require actual
knowledge, but also contemplates constructive knowledge. Thus, an individual who should
have known that his or her actions, or failure to act, placed an older person under his or her
care in a position where the older person might be subjected to unjustifiable physical pain or
mental suffering can also be charged with neglect. We disagree.
The statutes, read as a whole, require either that an individual willfully fails to provide for an
older person or grant permission for some action that places an older person in a situation
where the older person will suffer harm. We agree with the State that under a neglect charge,
an individual does not have to intend to harm an older person. However, one cannot willfully
cause or permit unjustifiable physical pain or mental suffering by failing to provide
appropriate care or services if one is unaware of the needs of the older person. The phrase
willfully causes or permits contemplates actual knowledge of a situation which requires
action (or a denial of permission) in order to prevent harm to an older person.
[Headnote 3]
We reach a different result however when we consider the language of the 1995 version of
NRS 200.5099. As noted above, in 1995 the Legislature deleted the willfully causes or
permits language. In addition, the Legislature restructured the statute.
__________

14
1983 Nev. Stat., ch. 561, 2, at 1653 (currently codified at NRS 200.5092(4)(a)).

15
1985 Nev. Stat., ch. 82, 57, at 249 (currently codified at NRS 200.5099(8)(b)).
Subsequent to the amendments, NRS 200.5099(2) now provides criminal sanctions for any
person who
has assumed responsibility, legally, voluntarily or pursuant to contract, to care for an
older person and who:
(a) Neglects the older person, causing the older person to suffer physical pain or mental
suffering;
(b) Permits or allows the older person to suffer unjustifiable physical pain or mental
suffering; or
(c) Permits or allows the older person to be placed in a situation where the older person
may suffer physical pain or mental suffering as the result of abuse or neglect.
The definitions of neglect and permit remain the same. The Legislature also added a new
definition encompassing the term allow:
Allow means to take no action to prevent or stop the abuse or neglect of an older
person if the person knows or has reason to know that the older person is being abused
or neglected.
16

The 1995 version of NRS 200.5099 again uses language identical or substantially similar to
the child abuse and neglect prevention statutes. In interpreting those statutes, we have said
that the permit and allow language must be read in conjunction and when so read
both definitions establish the same requirement: a person acts unreasonably and is
therefore criminally liable if she knows or has reason to know of abuse or neglect yet
permits or allows the child to be subject to it. This requirement of knowledge and
reasonableness adequately defines the state of mind required for a finding of guilt and
effectively precludes punishment for inadvertent or ignorant acts.
17

We conclude that the same reasoning applies to the elder abuse prevention statute. With the
deletion of the willfully causes language from the neglect provisions of the statute and the
addition of the allow language, we conclude that a conviction under the neglect, permit
or allow sections of NRS 200.5099 only requires proof that an accused knew or had reason
to know that an older person could suffer harm as a result of the accused's actions or failure to
act. Our conclusion is further supported by an additional amendment to the statutory scheme
in 1999. The Legislature added NRS 200.50925, which states in pertinent part:
__________

16
1995 Nev. Stat., ch. 607, 9, at 2254 (currently codified at NRS 200.5099(8)(a)).

17
Smith, 112 Nev. at 1277, 927 P.2d at 18.
For the purposes of NRS 200.5091 to 200.50995, inclusive, a person:
1. Has reasonable cause to believe if, in light of all the surrounding facts and
circumstances which are known or which reasonably should be known to the person at
the time, a reasonable person would believe, under those facts and circumstances, that
an act, transaction, event, situation or condition exists, is occurring or has occurred.
18

While the term reasonable cause to believe does not appear in the neglect, permit or allow
provisions of the statute, the language of NRS 200.50925 incorporates the overall theme of
the statutes. In cases involving activities that do not rise to abuse, a reasonable person
standard should apply. Thus, when an individual who is responsible for the care of an older
person has knowledge of facts and circumstances that would cause a reasonable person to
believe an older person was in a situation that might require additional care or services, the
failure to take steps to check out the situation may result in criminal liability if the actions or
failure to act causes the older person to suffer harm. Actual knowledge of danger to an older
person is not required under the 1995 version of NRS 200.5099.
II. Witness exclusion
[Headnote 4]
Vallery asserts that the district court erred in disallowing testimony of several proffered
witnesses. Most of the witnesses would have been called to testify generally that their
relatives currently or previously resided in a Sleepy Hollow facility and that those relatives
were properly cared for, or that the facilities were clean, neat, well run and of good quality.
The witnesses would also have testified to their opinion that Vallery was a truthful woman, or
to her reputation for truthfulness. The district court excluded the witnesses on the grounds
that the proffered testimony was cumulative and repetitive. Vallery asserts that this amounted
to a denial of her fundamental constitutional right to a fair trial, and that as such, she is
entitled to a new trial pursuant to NRS 176.515(1). Vallery does not state how she was
prejudiced by the district court's denial other than to say that the district court's decision was
manifestly wrong.
[Headnote 5]
A district court's decision to admit or exclude evidence rests within its sound discretion and
will not be disturbed unless it is manifestly wrong.
19
Most of the proffered testimony was
cumulative.
__________

18
1999 Nev. Stat., ch. 631, 1, at 3517.

19
Libby v. State, 115 Nev. 45, 52, 975 P.2d 833, 837 (1999) (citing Daly v. State, 99 Nev. 564, 567, 665
P.2d 798, 801 (1983)).
lative. Although many of the excluded witnesses were recognized figures in the community,
the district court did permit testimony from other similarly prominent community members.
Moreover, the fact that these individuals were satisfied with the Sleepy Hollow facilities and
Vallery is only marginally relevant to whether or not Vallery neglected to take appropriate
action in the individual cases involving Thomas, Barreto and Sullivan. Finally, the State had
advised both the district court and defense counsel that if the remaining witnesses were
permitted to testify, it would seek to call rebuttal witnesses who would testify that they had
removed relatives from Sleepy Hollow facilities due to improper care and supervision. The
district court ruled that such rebuttal would be allowed and took that fact into consideration in
making its decision to exclude the witnesses.
[Headnote 6]
We conclude, with one exception, that the district court did not abuse its discretion in
disallowing the witnesses' testimony. The exception involves the testimony of Shirley Keys.
Keys would have testified that Alzheimer's patients are capable of turning off alarms. Not all
of her testimony was not cumulative; however, we conclude that the exclusion of her
testimony is harmless error.
III. Jury instructions
[Headnotes 7, 8]
Vallery contends that the district court erred in refusing to give several proposed jury
instructions incorporating her defense theories. Generally, 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.
20
Further, [j]ury instructions should be clear and
unambiguous.
21
The district court may, however, refuse a jury instruction on the defendant's
theory of the case that is substantially covered by other instructions.
22
In addition, a district
court must not instruct a jury on theories that misstate the applicable law.
23

A. Instructions affecting all counts
[Headnote 9]
First, Vallery asserts that her responsibilities as the administrator of the facilities to adhere to
administrative provisions and statutes are limited
__________

20
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) (citing Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990)).

21
Culverson v. State, 106 Nev. 484, 488, 797 P.2d 238, 240 (1990).

22
Earl v. State, 111 Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995).

23
Ducksworth v. State, 113 Nev. 780, 792, 942 P.2d 157, 165 (1997) (citing Geary v. State, 110 Nev. 261,
265, 871 P.2d 927, 929 (1994)).
statutes are limited by the contract provision requiring only limited supervision of the
residents. Therefore, any violation of the administrative codes or statutes could not be the
basis for a finding of negligence because Sleepy Hollow had only partially assumed
responsibility to care for an older person, and Vallery had not personally assumed any duty of
care.
Vallery proposed the following two instructions:
A failure of Ms. Vallery to strictly adhere to a provision of the Nevada Administrative
Code is not, of itself, a criminal act.
In each of the charges in this case the State must prove beyond a reasonable doubt that
Ms. Vallery assumed the responsibility to personally care for the older/elder persons. In
this regard, you should consider any contracts which Ms. Vallery entered into for such
care, and whether or not such contracts required that she personally provide such care.
Vallery contends that Sleepy Hollow's contractual provisions relieve her of her
responsibilities under state regulations or statutes. We disagree.
An administrator charged with the supervision of a residential group care facility may not
contractually limit his or her statutory or regulatory duties in order to avoid criminal liability.
Vallery's contractual duties to Thomas, Barreto and Sullivan are separate from, not a
replacement for, the duties imposed upon her as the administrator of the facility by statute or
administrative regulation.
NRS 654.015 defines an administrator of a residential facility for groups as the person who
manages, supervises and is in general administrative charge of a residential facility for
groups. Further, NRS 654.155(7) provides that each applicant for licensure as an
administrator of a residential facility for groups must [c]omply with such other standards
and qualifications as the [Nevada state board of examiners] prescribes. Lastly, NRS
449.0355 states: A residential facility for groups must not be operated except under the
supervision of an administrator of a residential facility for groups licensed pursuant to the
provisions of chapter 654 of NRS.
In the present case, there was no dispute that Vallery was the licensed administrator for the
Sleepy Hollow residential group care facilities. She therefore had a duty to see that
twenty-four-hour supervision was provided to residents in the Panther facility. Moreover, the
health division regulatory code required that she notify a resident's physician upon the onset
of illness or injury
24

__________

24
NAC 449.2777(2) (repealed October 30, 1997). The NAC provisions pertaining to group residential care
facilities were substantially revised in 1997. Some sections were recodified under different numbers and
additional sec-
and that she provide protective supervision to avoid harm to the residents.
25
The regulations
and statutes establish Vallery's duty of care, and a breach of the duty that causes an older
person to suffer physical pain and/or mental suffering under the provisions of NRS 200.5099
may be the basis for criminal liability.
The statutes and regulations contemplate that an administrator can be held liable for harm to a
resident even though the administrator did not assume personal care over an individual or was
not the assigned caregiver. The jury was properly instructed on the law, and the district court
did not err in refusing to give Vallery's instructions on this issue.
[Headnote 10]
Next, Vallery contends that the district court erred when it refused to instruct the jury that
criminal negligence is more than ordinary negligence. Vallery asserts that she cannot be
held criminally liable for a negligent act unless the State proves beyond a reasonable doubt
that her actions were aggravated, reckless or flagrant and that she was indifferen[t] to the
consequences of those acts and their affect on human life. According to Vallery, she cannot
be convicted if her actions were only the result of inattention, mistaken judgment or
misadventure. There must be some evil intent. Vallery also contends that the standard is
akin to gross negligence. We disagree. Vallery's construction of NRS 200.5099 and the
terms defined in NRS 200.5092 are inconsistent with the plain language of the statutes.
First, we note that both the 1993 and the 1995 versions of NRS 200.5099 refer to neglect, not
negligence. The term neglect refers only to the failure to provide an older person with items
necessary to maintain the physical or mental health of the older person. While the 1993
version of the statute does require that a person have actual knowledge that an older person is
in need, there is no requirement under either version of the statute of ill will or recklessness
towards the older person and we will not rewrite the statute to impose such a requirement.
[Headnote 11]
Next, Vallery contends that the district court erred in refusing to give a set of proffered
instructions defining proximate cause and criminal causation. The district court instructed the
jury on the statutory language, which uses the words causing and results when referring
to substantial bodily harm, death or suffering physical pain. We conclude these terms have
plain and ordinary meanings that did not require additional clarification.
__________
tions were added on the duties and responsibilities of group care homes and administrators. See NAC
449.156-.2766. The changes in the regulations have no affect on our decision.

25
NAC 449.2783(1)(a) (repealed October 30, 1997). This provision is now located at NAC 449.259(1)(a).
nary meanings that did not require additional clarification. Therefore, the district court did not
err in refusing to give Vallery's instructions as the concept of causation was covered by other
instructions.
Vallery also proffered instructions on intervening, superseding acts. Vallery asserts that such
acts were the sole cause of the harm to Thomas and the deaths of Barreto and Sullivan. We
have said that an intervening cause means not a concurrent and contributing cause but a
superseding cause which is itself the natural and logical cause of the harm.
26
An act can
only be a superseding cause if it is unforeseeable.
27

[Headnote 12]
As to Thomas, Vallery contends that Coleman and Edwards were responsible for his care and
that they were the sole cause of the failure to get him medical attention. The jury was
instructed that Vallery had a right to rely on agents to perform the duties assigned to them.
However, there was also testimony that Coleman and Edwards were instructed by Vallery,
upon Thomas' admission, not to seek any medical help for Thomas without Vallery's express
approval and that Edwards notified Vallery about Thomas' condition. There is no evidence
that Vallery instructed Coleman or Edwards, as Vallery's agents, to seek medical attention for
Thomas' condition. Given Vallery's position as the administrator of the facility and her
admission that she did not investigate Thomas' condition when queried by Edwards, the facts
do not support an instruction on intervening, superseding acts. The failure of Edwards and
Coleman to take independent action to address Thomas' needs may be a concurring cause of
his injuries, but it cannot be an intervening, superseding act.
[Headnote 13]
With respect to Barreto, Vallery brought out through cross-examination, that it was possible,
though not probable, that Barreto suffered a cardiac arrest before he succumbed to the cold
and was buried under the snow. In addition, evidence was introduced that Barreto's relatives
refused to allow extraordinary resuscitation measures to be implemented at the hospital.
As to the cardiac arrest theory, the record reflects no evidence that cardiac arrest alone,
without the hypothermia, was the sole cause of Barreto's death. As to the failure to
resuscitate, Barreto was already dead, and we decline to find that the decision of a family to
refuse extraordinary resuscitation measures is an unforseeable,
__________

26
Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970) (citing Segerman v. Jones, 259 A.2d
794 (Md. Ct. App. 1969)).

27
Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1105, 864 P.2d 796, 801 (1993).
unforseeable, superseding event. Therefore, an intervening, superseding instruction would
have been improper as to Barreto.
[Headnote 14]
Finally, as to Sullivan, the family was informed that Sullivan might have had a fifty percent
chance of survival if he was transferred to a burn unit in Las Vegas and underwent extensive
and extremely painful medical treatments. Assuming we were inclined to accept Vallery's
argument that the family's decision was a cause of Sullivan's death, we conclude, as a
matter of law, it would not be an unforeseeable act and again an intervening, superseding
instruction was not warranted.
The jury was properly instructed on the elements of the offenses on the Barreto and Sullivan
cases. Even if the jury believed that Vallery was not the caregiver assigned to either man,
both men were under her supervision when they were injured, and the testimony supports a
finding of neglect.
The testimony indicated that Barreto and Sullivan were in a twenty-four-hour supervision
facility. Because of the advanced state of their Alzheimer's disease, they required more than
limited supervision. Sadly, due to their impaired mental conditions, extensive supervision
was necessary to prevent them from injuring themselves.
Vallery knew Barreto was an elopement problem. She knew the chime setting on the alarm
was insufficient to warn caregivers that a door had been opened without authorization and
that residents could access and tamper with the settings. Despite this knowledge, she adopted
a policy that allowed the alarms to be routinely set on chime and took no action to keep the
residents away from the alarm settings or to install a different system.
Vallery also knew that Sullivan needed extensive supervision. She left him unsupervised in a
setting potentially dangerous to him. She knew a resident could be scalded by hot bath water
and that Alzheimer's patients act in unpredictable ways.
Based upon the record, we conclude that the district court did not err in refusing to give any
of Vallery's proffered instructions on the Barreto and Sullivan counts.
28

As to Thomas, the district court did not err in refusing to give the instructions addressed
above. However, as noted below, we conclude that the jury was improperly instructed on the
issues of abuse and neglect in the Thomas case.
__________

28
We again caution the district courts not to automatically instruct the jury on all portions of the statute.
Whether a given subsection or statutory definition applies will depend on the nature of the charged offense and
the facts of the individual case. There may also be cases where additional definitions of terms or causation are
warranted, and nothing in this opinion is intended to indicate a formalistic approach.
B. Instructions affecting Count IThomas
[Headnote 15]
Vallery raised additional challenges to the jury instructions relating only to the Thomas case.
Vallery asserts that she could not be convicted of neglecting Thomas unless the State proved
beyond a reasonable doubt that she had actual knowledge that Thomas had a specific problem
that needed attention and that she failed to address the problem. Vallery objected to the
instructions as they related to Count I and requested the following proposed instructions:
Before Ms. Vallery may be convicted under Count I for any failure by her to more
promptly obtain medical treatment for Mr. Thomas, the State must prove beyond a
reasonable doubt that Ms. Vallery knew or should have known that Mr. Thomas'
injuries were serious enough to require immediate medical attention, yet did nothing.
. . . .
Willfully as used in these instructions means an act or omission which is done
intentionally, deliberately or designedly, as distinguished from an act or omission done
accidentally, inadvertently or innocently. It means the conscious commission of a
wrong.
Although the first proposed instruction speaks in terms of knew or should have known,
Vallery's points and authorities below, and her briefs on appeal, reveal she intended to
narrowly construe that language. Vallery contends that the language means that she observed
Thomas' condition, or was actually told that Thomas had an open wound, and that she
should have known from observation or the description that medical attention was
necessary. Vallery argues that the willfully causes language of the statute requires the State
to prove she either intentionally abused Thomas or had actual knowledge he needed medical
attention and intentionally failed to seek help for his medical condition.
The State contends that the jury was properly instructed because the term willfully causes
in a neglect case does not require intentional conduct or actual knowledge. Instead, the State
argues it must only prove that an accused had knowledge of facts and circumstances that
would lead a reasonable individual to conclude that an older person was at risk of suffering
physical pain or mental suffering and that the accused took no action to prevent harm to the
older person. The State apparently believed the same interpretation applied to both the 1993
and 1995 versions of NRS 200.5099.
29

__________

29
Neither side specifically differentiated between the 1993 and 1995 ver-
The district court instructed the jury based upon the language contained in the 1995 version
and did not separately instruct the jury on the Thomas case. In addition, the district court gave
the following instruction on the term willfully.
The word willfully, when applied to the intent with which an act is done or omitted,
as used in these instructions, implies simply a purpose or willingness to commit the act
or to make the omission in question. The word does not require in its meaning any
intent to violate the law, or injure another.
The State's argument and the jury instructions would be correct for a neglect charge under the
1995 version of the statute. However, the 1993 version of the statute applied to the Thomas
case.
For an abuse case under any version of the statute, the State must prove intentional infliction
of pain, injury or mental anguish or intentional deprivation of necessary items. It need not
prove intent to violate the law or the actual injury that resulted. Thus, the definition of the
term willfully was an incorrect statement of the law as to an abuse charge.
30

With respect to the neglect allegations, because the jury was only given the 1995 statutory
language, they were not properly instructed on the actual knowledge element of the offense
present in the 1993 version of the statute. Because of the conflicting testimony concerning the
extent of Vallery's knowledge of Thomas' condition and whether that knowledge would
indicate to Vallery that Thomas needed medical treatment, as opposed to constructive
knowledge that should have led her to take additional steps to verify his condition, we cannot
say that the failure to properly instruct the jury was harmless beyond a reasonable doubt. We
therefore conclude that the Thomas conviction must be reversed and remanded.
CONCLUSION
We conclude that, under the 1993 and current versions of NRS 200.5099, the State must
prove that the accused intentionally abused an older person. However, with respect to the
offense charged under the neglect, permit or allow language of the 1995 and current versions
of the statute, the State need only prove that an accused knew or should have known that
his or her actions,
__________
sions of the statute below although their arguments are clearly based upon the differing versions of the statute.

30
We note that the last line of the proffered instruction is also confusing. It refers to conscious commission
of a wrong, which could refer to knowledge that the conduct is unlawful, rather than an intent to cause pain. To
that extent it would also be incorrect.
an accused knew or should have known that his or her actions, or failure to act, placed an
older person under the accused's care in a position where the older person might be subjected
to harm and harm actually resulted. We further conclude that a charge of neglect under the
1993 statute requires actual, not constructive knowledge, of the needs of an older person and
a failure to provide for those needs.
We also conclude that the jury was properly instructed on the elements of the offenses on the
Barreto and Sullivan counts and that Vallery's other contentions of error regarding those
counts lack merit. As to the Thomas count, the jury instructions failed to properly advise the
jury on the elements of abuse and neglect. Accordingly, we affirm the judgment of conviction
on Counts II and III and reverse the conviction on Count I and remand Count I for further
proceedings consistent with this opinion.
____________
118 Nev. 379, 379 (2002) McMorran v. State
RUTH ANNE McMORRAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36618
May 17, 2002
46 P.3d 81
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of aiding and
abetting in the possession of a controlled substance for the purpose of sale. Seventh Judicial
District Court, White Pine County; Merlyn H. Hoyt, Judge.
The supreme court held that, as a matter of first impression, police officer's threat that two
officers would remain in motel room while a third officer obtained a search warrant for room
rendered occupant's consent to search room involuntary where officers lacked probable cause
to believe that a crime had been or was about to be committed, and thus evidence seized
during search was inadmissible.
Frankie Sue Del Papa, Attorney General, Carson City; Richard W. Sears, District Attorney,
and Rusty D. Jardine, Deputy District Attorney, White Pine County, for Respondent.
Police officer's threat that two officers would remain in motel room while a third officer obtained a search warrant for room rendered
occupant's consent to search room involuntary,
pant's consent to search room involuntary, and thus evidence seized during search was inadmissible in trial for aiding and abetting in
the possession of a controlled substance for sale; police officers requested permission to search room based on an anonymous tip that
drugs were being sold in room, the tip did not describe the drugs being sold, the occupants, or identify the weapons the occupants
allegedly possessed, occupants of the room were only 17 and 20 years old, and occupant revoked his original permission to search
room immediately after he learned that he could. Const. art. 1, 18; U.S. Const. amend. 4.
The Fourth Amendment protection against unreasonable searches applies to persons in hotel rooms as well as at home. U.S. Const.
amend. 4.
Subject only to a few specific exceptions, searches conducted without prior approval by a judge or magistrate are per se unreasonable.
U.S. Const. amend. 4.
A search pursuant to consent is constitutionally permissible if the State demonstrates that the consent was in fact voluntarily given, and
not the result of duress or coercion, express or implied. U.S. Const. amend. 4.
The voluntariness of consent to search is a question of fact to be determined from all the circumstances, and while the subject's
knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a
prerequisite to establishing a voluntary consent. U.S. Const. amend. 4.
Acquiescence to a search that is the product of official intimidation or harassment is not consent. U.S. Const. amend. 4.
7. Criminal Law.
Although the supreme court treats the district court's findings of fact deferentially, it reviews the lawfulness of a search de novo
because such a review requires consideration of both factual circumstances and legal issues.
The State must prove the voluntariness of a consent to search by clear and convincing evidence. U.S. Const. amend. 4.
Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but when the expressed intention to
obtain a warrant is genuine and not merely a pretext to induce submission, it does not vitiate consent; however, intimating that a search
warrant will automatically issue is inherently coercive. U.S. Const. amend. 4.
If officers have probable cause to believe that a crime has occurred or is about to occur, they may lawfully secure relevant premises and
seek a search warrant, and if they threaten to do so and as a result obtain consent to search, such a threat does not render the consent to
search involuntary. U.S. Const. amend. 4.
OPINION
Per Curiam:
Appellant Ruth Anne McMorran contends that the search of her motel room by state law
enforcement officers violated the Fourth Amendment to the United States Constitution. The
question presented is one of first impression in Nevada: is a person's consent to search
voluntary when it is given in response to a threat by the police to seize the person and the
property while a search warrant is sought but there are no grounds for such a seizure? We
conclude that such consent is not voluntary, reverse McMorran's judgment of conviction, and
remand.
FACTS
On October 27, 1999, the White Pine County Sheriff's Department received an anonymous
telephone call that drugs were being sold at Room 114 in the Great Basin Inn in Ely. The
male caller also said that the occupants of the room were armed with weapons of unknown
type and drove a red Pontiac Sunbird with California plates. This information was dispatched
to Officer E.G. Carlton of the Nevada Division of Investigations. Officer Carlton contacted
Officers Gabor Visnovits and Matt Hibbs and met them at the motel. A red Pontiac Sunbird
with California plates was parked in front of Room 114. Carlton learned that the room was
rented to McMorran and that there was also a male occupant. The officers donned garb
identifying them as police and went to the room.
Officer Visnovits knocked at the room door, which was answered by Kane Searcy. Searcy
was 17 years old, but had a large build and appeared older. Visnovits asked permission to
enter, and Searcy gave it. Officer Carlton asked if any weapons were present, and Searcy said
no. Carlton asked permission to search the room. The officers were armed, and at least one
had his weapon visible. Carlton also testified that he was probably invading [Searcy's] body
space . . . standing very close to him . . . until the situation was totally under control. Searcy
gave his consent. The officers then heard someone in the bathroom. Searcy said it was his
girlfriend, the officers asked her to exit, and McMorran came out of the bathroom. Carlton
then advised Searcy that he did not have to permit the search, and Searcy rescinded his
consent. The officers stopped searching.
According to Carlton, he directed Officer Hibbs to contact the district attorney and apply for a
search warrant. Carlton also testified that he told McMorran and Searcy that the officers
would remain in the room until a search warrant was either approved or not.
tified that he told McMorran and Searcy that the officers would remain in the room until a
search warrant was either approved or not. At this point, the only basis the officers had to
suspect any criminal activity was the anonymous tip received by the sheriff's department. The
officers had not perceived any evidence of wrongdoing in the room. After a few minutes and
after Carlton told Searcy that it would take a while before there was a determination on the
warrant, Searcy again gave permission to search. The officers then found marijuana and drug
paraphernalia.
Officers Carlton and Visnovits later testified that none of the officers drew or brandished
their weapons, raised their voices, or either threatened or made promises to Searcy or
McMorran on the night of the search. Carlton testified that the two occupants appeared
frightened. He answered no when asked if any officer engaged in conduct calculated to
trick Searcy into providing consent.
In March 2000, McMorran pleaded guilty to aiding and abetting the possession of a
controlled substance for the purpose of sale, a category D felony. The plea was conditioned
on her right to file a motion to suppress evidence and to appeal the suppression issue if the
motion was denied. The district court held an evidentiary hearing on the motion in July 2000
and denied the motion with little explanation. The court then entered judgment, sentenced
McMorran to a prison term of 14 to 36 months, suspended the sentence, and placed her on
probation for a term of not more than three years.
DISCUSSION
[Headnote 1]
McMorran contends that the district court erred in denying her motion to suppress because
the search of her motel room violated the Fourth Amendment. She contends that consent to
search the room was not voluntarily given.
[Headnotes 2, 3]
The Fourth Amendment to the United States Constitution and the Nevada Constitution
proscribe all unreasonable searches and seizures.
1
The Fourth Amendment protection against
unreasonable searches applies to persons in hotel rooms as well as at home.
2
Subject only to
a few specific exceptions, searches conducted without prior approval by a judge or magistrate
are per se unreasonable.
3

__________

1
U.S. Const. amend. IV; Nev. Const. art. 1, 18.

2
Edwards v. State, 107 Nev. 150, 154, 808 P.2d 528, 530-31 (1991) (citing United States v. Diaz, 814 F.2d
454, 457-58 (7th Cir. 1987)).

3
Alward v. State, 112 Nev. 141, 151, 912 P.2d 243, 249-50 (1996) (citing Katz v. United States, 389 U.S.
347, 354 (1967)).
[Headnotes 4-6]
As a preliminary point, McMorran has not argued that Searcy lacked the authority to consent
to a search of the room, nor would such an argument appear to have merit.
4
A search
pursuant to consent is constitutionally permissible if the State demonstrates that
the consent was in fact voluntarily given, and not the result of duress or coercion,
express or implied. Voluntariness is a question of fact to be determined from all the
circumstances, and while the subject's knowledge of a right to refuse is a factor to be
taken into account, the prosecution is not required to demonstrate such knowledge as a
prerequisite to establishing a voluntary consent.
5

Acquiescence that is the product of official intimidation or harassment is not consent.
6
Courts must distinguish between the peaceful submission to the authority of a law
enforcement officer and an intelligent and intentional waiver of a constitutional right.
7

[Headnotes 7, 8]
Although this court treats the district court's findings of fact deferentially, it reviews the
lawfulness of a search de novo because such a review requires consideration of both factual
circumstances and legal issues.
8
The State must prove the voluntariness of a consent by clear
and convincing evidence.
9

[Headnote 9]
Police may not threaten to obtain a search warrant when there are no grounds for a valid
warrant, but [w]hen the expressed intention to obtain a warrant is genuine . . . and not merely
a pretext to induce submission, it does not vitiate consent.'
10
However, intimating that a
search warrant will automatically issue is inherently coercive.
11
Here, although Officer
Carlton testified that he said only that the officers would seek a search warrant, other
evidence in the record suggests that the officers indicated that a warrant would
automatically issue.
__________

4
See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (stating that a third party who possesses common
authority over the premises may give voluntary consent to a search).

5
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).

6
Florida v. Bostick, 501 U.S. 429, 438 (1991).

7
State v. Johnson, 116 Nev. 78, 81, 993 P.2d 44, 46 (2000).

8
See Alward, 112 Nev. at 151, 912 P.2d at 250; State v. Taylor, 114 Nev. 1071, 1078, 968 P.2d 315, 321
(1998); Johnson, 116 Nev. at 80-81, 993 P.2d at 45-46.

9
Johnson, 116 Nev. at 81, 993 P.2d at 46.

10
U.S. v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994) (quoting United States v. White, 979 F.2d 539, 542 (7th
Cir. 1992)).

11
Dotson v. Somers, 402 A.2d 790, 794 (Conn. 1978).
other evidence in the record suggests that the officers indicated that a warrant would
automatically issue. Officer Visnovits stated in his investigative report that after Searcy
revoked permission to search the room, Carlton advised Searcy and McMorran that the
investigators would obtain a search warrant and that the investigators would stay in the room
to prevent destruction of evidence. The report was reviewed and approved by Carlton. The
words would obtain, if accurate, improperly implied that a search warrant would
automatically issue, and Carlton's statement that investigators would stay in the room in the
meantime reinforced any such implication. The district court did not address this factual
question in making its ruling. But even assuming that Carlton's testimony was accurate, the
totality of the circumstances do not support a finding that the consent was voluntary.
Various factors weigh against voluntariness: Searcy was only seventeen and McMorran only
twenty, three armed officers were in their motel room, Officer Carlton invaded Searcy's body
space to control the situation, and Searcy revoked permission for the search when he first
learned that he could. There is also indication of possible trickery on the part of the officers.
The officer ostensibly sent to apply for the warrant had not left to contact the District
Attorney when Searcy again consented to a search a few minutes later. Although Searcy was
informed of his right to refuse permission and the officers testified without contradiction that
they did not raise their voices or make any threats or promises, under the totality of the
circumstances we conclude that the evidence is not clear and convincing that the consent was
voluntary.
The most important circumstance that vitiates consent here is the officers' declaration that
they would remain in the motel room while another officer sought a warrant. When the
officers made this declaration, they had not uncovered any evidence of wrongdoing by
McMorran or Searcy. The only basis they had to suspect the existence of criminal activity
was the anonymous tip received by the sheriff's department. As discussed below, this tip did
not provide probable cause for securing the room and detaining its occupants. Therefore, the
seizure of the room and its occupants was unlawful and rendered the consent obtained from
Searcy involuntary.
In his treatise on searches and seizures, Professor LaFave states that even if the threat is only
to seek a search warrant, the consent given in response thereto is invalid if the circumstances
are such that the threat carried with it an assertion that the defendant or the property would be
seized in the interim, but there were not in fact grounds for such a seizure.
12
Case law
supports this statement of the law.
__________

12
3 Wayne R. LaFave, Search and Seizure 8.2(c), at 651 (3d ed. 1996).
In a case decided by the Ninth Circuit Court of Appeals, the appellant purchased a flight
ticket at an airport, checked his suitcase, and then was stopped by a federal drug enforcement
agent.
13
The agent asked permission to search the appellant's briefcase, told the appellant he
need not consent, but stated that if permission were denied the agent would seek a search
warrant. The appellant consented to the search.
14
The court concluded that
the consent to search the briefcase . . . was not voluntary. When the agent informed
appellant that if consent was not forthcoming he would attempt to secure a search
warrant, there was a clear implication that appellant would be retained in custody until
the warrant was obtained. The only reasonable construction appellant could place on
the agent's statement was that appellant would not be permitted to frustrate the agent's
attempts by boarding his plane . . . .
15

Until the agent searched the briefcase, he lacked probable cause to believe that the appellant
possessed narcotics, so the threatened detention would have been an unlawful arrest.
16
The
court concluded by observing that consent obtained under threat of subjecting appellant to
such an arrest cannot be said to be voluntary.
17

In another case where officers were allowed to enter a defendant's home and obtained consent
to search after telling the defendant he was not required to consent, the Montana Supreme
Court concluded that the consent was not voluntary.
18
The court focused on a number of
factors, particularly the statement by one officer to the defendant that absent consent the
officers would remain in the house for a number of hours while a warrant was obtained.
19

Defendant had allowed the officers to come into his home after they asked if they could
talk with him. However, they had no right to remain in his home, absent a valid
warrant, if defendant revoked that consent. While the officers may have been able to
remain on defendant's property during the time it took to obtain a warrant, it was a
misrepresentation to imply that they could remain in defendant's home, keeping him
and his wife in custody, while a warrant was obtained.
__________

13
United States v. Ocheltree, 622 F.2d 992, 993 (9th Cir. 1980).

14
Id.

15
Id. at 994.

16
Id.

17
Id.

18
State v. Rushton, 870 P.2d 1355 (Mont. 1994).

19
Id. at 1362.
ing him and his wife in custody, while a warrant was obtained.
20

In a case where officers lawfully entered an apartment but did not obtain consent to search,
the Washington Court of Appeals stated, absent some emergency which would otherwise
require his remaining in the apartment, [one officer's] determination to continue inside the
apartment while [the other officer] left to obtain the search warrant cannot reasonably be
categorized as anything less than a constructive and effective seizure of property ultimately
seized under warrant.
21
The court concluded that the seized evidence should have been
suppressed because the warrantless constructive seizure was unconstitutional.
22

Here, the State cites no evidence of criminal activity found by the officers at the time Officer
Carlton stated that two officers would stay in the motel room while a third applied for a
search warrant.
23
The only grounds for the officers to suspect criminal activity came from the
anonymous telephone tip that drugs were being sold from the motel room. The record is
bereft of any evidence showing that the tip included information establishing its reliability.
The anonymous caller gave a room number and described a car, which officers later
determined was driven by the room's occupants.
__________

20
Id. (citation omitted).

21
State v. Jones, 591 P.2d 796, 800 (Wash. Ct. App. 1979).

22
Id.; see also U.S. v. Tillman, 963 F.2d 137, 140, 143-44 (6th Cir. 1992) (holding that where police officers
told defendant that absent consent to search his bags he would be detained two to three hours while a search
warrant was sought, consent obtained was not voluntary because of the threatened detention, which lacked
probable cause); People v. Casazza, 581 N.E.2d 651, 656 (Ill. 1991) (affirming suppression of evidence because
police officers' false representation that they had authority to seize a yacht while they obtained a search warrant
vitiated the consent to the search); State v. Moreno, 619 So. 2d 62, 65-67 (La. 1993) (stating that a suspect's
detention beyond initial questioning for the purpose of securing a search warrant is not merely a brief intrusion
on liberty permissible under . . . the Terry doctrine, but a taking into custody, or an arrest, justifiable only on the
basis of probable cause, and without probable cause such an arrest vitiates consent).

23
According to Officer Visnovits's report, after Officer Carlton declared that the investigators would stay and
a search warrant would be obtained, Visnovits questioned McMorran outside the motel room, and she admitted
there were drugs in the room belonging to Searcy. The State has not argued that this admission provided lawful
grounds for the seizure of the room, and it did not provide such grounds because the seizure had already been
effected when the reported admission occurred. Moreover, a reasonable person would not have felt free to leave
by the time Visnovits questioned McMorran, so her admission was obtained after she was in custody and
violated her rights under Miranda v. Arizona, 384 U.S. 436 (1966). See, e.g., Taylor, 114 Nev. at 1082, 968
P.2d at 323 (stating that a person is in custody for Miranda purposes if under the circumstances a reasonable
person would not feel free to leave).
room's occupants. The caller apparently did not describe the occupants of the room or the
drugs being dealt. He did not identify the weapons they allegedly had, and no weapons were
found. There is no indication that he explained how he had come by his information. We
conclude that this anonymous tip did not provide reasonable suspicion to detain McMorran
and Searcy, let alone probable cause to seize them and their motel room or to obtain a search
warrant.
In Florida v. J.L., the United States Supreme Court concluded that an anonymous tip alleging
that a person had a gun and describing the person's appearance and location did not provide
reasonable suspicion justifying a police officer's stop and frisk of the person.
24
Unlike a tip
from a known informant whose reputation can be assessed and who can be held responsible if
her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the
informant's basis of knowledge or veracity.'
25
An anonymous tip can provide reasonable
suspicion to justify an investigatory stop if it exhibits sufficient indicia of reliability and is
suitably corroborated.
26
All the police had to go on in this case was the bare report of an
unknown, unaccountable informant who neither explained how he knew about the gun nor
supplied any basis for believing he had inside information about J.L.
27
The anonymous tip
provided no predictive information and therefore left the police without means to test the
informant's knowledge or credibility.
28
Reasonable suspicion requires that a tip be reliable
in its assertion of illegality, not just in identifying a person.
29
Such reliability might come in
the form of information that accurately forecasts behavior by a suspect that is not easily
predicted, indicating that the informant has inside knowledge about the suspect.
30

The anonymous tip here was equivalent to the one in J.L. and therefore did not provide
grounds to detain McMorran and Searcy. For a peace officer to detain a person, there must be
circumstances which reasonably indicate that the person has committed, is committing or is
about to commit a crime.
31
At the time Searcy revoked consent to search the room, the
circumstances did not reasonably indicate that McMorran and Searcy had committed or were
about to commit a crime.
__________

24
529 U.S. 266 (2000).

25
Id. at 270 (citation omitted) (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).

26
Id.

27
Id. at 271.

28
Id.

29
Id. at 272.

30
Id. at 269-71.

31
NRS 171.123(1).
were about to commit a crime. Therefore, once Searcy revoked consent, the officers had no
grounds to detain him and McMorran or to seize the motel room. Under these conditions the
consent obtained was not voluntary.
[Headnote 10]
Our decision does not stand for the proposition that law enforcement officers are never
allowed to secure premises to prevent the loss or destruction of evidence. If officers have
probable cause to believe that a crime has occurred or is about to occur, they may lawfully
secure relevant premises and seek a search warrant, and if they threaten to do so and as a
result obtain consent to search, such a threat does not render the consent involuntary.
32

CONCLUSION
By threatening to seize the motel room and detain its occupants without having probable
cause to believe that a crime had been or was about to be committed, the investigating
officers obtained consent which was not voluntary under the Fourth Amendment to the
United States Constitution or the Nevada Constitution. Therefore, the district court erred in
refusing to suppress the evidence subsequently seized by the officers. We therefore reverse
McMorran's judgment of conviction and remand for further proceedings consistent with this
opinion.
__________

32
See United States v. Faruolo, 506 F.2d 490, 492-94 (2d. Cir. 1974) (concluding that the appellant
voluntarily consented to a search after being told that absent consent his house would be kept under surveillance
and a search warrant would be obtained, where there was no deceit or trickery by the police and there were
grounds for a warrant because appellant had been apprehended in his backyard with stolen goods); United States
v. Agosto, 502 F.2d 612, 613-14 (9th Cir. 1974) (concluding that consent was voluntary though it came after
police officers stated that without consent they would secure the garage while they obtained a search warrant,
where a real estate agent had discovered large amounts of marijuana in the garage and reported it to the police);
State v. Thorkelson, 611 P.2d 1278, 1280 (Wash. Ct. App. 1980) (after arresting robbery suspect at the house of
a third person, police were within their rights when they stated they would impound [the person's] house until a
search warrant could be secured), modified on other grounds by State v. Burrell, 625 P.2d 726, 728 (Wash. Ct.
App. 1981).
____________
118 Nev. 389, 389 (2002) Davenport v. Comstock HillsReno
MILSEN J. DAVENPORT, Appellant, v. COMSTOCK HILLSRENO, a California
Limited Partnership, dba COMSTOCK HILLS; and REITMAN RENO PROPERTIES
INC., a Nevada Corporation, Respondents.
No. 37044
May 17, 2002
46 P.3d 62
Appeal from a district court order granting summary judgment. Second Judicial District
Court, Washoe County; Steven R. Kosach, Judge.
Tenant sued landlord for injuries she received after falling from a retaining wall. The district
court granted landlord summary judgment, and tenant appealed. The supreme court, Rose, J.,
held that: (1) statutes of repose governing design and construction defects did not apply to
tenant's negligent maintenance claim, and (2) genuine issue of material fact on whether
hazard posed by retaining wall was obvious precluded summary judgment.
[Rehearing denied July 10, 2002]
[En banc reconsideration denied September 5, 2002]
Becker, J., dissented in part.
Goedert & Michaels, Reno, for Appellant.
Thorndal Armstrong Delk Balkenbush & Eisinger and Katherine F. Bobier, Reno, for
Respondents.
In contrast to a statute of limitation, which forecloses suit after a fixed period of time following the occurrence or discovery of an
injury, a statute of repose bars causes of action after a certain period of time, regardless of whether damage or an injury has been
discovered.
2. Statutes.
Supreme court's objective in construing statutes is to give effect to the legislature's intent.
3. Statutes.
To determine the legislature's intent, supreme court first looks to the plain language of the statute. But when the language is ambiguous
or otherwise does not speak to the issue, supreme court construes it according to that which reason and public policy would indicate
the legislature intended.
4. Landlord and Tenant.
Tenant's action against apartment landlord for failure to maintain a reasonably safe retaining wall was not governed by ten-year repose
period applicable to deficiencies in improvements to real property, or eight-year repose period applicable to non-apparent deficiencies,
or six-year period for apparent deficiencies, as such periods applied to actions arising out of design and construction-related negligence
but not actions asserting negligent maintenance.
gent maintenance. Though tenant alleged a guardrail would have prevented her injury, the duty to maintain includes, in appropriate
circumstances, an obligation to upgrade facilities that harbor foreseeable hazards. NRS 11.203, 11.204, 11.205.
5. Constitutional Law; Limitation of Actions.
Statutes of repose that protected an owner of real estate who participated in the design or construction of an improvement from defect
claims but did not protect an owner who subsequently purchased improvement from negligent maintenance claims did not violate
equal protection, as limited protection afforded an owner in its role of creating an improvement was justified and did not create an
arbitrary classification. U.S. Const. amend. 14; NRS 11.203, 11.204, 11.205.
6. Judgment.
Genuine issue of material fact as to whether hazard posed by retaining wall was obvious precluded summary judgment in tenant's
personal injury action against apartment landlord.
OPINION
As the primary issue of this appeal, we consider the breadth of Nevada's statutes of repose,
which absolutely bar any action stemming from injuries caused by a negligently designed or
constructed improvement to real property after a certain period of time has passed. In this
case, appellant sued the respondents for injuries that she suffered after falling from a retaining
wall on their property. The district court granted summary judgment to the respondents,
concluding, among other things, that a statute of repose barred the suit. We conclude that the
district court interpreted the statute of repose far too broadly, and we reverse.
FACTS
Appellant Milsen Davenport was a tenant at the Comstock Hills Apartments in Reno, a
complex owned by the respondents, Comstock Hills-Reno and Reitman Reno Properties Inc.
(collectively Comstock Hills).
On June 25, 1999, after returning home from work, Davenport took her dog for a walk around
the apartment complex. During the walk, Davenport and her dog traversed a sidewalk in a
common area of the complex. To one side of the sidewalk was a cluster of two-story
apartments. To the other side was an area of grass running along the sidewalk and separating
the sidewalk and apartments from the parking lot. The grass strip was approximately eleven
feet wide and sloped slightly downward toward the parking lot.
lot. The grass strip was elevated above the parking lot approximately four feet and was
supported laterally by a white brick retaining wall. The top of the retaining wall was more or
less flush with the grass area it supported. There was no fence or other structure along the
edge of the retaining wall's precipice.
As Davenport and her dog walked along the sidewalk, a girl in a nearby apartment
unexpectedly let two dogs out of her apartment. The two dogs were larger than Davenport's
dog, and they rushed toward Davenport and her dog snarling and snapping. Davenport
quickly retreated backwards to pull her dog away from the attacking dogs. She moved off of
the sidewalk and across the grass strip. In her haste, she backed up to the edge of the grass
strip, stumbled over the edge of the retaining wall, and fell onto the parking lot below. In
consequence, she suffered fractures to a rib, a hip, and a femur.
Construction of the retaining wall had been completed in 1987. The parties seem to agree that
the retaining wall has remained structurally unchanged since that time. Also of note,
Comstock Hills is not the original owner of the apartment complex.
Davenport sued Comstock Hills, alleging that it had acted negligently by failing to design,
build, and maintain a reasonably safe retaining wall and by failing to warn her of the hazard.
She requested an award of $43,867.00 in medical expenses, in addition to awards for loss of
income and pain and suffering. Later in the proceeding, Comstock Hills filed a motion for
summary judgment, arguing that Nevada's statute of repose barred all of Davenport's claims
and, in addition, that Davenport could not prevail on her failure-to-warn claim because the
alleged hazard was obvious. The district court agreed and granted summary judgment in favor
of Comstock Hills on those bases. Davenport appealed.
DISCUSSION
[Headnote 1]
In contrast to a statute of limitation, which forecloses suit after a fixed period of time
following the occurrence or discovery of an injury, a statute of repose bar[s] causes of action
after a certain period of time, regardless of whether damage or an injury has been
discovered.
1
For instance, NRS 11.203 bars causes of action for, among other things,
personal injury or property damage allegedly caused by a deficiency in the improvements to
real property when the action is commenced more than ten years after substantial
completion of the improvements in question. If the damage or injury occurs after the
specified period, it is barred without regard to whether the statute of limitations has run
on the injured party's claim.
__________

1
Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988).
without regard to whether the statute of limitations has run on the injured party's claim.
2
Similarly, NRS 11.204 and 11.205 respectively set time limits of eight years for latent or
non-apparent deficiencies and of six years for patent or apparent deficiencies. Nevada's
statutes of repose protect the owner, occupier or any person performing or furnishing the
design, planning, supervision or observation of construction, or the construction of an
improvement to real property.
3

[Headnotes 2, 3]
In the case at hand, the district court granted summary judgment on the premise that
Comstock Hills was an owner protected by the statutes of repose. Davenport acknowledges
that Nevada's statutes of repose protect owners of real property, such as Comstock Hills, but
she asserts that the legislature intended that in order to claim the protection of the statutes, the
owner must have actually participated in designing or constructing the improvements that
caused the injury. In the proceedings below, Davenport emphasized the fact that Comstock
Hills was not the original owner, and therefore did not participate in designing or constructing
the retaining wall and elevated grass area. Responding to this argument, Comstock Hills
asserts that Davenport's interpretation of the statutes of repose would protect only original
property owners. Comstock Hills argues that such an interpretation would violate equal
protection by creating an arbitrary pair of classifications, namely, original owners that
participate in designing or constructing an improvement, whom the statutes of repose would
protect, and subsequent owners that did not participate, who would enjoy no protection. But
these arguments ignore a key facet of the statutes of reposethe type of action the statutes
bar.
4

[Headnote 4]
A review of the plain language of the statutes of repose as well as their fundamental purpose
presses the conclusion that the legislature intended to shield those involved in creating
improvements from actions grounded in design or construction defect,
__________

2
See G and H Assocs. v. Ernest W. Hahn, Inc., 113 Nev. 265, 271, 934 P.2d 229, 233 (1997).

3
NRS 11.203(1); accord NRS 11.204(1); NRS 11.205(1).

4
The parties' arguments raise an issue of statutory construction. Our objective in construing statutes is to give
effect to the legislature's intent. Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993). To do so, we
first look to the plain language of the statute; but when the language is ambiguous or otherwise does not speak to
the issue, we construe it according to that which reason and public policy would indicate the legislature
intended.' 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)).
from actions grounded in design or construction defect, but not from actions asserting
negligent maintenance.
5
Turning first to the language, we note that the statutes specifically
protect the owner and occupier of the property, but the statutes also contain a broad
catchall category that includes any person performing or furnishing the design, planning,
supervision or observation of construction, or the construction of an improvement to real
property.
6
The phrasing of this catchall category indicates the legislature's intent to qualify
the functions that the statutes are concerned with, namely, functions that have to do with
designing, planning, and constructing, or supervising or observing the same, in a
wordcreatingthe improvement. Nothing in the statutes' language indicates that their
protection extends to functions performed after the improvement in question has been
completed, such as maintenance.
The basic purpose behind the statutes of repose confirms this interpretation: the purpose is
to require trials of actions based upon defects in construction to be held within a relatively
short time after the work is completed.'
7
The parties involved in creating an improvement
often cease having any control over the improvement after completion, and thus, the
legislature has opted to provide them a measure of economic certainty by closing the door to
liability based on deficiencies, or design and construction-related defects, that cause injury
or damage after a specific period of time has passed. But the policy of providing protection to
parties who no longer control the safety of improvements does not apply to those that retain
control of the improvement and thus have the powerand therefore a duty
8
to keep it free
of hazards. Acknowledging this principle, the Supreme Court of Oklahoma has stated,
Maintenance is not the same as nor synonymous with design and construction.
9
Accordingly, we hold that the statutes of repose bar only those actions arising out of design
and construction-related negligence, but not negligent maintenance. This holding is in accord
with decisions from other courts that have addressed the issue.
__________

5
In State, Department of Transportation v. Central Telephone, 107 Nev. 898, 901, 822 P.2d 1108, 1110
(1991), we anticipated having to resolve this issue: Moreover, we question, without presently deciding, whether
the statutes of repose may be read so broadly as to afford protection to parties charged with the basic duties of
repair or maintenance of a right-of-way.

6
NRS 11.203(1); accord NRS 11.204(1); NRS 11.205(1).

7
State Farm v. All Electric, Inc., 99 Nev. 222, 227, 660 P.2d 995, 999 (1983) (emphasis added) (quoting
Skinner v. Anderson, 231 N.E.2d 588, 590 (Ill. 1967)), disapproved of on other grounds by Wise v. Bechtel
Corp., 104 Nev. 750, 754, 766 P.2d 1317, 1319 (1988).

8
Cf. Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (We conclude that all
persons in this society have an obligation to act reasonably and that an owner or occupier of land should be held
to the general duty of reasonable care when another is injured on that land.).

9
Gorton v. Mashburn, 995 P.2d 1114, 1116 (Okla. 1999).
holding is in accord with decisions from other courts that have addressed the issue.
10

[Headnote 5]
Our interpretation of the statutes of repose also resolves Comstock Hills' concern about equal
protection. An owner enjoys a limited measure of protection under the statutes of repose that
is determined by the type of action brought. The limited protection afforded an owner in its
role of creating the improvement is justified and does not create an arbitrary classification.
Apparently perceiving the distinction between the types of actions that the statutes of repose
cover, Comstock Hills also asserts that Davenport's entire claim for relief is that Comstock
was negligent in failing to install a guardrail or fence at the top of the retaining wall, and
[t]herefore, Davenport's negligence action is based upon the reasonableness of a design and
planning decision. Of course, if this were the case, the statutes of repose would preclude
Davenport's action. But Davenport's complaint also expressly alleged negligent maintenance.
And in any event, although Davenport's allegation that a guardrail would have prevented her
injuries does indeed invoke a design-defect theory, it also invokes the theory of negligent
maintenance. The duty to maintain may include, in appropriate circumstances, an obligation
to upgrade facilities that harbor foreseeable hazards by, for instance, installing guardrails.
11

__________

10
See, e.g., Otis Elevator Co. v. Theodore, 677 So. 2d 966, 967 (Fla. Dist. Ct. App. 1996) (acknowledging
that the statute of repose does not bar actions for negligent maintenance but reversing the plaintiff's trial victory
because there was no evidence to support this theory of negligent maintenance); England v. Beers Const. Co.,
479 S.E.2d 420, 424 (Ga. Ct. App. 1996) (holding that the statute of repose has no application to plaintiff's
claim that the defendant had negligently maintained the improvement); Gorton, 995 P.2d at 1116 (noting that the
applicable statute of repose did not bar a claim based on negligent maintenance, but disallowing the plaintiff
from using a more-than-ten-year-old violation of the city building code to establish negligence per se). Other
states have recognized the distinction by statute. See, e.g., Cal. Civ. Proc. Code 337.1(d) (West 1982) (The
limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession
or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an
improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.);
N.J. Stat. Ann. 2A: 14-1.1(a) (West Supp. 2002) (using substantially similar language).

11
See, e.g., George v. Fox West Coast Theatres, 519 P.2d 185, 190 (Ariz. Ct. App. 1974) (acknowledging the
possibility that the duty to maintain could encompass affirmative measures to upgrade, but noting that the
question would be one for the jury). In Nevada, this principle has been recognized implicitly. See, e.g., Foley v.
City of Reno, 100 Nev. 307, 680 P.2d 975 (1984) (allowing a plaintiff to proceed with a cause of action against
the city on the theory that the city breached its duty to install adequate warning or traffic control devices after
taking notice of a dangerous intersection); State
We conclude that the statutes of repose do not shield Comstock Hills from Davenport's claim
of negligent maintenance. Thus, the district court erred in granting summary judgment in
favor of Comstock Hills as to that claim.
[Headnote 6]
In her complaint, Davenport also asserted that Comstock Hills was negligent in failing to
warn her of the unsafe precipice. The district court granted summary judgment as to this
claim by concluding that the hazard was obvious as a matter of law.
12
But after reviewing the
photographs of the retaining wall included in the record, we determine that the question of
whether the peril was obvious is best left for the jury.
13
Accordingly, we conclude that the
district court erred on this point as well.
CONCLUSION
We hold that the statutes of repose do not obviate the duty of owners and occupiers to
maintain their property free of hazards. Thus, having concluded that the district court erred in
granting summary judgment against Davenport, we reverse the district court's order and
remand this case for further proceedings consistent with this opinion.
Becker, J., concurring in part and dissenting in part:
I concur with the majority analysis regarding the statute of repose. I respectfully dissent
however on Davenport's claim that Comstock Hills was negligent in failing to warn her of the
alleged unsafe precipice. Davenport was a resident of Comstock Hills and was aware of the
drop-off between the landscaping and the parking areas. Moreover, the drop is clearly visible
to a reasonable person who might be cutting across the grass. I would affirm the granting of
the summary judgment on the failure to warn claim since her knowledge and the open and
obvious nature of the drop negates any need for a warning.
__________
v. Webster, 88 Nev. 690, 693-94, 504 P.2d 1316, 1319 (1972) (concluding that the State had breached its duty to
ensure reasonable safety by failing to install a cattleguard on a freeway); Harrigan v. City of Reno, 86 Nev. 678,
475 P.2d 94 (1970) (employing similar reasoning regarding a guardrail near a dangerous edge of a city-owned
parking lot).

12
See Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962) (concluding that a two-foot-wide,
four-inch-high planter containing foliage, running along a plate glass window was obvious as a matter of law,
and thereby precluding a failure-to-warn action for injury caused by the planter).

13
See Harrington v. Syufy Enters., 113 Nev. 246, 931 P.2d 1378 (1997) (leaving the question of obviousness
for the jury where the plaintiff, facing the sun, tripped over a grate with tire spikes); Worth v. Reed, 79 Nev. 351,
384 P.2d 1017 (1963) (leaving the question of obviousness for the jury where the plaintiff slipped and fell on a
wet tile floor).
since her knowledge and the open and obvious nature of the drop negates any need for a
warning.
____________
118 Nev. 396, 396 (2002) Nava v. Dist. Ct.
AMELIA NAVA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE STEVEN R. KOSACH, District Judge, Respondents, and RUDOLPH
BIDASHA, Real Party in Interest.
No. 38346
May 17, 2002
46 P.3d 60
Original petition for a writ of mandamus or prohibition, challenging a district court order
denying petitioner's motion for entry of judgment pursuant to an accepted offer of judgment.
In a tort action arising out of an automobile accident, the district court refused to enter
judgment pursuant to alleged tortfeasor's acceptance of an offer of judgment. Alleged
tortfeasor petitioned for writ of mandamus. The supreme court held as a matter of first
impression that offer of judgment is irrevocable during the ten-day acceptance period.
Petition granted.
Georgeson Thompson & Angaran, Chtd., Reno, for Petitioner.
Bradley Drendel & Jeanney and Kevin L. Pasquale, Reno, for Real Party in Interest.
1. Judgment.
Offer of judgment is irrevocable during the ten-day acceptance period. The offeree has ten days to accept the offer, and the statute and
rule do not provide for withdrawal. NRS 17.115; NRCP 68.
2. Mandamus.
A writ of mandamus is available to compel the performance of an act the law requires as a duty resulting from an office, trust, or
station, or to control an arbitrary or capricious abuse of discretion.
OPINION
Per Curiam:
Petitioner, Amelia Nava, was the defendant in a civil lawsuit brought by the real party in
interest, Rudolph Bidasha, which arose out of an automobile accident wherein Nava,
118 Nev. 396, 397 (2002) Nava v. Dist. Ct.
arose out of an automobile accident wherein Nava, under the influence of alcohol, rear-ended
Bidasha's vehicle. As a result of the automobile accident, Bidasha suffered physical injuries,
including an injury to his back. Prior to trial, Bidasha's attorney served Nava with an offer of
judgment in the amount of $100,000.00. Under NRCP 68 and NRS 17.115, if Nava wished to
accept the offer, she was required to accept the offer of judgment within ten days of service.
Five days after service, and prior to Nava's acceptance of the offer, however, Bidasha served
Nava with a notice withdrawing the offer of judgment. During those five days, Bidasha's
attorney learned that Bidasha elected to have back surgery, which he believed would increase
Bidasha's damages to more than $100,000.00. Nava ignored Bidasha's notice of withdrawal
and accepted the offer of judgment within the ten-day acceptance period. The district court
adopted the position of a minority of states and held that offers of judgment are revocable
within the ten-day acceptance period. Therefore, it refused to enter judgment pursuant to
Nava's acceptance.
[Headnote 1]
Nava now requests extraordinary writ relief and seeks to vacate the district court order
denying her motion for entry of judgment pursuant to an accepted offer of judgment and to
enter judgment in favor of Bidasha for $100,000.00, pursuant to the provisions of NRCP 68
and NRS 17.115. This petition raises a question of first impression for this court: whether a
party can revoke an offer of judgment, made pursuant to NRCP 68 or NRS 17.115, before the
ten-day acceptance period expires. We conclude that the offer of judgment is irrevocable
during the ten-day period.
DISCUSSION
[Headnote 2]
A writ of mandamus is available to compel the performance of an act the law requires as a
duty resulting from an office, trust, or station, or to control an arbitrary or capricious abuse of
discretion.
1
Here, we conclude that the district court manifestly abused its discretion in
refusing to enter judgment pursuant to an accepted offer of judgment.
NRCP 68 provides, in pertinent part:
(a) The Offer. At any time more than 10 days before trial, any party may serve an offer
in writing to allow judgment to be taken in accordance with its terms and conditions.
. . . .
__________

1
See NRS 34.160; see also Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536
(1981).
118 Nev. 396, 398 (2002) Nava v. Dist. Ct.
(d) Judgment Entered Upon Acceptance. If within 10 days after the service of the
offer, the offeree serves written notice that the offer is accepted, either party may then
file the offer and notice of acceptance together with proof of service. The clerk shall
enter judgment accordingly. . . .
(e) Failure to Accept Offer. If the offer is not accepted within 10 days after service, it
shall be considered rejected by the offeree and deemed withdrawn by the offeror. . . .
NRS 17.115 provides, in pertinent part:
1. At any time more than 10 days before trial, any party may serve upon one or more
other parties a written offer to allow judgment to be taken in accordance with the terms
and conditions of the offer of judgment.
2. Except as otherwise provided in subsection 7, if, within 10 days after the date of
service of an offer of judgment, the party to whom the offer was made serves written
notice that the offer is accepted, the party who made the offer or the party who accepted
the offer may file the offer, the notice of acceptance and proof of service with the clerk.
. . .
3. If the offer of judgment is not accepted pursuant to subsection 2 within 10 days after
the date of service, the offer shall be deemed rejected by the party to whom it was made
and withdrawn by the party who made it. . . .
We conclude that an offer of judgment pursuant to NRCP 68 and NRS 17.115 is irrevocable
during the ten-day period.
2
The rule and statute clearly state that the offeree of an offer of
judgment has ten days in which to accept the offer. There is no provision for withdrawal
before the ten days have expired.
Furthermore, the public policy behind NRCP 68 and NRS 17.115 supports the position that
an offer of judgment should be irrevocable during the ten-day acceptance period. The ten-day
acceptance period is designed to give the offeree the time to carefully consider the likely
value of pursuing a claim in light of the offer of judgment.
3
NRCP 68(f) and NRS 17.115(4)
set forth applicable penalties if the offeree rejects an offer and fails to obtain a more
favorable judgment at trial.
__________

2
Bidasha's remedy in this case would be to file an NRCP 60(b) motion with the district court. NRCP 60(b)
provides that [o]n 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. The district court can then evaluate his claims.

3
Cf. Richardson v. National Railroad Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995) (potentially costly
consequences of rejecting an offer of judgment make a party carefully consider the offer as compared to the
claim); Shelton v. Sloan, 977 P.2d 1012, 1017 (N.M. Ct. App. 1999).
118 Nev. 396, 399 (2002) Nava v. Dist. Ct.
obtain a more favorable judgment at trial. Considering the serious consequences, the offeree
is entitled not to be rushed into a hasty decision. Also, the majority of jurisdictions with rules
and statutes similar to NRCP 68 and NRS 17.115 have held that an offer of judgment is
irrevocable during the ten-day acceptance period.
4

For the foregoing reasons, we grant the petition. Accordingly, we direct the clerk of this court
to issue a writ of mandamus compelling the district court to vacate its order denying the
motion for entry of judgment and ordering the district court to enter judgment in favor of
Bidasha, and against Nava, in the amount of $100,000.00. This amount includes any and all
applicable prejudgment interest, attorney fees, and costs, pursuant to the provisions of NRCP
68 and NRS 17.115, and pursuant to the Notice of Acceptance of Offer of Judgment, filed
March 7, 2001.
____________
118 Nev. 399, 399 (2002) State v. Nelson
THE STATE OF NEVADA, Appellant, v. SEAN FULLER NELSON, Respondent.
No. 37457
May 22, 2002
46 P.3d 1232
Appeal from a district court order granting a pretrial petition for a writ of habeas corpus and
dismissing the charges against respondent with prejudice. Eighth Judicial District Court,
Clark County; Valorie Vega, Judge.
Defendant, who was charged with attempted murder and felony battery of wife, brought
pretrial petition for writ of habeas corpus. The district court granted petition and dismissed
charges with prejudice. State appealed. The supreme court held that: (1) district court had
authority to consider pretrial petition for writ of habeas corpus, in view of defendant's
allegations that justice's court had granted continuance in violation of jurisdictional
procedural requirements; (2) any error arising from prosecutor's initial failure to make motion
for continuance under oath was cured when prosecutor subsequently repeated substance of his
motion under oath; (3) presence of defendant's wife at preliminary hearing was essential, for
purposes of determining whether State had good cause to seek continuance in order to secure
wife's presence; and (4) State demonstrated surprise at wife's failure to appear at preliminary
hearing,
__________

4
See, e.g., Mapco Exp., Inc. v. Faulk, 24 P.3d 531, 542 & n.34 (Alaska 2001); Mubi v. Broomfield, 492 P.2d
700, 702 (Ariz. 1972); Smith v. Kentucky State Fair Bd., 816 S.W.2d 911, 912-13 (Ky. Ct. App. 1991); Shelton,
977 P.2d at 1013; Hernandez v. United Supermarkets of Okl., 882 P.2d 84, 88 (Okla. Ct. App. 1994); Dussault
v. Seattle Public Schools, 850 P.2d 581, 584 (Wash. Ct. App. 1993).
appear at preliminary hearing, as necessary for a finding of good cause to grant continuance.
Brian S. Rutledge and James Tufteland, Chief Deputy District Attorneys, Clark County, for
Appellant.
Marcus D. Cooper, Public Defender, and Scott H. Waite, Deputy Public Defender, Clark
County, for Respondent.
1. Habeas Corpus.
District court had authority to consider pretrial petition for writ of habeas corpus, where defendant alleged that justice's court had
granted continuance to State in violation of jurisdictional procedural requirements established by prior decisions of state supreme
court.
2. Habeas Corpus.
A pretrial writ of habeas corpus is not the proper avenue to challenge a discretionary ruling.
3. Criminal Law.
Decision to grant a continuance is a discretionary ruling.
4. Criminal Law.
A continuance may be granted upon a written affidavit demonstrating good cause.
5. Criminal Law.
Prosecutor can satisfy the purposes of doctrine allowing a grant of a continuance upon a showing of good cause by written affidavit,
and can also establish a record for review by presenting sworn testimony of the same factual matters that are required in an affidavit.
6. Criminal Law.
Good cause for a continuance of a preliminary hearing is not amenable to a bright-line rule. A justice court must review the totality
of the circumstances to determine whether good cause has been shown.
7. Criminal Law.
Any error arising from prosecutor's initial failure at preliminary hearing to make motion for continuance under oath was cured when
the prosecutor subsequently repeated the substance of his motion under oath.
8. Criminal Law.
Presence of defendant's wife at preliminary hearing was essential, for purposes of determining whether State had good cause to seek
fifteen-day continuance to secure wife's presence with material witness warrant, where wife was alleged victim of attempted murder
and felony battery charges, and State argued that until that morning it did not realize that admission of wife's statements to arresting
officer might be more problematic than expected because wife had been under the influence at time of statements.
9. Criminal Law.
State demonstrated surprise at witness's failure to appear at preliminary hearing, as necessary for a finding of good cause to grant
continuance; while State had previously had problems in securing witness's appearance in prior cases, witness had shown up at a prior
preliminary hearing in present case,
hearing in present case, she was aware her appearance could be compelled since she had been arrested in a prior matter for not showing
up as witness, and various attempts to serve her with subpoena had been made, including leaving notice of hearing at her residence the
business day prior to hearing.
OPINION
Per Curiam:
Respondent Sean Fuller Nelson was arrested on December 19, 2000, for striking his wife,
Sheri Durham, over the head with a liquor bottle, which caused her substantial injuries. On
December 21, 2000, Nelson was arraigned on one felony count of battery with the use of a
deadly weapon with substantial bodily harm. Due to preexisting health problems, Nelson was
released on his own recognizance, and a preliminary hearing was set for January 3, 2001. At
the preliminary hearing, the State indicated it was ready to proceed with Durham as a hostile
witness. During the hearing, the State moved to amend the complaint to add two felony
countsthe first for attempted murder with use of a deadly weapon and the second for
battery constituting domestic violence, third offense. The defense announced it was ready to
proceed on the original charge but objected to the filing of the amended complaint due to the
late date. The judge allowed the State to amend the complaint as requested and granted a
continuance to allow Nelson time to investigate the new charges. The State then requested
that bail be set and that Nelson be remanded into custody. The State informed the court that
the following day, Nelson was scheduled to appear in Justices' Court Departments 4 and 7 on
other cases. The judge postponed a decision on the State's request until January 5, 2001, in
order to consider the justices' courts' decisions in the pending matters when rendering its
decision. As Nelson left the courtroom, he allegedly told the prosecutor that he was not
going to jail tomorrow.
Nelson did not appear on January 4, 2001, and two no-bail bench warrants were issued. He
also did not appear for his preliminary hearing on January 5, 2001, and a $150,000.00 bench
warrant was issued. Nelson was subsequently arrested on the warrants at Durham's apartment,
and his preliminary hearing was reset for January 22, 2001.
On January 15, 2001, the State issued a subpoena to Durham but was unable to serve it before
the preliminary hearing, despite attempts to deliver it to her apartment and place of
employment. On January 19, 2001, the State's investigator again attempted to contact
Durham
contact Durham and left notice at her apartment of the January 22, 2001, court date.
On January 22, 2001, Durham did not show up at the 9 a.m. preliminary hearing. The
arresting officer was present at the hearing, and the State indicated that it could possibly
proceed with only his testimony. However, the State requested a fifteen-day continuance in
order to procure Durham's presence through a material witness warrant. Nelson's attorney
objected to the continuance on the basis that the motion did not satisfy Hill v. Sheriff
1
or
Bustos v. Sheriff.
2
After conferring about Nelson's in-custody status and about the Hill and
Bustos requirements, the judge granted the continuance. Defense counsel again objected on
the basis that a proper foundation for a continuance had not been established. In response, the
prosecutor offered to be sworn in to make the request.
In his sworn statement requesting the continuance, the prosecutor, by reference, incorporated
his own prior statements. He also stated that based upon his information and belief from
dealing with Durham on the misdemeanor domestic battery cases, the witness was now
avoiding service and that a material witness warrant would be the only way to procure her
appearance in court. He also declared her an essential witness, though noted that he could not
really determine whether she was essential until speaking to her. He again noted that since he
did not want Nelson out of custody at that time, he would proceed with only the officer's
testimony if the continuance was denied. The court again granted the motion but noted that
the court would not grant future continuances. Nelson's counsel then objected on the basis
that since the State had elected to go forward with the case rather than dismissing it and going
to the grand jury, a continuance for the grounds specified was improper. Specifically, Nelson
argued that the summons to Durham had not even been served and that the prosecutor's
statements acknowledged that the State was not surprised that the victim did not show up.
Nelson argued that without surprise a Bustos motion was improper. The State argued that
until the morning of the preliminary hearing, it did not realize that admission of Durham's
statements to the arresting officeras excited utterancesmight be more problematic than
anticipated because she had been under the influence at the time of the statements. The
preliminary hearing was reset for February 5, 2001.
On January 23, 2001, Nelson filed a petition for a writ of habeas corpus and a hearing was set
for February 6, 2001, in Department II of the district court.
__________

1
85 Nev. 234, 452 P.2d 918 (1969), holding limited by Sheriff v. Marcus, 116 Nev. 188, 995 P.2d 1016
(2000).

2
87 Nev. 622, 491 P.2d 1279 (1971).
Department II of the district court.
3
The basis for the petition was that the State failed to use
proper procedural methods to obtain the continuance because the State's motion did not
conform to Hill or Bustos. The district judge in Department II granted an ex parte request for
a stay of the preliminary hearing. The State then gave Nelson notice of intent to seek an
indictment and asked the district court to reconsider the stay. The district court subsequently
denied the State's motion to reconsider the stay and further ordered any and all Grand Jury
proceedings proposed by the State stayed until further order of the court. The district court
conducted hearings on the writ of habeas corpus on February 1 and 8, 2001.
The district court found that under Sheriff v. Blackmore,
4
it had jurisdiction to hear the
petition for the writ of habeas corpus because of the procedural violations alleged. Further,
the court found that the motion for continuance was defective because there was no surprise,
no written affidavit pursuant to Hill, and no verification that Durham was an essential
witness. Accordingly, the district court granted the petition. Pursuant to Maes v. Sheriff,
5
the
court also dismissed the case with prejudice and released Nelson. The State then timely filed
this appeal.
In this appeal, we are first asked to decide whether the district court had authority to grant the
pretrial writ petition based on an alleged error in granting a continuance. We are also asked to
decide whether the justice's court erred in granting the continuance. We conclude that the
district court had authority to consider the petition because Nelson alleged that he was being
unlawfully detained in violation of the Hill and Bustos procedural requirements.
[Headnotes 1-3]
A pretrial writ of habeas corpus is not the proper avenue to challenge a discretionary ruling.
6
The decision to grant a continuance is a discretionary ruling.
7
However, the district court
may review the legality of the detention on habeas corpus in circumstances where the
continuance is alleged to have been granted in violation of the jurisdictional procedural
requirements of Hill and Bustos.
__________

3
Justice's Court Department 3 cases are scheduled to track to District Court Departments VII and XVIII
rather than Department II.

4
99 Nev. 827, 673 P.2d 137 (1983). Throughout the record, the parties and the district court judge refer to
this case as Sheriff v. Sepulveda or Sepulveda.

5
86 Nev. 317, 468 P.2d 332 (1970), holding limited by Sheriff v. Marcus, 116 Nev. 188, 995 P.2d 1016
(2000).

6
Blackmore, 99 Nev. at 830, 673 P.2d at 138.

7
See id.
Bustos.
8
The district court therefore had authority to consider the pretrial petition for a writ
of habeas corpus.
[Headnotes 4-6]
A continuance may be granted upon a written affidavit demonstrating good cause as outlined
in Hill.
9
We held in Bustos that a prosecutor also can satisfy the purposes of the [Hill]
doctrine and establish a record for review by presenting sworn testimony of the same factual
matters which are required in an affidavit.
10
We have also reiterated that the aim is to apply
the [Bustos] rules firmly, consistently, but realistically.'
11
[G]ood cause' is not amenable
to a bright-line rule. The justices' court must review the totality of the circumstances to
determine whether good cause' has been shown.
12

Here, Nelson contends that a Bustos motion was not properly made because the prosecutor
did not initially make the request under oaththough the request was subsequently repeated
under oath. Nelson concluded, and the district court agreed, that this procedural deficiency in
the motion negated the discretionary nature of the decision to grant a continuance and that the
district court therefore properly granted the pretrial petition for a writ of habeas corpus.
Nelson also alleged that the State did not prove that the witness was essential since it could
have proceeded without her. He further alleged that the State could not have been surprised
by the witness's failure to appear since the subpoena had not been served upon the witness
and the State had previously experienced problems with getting this witness to appear. We
disagree.
[Headnotes 7, 8]
We first conclude that any error in failing to have initially made the motion under oath was
cured when the prosecutor subsequently repeated the substance of his motion under oath. This
conclusion is consistent with our prior holding that Bustos be applied realistically.
13
Further,
the witness here was the victim, and the prosecutor presented the justice of the peace with
valid reasons for wanting her present rather than relying on the investigating officer's
testimony of her hearsay statements. We conclude that this suffices to support the State's
contention that she was essential.
__________

8
Id.; see also Sheriff v. Hatch, 100 Nev. 664, 666 n.1, 691 P.2d 449, 450 n.1 (1984).

9
85 Nev. at 235-36, 452 P.2d at 919.

10
87 Nev. at 624, 491 P.2d at 1280-81.

11
Sheriff v. Terpstra, 111 Nev. 860, 862, 899 P.2d 548, 550 (1995) (quoting McNair v. Sheriff, 89 Nev. 434,
438, 514 P.2d 1175, 1177 (1973)).

12
Id. at 863, 899 P.2d at 550.

13
Id. at 862, 899 P.2d at 550.
clude that this suffices to support the State's contention that she was essential.
[Headnote 9]
We also conclude that the surprise requirement in Bustos was satisfied by the prosecutor's
testimony that he was surprised that the witness did not show up, and the evidence supporting
his belief. The prosecutor's belief that Durham would show up despite having problems
securing her appearance in prior cases was not unreasonable given that: the witness had
shown up at the initial preliminary hearing on January 3, 2001; the witness was aware that her
appearance could be compelled since she had been arrested in a prior matter for not showing
up as a witness; and various attempts to serve her with notice had been made, including
leaving notice of the hearing at her residence the business day prior to the hearing.
Therefore, we conclude that the justice's court properly exercised its discretion by considering
the totality of the circumstances in finding that good cause existed for granting the
continuance. Further we conclude that the district court, regardless of the department to
which the case was assigned,
14
had authority to consider the pretrial petition for a writ of
habeas corpus. However, we conclude that the district court erred in granting the petition
since good cause existed for the justice's court to grant the continuance.
Accordingly, we reverse the order of the district court granting the petition for a writ of
habeas corpus and remand for further proceedings consistent with this opinion.
____________
118 Nev. 405, 405 (2002) Hampe v. Foote
STEPHEN HAMPE, Appellant, v. ELIZABETH FOOTE, BETTY R. BOAL and OUR
PLACE, Respondents.
No. 36555
June 4, 2002
47 P.3d 438
Appeal from a district court order granting a motion to dismiss for failure to state a claim
upon which relief can be granted under NRCP 12(b)(5). Eighth Judicial District Court, Clark
County; Gary L. Redmon, Judge.
__________

14
The State contends that the district court's ruling should be vacated because the case was heard by the
wrong department of the district court, in violation of EDCR 1.64. The State cites no legal authority and presents
no compelling argument to support the claim that a violation of EDCR 1.64 would entitle it to the relief sought.
This case was randomly assigned to Department II. Even if the incorrect department heard this case, we need not
consider this argument for lack of legal authority. See NRAP 28(a)(4); see also Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987).
118 Nev. 405, 406 (2002) Hampe v. Foote
Gaming establishment licensee sued owners of another establishment for libel, defamation,
malicious prosecution, and intentional infliction of emotional distress after they sent letter of
complaint to Nevada Gaming Commission. The district court dismissed complaint. Licensee
appealed. The supreme court held that absolute privilege applied to letter of complaint even
though licensee alleged that letter was made with malice and contained fraudulent
accusations.
Affirmed.
Orin G. Grossman, Las Vegas, for Appellant.
Newman Morris & Dachelet, Ltd., Las Vegas, for Respondents.
Malicious prosecution claim will not lie unless the defendant initiated, procured the institution of, or actively participated in the
continuation of a criminal proceeding against the plaintiff.
Appellate court rigorously reviews a district court's dismissal of an action for failure to state a claim, and all factual allegations in the
complaint are regarded as true, and all inferences are drawn in favor of the non-moving party. NRCP 12(b)(5).
A complaint should only be dismissed for failure to state a claim if it appears beyond a reasonable doubt that the plaintiff could prove
no set of facts, which, if true, would entitle plaintiff to relief. NRCP 12(b)(5).
Dismissal for failure to state a claim is proper where the allegations are insufficient to establish the elements of a claim for relief.
NRCP 12(b)(5).
5. Damages; Gaming; Libel and Slander; Malicious Prosecution.
Absolute privilege applied to letter of complaint submitted to the Nevada Gaming Commission, thus barring any civil action by
licensee for libel, defamation, malicious prosecution, and intentional infliction of emotional distress arising from such communication,
even though licensee alleged that letter was made with malice and contained fraudulent accusations. NRS 463.3407.
6. Torts.
An absolute privilege bars any civil litigation based on the underlying communication.
7. Torts.
An absolute privilege is an immunity, which protects against even the threat that a court or jury will inquire into a communication.
Restatement (Second) of Torts ch. 25, topic 2, tit. B.
Licensee waived assignment of error on appeal that absolute privilege provided for letters of complaint to State Gaming Control Board
or Nevada Gaming Commission becomes conditional if the communication is made outside the context of a judicial or quasi-judicial
proceeding, as licensee did not raise issue in the trial court. NRS 463.3407.
118 Nev. 405, 407 (2002) Hampe v. Foote
9. Gaming.
As letter of complaint to Nevada Gaming Commission stimulated a quasi-judicial proceeding before the Gaming Commission, absolute
quasi-judicial privileges pertained to letter.
OPINION
Per Curiam:
This appeal concerns the scope of the privilege afforded under NRS 463.3407 to certain
communications made to the Nevada Gaming Commission or State Gaming Control Board.
We conclude that the privilege applies to letters of complaint submitted to the Nevada
Gaming Commission or the State Gaming Control Board, thus barring any civil action arising
from such communications.
FACTS
Appellant Stephen Hampe holds a non-restricted gaming license and owns the Lake Mead
Lounge, a gaming establishment. On October 21, 1997, Hampe entered Our Place, another
gaming establishment, and won a $4,000 royal flush jackpot on a video poker machine.
Respondents Elizabeth Foote and Betty Boal, the owners of Our Place, submitted a letter of
complaint to the Nevada Gaming Commission. This letter accused Hampe of illegally
arranging for a repairman to work on the video poker machine. The letter further alleged that
Hampe knew that the repairs would increase the odds of winning a jackpot, and played the
machine with this knowledge. The Gaming Commission ultimately dismissed the
respondents' allegations, finding no supporting evidence.
[Headnote 1]
Hampe brought the action below against Foote, Boal and Our Place alleging libel,
defamation, malicious prosecution,
1
and intentional infliction of emotional distress. Hampe
alleged that the respondents' letter was particularly harmful as the allegations remain on his
gaming license record, even though no sanctions were imposed.
__________

1
We note that Hampe's malicious prosecution claim fails as a matter of law under our recent opinion in
LaMantia v. Redisi, which held that a malicious prosecution claim will not lie unless the defendant initiated,
procured the institution of, or actively participated in the continuation of a criminal proceeding against the
plaintiff. 118 Nev. 27, 30, 38 P.3d 877, 879-80 (2002).
118 Nev. 405, 408 (2002) Hampe v. Foote
The respondents moved to dismiss Hampe's complaint pursuant to NRCP 12(b)(5), arguing
that their letter to the Gaming Commission was absolutely privileged pursuant to NRS
463.3407. In opposition, Hampe argued the privilege does not apply to fraudulent and
malicious communications. The district court rejected Hampe's argument and, applying NRS
463.3407, dismissed all of Hampe's claims with prejudice under NRCP 12(b)(5). Hampe
appeals.
DISCUSSION
[Headnotes 2-4]
This court rigorously reviews a district court's dismissal of an action under NRCP 12(b)(5)
for failure to state a claim.
2
All factual allegations in the complaint are regarded as true, and
all inferences are drawn in favor of the non-moving party.
3
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.
4
Dismissal is proper where the allegations are
insufficient to establish the elements of a claim for relief.
5

[Headnote 5]
NRS 463.3407 provides, in part:
1. Any communication or document of an applicant or licensee, or an affiliate of either,
which is made or transmitted to the board or commission or any of their agents or
employees to:
. . . .
(c) Assist the board or commission in the performance of their respective duties,
is absolutely privileged and does not impose liability for defamation or constitute a
ground for recovery in any civil action.
It is evident that the legislature has crafted a broad statutory privilege in this area. The
privilege expressly encompasses any communication made by a licensee or applicant to assist
the Gaming Control Board or Gaming Commission in the performance of their respective
duties. The statute further provides that such communications cannot be a ground for liability
in any civil action.
__________

2
Blackjack Bonding v. Las Vegas Mun. Ct., 116 Nev. 1213, 1217, 14 P.3d 1275, 1278 (2000).

3
Id. (citing Simpson v. Mars, Inc., 113 Nev. 188, 190, 929 P.2d 966, 967 (1997)).

4
Id.

5
Nevada Power Co. v. Haggerty, 115 Nev. 353, 358, 989 P.2d 870, 873 (1999).
118 Nev. 405, 409 (2002) Hampe v. Foote
action. We therefore conclude that NRS 463.3407 applies to respondents' letter of complaint.
6

[Headnotes 6, 7]
An absolute privilege bars any civil litigation based on the underlying communication.
7
We
have previously explained the policy behind absolute privileges: In certain situations it is in
the public interest that a person speak freely. Where this is so, the law is willing to assume
the risk that from time to time the privilege will be abused.
8
An absolute privilege is an
immunity, which protects against even the threat that a court or jury will inquire into a
communication.
9

[Headnotes 8, 9]
Because respondents' letter was absolutely privileged, Hampe cannot prove any facts, which
could entitle him to relief. Regardless of the motivation behind the respondents' letter, or any
allegedly fraudulent assertions therein, the letter cannot form the basis of any civil liability.
The district court correctly granted the respondents' motion to dismiss.
10

__________

6
Under NRS 463.310, the Gaming Commission and the State Gaming Control Board have the authority to
investigate and review allegations that a licensee has violated gaming regulations.

7
See, e.g., Read v. Baker, 430 F. Supp. 472, 476 (D. Del. 1977); Restatement (Second) of Torts ch. 25, topic
2, tit. B introductory note at 243 (1977).

8
Lewis v. Benson, 101 Nev. 300, 301, 701 P.2d 751, 752 (1985) (discussing absolute privilege for
communications made to police internal affairs departments).

9
Restatement (Second) of Torts ch. 25, topic 2, tit. B introductory note at 243 (1977).

10
Hampe contends for the first time on appeal that the absolute privilege provided under NRS 463.3407
becomes conditional if the communication is made outside the context of a judicial or quasi-judicial proceeding.
Not having raised this issue in the court below, the assignment of error on appeal is waived. See State of
Washington v. Bagley, 114 Nev. 788, 792, 963 P.2d 498, 501 (1998) (parties cannot raise issues for the first
time on appeal); accord Laird v. State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 46, 639 P.2d 1171, 1173 (1982).
We note, however, that the letter of complaint did stimulate a quasi-judicial proceeding before the Gaming
Commission. Thus, absolute quasi-judicial privileges obtain, as well as the privilege set forth in NRS 463.3407.
Cf. Bank of America Nevada v. Bourdeau, 115 Nev. 263, 266-67, 982 P.2d 474, 475-76 (1999) (privileges
concerning communications by bank with FDIC bank examiners were conditional, not absolute, when made in
the course of a background investigation outside the context of judicial or quasi-judicial proceedings). We also
note that, in Bourdeau, the communications were not, as here, subject to a statutory privilege specifically
applicable to the particular communication involved.
118 Nev. 405, 410 (2002) Hampe v. Foote
CONCLUSION
The absolute privilege under NRS 463.3407 bars any civil cause of action grounded on
communications by a holder of, or applicant for, a gaming license to the Gaming Control
Board or Gaming Commission to assist the entity in its functions. We conclude that this
absolute privilege applies and bars all claims, even where it is alleged that the communication
was made with malice and contains allegedly fraudulent accusations. We therefore affirm the
district court's order dismissing Hampe's complaint under NRCP 12(b)(5).
____________
118 Nev. 410, 410 (2002) Bedard v. State
SCOTT HENRY BEDARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37237
June 12, 2002
48 P.3d 46
Appeal from a judgment of conviction, pursuant to a jury verdict, of ten counts of burglary,
one count of robbery with the use of a deadly weapon, one count of first-degree murder with
the use of a deadly weapon, and three counts of grand larceny. Eighth Judicial District Court,
Clark County; Jeffrey D. Sobel, Judge.
The supreme court held that indictment, charging defendant with a separate burglary for each
of several office suites he entered and ransacked within the same office building, did not
violate rule against multiplicity.
Affirmed.
Michael V. Cristalli, Las Vegas; Kajioka, Christiansen & Toti, Las Vegas, for Appellant.
A multiplicitous indictment is one charging the same offense in more than one count.
An indictment that charges a single offense in several counts violates the rule against multiplicity.
The general test for multiplicity is that offenses are separate if each requires proof of an additional fact that the other does not.
Offenses are not multiplicitous when they occur at different times and different places, because they cannot then be said to arise out of
a single wrongful act.
Indictment charging defendant with a separate burglary for each of several office suites he entered and ransacked within the same
office building did not violate rule against multiplicity even though some of the suites were vacant suites within the building; each
suite had its own door, had to be entered separately, and was physically separate from both the hallway and the other suites. NRS
205.060.
OPINION
Per Curiam:
Appellant Scott Henry Bedard raises several arguments on appeal. However, this opinion will
focus on whether the burglary counts in the criminal indictment violate the rule against
multiplicity, an issue of first impression.
We conclude that Bedard was properly charged with several counts of burglary because his
entry into several suites within an office building cannot be said to have arisen out of a single
wrongful act. Therefore, we affirm his convictions and sentence.
FACTS
On August 6, 1997, Bedard unlawfully entered the Templeton Plaza, an office building
located in Las Vegas. Upon entering, Bedard broke into several offices inside the building,
stealing a .22 caliber pistol and two laptop computers.
While inside, Bedard was discovered by William Hanlon. Bedard ordered Hanlon to his
knees and fatally shot him in the head. Police later discovered Hanlon on his hands and knees,
clutching his open wallet. Some of Hanlon's credit cards were scattered on the floor near the
body, and no money was found in the wallet.
After shooting Hanlon, Bedard left the building and went to a nearby donut store. There, he
was videotaped buying coffee and appeared to be carrying several items. At some point,
Bedard called Alena Aresco and asked her for a ride. Unable to do so, Aresco asked Alex
Merriam, a neighbor, to pick up Bedard from the donut store, which he did. Merriam noticed
that Bedard was carrying two computer bags, his hand was cut, and blood was on one of his
socks. At trial, Merriam testified that Bedard told him that he got into a confrontation with
a janitor,
that he got into a confrontation with a janitor, made the janitor get on the ground on his
knees, Bedard blacked out, and then the janitor was dead on the ground.
Merriam drove Bedard to Aresco's apartment, where Bedard told Aresco that he had shot
someone and gave Aresco the gun and the computers. Aresco placed the items in her closet.
After Bedard left her apartment, Aresco discussed the situation with Charles Williams, her
boyfriend. Williams, hoping to collect a reward, called the police and told them of Bedard's
statements to Aresco. Thereafter, Williams escorted the police to Aresco's apartment to
retrieve the gun and the computers.
When the police arrived at Aresco's apartment, they were informed that Aresco had removed
the gun and the computers and h ad taken them to 7505 Blue Sage Court, a house owned by
her mother, Ruth Ganjei. Bedard had lived at that address and kept a storage unit in the
third-car garage where he stored personal items. Aresco had placed the gun and the computers
in Bedard's storage area. The storage unit also contained a motorcycle and Christmas stuff
belonging to Ganjei.
Later that night, Aresco escorted the police to her mother's home. The officers obtained both
verbal and written consent from Ganjei before entering the storage area to retrieve the murder
weapon and the stolen computers. The gun found was matched to the bullet that killed
Hanlon, and the computers were identified as having been stolen from the crime scene.
Prior to trial, Bedard moved to suppress the murder weapon and the stolen computers on the
ground that the search was illegal. In the motion, Bedard argued that he possessed a
reasonable expectation of privacy in the storage area within Ganjei's garage and that the
search violated his Fourth Amendment rights. The district court held a two-day evidentiary
hearing and ruled that the search was valid and, therefore, the evidence was admissible.
After a jury trial, Bedard was convicted of first-degree murder, robbery with the use of a
deadly weapon, ten counts of burglary, and three counts of grand larceny.
DISCUSSION
Bedard argues that counts IV, V, VII, IX, XIII, XIV, and XVII of the criminal indictment are
multiplicitous of count I and should have been dismissed. More specifically, Bedard contends
that the counts charging him with burglary of individual office suites within the Templeton
Plaza are redundant with count I, which charges him with burglary of the Templeton Plaza
itself. Therefore, Bedard contends that since all these charges arose out of one act,
of one act, the indictment divides a single act into several different charges, in violation of the
policy behind the multiplicity rule.
1

NRS 205.060(1) provides that a burglary is committed when a person enters any house,
room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other
building . . . with the intent to commit grand or petit larceny. Although we have decided
numerous cases dealing with the burglary statute, we have yet to address the issue of whether
a defendant can be charged with multiple counts of burglary for entry into separate rooms in a
single structure with the intent to steal.
[Headnotes 1-4]
A multiplicitous indictment is one charging the same offense in more than one count.
2
An
indictment that charges a single offense in several counts violates the rule against
multiplicity.
3
We have stated that [t]he general test for multiplicity is that offenses are
separate if each requires proof of an additional fact that the other does not.
4
It follows that
[o]ffenses are . . . not multiplicitous when they occur at different times and different places,
because they cannot then be said to arise out of a single wrongful act. '
5

California Penal Code 459, the California burglary statute, is very similar to NRS 205.060.
California courts have long affirmed burglary convictions for entry into separate rooms in a
single structure.
6
Dealing with a similar issue to that before us, the California Supreme Court
noted the following:
Here defendant forcibly broke into three different rented premises occupied by tenants
who had no common interest other than the fortuitous circumstance that they happened
to lease office suites in the same commercial building. There is no doubt that if the
premises had been located in three separate buildings defendant could have been
punished for three separate burglaries; he is not entitled to two exempt burglaries
merely because his victims chose the same landlord. If the rule were otherwise, a thief
who broke into and ransacked every store in a shopping center under one roof, or every
apartment in an apartment building,
__________

1
Additionally, Bedard informs this court that he was charged with burglarizing three suites that were occupied
by the owners of the Templeton Plaza and two suites that were not occupied by anyone.

2
United States v. Sue, 586 F.2d 70, 71 n.1 (8th Cir. 1978).

3
United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976).

4
Gordon v. District Court, 112 Nev. 216, 229, 913 P.2d 240, 249 (1996).

5
Id. (quoting State v. Woods, 825 P.2d 514, 521 (Kan. 1992) (quoting State v. Howard, 763 P.2d 607, 610
(Kan. 1988))).

6
People v. Elsey, 97 Cal. Rptr. 2d 269 (Ct. App. 2000); People v. Church, 264 Cal. Rptr. 49 (Ct. App. 1989),
disapproved on other grounds by People v. Bouzas, 807 P.2d 1076 (Cal. 1991).
every apartment in an apartment building, or every room or suite in a hotel, could claim
immunity for all but one of the burglaries thus perpetrated.
7

[Headnote 5]
In this case, contrary to Bedard's contentions, we conclude that every separate entry into each
of the suites occurred at a different time and a different place. The Templeton Plaza is an
office building. The interior of the building includes a hallway leading to a number of office
suites. Each suite is physically separate from both the hallway and the other suites. The
evidence showed that each suite had its own door and had to be entered separately. Moreover,
the evidence also showed that Bedard ransacked each suite he was charged with burglarizing.
Based on the evidence, we conclude that the charges are separate because each count requires
proof of additional facts that the others do not (i.e., separate entry at a separate time). Hence,
we conclude that Bedard was properly charged with several counts of burglary because his
entry into the several suites cannot be said to have arisen out of a single wrongful act.
Moreover, we find without merit Bedard's argument that he cannot be charged with
burglarizing the three suites occupied by the owners of the Templeton Plaza. The court in
People v. Elsey noted that
the ultimate test of whether a burglarious entry has occurred must focus on the
protection that the owners or inhabitants of a structure reasonably expect. The proper
question is whether the nature of a structure's composition is such that a reasonable
person would expect some protection from unauthorized intrusions. A structure with a
locked door or window clearly affords a reasonable protection from invasion.
8

Here, we conclude that the owners of the Templeton Plaza had a separate expectation of
privacy from invasion in each of the suites they used. To conclude that an owner of a building
using office space in that building would not have such an expectation would defy common
sense. Thus, we conclude that Bedard was properly charged with burglarizing the three suites
occupied by the owners of the Templeton Plaza.
Furthermore, we find without merit Bedard's argument that he cannot be charged with
burglarizing the vacant suites because a defendant can be charged for burglary of an
uninhabited structure.
__________

7
People v. James, 561 P.2d 1135, 1147 (Cal. 1977) (footnote omitted).

8
97 Cal. Rptr. 2d at 277-78 (quoting People v. Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988)).
ture.
9
Thus, Bedard was properly charged with burglarizing the vacant suites. Hence, we
conclude that the burglary charges are not multiplicitous and Bedard's burglary convictions
should be affirmed.
Accordingly, we affirm Bedard's convictions and sentence.
10

____________
118 Nev. 415, 415 (2002) Carson City v. Capital City Entm't
In the Matter of the Authority of Carson City to Require Payment for the Abandonment of
Streets Within the Carson Townsite.
CARSON CITY, a Consolidated Municipality and Political Subdivision of the State of
Nevada, Appellant, v. CAPITAL CITY ENTERTAINMENT, INC.; and MILLARD
REALTY AND CONSTRUCTION, Respondents.
No. 34994
July 17, 2002
49 P.3d 632
Appeal from a district court judgment declaring that Carson City may not require payment for
its abandonment of certain streets. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
After charging one property owner for abandoning street but not charging another property
owner for another abandonment, city brought petition to determine whether it could lawfully
demand payment for abandoning title. The district court entered judgment for property
owners. City appealed. The supreme court held that: (1) federal patent to land underlying city
was not void; and (2) federal government dedicated land under streets to public use and thus,
pursuant to statute, city could not extract payment for abandonment.
Former order withdrawn; affirmed on rehearing.
[En banc reconsideration denied September 5, 2002]
Noel S. Waters, District Attorney, and Mark R. Forsberg, Chief Deputy District Attorney,
Carson City; Thomas J. Hall, Reno, for Appellant.
__________

9
See NRS 205.060(1); accord Elsey, 97 Cal. Rptr. 2d at 277.

10
Bedard also argues that he had standing to raise Fourth Amendment issues regarding the search conducted
at 7505 Blue Sage Court, that Ruth Ganjei had neither actual nor apparent authority to consent to the search of
the storage unit located at 7505 Blue Sage Court, and that there was insufficient evidence to support his
conviction of robbery with the use of a deadly weapon. After careful consideration, we conclude that these
arguments lack merit.
Allison, MacKenzie, Russell, Pavlakis, Wright & Fagan, Ltd., Carson City, for Respondent
Capital City Entertainment, Inc.
Crowell Susich Owen & Tackes and Sandra Mae Pickens, Carson City, for Respondent
Millard Realty and Construction.
1. Dedication.
A dedication is a gift of land by the owner for an appropriate public use, such as a street.
2. Dedication.
Dedications may be classified as either statutory or common law.
3. Dedication.
A statutory dedication operates by way of grant, vesting in the municipality the fee for public use.
4. Dedication.
Under a common-law dedication, the fee of land dedicated for a street remains in the owner, subject to a public easement in the land,
which is vested in the municipality.
5. Dedication.
A common-law dedication rests upon the doctrine of estoppel in pais, which extends an owner-permitted use of private property to
protect the public's expectation of continued use.
6. Dedication.
The recording of a plat may qualify as a statutory dedication, or at least evidence of an intent to make a common-law dedication.
7. Dedication.
The party asserting a dedication bears the burden of proof.
If a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon wrong reasons.
9. Dedication.
Only the owner of a fee simple estate, or someone expressly authorized by such an owner, can make a dedication of land.
10. Public Lands.
Only Congress can dedicate federal land.
11. Public Lands.
Federal patent to land underlying city was not void, even though it was issued by virtue of congressional act that had been repealed
before patent was issued and act had not been extended for benefit of city; patent was applied for four months before act was repealed,
and subsequent legislation validated all patents not yet challenged.
12. Public Lands.
Rights of an applicant to a patent for land vest upon compliance with the terms and conditions necessary to acquire a patent.
13. Public Lands.
Federal government dedicated the land underlying city's streets to the public use, and thus, pursuant to statute regarding abandonment
of streets, city could not extract payment from property owners, who were federal government's successors in interest, upon
abandonment of those streets; dedication scheme vested fee in city upon its incorporation. NRS 278.480(8).
Before Shearing, Agosti and Rose, JJ.
OPINION ON REHEARING
Per Curiam:
On September 20, 2001, we issued an order of affirmance in this matter. Subsequently,
appellant filed a rehearing petition, to which respondents filed answers. After reviewing the
parties' submissions, as well as the briefs and appendix, we concluded that rehearing was
warranted, and we granted the petition. We now withdraw our September 20, 2001 order and
issue this opinion in its place.
Under NRS 278.480, a property owner may petition the municipality to abandon an abutting
street. The property owner need not pay to acquire his or her proportionate part of the
abandoned street if the municipality acquired the street by dedication from the abutting
property owner or his or her predecessors. After charging one property owner for
abandonment, but not another, and then reconsidering its decision to not charge, Carson City
sought a ruling from the district court as to whether Carson City's streets had been acquired
by dedication. The two property owners answered, contending that Carson City could not
extract payment for abandoning portions of abutting streets. The district court ruled in favor
of the property owners, and Carson City appealed. We conclude that the federal government
dedicated the land underlying Carson City's streets to the public use, and that title vested in
the city upon incorporation. Consequently, NRS 278.480 precludes Carson City from
extracting payment as a condition of abandoning streets.
BACKGROUND
In 1820, Congress passed an act establishing a framework for the sale of public lands to the
highest bidders.
1
Congress expanded that framework in 1844 to include sales, for a
minimum price, of remaining public lands settled upon and occupied as town sites:
[W]henever any portion of the surveyed public lands has been or shall be settled upon
and occupied as a town site, . . . it shall be lawful . . . [if the town site is not
incorporated] for the judges of the county court for the county in which such town may
be situated, to enter,
[2]
at the proper land office,
__________

1
Act of April 24, 1820, ch. 51, 3 Stat. 566.

2
Entry mean[s] the filing of an application by the proper officer with the register of the land office, and
proof showing the performance of the statutory conditions respecting the settlement and occupancy of the land as
a town site. Lockwitz v. Larson, 52 P. 279, 281 (Utah 1898).
land office, and at the minimum price, the land so settled and occupied, in trust, for the
several use and benefit of the occupants thereof, according to their respective interests;
the execution of which trust, as to the disposal of the lots in such town, and the
proceeds of the sales thereof, to be conducted under such rules and regulations as may
be prescribed by the legislative authority of the State or Territory in which the [town] is
situated.
3

The 1844 Act was intended to protect citizens of towns that had grown up on federal lands,
and to secure to them separately, at the minimum price, all land actually occupied by them for
town purposes, and to them collectively such other lands as might be included within the
town's limits.
4

In 1860, a map of Carson City was platted and recorded by J.D. Sears, C.A. Sears, W.R.
Sears and Jas. Thompson. The map shows blocks, lots, alleyways and streets. All of Nevada's
roads were declared by the Territorial Legislature in 1861 to be public highways if the
roads had been used as public highways at any time during the prior two years.
5

In March 1864, Second Judicial District Judge Samuel H. Wright applied to the General Land
Office for a patent to the 320-acre site underlying Carson City.
6
A plat of Carson City was
filed in the General Land Office fifteen months later.
Before the General Land Office could act on Judge Wright's application, however, Congress,
in July 1864, expressly repealed the Act of 1844,
7
substituting in its place a framework for
establishing towns on the public domain and selling lots without regard to any Territorial or
State legislation.
8
Nothing in the appellate record indicates that anyone attempted to
establish Carson City or sell lots under the Act of 1864.
In January 1866, apparently unaware that the Act of 1844 had been repealed eighteen months
earlier, the Nevada Legislature approved legislation intended to implement that act.
9
This
enabling legislation comprised twelve sections. Only section seven mentioned streets:
__________

3
Act of May 23, 1844, ch. 17, 5 Stat. 657, 657.

4
City of Denver v. Kent et al., 1 Colo. 336, 343 (1871).

5
1861 Laws of Nevada, ch. 49, 1, at 141, replaced by 1866 Nev. Stat., ch. 111, 1, at 252 (All public
roads, and the streets and alleys in incorporated cities or towns in this State, now used or lawfully entitled to be
used as such . . . are hereby declared to be public highways . . . .).

6
Thomas Donaldson, The Public Domain, Its History, with Statistics 301 (1884).

7
Act of July 1, 1864, ch. 205, 5, 13 Stat. 343, 344.

8
Id. 2, 13 Stat. at 343-44.

9
1866 Nev. Stat., ch. 12, 1, at 54.
After the issuance of the patent for such lands, it shall be the duty of the . . . Judge . . .
to make out, execute and deliver to each person who may be legally entitled to the
same, a deed in fee simple, for such part or parts, lot or lots, of land, on payment of his
proper and due proportion of the purchase money for such land, together with his
proportion of such sum as may be necessary to pay for streets, alleys, squares and
public grounds, not exceeding twenty-five cents for each lot . . . .
10

In September 1866, eight months after the Nevada Legislature passed its enabling legislation,
the General Land Office issued a patent for the 320-acre site occupied by the town of Carson
City. The patent was issued to Judge Wright in trust for the several use and benefit of
Carson City's occupants, according to their respective interests, by virtue of [the 1844] Act
of Congress. The patent further recited that Judge Wright had paid the purchase price, and
that the site was shown on the official plat of the survey of the said lands returned to the
General Land Office by the surveyor general.
In March 1867, Congress resurrected the Act of 1844, again providing that public lands
settled upon and occupied as town sites could be
enter[ed] at the proper land office, and at the minimum price, . . . in trust for the several
use and benefit of the occupants thereof, according to their respective interests; the
execution of which trust, as to the disposal of the lots in such town, and the proceeds of
the sales thereof, to be conducted under such rules and regulations as may be prescribed
by the legislative authority of the State or Territory in which the [town] may be situated.
11

In February 1869, the Nevada Legislature prescribed rules and regulations intended to carry
the congressional resurrection into effect.
12
These rules and regulations did not deviate in
material part from the earlier enabling legislation.
13
At some point, Judge Wright began
conveying the lots in Carson City.
__________

10
Id. 7, at 55 (emphasis added).

11
Act of March 2, 1867, ch. 177, 14 Stat. 541, 541. The Act of 1867 was codified in the Revised Statutes of
the United States at section 2387. The Act of 1864 was codified at section 2382, and remained as an alternate
method for establishing towns on public lands. 2 Henry N. Copp, Copp's Public Land Laws 1010-13 (1890).

12
1869 Nev. Stat., ch. 28, at 68-70, amended by 1871 Nev. Stat., ch. 82, at 163-64.

13
Compare 1866 Nev. Stat., ch. 12, at 54-56, with 1869 Nev. Stat., ch. 28, at 68-70, amended by 1871 Nev.
Stat., ch. 82, at 163-64.
In 1905, the Nevada Legislature enacted legislation allowing property owners to petition local
government for the vacation of abutting streets.
14
Presently codified at NRS 278.480, the law
provides that, [i]f the street was acquired by dedication from the abutting property owners or
their predecessors in interest, no payment is required for title to the proportionate part of the
street reverted to each abutting property owner.
15
But [i]f the street was not acquired by
dedication, the governing body may insist on a reasonable payment for abandoning its title
to the street.
16

In 1988, 122 years after Judge Wright obtained the patent for the land underlying Carson
City, Capital City Entertainment, Inc. (CCE) petitioned the Carson City Board of
Supervisors (Board) to abandon a portion of Ninth Street abutting CCE's property. Carson
City conveyed the land underlying the portion of Ninth Street to CCE for $125,000 in 1989.
In 1996, Millard Realty and Construction (Millard) petitioned the Board for the
abandonment of portions of Eighth, Ninth and South Plaza Streets abutting Millard's
property. The Board approved the abandonment in 1997, and conveyed title to Millard.
Carson City did not seek payment for its abandonment of these streets. In 1998, the Board
reconsidered its decision to not require payment from Millard. The Community Development
Department recommended to the Board that Millard pay $128,898 for the abandonment.
In 1999, Carson City petitioned the district court to determine whether Carson City could
lawfully demand payment for abandoning title to its streets. Millard and CCE filed answers to
the petition; Millard sought to avoid paying for abandonment, and CCE sought a refund of its
payment. The district court concluded that the original lot purchasers acquired certain
ownership rights to the streets and alleys because they were required, under Nevada's
enabling legislation, to pay not only for the lots, but also such sum as may be necessary . . .
for streets, alleys, squares and public grounds. The district court found this conclusion
consistent with the basic principle of real property law in Nevada[,] that it is presumed that
title to the centerline of a right-of-way is vested in the abutting land owner. But the district
court also determined that the streets and alleys were dedicated to Carson City when the town
site plat was recorded in 1860. The dedication mechanism was described only as a public
dedication. Finally, the district court ruled that no statute of limitations would bar CCE from
seeking a refund after ten years.
__________

14
1905 Nev. Stat., ch. 126, 9, at 225.

15
NRS 278.480(8) (previously codified as NRS 278.480(7)).

16
Id.
DISCUSSION
[Headnotes 1-7]
A dedication is a gift of land by the owner for an appropriate public use, such as a street.
17
Dedications may be classified as either statutory or common law.
18
A statutory dedication
operates by way of grant, vesting in the municipality the fee for public use.
19
Under a
common-law dedication, however, the fee of land dedicated for a street remains in the owner,
subject to a public easement in the land, which is vested in the municipality.
20
A
common-law dedication rests upon the doctrine of estoppel in pais, which extends an
owner-permitted use of private property to protect the public's expectation of continued use.
21
The recording of a plat may qualify as a statutory dedication, or at least evidence of an intent
to make a common-law dedication.
22
Finally, the party asserting a dedication bears the
burden of proof.
23

[Headnotes 8-10]
Although the district court properly concluded that Carson City may not require payment for
its abandonment of the streets abutting Millard's and CCE's properties, the district court's
reasoning was flawed.
24
First, the 1860 platting and recording of the map showing lots and
streets could not have effected a dedication of the streets because title to those lots and streets
remained in the federal government until 1866, when Judge Wright received the patent for the
land underlying Carson City. In Lechler v. Chapin,
25
we observed that the federal
government does not part with its title until the patent issues. The California Court of Appeal
has likewise noted that whatever rights or equities the occupants [of a town site]
__________

17
Rainbow Blvd. v. State ex rel. Dep't Hwys., 96 Nev. 637, 641, 615 P.2d 931, 933 (1980); Shearer v. City of
Reno, 36 Nev. 443, 449, 136 P. 705, 707 (1913).

18
26 C.J.S. Dedication 1, at 279 (2001); 11A Eugene McQuillin, The Law of Municipal Corporations
33.03, at 314 (3d rev. ed. 2000).

19
11A McQuillin, supra note 18, 33.69, at 511-15.

20
11A id. 33.68, at 508-10.

21
11A id. 33.03, at 318; see also City of Greenwood Village v. Boyd, 624 P.2d 362, 364 (Colo. Ct. App.
1981) (A statutory dedication operates by way of grant and ordinarily conveys the full fee title to the subject
property, whereas a common law dedication operates by way of estoppel in pais' and ordinarily conveys only an
easement.).

22
11A McQuillin, supra note 18, 33.24, at 362-63, 370.

23
11A id. 33.37, at 415; accord 26 C.J.S. Dedication 49, at 347 (2001).

24
If a decision below is correct, it will not be disturbed on appeal even though the lower court relied upon
wrong reasons. Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).

25
12 Nev. 65, 71-72 (1877).
a town site] ever obtained in and to any part of the town site[,] they obtained by virtue of the
patent and not by reason of anything that had transpired before that time.
26
Only the owner
of a fee simple estate, or someone expressly authorized by such an owner, can make a
dedication of land,
27
and only Congress can dedicate federal land.
28
Thus, the 1860 platting
and recording of the Carson City map could not have worked a dedication of the streets and
alleys because the federal government, rather than the platters, owned the land underlying
Carson City.
[Headnote 11]
Also, the district court and the parties failed to consider whether the federal government even
parted with its title, given that the September 1866 federal patent was issued by virtue of
the congressional Act of 1844, which had been repealed in July 1864. The Colorado Supreme
Court, in Schwenke v. Union Depot, Etc., Co.,
29
declared that if a patent on its face shows
that it is issued under and in pursuance of certain acts of congress, and it is true that such acts
were repealed prior to the application therefor, the patent is void.
30
In Schwenke, the court
held that the 1865 patent for the Denver town site was valid even though the patent was
issued in pursuance of the Act of 1844 because the patent also recited issuance pursuant to
a later congressional act specifically extending the 1844 Act for the relief of the citizens of
Denver.'
31

[Headnote 12]
It does not appear that Congress ever extended the Act of 1844 for the benefit of Carson
City's residents. But Judge Wright applied for the patent to the land underlying Carson City
roughly four months before the 1844 Act was repealed. A patent applicant's rights vest upon
compliance with the terms and conditions necessary to acquire a patent.
32
Here, Judge
Wright's entitlement to a patent apparently vested when the 1S44 Act was still viable,
__________

26
Town of Red Bluff v. Walbridge, 116 P. 77, 81 (Cal. Ct. App. 1911).

27
26 C.J.S. Dedication 7, at 285 (2001).

28
United States v. Sixteen Parcels of Land, Etc., 281 F.2d 271, 274 (8th Cir. 1960).

29
4 P. 905 (Colo. 1884).

30
Id. at 906; accord Anderson v. Woodward, 180 P. 296, 298 (Colo. 1919) (stating that where Congress
has made no provision for the disposition of [public] land, or the statute under which the patent was issued had
been previously repealed, . . . a patent for such land is void' (citation omitted)).

31
Schwenke, 4 P. at 906 (quoting Act of May 28, 1864, ch. 99, 13 Stat. 94).

32
See Wirth v. Branson, 98 U.S. 118, 121 (1878); Boise City v. Wilkinson, 102 P. 148, 150 (Idaho 1909);
Lechler, 12 Nev. at 70.
to a patent apparently vested when the 1844 Act was still viable, and thus, the General Land
Office's issuance of the patent based on that act, but after its repeal, arguably did not void the
patent. This result is not inconsistent with the United States Supreme Court's holding in Stark
v. Starrs,
33
that [w]hen . . . the patent does issue, it relates back to the inception of the right
of the patentee, so far as it may be necessary, to cut off intervening claimants.
Nevertheless, in 1891, Congress passed legislation providing that suits by the United States
to vacate and annul any patent already issued would be barred if not brought before March 3,
1896.
34
The effect of the legislation was to validate patents void upon issuance but not
timely challenged by the United States.
35
The legislation arose from the public's insecurity
and loss of confidence in the integrity and value of patent titles to public lands, which had
been caused by conflicting claims, and was passed to make patent titles dependable and
secure when the limitations period expired.
36
It does not appear that the United States ever
brought an action to vacate and annul the patent for Carson City. Consequently, we conclude
that the patent to the land underlying Carson City is not void.
[Headnote 13]
We next determine the patent's effect on the title to the land underlying Carson City. Upon
entry of the town site, the judge to whom the patent issued became seized of the town site in
trust for the several uses and benefits of the inhabitants, according to their respective
interests.
37
In other words, the legal title vested in the trustee in his or her official and public
capacity, and, simultaneously with the town site's entry, an absolute right in the trust vested in
the beneficiaries.
38
The execution of the trust was limited, however, in both the 1844 and
1867 town site acts, to the disposal of the lots.
39
The 1864 town site act likewise spoke
only to the disposal of lots.
40
Indeed, the United States Supreme Court stated in Ashby v.
Hall
__________

33
73 U.S. 402, 418 (1867).

34
Act of March 3, 1891, ch. 561, 8, 26 Stat. 1095, 1099, amended by Act of March 2, 1896, ch. 39, 1, 29
Stat. 42, 42-43 (extending the limitations period for patents issued under railroad or wagon road grants).

35
United States v. Chandler-Dunbar Co., 209 U.S. 447, 450 (1908).

36
United States v. Whited & Wheless, 246 U.S. 552, 562 (1918).

37
Coy et al. v. Coy et al., 15 Minn. 119, 123 (1870).

38
McCloskey v. Pacific Coast Co., 160 F. 794, 798 (9th Cir. 1908); accord Leech v. Rauch, 3 Minn. 448,
454 (1859).

39
Act of May 23, 1844, ch. 17, 5 Stat. 657, 657; Act of March 2, 1867, ch. 177, 14 Stat. 541, 541.

40
Act of July 1, 1864, ch. 205, 2, 13 Stat. 343, 343-44.
Court stated in Ashby v. Hall
41
that the power vested in the State and Territorial legislatures
in the execution of the trust, upon which the entry was made, was confined to regulations for
the disposal of the lots and the proceeds of the sales. This limitation secured to a town's
occupants, collectively, as a community, the existing streets and alleys within the town's
limits.
42
As explained below, we conclude that Carson City acquired its interest in the
existing streets and alleys through a dedication from the federal government to the local
government. Ashby provides the starting point for this discussion.
In 1866, the town of Helena, Montana, was laid out, surveyed, and platted into streets, blocks,
lots, and alleys. Soon thereafter, the defendant fenced in a portion of an alley abutting the
plaintiffs' lots, and began occupying the alley. Title to the land occupied by the town,
including the streets and alleys, was in the United States until the town site's entry in 1869.
43
After the town site's entry, the county commissioners approved a new map of the town, which
did not show the alley, and the trustee judge deeded the occupied portion of the alley to the
defendant.
44

The plaintiffs sued to remove the obstruction. The trial court determined that the conveyance
to the defendant was void because the plaintiffs and other adjacent lot owners had a valid
right of way in the alley at the time of the town site's entry, and the right of way was entered
in connection with the town site in trust for the town's occupants pursuant to the 1867 town
site act.
45
The Montana Supreme Court affirmed, holding that the grant of the lots by
congress to the occupants according to their respective interests necessarily recognized the
existence of the streets and alleys as then laid out and used, and such grant was a dedication
of the same to the public use.
46
The court reasoned that [d]isposing of the lands covered by
a town to the occupants, according to their several rights and interests, could not be done
without reserving to the public the use of the streets and alleys.
47

The United States Supreme Court affirmed, suggesting that the local government acquired
title to the streets subject to an easement in the public:
The very notion of land settled upon and occupied as a townsite implies the existence of
streets, alleys, lots, and blocks;
__________

41
119 U.S. 526, 529-30 (1886).

42
See Kent, 1 Colo. at 343; Bingham v. City of Walla Walla, 13 P. 408, 412 (Wash. 1887); Scully v. Squier,
90 P. 573, 576 (Idaho 1907), aff'd, 215 U.S. 144 (1909).

43
Ashby, 119 U.S. at 527.

44
Id. at 528.

45
Id.

46
Parcher v. Ashby, 1 P. 204, 208 (Mont. 1883) (emphasis added).

47
Id. at 207.
and for the possession of the lots, and their convenient use and enjoyment, there must
of necessity be appurtenant to them a right of way over adjacent streets and alleys. The
entry of the land carried with it such a right of way. The streets and alleys were not
afterwards at the disposal of the [local] government, except as subject to such
easement.
48

This emphasized language restates the rule that the fee which passes by a statutory dedication
is subject to the dedication's purpose,
49
and suggests that title vested in the municipality,
subject to the public right of way.
The Idaho Supreme Court's decision in Boise City v. Wilkinson
50
also illuminates the nature
of the trust and dedication. In Wilkinson, the court determined that a town site's streets and
alleys had been dedicated to the public use by the trustee's filing of a plat and the federal
government's issuance of a patent under the 1867 town site act, and also by a city ordinance
declaring all streets and alleys to be public highways.
51
Consequently, the court held that the
trustee lacked authority to convey title to land underlying a street to an occupying settler
because it would change the character of the trust in relation to the land dedicated for street
purposes.
52
This quoted rationale acknowledges that the trust's execution was limited to the
disposal of lots and sales proceeds, and that the federal government's dedication of streets was
intended to benefit lot occupants as well as the general public.
53

Although lot occupants and the general public benefit whether a dedication is considered
statutory and passes title to the municipality or is considered common law and merely estops
abutting property owners from interfering with the land's use as a street,
54
we deduce that the
dedication scheme intended by the town site acts vests the fee in the municipality upon
incorporation. Until that time, the fee to the property remains in abeyance.
55
We are not
alone in the view that statutory, rather than common-law, dedication principles are at play in
town site cases. In Town of Red Bluff v. Walbridge,
56
the California Court of Appeal
concluded that patent issuance conferred upon the municipality title to the town site's streets
and alleys,
__________

48
Ashby v. Hall, 119 U.S. at 529 (emphasis added).

49
11A McQuillin, supra note 18, 33.69, at 513.

50
102 P. 148 (Idaho 1909).

51
Id. at 152, 154.

52
Id. at 153.

53
Id. at 150, 152.

54
Dooly Block v. Salt Lake Rapid Transit Co., 33 P. 229, 232 (Utah 1893).

55
11A McQuillin, supra note 18, 33.69, at 512-13.

56
116 P. 77 (Cal. Ct. App. 1911).
town site's streets and alleys, subject to a public easement in the streets and alleys.
57
Red
Bluff was established by patent under the 1867 town site act.
58
Before the patent issued, a
map of the town showing streets, alleys, blocks and lots had been filed, the California
Legislature had declared the streets and alleys in Red Bluff to be public highways, and
Congress had granted rights of way on the public lands for highway construction.
59
After the
town's map had been prepared, the defendant or one of his predecessors erected a fence,
encroaching upon a street.
60
Red Bluff sued to have the fence removed. The trial court
concluded that the deed from the judge trustee, granted in accordance with the town site act,
did not carry with it the enclosed street, and therefore, the fence could not be maintained:
[T]he federal government, in deeding the town site to the county judge, did not intend
to give to any private individual an equitable or any kind of a title to those parts of the
town site that were then legally constituted public highways. It intended that all public
highways thereon at the time of the patent should remain public highways until
abandoned by some competent authority and that the other parts of the town site should,
under appropriate regulations to be prescribed by the Legislature, be deeded to those
who were bona fide occupants at the date of the patent.
61

The Court of Appeal affirmed, stating that Red Bluff did not need to show occupancy of the
street for highway purposes in order to show title because its title deraigned from the
government.
62

Here, we conclude that the federal government dedicated the land underlying Carson City's
streets to the public use, and that title vested in the city upon incorporation. A different
conclusion would permit the town site's trustee to do indirectly what the trustee could not do
directlypass title to streets in conjunction with a conveyance of the abutting lot while being
prohibited from conveying the same title to an occupant of the street. Further, as in Wilkinson
and Red Bluff, when the federal government issued the patent for Carson City, already in
place were a congressional grant of rights of way for public highways across public lands,
__________

57
Id. at 80, 82.

58
Id. at 77; Roberts v. Ward, 84 P. 430, 431 (Cal. Ct. App. 1906).

59
Town of Red Bluff, 116 P. at 79, 80; Act of July 26, 1866, ch. 262, 8, 14 Stat. 251, 253 ([T]he right of
way for the construction of highways over public lands, not reserved for public uses, is hereby granted.).

60
Town of Red Bluff, 116 P. at 79.

61
Id. at 79-80.

62
Id. at 82.
grant of rights of way for public highways across public lands, and declarations from
Nevada's territorial and state legislatures that the roads in Nevada were public highways.
Conveying title to these highways to the occupants of lots is incompatible with the grant and
declarations.
63

In reaching our conclusion, we need not decide whether Nevada's enabling legislation
authorized the conveyance of title to the streets to the lot occupants. Regardless of the
Legislature's intent, it could only direct in what manner the trust would be executed. It could
not, under a pretense of providing rules for the trust's execution, change its character, or
deprive those for whom it is intended of any trust benefits.
64
The Legislature could only
authorize the trustees to dispose of lots and sales proceeds. We also do not determine whether
the 1866 enabling legislation was valid, given that it was enacted to implement the 1844 town
site act, which had been repealed before the enabling legislation's passage.
65

Under NRS 278.480, [i]f the street was acquired by dedication from the abutting property
owners or their predecessors in interest, no payment is required for title to the proportionate
part of the street reverted to each abutting property owner.
66
A predecessor in interest to
both CCE and Millard is the federal government. Because the federal government dedicated
the streets in Carson City to public use, with title vesting in the municipality, NRS 278.480
precludes Carson City from extracting payment as a condition of abandoning streets.
__________

63
We do not agree with the Minnesota Supreme Court's determination that a town site trustee's deed passes
legal title to the fee of the land to the center of the street adjoining the occupied lot. Harrington et al. v. The
St. Paul & Sioux City Railroad Co., 17 Minn. 215, 221 (1871). Harrington was decided before Ashby and does
not acknowledge that the trustee's duties under the 1844 town site act were limited to the disposal of the lots . . .
and the proceeds of the sales thereof. Act of May 23, 1844, ch. 17, 5 Stat. 657, 657. Rather, the Harrington
court rhetorically asks, Why should not [the trustee's] deed of the lots be held to execute his trust as to this
street also? 17 Minn. at 223. Further, the court had no occasion to consider the 1866 congressional grant of
public lands to highway purposes because the town had apparently been patented prior to the grant. See id.
Finally, the court misstated the law of dedications by declaring that both statutory and common-law dedications
pass the fee to the center of streets to abutting land owners. Id. at 224.

64
Winfield Town Company v. Maris, 11 Kan. 128, 151 (1873); see also Lechler, 12 Nev. at 71.

65
Act of July 1, 1864, ch. 205, 5, 13 Stat. 343, 344.

66
NRS 278.480(8) (emphasis added) (previously codified as NRS 278.480(7)).
Accordingly, we affirm the declaratory judgment, but for different reasons than expressed by
the district court.
67

____________
118 Nev. 428, 428 (2002) Fink v. Oshins
DONALD M. FINK, Appellant, v. RICHARD A. OSHINS, Respondent.
No. 36055
July 17, 2002
49 P.3d 640
Appeal from a district court order granting partial summary judgment in a defamation action.
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Independent trustee brought defamation action against trust attorney. The district court
granted partial summary judgment for attorney. Trustee appealed. The supreme court held
that: (1) attorney's statements to family trustee were absolutely privileged; (2) statements to
another client were not absolutely privileged; and (3) genuine issues of material fact, whether
statements to client were true, precluded summary judgment on issue of conditional privilege.
Graziadei & Cantor, Ltd., Las Vegas, for Appellant.
Pearson, Patton, Shea, Foley & Kurtz, Las Vegas, for Respondent.
The policy behind the absolute privilege against defamation, as it applies to attorneys participating in judicial proceedings, is to grant
them, as officers of the court, the utmost freedom in their efforts to obtain justice for their clients.
Privilege against defamation for statements made in the course of judicial proceedings is absolute; it precludes liability, even where the
defamatory statements are published with knowledge of their falsity and personal ill will toward the plaintiff.
The absolute defamation privilege for statements made in the course of judicial proceedings is for the court to apply.
__________

67
We express no opinion on the district court's determination that the statute of limitations [for tort or breach
of contract] is not a defense to CCE seeking reimbursement for CCE's abandonment payment. Carson City has
not challenged that determination on appeal. We note only that NRS 278.0235 provides a twenty-five-day
limitations period for actions commenced for the purpose of seeking judicial relief or review from or with
respect to any final action, decision or order of any governing body, commission or board authorized by NRS
278.010 to 278.630 [the planning and zoning statutes].
118 Nev. 428, 429 (2002) Fink v. Oshins
A defamatory communication made in the course of judicial proceedings need not be strictly relevant to any issue involved in the
proposed or pending litigation, in order for it to be absolutely privileged; it only need be in some way pertinent to the subject of
controversy.
Absolute defamation privilege applies not only to communications made during actual judicial proceedings, but also to
communications preliminary to a proposed judicial proceeding.
When a defamatory communication is made before a judicial proceeding is initiated, it will be cloaked with immunity only if the
communication is made in contemplation of initiation of the proceeding.
At the time a defamatory communication is made, a legal proceeding must be contemplated in good faith and under serious
consideration, in order for the communication to be absolutely privileged. Within these limits, courts should apply the absolute
privilege liberally, resolving any doubt in favor of its relevancy.
Trust attorney's allegedly defamatory statement to family trustee, that independent trustee was concealing trust assets, was covered by
absolute privilege applicable to judicial proceedings, where family trustee had already begun serious consideration of proceedings to
remove independent trustee.
Publication of allegedly defamatory statements by trust attorney about independent trustee in family trustee's affidavit did not waive
absolute privilege applicable to judicial proceedings; publication had no bearing on attorney's claim of privilege.
Absolute defamation privilege protects attorney's statements made in communications preliminary to a proposed judicial proceeding, or
in the institution of, or during the course and as a part of, a judicial proceeding. Restatement (Second) of Torts 586.
In order to claim the absolute defamation privilege applicable to judicial proceedings, an attorney must indeed have been involved in
an anticipated or actual judicial proceeding.
Trust attorney's client, to whom attorney made allegedly defamatory statements about independent trustee, did not fall within the scope
of absolute defamation privilege applicable to judicial proceedings, where client had no role in family trustee's litigation to remove
independent trustee.
13. Judgment.
Genuine issue of material fact, whether trust attorney's allegedly defamatory statements to client about independent trustee were true,
precluded summary judgment on the issue of conditional privilege.
118 Nev. 428, 430 (2002) Fink v. Oshins
OPINION
Per Curiam:
In this appeal we consider the scope of an attorney's privilege as a defense to defamation
actions.
FACTS
Richard A. Oshins, Esq., created the Timothy St. James 1994 Irrevocable Trust for Dr.
Timothy St. James and his family. According to the trust agreement, Denise St. James, Dr. St.
James' wife, was named as the primary beneficiary, and the couple's two children were named
as secondary beneficiaries. Complying with tax law requirements, the trust agreement
provided for two different types of trustees, a family trustee and an independent trustee. The
trust agreement named Denise as the family trustee and Donald M. Fink, an insurance
salesman who had sold insurance products to Dr. St. James, as the independent trustee. As the
family trustee, Denise had the power to control the identity of the independent trustee,
allowing her to remove the named individual under certain conditions.
On June 21, 1995, Dr. St. James was killed in an automobile accident. As dictated by the trust
agreement, Denise and Fink then became trustees.
Denise asserts that she began losing faith in Fink soon after her husband's funeral.
According to Denise, Fink told her that as trustees they could draw as much or as little in
fees from the trust as they wanted, around $30,000 plus per year, but, he stated, Of course,
I'll be receiving much more than you because I'll be doing all the work.' Fink's apparent
attitude was, in Denise's words, a red flag. She explained, This shocked me because it
sounded like [Fink] thought there was money just growing on a tree somewhere and he could
take as much as he wanted.
Fink later contacted Oshins regarding the trust. During the conversation, Fink allegedly
expressed concern about allowing Denise to participate in the beneficial enjoyment of trust
assets because Dr. St. James had been planning to divorce Denise before his death and
because Dr. St. James had transferred assets offshore in order to conceal them from Denise.
Fink explained that he wanted to use the trust assets solely for the benefit of the St. James
children. Concerned about the emerging conflict, Oshins recommended that Fink consider
resigning as independent trustee and hiring independent counsel.
118 Nev. 428, 431 (2002) Fink v. Oshins
According to Oshins, during a later conversation Fink allegedly stated that he intended to
invest the trust's insurance proceeds with his business partners. He also proposed charging the
trust an annual fee of 1 to 1 percent, approximately $20,000-30,000, for his services. Oshins
advised Fink not to invest the trust's insurance proceeds because that was Denise's
responsibility as the family trustee. Oshins also told Fink that Fink's proposed fees were
excessive. Consequently, Fink threatened to delay obtaining the insurance proceeds or to use
them to fight for his right to control the trust.
Thereafter, Denise and Oshins had a conversation, which Denise summarized as follows:
Mr. Oshins told me that Don Fink had told him that he was hiding some of Tim's assets
offshore in order to conceal them from me. Denise asserts that this information caused [her]
to further lose trust in Mr. Fink. Denise then informed Fink that she would be removing him
as the independent trustee. Fink allegedly responded, I will drain you dry till you don't have
a dime left.
Denise retained another attorney to take care of certain matters concerning her deceased
husband's estate and to assist Oshins in certain trust matters, including having Fink removed
as independent trustee. In February 1996, Denise notified Fink that he was being removed as
independent trustee based on the excessiveness of his proposed fees and based on his failure
to inform her of his drug-related criminal history, a disclosure required by the trust
documents. Fink then sued Denise, seeking to prevent his removal. The lawsuit was settled in
1997 for an undisclosed amount purportedly in Fink's favor.
The facts regarding Oshins' statements to Denise emerged during Fink's action to prevent his
removal. In July 1997, Fink filed the present action against Oshins, asserting, among other
claims, that Oshins had defamed him in communications with Denise and various other
individuals.
1

During discovery in this lawsuit, Fink's counsel deposed Dr. Richard Lewin, M.D., who was a
client of both Oshins and Fink in their respective roles as trust attorney and insurance
salesman. Dr. Lewin testified that in the summer and fall of 1996 he and Oshins had
conversations to discuss Dr. Lewin's estate plan. During those conversations, Oshins
mentioned Fink's drug problem and his alleged wrongful interference with the St. James trust.
According to Dr. Lewin, Oshins had told him either expressly or impliedly that Fink was a
thief. Fink intended to amend his complaint to assert another defamation claim based on
this new information, but he was unable to do so before summary judgment was granted in
Oshins' favor.
__________

1
Fink's claims regarding these other individuals have not been resolved and are not pertinent to this appeal.
118 Nev. 428, 432 (2002) Fink v. Oshins
Oshins moved for summary judgment, asserting that an absolute or a conditional privilege
barred Fink's claims. Following a hearing, the district court granted partial summary
judgment, concluding that Oshins' statements to Denise and to Dr. Lewin were absolutely
privileged. But the district court refused to grant summary judgment as to Fink's claims that
were based on Oshins' statements made to the other individuals named in the complaint. Also,
the district court did not rule on Oshins' conditional privilege defense. After denying Fink's
motion for reconsideration, the district court certified its order as a final judgment. Fink now
appeals the district court's grant of partial summary judgment.
DISCUSSION
Although the district court's order granted only partial summary judgment, because it
adjudicated Fink's claims that were based on Oshins' statements to Denise and Dr. Lewin, we
may review the order insofar as it pertains to those claims.
2
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.
3
In this case,
the propriety of the district court's summary judgment depends on whether the court correctly
applied the absolute privilege, a question of law that we review de novo.
4

Oshins' statements to Denise St. James
Fink first challenges the district court's grant of summary judgment regarding Oshins'
statements to Denise. As evidence of Oshins' alleged defamation, Fink points to the affidavit
in which Denise asserted, Mr. Oshins told me that Don Fink had told him that he was hiding
some of Tim's assets offshore in order to conceal them from me. The district court
concluded that Oshins' statements were absolutely privileged and granted summary judgment
to Oshins accordingly. On appeal, Fink contends that the district court erred in applying the
absolute privilege.
[Headnotes 1-3]
In Circus Circus Hotels v. Witherspoon, this court recognized the long-standing common
law rule that communications uttered or published in the course of judicial proceedings are
absolutely privileged.
__________

2
See NRCP 54(b) (allowing the district court to enter final judgment as to one or more but fewer than all of
the claims in cases presenting multiple claims).

3
Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 538 (1996).

4
See Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 62, 657 P.2d 101, 105 (1983) (noting that the absolute
privilege is a question of law); SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295
(1993) (noting that questions of law are reviewed de novo).
118 Nev. 428, 433 (2002) Fink v. Oshins
privileged.
5
The policy behind the absolute privilege, as it applies to attorneys participating
in judicial proceedings, is to grant them as officers of the court the utmost freedom in their
efforts to obtain justice for their clients.
6
This privilege, as its name indicates, is absolute: it
precludes liability even where the defamatory statements are published with knowledge of
their falsity and personal ill will toward the plaintiff.
7
The absolute privilege is for the court
to apply.
8

[Headnotes 4-7]
The scope of the absolute privilege is quite broad. The defamatory communication need not
be strictly relevant to any issue involved in the proposed or pending litigation,
9
it only
need be in some way pertinent to the subject of controversy.
10
Further, the privilege
applies not only to communications made during actual judicial proceedings, but also to
communications preliminary to a proposed judicial proceeding.
11
The scope of the
privilege does, however, have limits. When the defamatory communication is made before a
judicial proceeding is initiated, it will be cloaked with immunity only if the communication is
made in contemplation of initiation of the proceeding.
12
In other words, at the time the
defamatory communication is made, the proceeding must be contemplated in good faith
and under serious consideration.'
13
Within these limits, courts should apply the absolute
privilege liberally,
__________

5
99 Nev. at 60, 657 P.2d at 104.

6
Bull v. McCuskey, 96 Nev. 706, 712, 615 P.2d 957, 961 (1980), abrogated on other grounds by Ace Truck
v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987).

7
Circus Circus Hotels, 99 Nev. at 60, 657 P.2d at 104.
In K-Mart Corporation v. Washington, this court commented that the absolute privilege would render certain
allegedly defamatory statements non-actionable if the statements were made in good faith. 109 Nev. 1180,
1191, 866 P.2d 274, 282 (1993). This is an incorrect statement of the law. As this court stated in Circus Circus
Hotels, the absolute privilege provides unconditional immunity, even for statements made with personal ill
will. 99 Nev. at 60, 657 P.2d at 104; accord 2 Rodney A. Smolla, Law of Defamation 8:2, at 8-3 (2d ed.
2002) (In a true absolute privilege situation, liability is totally foreclosed without regard to the fault or mental
state of the defendant.).

8
Circus Circus Hotels, 99 Nev. at 62, 657 P.2d at 105 (Absolute privilege and relevance are questions of
law for the court to decide.); see also 2 Smolla, supra note 7, 8:18.

9
Restatement (Second) of Torts 586 cmt. c (1977).

10
Circus Circus Hotels, 99 Nev. at 60, 657 P.2d at 104.

11
Bull, 96 Nev. at 712, 615 P.2d at 961.

12
2 Smolla, supra note 7, 8:16.

13
K-Mart Corporation, 109 Nev. at 1191 n.7, 866 P.2d at 282 n.7 (quoting Restatement (Second) of Torts
587 cmt. e); accord Restatement (Second) of Torts 586 cmt. e.
118 Nev. 428, 434 (2002) Fink v. Oshins
absolute privilege liberally, resolving any doubt in favor of its relevancy or pertinency.
14

[Headnote 8]
Fink contends that Oshins' statements to Denise provided the impetus for her to begin
considering removing Fink as independent trustee and, therefore, Oshins' statements fall
beyond the scope of the absolute privilege. In the context of the applicable law, the question
before the district court was whether Oshins' statements to Denise were made after Denise
began serious consideration of undertaking proceedings to remove Fink. We conclude that
the district court's decision to apply the privilege under these circumstances was correct. In
particular, we note that Denise stated that she began losing faith in Fink shortly after her
husband's funeral when Fink informed her that as trustees, they could draw as much or as
little in fees from the trust as they wished. This conversation, which, according to the record,
took place before Oshins' conversation with Denise that provided the basis for Fink's
defamation claim, gave the district court sufficient ground to conclude that Denise had begun
serious consideration of the proceedings necessary to remove Fink well before Oshins spoke
with her. Fink argues that the uncertainty regarding Denise's subjective state of mind, namely,
precisely when she decided to remove him, created a fact question for the jury. We
disagreethe absolute privilege is for the court to apply.
15
In reaching its decision, the
district court simply resolved any doubt in favor of a broad application of the absolute
privilege, just as it should have.
[Headnotes 9, 10]
Fink next contends that Oshins cannot claim absolute privilege because Denise republished
the statement in her affidavit, a court document that was available to the public. The
argument is premised on the assumption that the defamatory communication must not be
published beyond the sphere of attorney/client communications, or else the absolute privilege
will be deemed waived. But this is incorrect. The fact that the defamatory statements are
published beyond the attorney/client relationship has no bearing on the attorney's ability to
assert the absolute privilege to defamation.
__________

14
Club Valencia Homeowners v. Valencia Assoc., 712 P.2d 1024, 1027 (Colo. Ct. App. 1985) (No strained
or close construction will be indulged to exempt a case from the protection of privilege.); accord Chard v.
Galton, 559 P.2d 1280, 1282 (Or. 1977) (noting that the absolute privilege should apply liberally).

15
See Circus Circus Hotels, 99 Nev. at 62, 657 P.2d at 105.
118 Nev. 428, 435 (2002) Fink v. Oshins
defamation.
16
It appears that Fink has simply confused two basic legal doctrines, the
evidentiary privilege protecting the confidential communications between clients and their
attorneys, a privilege that the client holds and can waive through publication,
17
and the
privilege shield of defamation law, a defense that is not waived through publication.
[Headnote 11]
Fink also argues that Oshins was not, in fact, representing Denise, but rather Oshins was
really representing Fink in his capacity as independent trustee. Fink does not explain the
objective of this argument. But insofar as he raises it to counter what he perceived to be the
district court's application of the attorney-client privilege, we again point out his confusion
between the evidentiary privilege and the defamation defense. And insofar as Fink advances
the argument to defeat the district court's application of the defamation defense altogether, we
reject it. In order to claim the absolute privilege, the attorney must indeed have been involved
in the anticipated or actual judicial proceeding.
18
But we conclude that the district court
properly applied the absolute privilege here because Oshins, acting in his role as the trust
attorney, represented Denise in her capacity as the family trustee and primary beneficiary, at
least to a degree sufficient to bring him within the scope of the absolute privilege under the
circumstances presented here. In particular, the record demonstrates that Oshins played a role
in Fink's removal as the independent trustee, even though another attorney was later brought
in to effectuate the removal.
19

Oshins' statements to Dr. Richard Lewin
Fink also challenges the district court's grant of summary judgment insofar as it precluded
him from asserting a claim that Oshins defamed him in conversations with Dr.
__________

16
The absolute privilege protects attorneys' statements made in communications preliminary to a proposed
judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding.
Restatement (Second) of Torts 586. By their very nature, these activities require communications beyond the
attorney/client relationship. Indeed, the initiatory and actual judicial proceedings themselves are usually matters
open to the public.

17
See NRS 49.095 (stating the general rule that a client may refuse to disclose confidential communications
between himself and his lawyer); Cheyenne Construction v. Hozz, 102 Nev. 308, 311-12, 720 P.2d 1224, 1226
(1986) (If there is disclosure of privileged communications, this waives the remainder of the privileged
consultation on the same subject.).

18
See 2 Smolla, supra note 7, 8:8.

19
Fink's argument that Oshins had a conflict of interest and his argument regarding the retainer-fee check are
of no consequence.
118 Nev. 428, 436 (2002) Fink v. Oshins
Oshins defamed him in conversations with Dr. Richard Lewin. Fink alleges that Oshins
defamed him during various meetings between Oshins and Dr. Lewin as they were discussing
matters pertaining to Dr. Lewin's own trust. The conversations took place at various times
over the course of the summer and fall of 1996. Oshins is alleged to have made comments to
Dr. Lewin regarding Fink's past drug-abuse problems as well as his actions involving the St.
James trust. Dr. Lewin stated that Oshins' comments led [him] to believe that Mr. Oshins
felt that perhaps Mr. Fink was not very honest in some of his dealings with Timothy St.
James. For instance, during one of their conversations, Oshins purportedly told Dr. Lewin,
Don [Fink] is interfering with Denise getting her funds. Dr. Lewin also believed that
Oshins called Fink a thief, but he was not sure whether that was actually stated or simply
implied by the conversation.
The district court concluded that these statements were covered by the absolute privilege.
Illuminating its reasoning, the district court explained, [A]s to Dr. Lewin, we would be hard
pressed to conduct the day-to-day business affairs that attorneys conduct if I would rule
otherwise. Oshins raises various arguments defending the district court's determination.
[Headnote 12]
Oshins first contends that the district court properly applied the absolute privilege in his
favor. An attorney's statements to someone who is not directly involved with the actual or
anticipated judicial proceeding will be covered by the absolute privilege only if the recipient
of the communication is significantly interested in the proceeding.
20
Attempting to bring
Dr. Lewin within this parameter, Oshins explains that he discussed Denise's dispute with Dr.
Lewin so that Dr. Lewin, as Denise's counselor, family doctor, and distant relative,
21
would
be able to help her cope with the stress caused by her dispute with Fink. Additionally, Oshins
asserts that he was advising Dr. Lewin, as his client, to avoid Fink because Dr. Lewin was
considering involving Fink in the insurance elements of his own trust. But we conclude that
even a liberal application does not bring Oshins' statements to Dr. Lewin within the scope of
the absolute privilege. Although Oshins may have indeed acted out of concern for Denise's
psychological well-being or Dr. Lewin's financial matters, it is quite evident that Dr. Lewin
played no significant role and had no significant interest in Denise's efforts to remove Fink as
the independent trustee. Thus, Oshins' statements to Dr. Lewin will be protected, if at all, by a
conditional privilege,
__________

20
Andrews v. Elliot, 426 S.E.2d 430, 433 (N.C. Ct. App. 1993).

21
Dr. Lewin's stepson was formerly married to Dr. St. James's sister.
118 Nev. 428, 437 (2002) Fink v. Oshins
conditional privilege,
22
a defense that may develop further on remand.
23

[Headnote 13]
Oshins also asserts that his statements regarding Fink's drug abuse and interference with the
St. James trust were true and therefore non-actionable. We have previously stated, however,
that the truth or falsity of an allegedly defamatory statement is an issue of fact properly left
to the jury for resolution.
24
In a similar vein, Oshins argues that, due to Dr. Lewin's
uncertainty as to whether Oshins called Fink a thief, a fact finder would have to speculate
as to whether the statement was actually made. This argument is unavailing, however,
because even assuming Dr. Lewin merely inferred that Oshins was calling Fink a thief from
the context of their conversations, that may be enough to establish defamation.
25

CONCLUSION
In summary, we conclude that the district court correctly granted summary judgment to
Oshins on Fink's defamation claim that stemmed from Oshins' statements to Denise St.
James. But as to Oshins' statements to Dr. Richard Lewin, we conclude that the district court
incorrectly applied the absolute privilege. Accordingly, we affirm the district court's order
granting summary judgment in part, we reverse in part, and we remand this case to the district
court.
__________

22
See Circus Circus Hotels, 99 Nev. at 62, 657 P.2d at 105 (A qualified or conditional privilege exists where
a defamatory statement is made in good faith on any subject matter in which the person communicating has an
interest, or in reference to which he has a right or a duty, if it is made to a person with a corresponding interest or
duty.).

23
Oshins invites us to apply the conditional privilege in his favor. We decline to do so, however, because the
district court has not yet determined whether the privilege applies or whether Fink can demonstrate sufficient
evidence of Oshins having abused the privilege to send the question to a jury. See id. (setting forth the
burden-shifting approach used in applying the conditional privilege and the standard for establishing abuse of
the privilege).

24
Posadas v. City of Reno, 109 Nev. 448, 453, 851 P.2d 438, 442 (1993).

25
See Ornatek v. Nevada State Bank, 93 Nev. 17, 20, 558 P.2d 1145, 1147 (1977) (noting that a statement
may convey a defamatory meaning when viewed in light of the extrinsic circumstances, even though the
defamation does not appear from the words themselves).
____________
118 Nev. 438, 438 (2002) Burch v. Dist. Ct.
JAMES BURCH and LINDA BURCH, Petitioners, v. THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE,
and THE HONORABLE STEVEN R. KOSACH, District Judge, Respondents, and
DOUBLE DIAMOND RANCH, LLC, a Nevada Corporation; and DOUBLE
DIAMOND HOMES, LLC, a Nevada Corporation, Real Parties in Interest.
No. 38283
July 17, 2002
49 P.3d 647
Original petition for a writ of mandamus, challenging a district court order granting a motion
to compel arbitration pursuant to a warranty agreement.
Home purchasers brought action against developer for breach of express and implied
warranties, negligence, and fraud and misrepresentation. The district court granted
developer's motion to compel arbitration. Home purchasers petitioned supreme court for writ
of mandamus. The supreme court held that arbitration clause in home warranty was
procedurally and substantively unconscionable.
Petition granted.
[En banc reconsideration denied October 29, 2002]
Robert C. Maddox & Associates and Samuel S. Crano, Reno, for Petitioners.
Walther Key Maupin Oats Cox & LeGoy and Donald A. Lattin, Reno, for Real Parties in
Interest.
Vannah Costello Canepa Riedy Rubino & Lattie, Las Vegas, for Amicus Curiae Nevada Trial
Lawyers Association.
1. Arbitration.
Homebuyers warranty offered by developer was procedurally unconscionable adhesion contract, and thus arbitration clause in warranty
was unenforceable, where application and warranty were pre-printed, standardized contract forms, homebuyers were not given
opportunity to negotiate warranty's terms with developer or its insurer, homebuyers did not receive copy of warranty's terms until after
developer paid premium to enroll home in warranty program and almost four months after they closed escrow on their home, developer
told buyers that warranty's issuance was automatic and it offered extra protection for their home, when in fact warranty limited their
protection under Nevada law, homebuyers did not have opportunity to read application form,
buyers did not have opportunity to read application form, thirty-one-page warranty booklet, or view video explaining warranty before
signing application, homebuyers were not sophisticated consumers, and warranty's disclaimers were not conspicuous.
2. Mandamus.
When there is no plain, speedy, and adequate remedy at law, a writ of mandamus is available to compel the district court to perform a
required act, or to control an arbitrary or capricious abuse of discretion. NRS 34.160, 34.170.
3. Contracts.
The supreme court permits the enforcement of adhesion contracts where there is plain and clear notification of the terms and an
understanding consent, and if it falls within the reasonable expectations of the weaker party.
4. Arbitration; Contracts.
The supreme court need not enforce a contract, or any clause of a contract, including an arbitration clause, that is unconscionable.
5. Arbitration.
Although the Federal Arbitration Act (FAA) establishes a strong public policy favoring arbitration for the purpose of avoiding the
unnecessary expense and delay of litigation where parties have agreed to arbitrate, it does not mandate the enforcement of an
unconscionable contract or arbitration clause. 9 U.S.C. 1 et seq.
6. Contracts.
Both procedural and substantive unconscionability generally must be present in order for a court to exercise its discretion to refuse to
enforce a contract or clause as unconscionable.
7. Arbitration.
Arbitration clause in home warranty was substantively, as well as procedurally unconscionable, where clause granted insurer unilateral
and exclusive right to decide rules that govern arbitration and to select arbitrators.
OPINION
Per Curiam:
This petition challenges a district court order granting a motion to compel arbitration in favor
of real parties in interest Double Diamond Ranch, LLC and Double Diamond Homes, LLC
(Double Diamond). Petitioners James and Linda Burch purchased a new home and a
homebuyer warranty from Double Diamond. When problems developed in their home, they
contacted Double Diamond to fix them. After attempts at mediation failed, the Burches filed
a complaint in district court for damages relating to Double Diamond's construction of their
new home. The district court concluded that the Burches had entered into a valid contractual
agreement,
tractual agreement, via the homebuyer warranty, to resolve any disputes concerning their
home through arbitration. We disagree, and we, therefore, grant this petition for a writ of
mandamus.
FACTS
In March 1997, the Burches purchased a new Diamond Country home developed and
constructed by real parties in interest Double Diamond. In October 1997, approximately four
months after closing, Double Diamond gave Linda Burch a thirty-one-page warranty booklet
and asked her to sign a one-page Application for Home Enrollment for the 2-10 Home
Buyers Warranty (HBW) offered by Double Diamond. She signed the application form, but
she did not read the thirty-one-page booklet.
The HBW purports to be an express limited warranty. It provides one-year coverage that
warrants the home will be free from materials and workmanship defects. In the second year,
the coverage narrows to electrical, plumbing, and mechanical systems defects. For ten years,
the HBW provides coverage that warrants the home will be free from structural defects.
The one-page Application for Home Enrollment states in paragraph nine that,
[b]y signing, Homebuyer acknowledges that s/he has viewed and received a video of
Warranty Teamwork: You, Your Builder & HBW, read the warranty and has received
a copy of this form with the Home Buyers Warranty Booklet and CONSENTS TO THE
TERMS OF THESE DOCUMENTS INCLUDING THE BINDING ARBITRATION
PROVISION contained therein.
The HBW's arbitration clause provides, in pertinent part, that:
Any controversy, claim or complaint arising out of or relating to Builder's
workmanship/systems limited warranty coverages provided by Builder under the terms
of this agreement which Homebuyer and Builder do not resolve by mutual agreement
shall be settled by final and binding arbitration in accordance with the Construction
Arbitration Services (CAS) or other [National Home Insurance Company] NHIC/HBW
approved rules applicable to the home warranty industry in effect at the time of the
arbitration. . . .
Any controversy concerning a claim arising out of or relating to the Builder's ten year
structural coverage (insured by NHIC) shall be settled by final and binding arbitration. .
. .Arbitration of all structural warranty disputes will be conducted by arbitrators
supplied by an NHIC approved arbitration service.
This arbitration clause further provides that the final and binding arbitration is governed by
the Federal Arbitration Act (FAA)
1
to the exclusion of any provisions of state arbitration
law.
In January 1999, the Burches complained to Double Diamond about serious problems
underneath [their] housesaturated floor joists, wet insulation, muddy ground, and a wet,
moldy foundation. They requested that Double Diamond remedy the situation by removing
the insulation, professionally treating the area with mildew and fungicide controls, installing
upgraded insulation with proper venting, constructing a proper water barrier underneath the
house, and reimbursing them for all current and future fees for professional inspections.
While contesting liability, Double Diamond offered to completely dry the crawl space
underneath the house, install two additional foundation vents and a six-mill vapor barrier,
treat all areas of active fungus with an approved fungicide, and reinstall insulation except at
the rim joist.
The Burches were not satisfied with this offer. After both parties stipulated to waive
mediation, the Burches filed a complaint for damages with the district court, alleging breach
of express and implied warranties, negligence, and fraud and misrepresentation. Double
Diamond filed a motion for a stay and a motion to compel arbitration, arguing that the HBW
provided for final and binding arbitration of all disputes relating to the construction of the
Burch home. The district court found the HBW valid and granted the motion to compel
arbitration. The Burches now request that this court issue a writ of mandamus directing the
district court to vacate its order compelling the Burches to arbitrate their claims against
Double Diamond.
DISCUSSION
[Headnotes 1, 2]
Because an order compelling arbitration is not directly appealable, the Burches appropriately
seek writ relief from this court.
2
When there is no plain, speedy, and adequate remedy at law,
a writ of mandamus is available to compel the district court to perform a required act, or to
control an arbitrary or capricious abuse of discretion.
3
Under the circumstances of this case,
the HBW is an unconscionable adhesion contract and, therefore, unenforce able.
__________

1
9 U.S.C. 1-16 (2000).

2
See NRS 38.205 (no direct appeal from order granting motion to compel arbitration); NRS 34.170 (writ to
issue when no plain, speedy, and adequate remedy in law exists); Kindred v. Dist. Ct., 116 Nev. 405, 409, 996
P.2d 903, 906 (2000) (recognizing that mandamus is an appropriate method to challenge an order compelling
arbitration).

3
See NRS 34.160; NRS 34.170; see also Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637
P.2d 534, 536 (1981).
able. The district court should not have compelled arbitration under the unenforceable clause.
Accordingly, we grant the petition for a writ of mandamus.
[Headnotes 3, 4]
This court has defined an adhesion contract as a standardized contract form offered to
consumers . . . on a take it or leave it' basis, without affording the consumer a realistic
opportunity to bargain.
4
The distinctive feature of an adhesion contract is that the weaker
party has no choice as to its terms.
5
Here, the one-page application and the HBW were
pre-printed, standardized contract forms. The Burches, the weaker party, were not given an
opportunity to negotiate the HBW's terms with Double Diamond or its insurer, National
Home Insurance Company (NHIC); they were required to take it or leave it. Therefore, the
HBW agreement between the Burches and Double Diamond is an adhesion contract. This
court permits the enforcement of adhesion contracts where there is plain and clear
notification of the terms and an understanding consent[,]
6
and if it falls within the
reasonable expectations of the weaker . . . party.
7
This court need not, however, enforce a
contract, or any clause of a contract, including an arbitration clause,
8
that is unconscionable.
9

[Headnote 5]
Although the FAA establishes a strong public policy favoring arbitration for the purpose of
avoiding the unnecessary expense and delay of litigation where parties have agreed to
arbitrate,
10
it does not mandate the enforcement of an unconscionable contract or arbitration
clause.
11
The United States Supreme Court has interpreted 2 of the FAA and held that
[s]tates may regulate contracts,
__________

4
Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 107, 693 P.2d 1259, 1260 (1985).

5
Id.

6
Id. at 108, 693 P.2d at 1261.

7
See id. at 107-08, 693 P.2d at 1261; see also Bernstein v. GTE Directories Corp., 827 F.2d 480, 482 (9th
Cir. 1987) (applying Nevada law).

8
See NRS 38.035 (A written agreement to submit any existing controversy to arbitration or a provision in a
written contract to submit to arbitration any controversy thereafter arising between the parties is valid,
enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any
contract. (emphasis added)).

9
See NRS 104.2302(1) (court may refuse to enforce an unconscionable contract).

10
See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270-71 (1995).

11
See Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996) (holding that generally applicable
contract defenses, such as unconscionability, may be used to invalidate an arbitration clause).
contracts, including arbitration clauses, under general contract law principles and they may
invalidate an arbitration clause upon such grounds as exist at law or in equity for the
revocation of any contract.'
12
Unconscionability, therefore, is a legitimate ground upon
which to refuse to enforce the HBW and its arbitration clause.
13

[Headnote 6]
Generally, both procedural and substantive unconscionability must be present in order for a
court to exercise its discretion to refuse to enforce a contract or clause as unconscionable.
14
The circumstances present in this case significantly render the HBW procedurally
unconscionable. The Burches did not receive a copy of the HBW's terms until after Double
Diamond had paid the premium to enroll the Burch home in the warranty program and almost
four months after they closed escrow on their home. Double Diamond told the Burches that
the HBW's issuance was automatic and offered extra protection for their home, when in
fact the warranty limited their protection under Nevada law.
15
The Burches did not have an
opportunity to read the one-page application form, or the thirty-one-page HBW booklet, or
to view the HBW video before signing the application. The arbitration clause was located
on page six of the HBW booklet, after five pages of material only relevant to persons residing
outside of Nevada. The Burches were not sophisticated consumers, they did not understand
the HBW's terms, and the HBW's disclaimers were not conspicuous.
16
Under these
circumstances, the Burches did not have a meaningful opportunity to decide if they wanted to
agree to the HBW's terms, including its arbitration provision.
__________

12
Allied-Bruce Terminix, 513 U.S. at 281 (quoting 9 U.S.C. 2 (emphasis added)); see also Doctor's
Associates, 517 U.S. at 687.

13
See Doctor's Associates, 517 U.S. at 687.

14
See, e.g., First Family Financial Services, Inc. v. Fairley, 173 F. Supp. 2d 565, 569-71 (S.D. Miss. 2001);
Data Based Systems, Intern., Inc. v. Hewlett-Packard Co., No. CIV. 00-CV-4425, 2001 WL 1251212, at *10
(E.D. Pa. Sept. 26, 2001); Thomas Engineering, Inc. v. Trane Co., No. 92 C 1251, 1994 WL 692698, at *2-3
(N.D. Ill. Dec. 1, 1994); Armendariz v. Foundation Health Psychcare, 6 P.3d 669, 690 (Cal. 2000); Villa
Milano Homeowners Ass'n v. Il Davorge, 102 Cal. Rptr. 2d 1, 6-7 (Ct. App. 2000); Complete Interiors, Inc. v.
Behan, 558 So. 2d 48, 52 (Fla. Dist. Ct. App. 1990); M.A. Mortenson Co. v. Timberline Software, 998 P.2d 305,
314-15 (Wash. 2000).

15
Cf. Sierra Diesel Injection Service v. Burroughs Corp., 890 F.2d 108, 113 (9th Cir. 1989) ([E]xclusions of
warranties are generally disfavored . . . . They are subject to the general obligation of good faith and of not
imposing unconscionable terms upon a party.).

16
See NRS 104.1201(10) (Whether a term or clause is conspicuous' or not is for decision by the court.);
see also Sierra Diesel, 890 F.2d at 115 (explaining that even the use of capital letters in disclaimers will not be
effective in all cases).
agree to the HBW's terms, including its arbitration provision. As a result, the HBW was
procedurally unconscionable.
[Headnote 7]
Because the procedural unconscionability in this case is so great, less evidence of substantive
unconscionability is required to establish unconscionability.
17
The HBW's arbitration clause
is also substantively unconscionable because it grants Double Diamond's insurer, NHIC, the
unilateral and exclusive right to decide the rules that govern the arbitration and to select the
arbitrators. These provisions are oppressive terms,
18
and as such, are substantively
unconscionable and unenforceable. We do not hold that a homebuyer warranty with an
arbitration clause will always be unconscionable or unenforceable. Under the circumstances
in this case, however, the HBW and its arbitration clause are unconscionable and, therefore,
unenforceable.
We, therefore, grant the petition and direct the clerk of this court to issue a writ of mandamus
directing the district court to vacate its order compelling arbitration.
19

____________
118 Nev. 444, 444 (2002) Rosequist v. Int'l Ass'n of Firefighters
LARRY ROSEQUIST, Appellant, v. INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS LOCAL 1908, Respondent.
No.36506
July 18, 2002
49 P.3d 651
Appeal from a district court order dismissing a complaint for failure to exhaust administrative
remedies before the Employee-Management Relations Board (EMRB). Eighth Judicial
District Court, Clark County; Mark R. Denton, Judge.
Firefighter who was denied disability benefits brought action against county and his union,
claiming breach of collective bargaining agreement, breach of duty of fair representation,
improper submission of grievances, breach of covenant of good faith and fair dealing,
wrongful termination of his employment, and conspiracy to violate collective bargaining
agreement. The district court granted summary judgment in favor of county and granted
union's motion to dismiss without prejudice. Firefighter appealed. The supreme court held
that: (1) firefighter's allegations against union were within exclusive jurisdiction of the
Employee-Management Relations Board
__________

17
See Armendariz, 6 P.3d at 690.

18
24 Hour Fitness, Inc. v. Superior Court, 78 Cal. Rptr. 2d 533, 541 (Ct. App. 1998).

19
See NRS 34.160; see also Round Hill, 97 Nev. at 603-04, 637 P.2d at 536.
Management Relations Board (EMRB), and (2) firefighter was required to exhaust his
administrative remedies before the EMRB before filing his complaint in district court.
Affirmed.
Bell and Young, Ltd., and David K. Rosequist, Las Vegas, for Appellant.
Peter L. Ashman, Las Vegas, for Respondent.
1. Labor Relations.
Firefighter's allegations that union breached collective bargaining agreement, breached duty of fair representation, improperly
submitted grievances, breached duties of good faith and fair dealing, and conspired to violate collective bargaining agreement fell
within scope of the Employee-Management Relations Act and, thus, were within the exclusive jurisdiction of the
Employee-Management Relations Board (EMRB). NRS 288.110(2), 288.270(2)(a).
A motion to dismiss is properly granted when there is a lack of subject matter jurisdiction on the face of the complaint.
Failure to exhaust administrative remedies generally deprives a district court of subject matter jurisdiction.
The construction of a statute is a question of law subject to de novo review.
5. Statutes.
If the plain meaning of a statute is clear on its face, then the court will not go beyond the language of the statute to determine its
meaning.
6. Labor Relations.
Fair representation of an employee by a union involving the implementation of the terms of a collective bargaining agreement is a right
arising under the Employee-Management Relations Act and the failure of a union to fairly represent an employee interferes with that
right. NRS 288.270(2)(a).
7. Labor Relations.
Employee-Management Relations Board (EMRB) has exclusive jurisdiction over unfair labor practice issues, which arguably involve
claims against a union for breach of the duty of fair representation. NRS 288.110(2), 288.270(2)(a).
8. Statutes.
The word may is generally construed as permissive when used in a statute.
9. Labor Relations.
The purpose of the Employee-Management Relations Board (EMRB) is to apply expertise to labor disputes and assist in resolving
them before they reach the courts. NRS 288.110(2), 288.280.
10. Labor Relations.
Once the Employee-Management Relations Act applies to a complaint, the remedies provided under the Act and before the
Employee-Management Relations Board
Management Relations Board (EMRB) must be exhausted before the district court has subject matter jurisdiction. NRS 288.110(2),
288.280.
OPINION
Per Curiam:
We are asked to determine whether allegations in a complaint filed by appellant Larry
Rosequist against respondent International Association of Firefighters Local 1908 fall within
the exclusive jurisdiction of the EMRB and whether the Employee-Management Relations
Act (the Act) requires the exhaustion of administrative remedies before the EMRB prior to
filing a complaint in district court.
We conclude that Rosequist's complaint involves allegations of unfair representation against
Local 1908. These allegations arise under the Act, and therefore, Rosequist's complaint falls
under the exclusive jurisdiction of the EMRB. We also conclude that the Act requires the
exhaustion of administrative remedies before the EMRB prior to filing a complaint in district
court. Accordingly, we affirm the order of the district court dismissing Rosequist's complaint.
FACTS
Rosequist was a twelve-year veteran firefighter for the Clark County Fire Department when
he was injured at work on March 14, 1991. Rosequist was examined by two doctors who
concluded that he could no longer perform his duties as a firefighter. Rosequist filed for
disability benefits, pursuant to a collective bargaining agreement between Clark County and
Local 1908. To be eligible for these benefits, two doctors must agree that the employee
cannot work in another position within the fire department. After reviewing Rosequist's
injuries, two doctors concluded that Rosequist could perform the work of a fire inspector.
Rosequist was ordered back to work, where he briefly performed the duties of a fire inspector,
until he re-injured himself.
Rosequist re-applied for disability benefits. Two new doctors concluded that he was unable to
perform the duties of a fire inspector. Thereafter, a lengthy dispute arose between Rosequist
and Clark County regarding his disability and benefits.
Local 1908 filed a grievance with Clark County on Rosequist's behalf. The matter was soon
referred to an arbitrator, who concluded that Rosequist was unable to perform the duties of a
fire inspector and was entitled to disability benefits under the collective bargaining
agreement.
tive bargaining agreement. Clark County moved the district court to vacate the decision,
alleging that the arbitrator considered evidence outside the record.
The district court agreed with Clark County, vacated the arbitration award, and remanded the
case to the arbitrator with instructions. However, re-affirming his prior decision, the arbitrator
refused to follow the district court's instructions. The case again came before the district
court. After conducting a hearing, the district court ordered the selection of a new arbitrator.
On October 20, 1997, the new arbitrator issued a decision denying Rosequist disability
benefits.
On June 9, 1998, Rosequist filed a complaint in district court against Clark County and Local
1908, alleging, among other things, that the two entities breached the collective bargaining
agreement, breached the duty of fair representation, ignored and improperly submitted his
grievances, breached the covenant of good faith and fair dealing, wrongfully terminated his
employment, and conspired to violate the collective bargaining agreement.
Clark County moved for summary judgment. Local 1908 joined Clark County's motion and
also moved to dismiss the complaint. On June 30, 2000, the district court granted Clark
County's motion for summary judgment. Expressing some reservations, the district court also
granted Local 1908's motion to dismiss without prejudice, holding Rosequist failed to exhaust
his administrative remedies before the EMRB prior to filing his complaint.
The district court interpreted the Act as applying to the allegations in Rosequist's complaint
against Local 1908 and requiring the exhaustion of remedies before the EMRB. The district
court advised Rosequist to file a complaint with the EMRB.
After being denied a motion for reconsideration, Rosequist filed a notice of appeal to this
court. On December 20, 2000, Rosequist also filed a complaint before the EMRB. However,
as the complaint was beyond the six-month statute of limitations established by NRS
288.110(4), the EMRB dismissed Rosequist's complaint as untimely, leaving Rosequist
without a forum to address the merits of his lawsuit.
DISCUSSION
[Headnote 1]
Rosequist argues that the district court erred in dismissing his complaint against Local 1908
because the allegations in his complaint do not fall within the exclusive jurisdiction of the
EMRB. We disagree.
[Headnotes 2-5]
A motion to dismiss is properly granted when there is a lack of subject matter jurisdiction on
the face of the complaint.
1
Failure to exhaust administrative remedies generally deprives a
district court of subject matter jurisdiction.
2
Additionally, [t]he construction of a statute is a
question of law subject to de novo review.
3
If the plain meaning of a statute is clear on its
face, then we will not go beyond the language of the statute to determine its meaning.
4
Here,
we must consider the meaning of the Act.
The Act grants the EMRB broad authority to hear and determine any complaint arising out
of the interpretation of, or performance under, the provisions of this chapter by any . . .
employee organization.
5
Upon reading the language of this provision, it appears that two
requirements must be met for the Act to govern a complaint.
First, the complaint must be against an employee organization. An employee organization is
defined as an organization of any kind having as one of its purposes improvement of the
terms and conditions of employment of local government employees.
6
Here, Rosequist's
complaint was filed against Local 1908, a part of the International Association of
Firefightersa union. Therefore, the first requirement is met.
Second, the complaint must also arise out of the interpretation or performance by the
employee organization under provisions of the Act. NRS 288.270(2)(a) provides that an
employee organization cannot [i]nterfere with, restrain or coerce any employee in the
exercise of any right guaranteed under this chapter.
Here, Rosequist's complaint contains numerous allegations. These include: breach of the
collective bargaining agreement, breach of the duty of fair representation, improper
submission of grievances, breach of the duties of good faith and fair dealing, wrongful
termination of employment, and conspiracy to violate the collective bargaining agreement.
These allegations involve Local 1908's representation of Rosequist during the arbitration
proceedings.
7
The question must be asked: do these allegations involve a violation of any
provisions under the Act?
__________

1
See Girola v. Roussille, 81 Nev. 661, 663, 408 P.2d 918, 919 (1965).

2
See State, Dep't of Taxation v. Scotsman Mfg., 109 Nev. 252, 254, 849 P.2d 317, 319 (1993).

3
County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).

4
See Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983).

5
NRS 288.110(2).

6
NRS 288.040.

7
See Vaca v. Sipes, 386 U.S. 171, 190 (1967).
[Headnote 6]
Local 1908 is the exclusive bargaining agent for employees under the Act
8
and has a duty to
not only represent those employees fairly in negotiating the terms of the collective bargaining
agreement, but in its implementation as well.
9
We conclude that fair representation of an
employee by a union involving the implementation of the terms of a collective bargaining
agreement is a right arising under the Act and the failure of a union to fairly represent an
employee interferes with that right. Therefore, we conclude that the allegations against Local
1908 in Rosequist's complaint fall under the Act and are within the exclusive jurisdiction of
the EMRB.
[Headnote 7]
Although our inquiry could end here, legislative history and case law regarding this issue
warrant further discussion. Legislative history of the Act shows that the EMRB was initially
patterned after the National Labor Relations Board (NLRB).
10
We have held that it is
proper to look toward the NLRB for guidance on issues involving the EMRB.
11
The NLRB
has been held to have exclusive jurisdiction over unfair labor practice issues,
12
which
arguably involve claims against a union for breach of the duty of fair representation.
13
By
analogy, we view the EMRB to have similar exclusive jurisdiction.
Rosequist is correct in noting that the United States Supreme Court carved out an exception
to the exclusive jurisdiction of the NLRB in Vaca v. Sipes.
14
However, the holding in that
case only applies when a union has the sole power to invoke the higher stages of a grievance
procedure and the union wrongfully prevents the former union employee from processing
those grievances.
15
The Court in Vaca was concerned about a union member receiving a fair
review of his complaint when the NLRB has unreviewable discretion to refuse to hear such a
complaint.
16

__________

8
NRS 288.160(2).

9
Rodriguez v. Southern Cal. Dist. Council, 207 Cal. Rptr. 75, 77 (Ct. App. 1984).

10
See Hearing on S.B. 87 Before the Senate Comm. on Federal, State and Local Governments, 55th Leg.
(Nev., Feb. 25, 1969).

11
Truckee Meadows v. Int'l Firefighters, 109 Nev. 367, 375-76, 849 P.2d 343, 349 (1993).

12
California Ass'n v. Building and Const. Tr. Council, 178 F.2d 175, 177 & n.3 (9th Cir. 1949).

13
Vaca, 386 U.S. at 178, 191.

14
See id. at 180-81.

15
Id. at 187.

16
Id. at 182-83.
Here, however, decisions of the EMRB are subject to judicial review.
17
Moreover, to extend
the concerns expressed in Vaca to this case presumes that a Nevada board is not capable of
being impartial. We see no reason for such a concern about the EMRB. Additionally, the
Court in Vaca considered preemption of state jurisdiction by the NLRB; here, the issue is
whether a state statute preempts state court jurisdiction.
18
We conclude the concerns of the
Court in Vaca are not implicated here.
19

In the alternative, Rosequist argues that even if the Act applies to the allegations in his
complaint, the Act does not require exhaustion of administrative remedies before
commencing a judicial action. Specifically, Rosequist argues that the word may contained
in NRS 288.110(2) and NRS 288.280 means that there is no mandatory requirement for the
EMRB to hear the complaint. We disagree.
[Headnote 8]
NRS 288.110(2) provides that [t]he board may hear and determine any complaint. NRS
288.280 provides that [a]ny controversy concerning prohibited practices may be submitted to
the board. Although the word may is generally construed as permissive,
20
here it is
ambiguous; and therefore, we must turn to the Act's legislative history to interpret its
meaning.
[Headnote 9]
Legislative history shows that the EMRB was intended to relieve a burden on the courts in
resolving disputes.
21
We have stated that [i]t is not conceivable that the legislature would
give its extensive time and attention to study, draft, meet, hear, discuss and pass this
important piece of legislation were it not to serve a useful purpose.
22
Given the Act's
provisions regarding time limitations,
__________

17
NRS 288.130 provides that EMRB decisions are subject to judicial review. See also NRS 233B.130(1)(b).
We also note that in this case, the court reserved the right to review the decision of the EMRB.

18
Anderson v. California Faculty Ass'n, 31 Cal. Rptr. 2d 406, 411 (Ct. App. 1994).

19
Rosequist also alleges a violation of his constitutional right to due process and various violations of NRS
Chapter 38. However, these allegations are tied into the manner in which Local 1908 chose to represent him
during the arbitration proceeding. Therefore, we conclude that these allegations involve the collective bargaining
agreement and have neither constitutional implications, see Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir.
1992), nor seek relief outside of rights arising under the agreement.

20
Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970). But cf. Dangberg v. Commissioners, 27 Nev.
469, 472, 77 P. 984, 986 (1904).

21
See Hearing on S.B. 87 Before the Senate Comm. on Federal, State and Local Governments, 55th Leg.
(Nev., Feb. 25, 1969).

22
Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 445, 530 P.2d 114, 117 (1974).
itations, evidence, and hearings, along with the creation of the EMRB to oversee the Act's
implementation, we conclude that it is counterintuitive to believe that the legislature created
the EMRB to be merely a discretionary board. Rather, we conclude that the purpose of the
EMRB is to apply expertise to labor disputes and assist in resolving them before they reach
the courts.
23

[Headnote 10]
Moreover, we conclude that the use of the word may describes the discretionary authority
vested in the EMRB to hear complaintsit does not grant discretion to a claimant on whether
or not to file a complaint before the board in the first instance. Meaning, once the Act applies
to a complaint, we conclude that the remedies provided under the Act and before the EMRB
must be exhausted before the district court has subject matter jurisdiction.
CONCLUSION
We conclude that Rosequist's complaint involves allegations of unfair representation against
Local 1908 which arise under the Act and, therefore, are within the exclusive jurisdiction of
the EMRB. We also conclude that Rosequist was required under the Act to exhaust his
administrative remedies before the EMRB prior to filing his complaint in district court.
Accordingly, we affirm the order of the district court dismissing Rosequist's complaint.
____________
118 Nev. 451, 451 (2002) Diaz v. State
DWAYNE DONALD DIAZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37085
July 18, 2002
50 P.3d 166
Appeal from a judgment of conviction pursuant to a guilty plea of felony driving under the
influence with two or more prior convictions. Second Judicial District Court, Washoe
County; Janet J. Berry, Judge.
The supreme court, Shearing, J., held that: (1) defendant's right to speedy trial under Interstate
Agreement on Detainers (IAD) was not violated, and (2) antishuttling provision of IAD was
not violated.
Affirmed.
Rose, J., dissented.
__________

23
See Anderson, 31 Cal. Rptr. 2d at 413.
118 Nev. 451, 452 (2002) Diaz v. State
Robert A. Grayson, Carson City, for Appellant.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
Speedy-trial period of 180 days under Interstate Agreement on Detainers (IAD) was tolled during pendency of defendant's two pretrial
motions to dismiss, and thus, defendant was not deprived of speedy trial. NRS 178.620.
Defendant's conviction in Nevada for driving under the influence (DUI), after release from incarceration in California, did not violate
antishuttling provision of Interstate Agreement on Detainers (IAD); alleged shuttling was the result of an erroneous dismissal of
charges by the Nevada trial court, which was subsequently overturned. NRS 178.620.
The antishuttling provision of the Interstate Agreement on Detainers (IAD) is not violated when the shuttling is the result of an
erroneous order of the trial court that is later overturned. NRS 178.620.
The Interstate Agreement on Detainers (IAD) is designed to systematize the disposition of untried indictments and detainers, so as to
minimize disturbance to the defendant's rehabilitation in the confining jurisdiction. NRS 178.620.
OPINION
This case involves alleged violations of the Interstate Agreement on Detainers (IAD).
Codified in Nevada at NRS 178.620, the IAD provides for expeditious and orderly resolution
of criminal charges pending in one state against a prisoner in another state. While subject to a
pending, untried indictment in Nevada, appellant Dwayne Diaz was incarcerated in California
on unrelated charges. Diaz was ultimately brought to trial in Nevada and convicted of the
felony charge. Diaz appeals his conviction, alleging violation of the IAD's speedy trial and
antishuttling provisions. We conclude that Diaz's conviction did not violate the IAD and,
therefore, affirm the district court's judgment of conviction.
FACTS
On February 11, 1998, the State of Nevada indicted Diaz for driving while under the
influence of alcohol, with two or more prior convictions.
118 Nev. 451, 453 (2002) Diaz v. State
prior convictions. Diaz appeared for his arraignment on April 14, 1998, and pleaded not
guilty. On July 13, 1998, Diaz filed a motion to dismiss the indictment, but failed, on July 18,
1998, to appear for his preliminary hearing. The State thereafter issued a warrant for his
arrest.
In approximately January 1999,
1
Diaz was arrested in California for another offense and
committed to California state prison. Based upon the pending indictment, Nevada apparently
filed a detainer against Diaz, which triggered his right, under the IAD, to demand disposition
of the indictment.
2
Diaz executed his demand for disposition of the Nevada indictment on
June 3, 1999. At that time, Diaz's previously filed motion to dismiss the indictment was still
pending. On July 14, 1999, Diaz was brought to Nevada to await trial. However, trial was not
held because, on September 10, 1999, the district court granted Diaz's motion to dismiss and
Diaz was returned to California. On October 27, 1999, Diaz was paroled from California
prison.
On June 15, 2000, this court reversed the order of dismissal. Trial was again delayed when,
on September 28, 2000, Diaz filed a second motion to dismiss, this time alleging violation of
the IAD's speedy trial and antishuttling provisions. On October 10, 2000, the district court
denied Diaz's motion. Trial was held on October 17, 2000, at which time Diaz pleaded guilty,
reserving the right to appeal the IAD issues.
DISCUSSION
Diaz alleges that this court should reverse his conviction because the State violated the IAD
by failing to bring him to trial within the time required by the IAD, and because it violated the
IAD's antishuttling provision by returning Diaz to California before bringing him to trial. We
disagree.
The IAD's speedy trial provisiontolling
This case is governed by Article III of the IAD.
3
Article III provides that once Nevada files a
detainer against a prisoner in another state,
__________

1
The precise date of incarceration is not clear from the record before this court, but is not relevant to this
appeal.

2
When the State of Nevada filed the detainer is not exactly clear. The State claims that it may not have filed a
detainer prior to Diaz's request for disposition, such that the IAD may not apply to this case. This court recently
noted that the IAD is only triggered when a written detainer has been filed prior to a prisoner's demand for
disposition. Theis v. State, 117 Nev. 744, 753 n.21, 30 P.3d 1140, 1145 n.21 (2001). However, because the State
failed to raise this issue below, and because it does not affect the outcome of this appeal, we decline to consider
it. Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996).

3
NRS 178.620, art. III(a).
118 Nev. 451, 454 (2002) Diaz v. State
another state, the prisoner may request timely disposition of the untried indictment upon
which the detainer was based.
4
Once the request for disposition has been transmitted to the
prosecuting officer and the appropriate court, the State has 180 days to bring the defendant to
trial.
5

[Headnote 1]
Here, the State failed to bring Diaz to trial within 180 days of his request for disposition. The
delay in trial, however, was not caused by the State, but by Diaz's filing of two pretrial
motions to dismiss. The United States circuit courts of appeals are divided as to whether the
IAD period is tolled during the time required to resolve matters raised by the defendant.
6
The
Ninth Circuit Court of Appeals has held that delays attributable to a defendant's own motions
toll the IAD period.
7
Likewise, this court has previously held that the time period for trial is
tolled during those periods of delay occasioned by the defendant.
8
We hold that the IAD
period was tolled during the pendency of Diaz's pretrial motions to dismiss, such that the
State's failure to bring Diaz to trial within 180 days of his request for disposition was not a
violation of the IAD.
9

Diaz initiated his first motion to dismiss even before he requested disposition of his
indictment under the IAD. The IAD clock did not start running until that motion was fully
resolved on June 15, 2000,
__________

4
Id.

5
Id. This case is not, as Diaz suggests, governed by Article IV of the IAD. Article IV applies only where the
state, not the prisoner, initiates disposition. NRS 178.620, art. IV(a); see also Alabama v. Bozeman, 533 U.S.
146, 150 (2001); U.S. v. Kurt, 945 F.2d 248, 251 (9th Cir. 1991).

6
See U.S. v. Whiting, 28 F.3d 1296, 1307 (1st Cir. 1994) (discussing the division between the circuits).
Whiting explained that the United States Courts of Appeals for the Fifth and Sixth Circuits only toll the IAD
period when the defendant is unable to stand trial due to mental or physical incapacity. Id. (citing Birdwell v.
Skeen, 983 F.2d 1332, 1340-41 (5th Cir. 1993); Stroble v. Anderson, 587 F.2d 830, 838 (6th Cir. 1978)).
Whereas the First, Second, Fourth, Seventh, and Ninth Circuits have all construed the provision to allow tolling
during the time required to resolve matters raised by the defendant. Id. at 1307 & n.9 (citing U.S. v. Johnson,
953 F.2d 1167, 1172 (9th Cir. 1992); U.S. v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988); United States v.
Scheer, 729 F.2d 164, 168 (2d Cir. 1984); United States v. Hines, 717 F.2d 1481, 1486-87 (4th Cir. 1983)).

7
Johnson, 953 F.2d at 1172 (where a delay is excludable under the Speedy Trial Act because it is attributable
to defendant's own motions, the IAD clock is also tolled).

8
Snyder v. State, 103 Nev. 275, 277, 738 P.2d 1303, 1305 (1987).

9
See Johnson, 953 F.2d at 1172; U.S. v. Dawn, 900 F.2d 1132, 1136 (7th Cir. 1990); United States v. Roy,
771 F.2d 54, 59 (2d Cir. 1985); State v. Batungbacal, 913 P.2d 49, 56 (Haw. 1996); Com. v. Petrozziello, 491
N.E.2d 627, 632-33 (Mass. App. Ct. 1986); State v. McGann, 493 A.2d 452, 456-57 (N.H. 1985); State v.
Bernson, 807 P.2d 309, 310-11 (Or. Ct. App. 1991).
118 Nev. 451, 455 (2002) Diaz v. State
clock did not start running until that motion was fully resolved on June 15, 2000, when this
court reversed the lower court's decision to dismiss.
10
On September 28, 2000, 105 days
later, Diaz filed his second motion to dismiss alleging delay in excess of the IAD period. At
that time the IAD clock again stopped running and did not restart until the district court
denied the motion on October 10, 2000. Six days later, on October 17, 2000, after the IAD
clock had been running for only a total of 112 days, the district court proceeded to trial, well
within the limits of the IAD's speedy trial provision.
The IAD's antishuttling provision
[Headnote 2]
The district court's conviction of Diaz, likewise, did not violate the IAD's antishuttling
provision. The IAD's antishuttling provision requires that trial be held on any pending
indictment prior to the return of the defendant to the original place of imprisonment, or the
indictment is to be dismissed with prejudice.
11
Diaz alleges that the State violated this
provision by first returning him to California, after his motion to dismiss the indictment was
granted, and then second, by reinstating proceedings pursuant to that same indictment in
Nevada once this court reversed the district court's decision to dismiss. We disagree.
[Headnotes 3, 4]
The antishuttling provision is not violated when the shuttling is the result of an erroneous
order of the trial court that is later overturned.
12
The IAD is designed to systemize the
disposition of untried indictments and detainers so as to minimize disturbance to the
defendant's rehabilitation in the confining jurisdiction.
13
A contrary result would defeat the
purpose of the IAD by prolonging the defendant's absence from the confining jurisdiction.
14
We note that, here, by the time the indictment was reinstated and Diaz was returned to
Nevada for trial, he was no longer incarcerated in California.
This case is easily distinguishable from Alabama v. Bozeman where the United States
Supreme Court recently found a violation of the IAD's antishuttling provision.
__________

10
See Roy, 771 F.2d at 59; Petrozziello, 491 N.E.2d at 633; Bernson, 807 P.2d at 310.

11
NRS 178.620, art. III(d); NRS 178.620, art. IV(e). The identical provision appears in both Article III and
Article IV.

12
See State v. Burrus, 729 P.2d 926, 934 (Ariz. Ct. App. 1986); Shanks v. Com., 574 S.W.2d 688, 690 (Ky.
Ct. App. 1978).

13
NRS 178.620, art. I; United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980).

14
See Burrus, 729 P.2d at 934.
118 Nev. 451, 456 (2002) Diaz v. State
of the IAD's antishuttling provision.
15
In Bozeman, a prisoner in Florida was subject to
untried charges in Alabama.
16
An Alabama district attorney obtained temporary custody of
the defendant for arraignment.
17
Bozeman spent only one night in an Alabama county jail,
appeared in local court the next morning, and was returned to Florida later that day.
18
Approximately one month later, he was brought back to Alabama for trial on the same
charges. Rejecting Alabama's de minimis argument, the Supreme Court held that Bozeman's
prior transfer from Florida to Alabama, even if only for one night, precluded, under the
antishuttling provision, his return to Alabama for trial.
19

Bozeman is factually distinct from the case at hand. The shuttling in Bozeman occurred while
the charges against Bozeman were still pendingBozeman was brought to Alabama for
arraignment and then returned to Florida to await trial. Here, the shuttling occurred because
the charges against Diaz were dismissedDiaz was brought to Nevada so that he could argue
his motion to dismiss, and was returned to California when that motion was granted. In
Bozeman, there was no reason why Alabama could not have detained Bozeman until trial
rather than shuttling him back and forth. Here, by contrast, once the charges against Diaz
were dismissed, Nevada had no authority upon which to detain Diaz. Sending Diaz back to
California was unavoidable.
CONCLUSION
Because we conclude that Diaz's conviction did not violate the IAD, we affirm the district
court's judgment of conviction.
Becker, J., concurs.
Rose, J., dissenting:
I dissent because I believe we should fashion a rule that gives effect to the express purpose of
the IADto provide for expeditious dispositions of outstanding charges against persons
imprisoned in other jurisdictions
1
but a rule that is fair to the district courts and the
prosecutors as well. I would not recognize a tolling of the 180-day time limit unless it is
demonstrated that the defendant has engaged in conduct intended to cause a delay in bringing
the case to trial.
__________

15
533 U.S. at 152-57.

16
Id. at 151.

17
Id.

18
Id.

19
Id. at 153-57.

1
See NRS 178.620, art. I.
118 Nev. 451, 457 (2002) Diaz v. State
A defendant who has invoked the benefits of the IAD should not lose them simply because he
files a pretrial motion. I would certainly not want a defendant to feel restricted in litigating his
case simply because he is fearful that it will effectuate a tolling of his demand to be brought
to trial. But any pretrial motion from the defendant that is brought with the intent to delay the
trial should toll the 180-day time limit, such as a motion to continue or a complicated motion
that is filed on the eve of trial.
Applying these principles to the case at hand, I would not toll the 180-day time limit simply
because Diaz filed the first motion to dismiss. The motion to dismiss did not, in and of itself,
necessarily delay the trial. Since there is no evidence of intent to delay here, I would not toll
the statutory 180-day time limit for the period of time from when Diaz's IAD demand was
received until his motion to dismiss was improvidently granted by the district court.
Obviously, however, the time should be tolled from the time the motion to dismiss was
granted until reversed by this court and the remittitur issued.
When this court reversed the case and prosecution was renewed, Diaz demanded that he be
brought to trial, and he filed a second motion to dismiss. Again, there is nothing that
demonstrates that this motion was brought to delay the court in bringing this case to trial.
Thus, that time should not have been tolled either.
By not tolling the time when the two motions to dismiss were pending before the district
court, the total time it took to bring this defendant to trial after his IAD demand was well over
200 days, and thus in violation of the IAD's 180-day time limit. Accordingly, I would vacate
the judgment of conviction entered against Diaz and remand for the district court to dismiss
the charges.
The rule I would prefer to adopt balances the purpose of the IAD with the realities of bringing
a defendant to trial in six months.
2
I think this approach is more equitable, even though I
acknowledge that the approach taken by the majority is the prevailing view in the United
States.
__________

2
Cf. U.S. v. Whiting, 28 F.3d 1296, 1307 (1st Cir. 1994) (noting that the time period in disposing of a pretrial
motion should not toll the 180-day time limit when the defendant timely advises the district court that he or she
is claiming the IAD's protections and the district court took more time than was necessary to resolve the motion).
____________
118 Nev. 458, 458 (2002) U.S. Design & Constr. v. I.B.E.W. Local 357
U.S. DESIGN & CONSTRUCTION CORP., Appellant, v. INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 357, AFL-CIO; and
I.B.E.W. LOCAL 357 JOINT TRUST FUNDS, Respondents.
No. 37161
July 18, 2002
50 P.3d 170
Appeal from a district court order granting attorney fees and costs to the respondents. Eighth
Judicial District Court, Clark County; Michael L. Douglas, Judge.
Local union and union trustees brought action against general contractor, seeking to have
contractor pay unpaid vacation and fringe benefits to bankrupt subcontractor's employees.
The district court entered judgment against contractor and awarded attorney fees and costs to
union and trustees. Contractor appealed. The supreme court held that: (1) statute establishing
liability against contractor granted private right of action to union and trustees, and (2) award
of attorney fees to union and trustees was appropriate.
Affirmed.
Marquis & Aurbach and Deverie J. Christensen and Terry A. Coffing, Las Vegas, for
Appellant.
Schreck Brignone Godfrey and Adam P. Segal, Las Vegas, for Respondent I.B.E.W. Local
357 Joint Trust Funds.
Patricia S. Waldeck, Las Vegas, for Respondent International Brotherhood of Electrical
Workers, Local 357, AFL-CIO.
1. Labor Relations.
Statute establishing liability against general contractor to pay fringe benefits to bankrupt subcontractor's employees did not restrict the
enforcement of the statute to actions by the district attorney, but granted a private right of action to union and union trustees. NRS
608.150.
Construction of a statute is a question of law subject to de novo review.
3. Statutes.
When construing statutes, the objective is to give effect to the legislature's intent.
4. Statutes.
When construing statutes, the court will first examine the plain language of the statute. But where the statutory language is ambiguous
or otherwise unclear, the court will construe it according to that which reason and public policy would indicate the legislature intended.
Under such circumstances the intent of the legislature may be determined by examining the entire statutory scheme.
A trial court's award of attorney fees and costs will not be disturbed on appeal unless the trial court abused its discretion in making the
award.
6. Costs.
A trial court is not permitted to award attorney fees or costs unless authorized to do so by a statute, rule, or contract.
7. Costs.
Although an award of costs is mandated when the damages sought exceed $2,500.00, the trial court still retains discretion when
determining the reasonableness of the individual costs to be awarded. NRS 18.020(3).
8. Costs.
Award of attorney fees to union and union trustees was appropriate in action against contractor to recover fringe benefits of bankrupt
subcontractor's employees, in light of reasonableness of contractor's conduct throughout the course of the litigation and its ultimate
failure to obtain a judgment more favorable than the original settlement offer. NRS 18.010(2)(a).
9. Costs.
Fact that total of award of attorney fees, awarded because plaintiffs recovered less than $20,000.00, and award of costs, awarded
because plaintiffs sought to recover more than $2,500.00, exceeded the amount of benefits awarded was not an indication that the
awards were unreasonable under the circumstances. NRS 18.010(2)(a), 18.020(3).
10. Arbitration.
As district court removed the case from arbitration by disposing of the case by summary judgment, the case was no longer subject to
the rules of arbitration and the district court was not prohibited from awarding attorney fees and costs.
11. Arbitration.
While non-dispositive motions may not be brought before the district court when arbitration is pending, the district court may still
dispose of a case by hearing and ruling upon a motion for summary judgment. NAR 4(E).
OPINION
Per Curiam:
FACTS
On May 16, 1997, Horizon Electric, Inc. entered into a subcontract with U.S. Design &
Construction Corporation. Pursuant to the contract, Horizon did electrical work for the
opening of an Abercrombie & Fitch retail store in the Forum Shops at Caesar's Palace in Las
Vegas. However, in August 1997, Horizon's financial condition deteriorated, and it was
unable to continue working on the project. Horizon declared bankruptcy shortly thereafter.
Subsequently, it was discovered that Horizon had neglected to credit the electrical workers,
had neglected to credit the electrical workers, who were all union employees, for vacation and
fringe benefits that were deducted from the employees' paychecks.
On February 23, 1999, the International Brotherhood of Electrical Workers, Local 357,
AFL-CIO (Union) filed a complaint against U.S. Design arguing that U.S. Design was
liable for unpaid vacation and fringe benefits pursuant to NRS 608.150. The trustees for the
International Brotherhood of Electrical Workers, Local 357, Joint Trust Funds (Trustees)
joined in the complaint against U.S. Design, claiming that they were entitled to receive
unpaid fringe benefits. The parties then entered into court-annexed arbitration. On January 3,
2000, the Union and the Trustees moved for partial summary judgment on the issue of U.S.
Design's liability to pay the benefits. The district court granted the motion.
The focus of the litigation then turned to determining the amount of unpaid benefits owed by
U.S. Design, the calculation of which was dependent upon the number of documented
employee work hours. To aid in this determination, the Trustees retained an auditor, who
reached a figure by reviewing Horizon's job cost reports and payroll records. U.S. Design
disagreed with the auditor's calculation and argued that a more accurate figure could be
reached based upon U.S. Design's own job log summaries. Ultimately, the Union and the
Trustees indicated that, for the purpose of establishing the damage amount in the litigation,
they were willing to adopt a figure based upon the number of hours reflected in U.S. Design's
records as stated by U.S. Design's project engineer. However, U.S. Design then asserted that
it had only used the job log summaries to dispute the auditor's earlier calculation, not to
establish an accurate figure.
After finding that U.S. Design had improperly changed its position regarding the calculation
of benefits owed, the district court concluded that U.S. Design had failed to demonstrate a
genuine issue of material fact on the damage issue and therefore entered summary judgment
for the plaintiffs, the Union and the Trustees, on all issues. Subject to offsets for amounts
received in the Horizon bankruptcy proceedings, the district court awarded the Trustees
$16,776.48 and the Union $5,070.24. Thereafter, the Union and the Trustees filed motions for
attorney fees pursuant to NRS 18.010(2)(a) and for costs pursuant to NRS 18.020. The
district court awarded the Trustees $20,248.25 in attorney fees and $7,778.69 in costs and
awarded the Union $14,732.00 in attorney fees and $1,113.90 in costs.
On appeal, U.S. Design asserts that the district court: (1) erred by awarding attorney fees and
costs to the Union and the Trustees because the underlying statute that established U.S.
Design's liability did not grant a private right of action to the Union and the Trustees;
bility did not grant a private right of action to the Union and the Trustees; (2) abused its
discretion in its award of attorney fees and costs under NRS 18.010 and NRS 18.020; and (3)
violated Nevada Arbitration Rules 4 and 16 by awarding attorney fees and costs. We
conclude that all of U.S. Design's arguments are without merit and that the decision of the
district court should be affirmed.
DISCUSSION
Private right of action
[Headnote 1]
U.S. Design argues that the district court abused its discretion by awarding attorney fees and
costs because the award was premised upon the erroneous conclusion that the Union and the
Trustees had a private right of action against U.S. Design. U.S. Design argues that NRS
608.150, which establishes liability against it as a general contractor, restricts the enforcement
of the statute to actions by the district attorney. We disagree.
[Headnotes 2-4]
The construction of a statute is a question of law subject to de novo review.
1
Here, we are
asked if NRS 608.150 grants a private right of action to aggrieved workers. NRS 608.150(3)
states:
The district attorney of any county wherein the defendant may reside or be found shall
institute civil proceedings against any such original contractor failing to comply with
the provisions of this section in a civil action for the amount of all wages and damage
that may be owing or have accrued as a result of the failure of any subcontractor acting
under the original contractor . . . .
When construing statutes, the objective is to give effect to the legislature's intent.
2
The court
will first examine the plain language of the statute; however, where the statutory language is
ambiguous or otherwise unclear, the court will construe it according to that which reason
and public policy would indicate the legislature intended.'
3
Under such circumstances, the
intent of the legislature may be determined by examining the entire statutory scheme.
4

__________

1
County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).

2

3
State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1249-50 (1994) (quoting State,
Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)).

4
SIIS v. Bokelman, 113 Nev. 1116, 1123, 946 P.2d 179, 184 (1997).
U.S. Design contends that only district attorneys may enforce the provisions of NRS 608.150.
We disagree. While the plain language of NRS 608.150 grants a right of enforcement to the
district attorney, it does not preclude or explicitly exclude a private right of enforcement.
Further, to the extent that the plain language of NRS 608.150 is ambiguous as to whether a
private right of action exists, we conclude that the legislature's intent to permit workers to
have a private right of action is readily apparent after reviewing related statutes and the
legislative history of NRS 608.150. For instance, NRS 11.209(1) refers to the right of workers
to bring actions against general contractors for unpaid wages. Additionally, reports from the
Commissioner of Labor prior to and after the adoption of NRS 608.150 reflect a desire to
expand the options available to workers for recovering unpaid wages, not to narrow those
options.
5
Finally, previous cases coming before this court pursuant to this statutory provision
have been brought by workers or their representatives.
6

We therefore conclude that NRS 608.150 grants a private right of action to workers and their
representatives. Accordingly, the district court did not abuse its discretion when it awarded
attorney fees and costs on the understanding that the Union and the Trustees had a private
right of action under NRS 608.150.
Award of costs and attorney fees under NRS 18.010 and NRS 18.020
U.S. Design asserts that the district court abused its discretion in awarding attorney fees under
NRS 18.010 and costs under NRS 18.020 because the awards were excessive. We disagree.
[Headnotes 5, 6]
A district court's award of attorney fees and costs will not be disturbed on appeal unless the
district court abused its discretion in making the award.
7
A district court is not permitted to
award attorney fees or costs unless authorized to do so by a statute, rule or contract.
8

__________

5
See 1929-1930 Nev. Comm'r of Labor Biennial Rep. 7 (expressing concern over the difficulty workers had
when collecting from subcontractors), reprinted in 1 Appendix to Journals S. & Assemb., 35th Sess. (Nev.
1931); 1964-1966 Nev. Comm'r of Labor Biennial Rep. 11 (stating that the Commissioner of Labor may accept
the assignment of a valid claim for wages if the worker is financially unable to pursue the claim himself),
reprinted in 2 Appendix to Journals S. & Assemb., 54th Sess. (Nev. 1967).

6
See, e.g., Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 655 P.2d 996 (1982); Tobler and Oliver v.
Bd. Trustees, 84 Nev. 438, 442 P.2d 904 (1968).

7
Parodi v. Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999).

8
Henry Prods., Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998).
An award of attorney fees under NRS 18.010(2)(a) may be made:
2. In addition to the cases where an allowance is authorized by specific statute, the
court may make an allowance of attorney's fees to a prevailing party:
(a) When he has not recovered more than $20,000.
Here, since the Union and the Trustees each recovered less than $20,000.00,
9
the district
court was acting within its discretion when it awarded attorney fees under the statute.
10

[Headnote 7]
Awards of costs pursuant to NRS 18.020(3) are governed as follows:
Costs must be allowed of course to the prevailing party against any adverse party
against whom judgment is rendered, in the following cases:
. . . .
3. In an action for the recovery of money or damages, where the plaintiff seeks to
recover more than $2,500.
The parties to this appeal do not dispute that the Union and the Trustees each sought over
$2,500.00. Accordingly, an award of costs under NRS 18.020(3) was mandatory. Although an
award of costs is mandated when the damages sought exceed $2,500.00, the district court still
retains discretion when determining the reasonableness of the individual costs to be awarded.
11

[Headnote 8]
Additionally, the district court's award of attorney fees was appropriate under our decision in
Cormier v. Manke.
12
In Cormier, we held that when making an award of attorney fees under
NRS 18.010(2)(a) in a case where a party has rejected a non-statutory settlement offer, the
court must consider the reasonableness of the rejection.
__________

9
The district court entered a judgment of $16,776.48 in favor of the Trustees and $5,070.24 in favor of the
Union.

10
C.f., Parodi, 115 Nev. at 241, 984 P.2d at 175 (aggregating the multiple claims of a single party);
Schouweiler v. Yancey Co., 101 Nev. 827, 830, 712 P.2d 786, 788 (1985) (aggregated claims of class members
constituted a single claim that exceeded NRS 18.010 maximum recovery for purposes of an award of statutory
attorney fees); Peterson v. Freeman, 86 Nev. 850, 477 P.2d 876 (1970) (multiple parties seeking joint recovery
of purchase price of a business).

11
Schwartz v. Estate of Greenspun, 110 Nev. 1042, 1050, 881 P.2d 638, 643 (1994).

12
108 Nev. 316, 830 P.2d 1327 (1992).
sonableness of the rejection.
13
In particular, we held that the court should consider: (1)
whether the offeree eventually recovered more than the rejected offer; and (2) whether the
offeree's rejection unreasonably delayed the litigation with no hope of greater recovery.
14
Here, it is implicit from the district court's findings that it considered the reasonableness of
U.S. Design's conduct throughout the course of the litigation and its ultimate failure to obtain
a judgment more favorable than the original settlement offer. Accordingly, the district court's
award of attorney fees was appropriate under Cormier.
[Headnote 9]
We note that the costs and attorney fees awards in total exceeded the amount of benefits
awarded. There is no indication, however, that the awards were unreasonable under the
circumstances. We, therefore, find no abuse of discretion with regard to either award within
the framework of NRS 18.010 and NRS 18.020.
Nevada Arbitration Rules 4 and 16
[Headnote 10]
Finally, U.S. Design asserts that the district court's award of attorney fees and costs was in
conflict with NAR 4 and 16. In particular, U.S. Design argues that since the parties were
engaged in arbitration, NAR 4(E)
15
should have barred the district court from granting the
Union and the Trustees' motion for attorney fees and costs. Similarly, U.S. Design argues that
the district court's award of attorney fees and costs violated NAR 16(E)
16
because the award
exceeded the $3,000.00 limit on fee awards imposed under the rule. We disagree.
[Headnote 11]
While NAR 4(E) prevents non-dispositive motions from being brought before the district
court when arbitration is pending, the district court may still dispose of a case by hearing and
ruling upon a motion for summary judgment. Here, the district court removed the case from
arbitration by disposing of the case by summary judgment.
__________

13
Id. at 317-18, 830 P.2d at 1328.

14
Id. at 318, 830 P.2d at 1328.

15
NAR 4(E) provides:
During the pendency of arbitration proceedings conducted pursuant to these rules, no motion may be
filed in the district court by any party, except motions that are dispositive of the action . . . .

16
NAR 16(E) states that [a]ttorney's fees awarded by the arbitrator may not exceed $3,000, unless the
compensation of an attorney is governed by an agreement between the parties allowing a greater award.
summary judgment. At that point, the case was no longer subject to the rules of arbitration,
including NAR 4(E) or NAR 16. Therefore, neither NAR 4(E) nor NAR 16 prohibited the
district court from awarding attorney fees and costs to the Union and the Trustees.
Accordingly, we affirm the district court order granting attorney fees and costs to the Union
and the Trustees.
____________
118 Nev. 465, 465 (2002) State v. McKellips
THE STATE OF NEVADA, Appellant, v. ROBERT JOHN McKELLIPS, Respondent.
No. 37886
July 18, 2002
49 P.3d 655
Appeal from a district court order granting a motion to suppress. Second Judicial District
Court, Washoe County; Brent T. Adams, Judge.
In prosecution for driving under the influence (DUI), the district court granted defendant's
motion to suppress. State appealed. The supreme court held that: (1) defendant was
detained, within meaning of temporary detention statute; (2) the detention exceeded the
sixty-minute limit under the temporary detention statute; but (3) the detention ripened into an
arrest that was supported by probable cause.
Reversed.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Appellant.
Law Offices of Scott N. Freeman, P.C., Reno, for Respondent.
1. Criminal Law.
The appellate court will uphold the district court's decision regarding suppression unless the appellate court is left with the definite and
firm conviction that a mistake has been committed.
2. Criminal Law.
Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence.
3. Criminal Law.
Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion.
4. Arrest.
The police can be said to have seized an individual only if, in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave. U.S. Const. amend. 4.
5. Arrest.
The subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct, to determine
whether a seizure has occurred, only to the extent that the officers' intent has been conveyed to the person confronted. U.S. Const.
amend. 4.
6. Arrest.
Motorist was detained, within meaning of temporary detention statute, where an officer remained with motorist for approximately
fifteen minutes until two other officers arrived, at which time motorist was directed to and placed in back of police car to write his
statement regarding the collision, and while motorist was seated in back of police car an officer asked motorist several questions about
the accident and about whether motorist had been drinking or had taken any drugs, though an officer twice communicated to motorist
that he was not under arrest. NRS 171.123.
7. Arrest.
Whether a seizure ripens into a de facto arrest is a question that is reviewed de novo. U.S. Const. amend. 4.
8. Arrest.
There is no bright-line rule for determining when a detention crosses the line and becomes an arrest. U.S. Const. amend. 4.
9. Arrest.
A detention does not transform into a de facto arrest merely because a defendant is placed in a police car. However, if the detention in
the back of a police car exceeds permissible temporary detention limits and becomes unreasonable, then the detention will become an
arrest for which probable cause is necessary. U.S. Const. amend. 14; NRS 171.123.
10. Arrest.
Under the temporary detention statute, if the individual is not released after sixty minutes, then according to the legislature the
detention becomes unreasonable per se, and thus, the detention ripens into an arrest for which probable cause is necessary. U.S. Const.
amend. 4; NRS 171.123.
11. Arrest.
Probable cause to arrest exists when police have reasonably trustworthy information of facts and circumstances that are sufficient in
themselves to warrant a person of reasonable caution to believe that a crime has been committed by the person to be arrested. U.S.
Const. amend. 4.
12. Automobiles.
Officer had probable cause to arrest motorist, even though motorist's detention exceeded the sixty-minute limit under the temporary
detention statute, where motorist admitted he had been driving with a suspended license. U.S. Const. amend. 4; NRS 171.123,
484.791(1)(g).
OPINION
Per Curiam:
Robert John McKellips was charged with four counts of driving under the influence. After a
preliminary hearing, McKellips filed a motion to suppress the results of the urine and
blood tests that showed he had been smoking marijuana.
a motion to suppress the results of the urine and blood tests that showed he had been smoking
marijuana. In his motion, McKellips argued that both his consent to provide the samples and
the actual collection of the samples occurred more than sixty minutes after his detention in
violation of NRS 171.123, the temporary detention statute. The district court granted
McKellips' motion to suppress. The State appeals from the district court's order, arguing that
substantial evidence does not support the district court's finding that McKellips was detained
at the accident scene, and even assuming that he was detained, the detention ripened into a de
facto arrest that was supported by probable cause. We conclude that substantial evidence
supports the district court's finding that McKellips was detained. However, we reverse the
district court's order granting McKellips' motion to suppress because we hold that McKellips'
detention ripened into a de facto arrest and was supported by probable cause.
FACTS
On July 29, 2000, at 2:53 p.m., Officer John McCauley of the Reno Police Department
received a dispatch call regarding an accident at the intersection of Neil Road and McCarran
Boulevard. Officer McCauley arrived within minutes after receiving the dispatch call and
found a major accident in the middle of the intersection involving a green Chevrolet pick-up
and a white four-door sedan. The accident resulted in the death of a mother and her infant.
The driver of the green pick-up, McKellips, approached Officer McCauley shortly after
Officer McCauley arrived at the scene (sometime between 3:03 p.m. and 3:08 p.m.).
McKellips could not produce his Nevada driver's license to Officer McCauley because, as
McKellips explained, it was suspended; but, he instead produced a Nevada identification
card. McKellips told Officer McCauley that he ran the red light because he thought that he
could make it and that the light changed directly from green to red, skipping yellow.
Officer McCauley then handed McKellips an accident statement form to complete. Officer
McCauley remained with McKellips for approximately fifteen minutes until Officer Sistare
arrived, at which time McKellips was placed in the back seat of Officer Sistare's police car
where he continued filling out the accident statement form.
Around 3:30 p.m., Officer Kevin McMillin arrived at the accident scene. Officer McMillin
approached McKellips, who was still seated in the back of the patrol car with the doors
closed. Officer McMillin asked McKellips if he had been drinking or had taken any drugs, to
which McKellips responded in the negative.
Officer McMillin then had McKellips perform a Horizontal Gaze Nystagmus (HGN) test.
Officer McMillin placed McKellips back in the patrol car, but due to the heat he left the door
open, though some officers were standing next to the door.
Officer Lanny Marsh received a call at his home at 3:42 p.m. requesting that he respond to the
accident scene in his capacity as a DUI enforcement officer and member of the Major
Accident Investigation Team (MAIT). He arrived at the accident scene at 4:15 p.m. in his
personal car. Approximately ten minutes after he arrived, he approached McKellips, who was
still in the patrol car with the door closed. After Officer Marsh advised him that he was not
under arrest, McKellips told Officer Marsh what had happened.
Officer Marsh performed two tests on McKellips at the scene. First, he performed an HGN
test on McKellips, which McKellips failed. Second, at 4:28 p.m. McKellips submitted to a
preliminary breath test, and that test registered zero. During this time, Officer Marsh noted
that McKellips showed no signs of being under the influence of either alcohol or a controlled
substance.
After Officer Marsh again informed McKellips that he was not under arrest, Officer Marsh
asked him if he would submit to blood and urine testing at the police station. McKellips
consented. As a result, at 4:36 p.m. a phlebotomist was contacted and requested to proceed to
the police station to obtain blood samples from McKellips. After the phlebotomist was
contacted, Officer Marsh escorted McKellips to the police station. The phlebotomist arrived
at 5:00 p.m. and drew McKellips' blood three times. McKellips also provided one urine
sample.
Meanwhile, upon calling the records bureau of the Reno Police Department, Officer Marsh
was advised that McKellips' driver's license had been revoked. Officer Marsh also conducted
a warrants check on McKellips, and he found that an outstanding misdemeanor warrant had
been issued for McKellips' arrest. At 6:45 p.m., Officer Marsh arrested McKellips for running
a red light and driving with a revoked license. The outstanding warrant was later added to the
booking charge. After the arrest, the blood and urine test results showed that McKellips had
marijuana in his system.
The State charged McKellips by complaint with two counts of driving while under the
influence of a prohibited substance causing death, one count of driving under the influence of
a prohibited substance causing substantial bodily harm, and one count of using and/or being
under the influence of a controlled substance. The justice court conducted a preliminary
examination and found probable cause to hold McKellips over for trial on all charges.
McKellips filed a motion to suppress the results of the urine and blood tests, arguing that they
were taken after the sixty-minute time limit under NRS 171.123, the temporary detention
statute. After an evidentiary hearing, the district court granted McKellips' motion to suppress.
In doing so, the district court found that McKellips had been detained sometime between 3:00
p.m. and 3:10 p.m., the time when he had been directed to the police car to write his
statement. The district court noted that Officer McCauley had testified that he subjectively
did not believe that McKellips was free to leave at that particular point. The district court also
found that McKellips' consent was obtained no later than 4:36 p.m. Based on these
calculations, the district court concluded that the State failed to prove by a preponderance of
the evidence that McKellips' detention did not exceed one hour prior to 4:36 p.m. The State
appealed.
DISCUSSION
The State first argues that the district court erred in its conclusion that McKellips was
detained because the district court improperly considered and relied on the subjective intent
of the police officers that McKellips was not free to leave, even though that intent was not
communicated to McKellips. We note that contrary to McKellips' assertions, the State
properly preserved this argument because the State made the same argument below.
[Headnotes 1-3]
This court will uphold the district court's decision regarding suppression unless this court is
left with the definite and firm conviction that a mistake has been committed.
1

[F]indings of fact in a suppression hearing will not be disturbed on appeal if supported by
substantial evidence.'
2
Substantial evidence is that evidence which a reasonable mind
might accept as adequate to support a conclusion.
3

[Headnote 4]
The United States Supreme Court has clearly articulated the appropriate test to be applied in
determining whether a seizure or a detention has occurred. The test provides that the police
can be said to have seized an individual only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.
__________

1
United States v. Gypsum Co., 333 U.S. 364, 395 (1948), quoted in State v. Harnisch, 113 Nev. 214, 219,
931 P.2d 1359, 1363 (1997).

2
Harnisch, 113 Nev. at 219, 931 P.2d at 1363 (quoting State v. Miller, 110 Nev. 690, 694, 877 P.2d 1044,
1047 (1994)).

3
Bopp v. Lino, 110 Nev. 1246, 1249, 885 P.2d 559, 561 (1994).
would have believed that he was not free to leave.'
4
As the test is an objective
standardlooking to a reasonable person's interpretation of the situation in questionit
allows law enforcement to consistently determine in advance whether their conduct
implicates the Fourth Amendment.
5
The Supreme Court explained further, This reasonable
person' standard also ensures that the scope of Fourth Amendment protection does not vary
with the state of mind of the particular individual being approached.
6

[Headnote 5]
The Supreme Court has noted that the subjective intent of the officers is relevant to an
assessment of the Fourth Amendment implications of police conduct only to the extent that
that intent has been conveyed to the person confronted.
7
On this note, the State contends
that the district court erred when it considered the officers' testimonies that they believed that
McKellips was not free to leave, which was not communicated to McKellips. We note that it
may have been error for the district court to consider the officers' subjective intent because it
appears that their intent was not conveyed to McKellips; however, we conclude that it was
harmless error in light of the other objective factors the district court considered.
[Headnote 6]
Even assuming that the district court erroneously considered the officers' subjective intent, we
conclude that substantial evidence supports the district court's finding that McKellips was
detained. Officer McCauley remained with McKellips for approximately fifteen minutes until
two other officers arrived, at which time McKellips was directed to and placed in the back of
Officer Sistare's police car to write his statement. McKellips was seated in the back of the
police car for over an hour. While McKellips was seated in the back of the police car, Officer
Marsh asked McKellips several questions about the accident and about whether McKellips
had been drinking or had taken any drugs. Even though Officer Marsh twice communicated to
McKellips that he was not under arrest, substantial evidence supports the district court's
findings that McKellips was detained because a reasonable person in McKellips' position
would not have believed he was free to leave.
__________

4
Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980) (opinion of Stewart, J.)); see also State v. Stinnett, 104 Nev. 398, 401, 760 P.2d 124, 126 (1988)
(applying the Chesternut test).

5
Chesternut, 486 U.S. at 574.

6
Id.

7
Id. at 575 n.7.
The district court granted McKellips' motion to suppress because it found that his detention
exceeded sixty minutes in violation of NRS 171.123, the temporary detention statute. The
State contends that McKellips' detention simply ripened into a de facto arrest and that the
district court should have continued its analysis to determine whether the de facto arrest was
supported by probable cause. We agree.
[Headnotes 7, 8]
Whether a seizure ripens into a de facto arrest is a question that is reviewed de novo.
8
There
is no bright-line [rule] for determining when [a detention] crosses the line and becomes an
arrest.'
9
The Supreme Court noted that this determination may in some instances create
difficult line-drawing problems in distinguishing [a detention] from a de facto arrest.
10

[Headnote 9]
This court has noted that in determining whether detention has ripened into arrest, [t]here
has been an arrest if, under the circumstances, a reasonable person would conclude that he
was not free to leave after brief questioning.'
11
Applying this test, the Ninth Circuit has
held that a detention does not transform into a de facto arrest merely because a defendant is
placed in a police car.
12
However, if the detention in the back of a police car exceeds
permissible temporary detention limits and becomes unreasonable, then the detention will
become an arrest for which probable cause is necessary.
13

We have previously noted that when a temporary detention becomes excessive in length,
scope, and purpose, the detention ripens into an arrest for which probable cause is required.
14
Notwithstanding this test, the Nevada Legislature has set forth a rule that a sixty-minute
detention is per se unreasonable. NRS 171.123 states in pertinent part:
1. Any peace officer may detain any person whom the officer encounters under
circumstances which reasonably indicate that the person has committed, is
committing or is about to commit a crime.
__________

8
U.S. v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996).

9
Id. (quoting U.S. v. Hatfield, 815 F.2d 1068, 1070 (6th Cir. 1987)).

10
United States v. Sharpe, 470 U.S. 675, 685 (1985).

11
Arterburn v. State, 111 Nev. 1121, 1125-26, 901 P.2d 668, 670 (1995) (quoting U.S. v. Del Vizo, 918 F.2d
821, 824 (9th Cir. 1990)).

12
U.S. v. Baron, 860 F.2d 911, 915 (9th Cir. 1988).

13
See United States v. Chamberlin, 644 F.2d 1262, 1266-67 (9th Cir. 1980) (holding that a twenty-minute
detention in the back seat of a patrol car constituted an arrest).

14
See Arterburn, 111 Nev. at 1125, 901 P.2d at 670; see also Rice v. State, 113 Nev. 425, 429, 936 P.2d 319,
321 (1997) (noting that if probable cause matures, the detention can ripen into an arrest).
indicate that the person has committed, is committing or is about to commit a crime.
. . . .
4. A person must not be detained longer than is reasonably necessary to effect the
purposes of this section, and in no event longer than 60 minutes. . . . unless the person
is arrested.
[Headnote 10]
Accordingly, under NRS 171.123, once an individual has been detained, the officer has sixty
minutes to either release or arrest the individual. If the individual is not released after sixty
minutes, then according to the legislature the detention becomes unreasonable per se,
15
and
thus the detention ripens into an arrest for which probable cause is necessary. Because the
district court concluded that McKellips' detention exceeded the sixty-minute time limit, we
conclude that the detention ripened into an arrest for which probable cause was necessary.
[Headnote 11]
Because McKellips' detention ripened into a de facto arrest, we must now determine whether
his arrest was supported by probable cause. Probable cause to arrest exists when police have
reasonably trustworthy information of facts and circumstances that are sufficient in
themselves to warrant a person of reasonable caution to believe that [a crime] has been . . .
committed by the person to be arrested.
16
McKellips contends that probable cause did not
exist because Officer Marsh testified that he did not believe that he had probable cause to
arrest McKellips at the scene. However, the Supreme Court has noted that the fact that the
officers did not believe there was probable cause and proceeded on a [temporary detention]
rationale would not foreclose the State from justifying [a person's] custody by proving
probable cause.
17

[Headnote 12]
We conclude that the police officers had probable cause to arrest McKellips because he was
driving his car with a suspended license. McKellips voluntarily approached Officer McCauley
(sometime between 3:03 p.m. and 3:08 p.m.), and when Officer McCauley requested
McKellips' driver's license, McKellips produced a Nevada identification card, explaining that
his license had been suspended.
__________

15
See Barrios-Lomeli v. State, 114 Nev. 779, 780, 961 P.2d 750, 750 (1998) (stating that under NRS
171.123, a detention longer than sixty minutes is unreasonable per se according to the clear intent of the
legislature), denying reh'g 113 Nev. 952, 944 P.2d 791 (1997).

16
Doleman v. State, 107 Nev. 409, 413, 812 P.2d 1287, 1289 (1991).

17
Florida v. Royer, 460 U.S. 491, 507 (1983).
been suspended. NRS 484.791(1)(g) allows a police officer to arrest a person without a
warrant if the officer has reasonable cause to believe that the person has been driving with a
suspended license. McKellips admitted to Officer McCauley that he had been driving with a
suspended license, thus probable cause was present to arrest him on that offense.
CONCLUSION
We hold that once a detention exceeds the sixty-minute time limit under NRS 171.123, the
detention ripens into a de facto arrest for which probable cause is necessary. Thus, having
concluded that probable cause supported McKellips' de facto arrest, we reverse the district
court's order granting McKellips' motion to suppress.
____________
118 Nev. 473, 473 (2002) Williams v. Clark County Dist. Attorney
KEVIN MICHAEL WILLIAMS, Appellant, v. CLARK COUNTY DISTRICT ATTORNEY,
STEWART L. BELL; JAMES A. FERRENCE; MYRNA WILLIAMS; and NEVADA
STUPAK, Respondents.
No. 39897
July 25, 2002
50 P.3d 536
Appeal from a district court order sustaining a challenge to appellant's candidacy for county
commissioner, and directing the Clark County Registrar of Voters to remove appellant's name
from the September 2002 primary ballot. Eighth Judicial District Court, Clark County;
Michael L. Douglas, Judge.
The supreme court held that: (1) challenge was timely filed; (2) citizen's challenge to
candidacy was sufficient, although affidavit accompanying challenge may not have averred
that citizen had personal knowledge that candidate did not reside at address listed in
declaration of candidacy; (3) citizen substantially complied with statute governing challenges
when he attached private investigator's affidavit regarding residency six days after he
submitted his own affidavit; and (4) evidence was sufficient to support finding that address
listed on declaration was not candidate's legal residence and thus that candidate did not live in
district.
Affirmed.
Michael Stein & Associates, Ltd., Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark
County, for Respondent Clark County District Attorney, Stewart L. Bell.
Dominic P. Gentile, Ltd., Las Vegas, for Respondents Myrna Williams and James A.
Ferrence.
Nevada Stupak, Las Vegas, in Proper Person.
1. Time.
Challenge to candidacy for county commissioner was timely filed within five-day period provided by statute, which allows a voter to
file a written challenge to a candidate's qualifications not later than five days after the last day the candidate may withdraw his or her
candidacy, although challenge was filed six days after the last day for candidate to withdraw his candidacy. Six-day period included
Saturday and Sunday, which were excluded from calculation. NRS 293.182(1).
2. Time.
Saturday, Sunday, and non-judicial days are excluded from the five-day calculation contained in statute granting five days for an
elector to file a challenge to a person's candidacy for an office. NRS 293.182(1).
3. Counties.
Citizen's challenge to candidacy for county commissioner was sufficient, although affidavit may have merely stated citizen's belief
rather than his personal knowledge that candidate did not reside at the address listed in his declaration of candidacy; citizen
supplemented his affidavit with private investigator's affidavit, which provided detailed information about investigator's unsuccessful
attempts to reach candidate at the declared address and his research that revealed no connection between candidate and the address in
the public record. NRS 293.182(2).
4. Counties.
Citizen substantially complied with statute when he submitted private investigator's affidavit six days after he submitted his own
affidavit and challenge to individual's declaration of candidacy for county commissioner, although statute required that all supporting
documentation and evidence be attached to the affidavit; purpose of statute was to provide district attorney with timely information,
and district attorney had an opportunity to review the affidavits before filing petition challenging the candidacy. NRS 293.182(2).
5. Elections.
Only substantial compliance is required with statutory provision specifying that an affidavit supporting a challenge to an individual's
candidacy for elective office will have attached all supporting documentation and evidence at the time it is filed. NRS 293.182(2).
6. Elections.
Purpose of statutory requirement that all supporting documentation and evidence be attached to an affidavit challenging an individual's
qualifications to be a candidate for elective office is to provide the district attorney with information to make a timely probable cause
determination concerning the qualifications. NRS 293.182(2).
7. Counties.
District attorney's challenge to individual's candidacy for county commissioner was not invalid for lack of probable cause, although
district attorney referenced a scintilla of evidence standard at first hearing on whether individual lived at address listed on declaration
for candidacy; district attorney later clarified standard as probable cause,
candidacy; district attorney later clarified standard as probable cause, and district attorney considered two affidavits concerning the
address. NRS 293.182(2).
8. Officers and Public Employees.
A candidate must meet both actual residency requirements as well as legal domicile requirements in order to run for a particular office.
NRS 281.050(1), (4), 293.1755(1).
9. Domicile.
Legal domicile, also known as legal residence, requires both the fact of living at a place and the intention to remain there. If one leaves
a domicile temporarily, one must have the intention to return.
10. Domicile.
If a person temporarily leaves a legal domicile or leaves for a particular purpose, and does not take up a permanent residence
somewhere else, then that person's legal domicile has not changed.
11. Domicile.
Once a legal domicile is fixed, the fact of living elsewhere, the intention to remain in the other residence and the intention to abandon
the former domicile must all exist before the legal domicile can change.
12. Domicile.
Actual residence is the place of actual living, of physical presence. Unlike domicile, it does not require an intent to remain or return.
13. Domicile.
A person may have an actual residence in one place and a legal residence in another, and a person may have several actual residences,
but a person may have only one legal residence or domicile.
14. Counties.
Evidence was sufficient to support finding that apartment address listed on declaration of candidacy for county commissioner was not
candidate's legal residence and thus that he failed to qualify as a district resident, although candidate stated that he split his time
between that apartment and house outside district; there was evidence that candidate's fiancee and cat lived at house, that his bills were
sent there, that telephone listing and driver's license identified the house address, and that he recently named house as primary
residence on mortgage application and filed homestead declaration. NRS 281.050, 293.1755.
Portion of statute that stated that the place a candidate declares to be his principal permanent habitation when filing a declaration of
candidacy shall be deemed to be his actual residence if the candidate maintains more than one place of permanent habitation was
limited by definition of actual residence, which preceded it in statute. Thus, a candidate's selection of a principal permanent
habitation under the statute must also meet the requirements of legal domicile. NRS 281.050(4).
16. Statutes.
A statute's construction is governed by legislative intent, which is discerned from the entire statute rather than from a single provision.
17. Statutes.
In determining the legislature's intent in enacting a statute, the court should consider what reason and public policy indicate was
intended, and should avoid reaching absurd results.
18. Statutes.
The court is obliged to construe statutory provisions so that they are compatible, provided that in doing so, it does not violate the
legislature's intent.
19. Statutes.
In construing a statute, the court should not render any part of a statute ineffective if such consequence can be avoided.
20. Statutes.
A statute's express definition of a term controls the construction of that term no matter where the term appears in the statute.
21. Statutes.
In interpreting a statute, the court generally presumes that a statutory term has its common-law meaning.
OPINION
Per Curiam:
In this appeal, we examine the statutory residency requirements for the office of county
commissioner as well as the requisites for sustaining a residency challenge. Because we
conclude that the district court properly allowed the challenge and correctly determined that
the statutory residency requirements were not met, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2002, appellant Kevin Michael Williams filed a declaration of candidacy for the
office of County Commissioner, Clark County District E. In his declaration, he stated that his
actual residence was 3950 Koval Lane, Apt. 3018, in Las Vegas, Clark County, Nevada, and
that, as required by statute, his residence began on a date at least thirty days immediately
preceding the closing date for filing candidacy declarations.
Candidacy registration for the county commissioner office closed on May 20, 2002. On June
6, 2002, James Ferrence filed an affidavit with the election department, stating his belief that
Williams did not reside at the address under which he filed for office. Ferrence is a principal
with an advertising company that represents the current District E County Commissioner,
Myrna Williams. While Ferrence attached no documentation to his affidavit, on June 12,
2002, he provided a second affidavit by a private investigator, David Groover.
On June 13, 2002, the district attorney filed a petition in the district court for an order to show
cause regarding the validity of Williams' candidacy under NRS 293.182(4), based on the
residency issue. Williams owns a house in Henderson, Nevada, in which he lived full-time
until April 2002, when he apparently moved, on a part-time basis, to the Koval Lane
apartment. The Koval Lane apartment is located in District E, but the Henderson house is not.
The district court entered an order directing Williams to show cause why Ferrence's challenge
was not valid, and set the matter for an evidentiary hearing. Williams filed a response to the
show cause order and a motion to dismiss the petition on the basis that it was untimely.
Myrna Williams then filed a response to Williams' motion to dismiss. After conducting an
evidentiary hearing, the district court entered an order sustaining the challenge to Williams'
candidacy under NRS 293.182, and directed the Clark County Registrar of Voters to remove
Williams' name from the September 2002 ballot. The district court concluded that the Koval
Lane apartment address identified in Williams' declaration of candidacy was not his legal
address and that he did not live in the commission district for which he filed. Williams filed
this appeal.
We conclude that the challenge was timely under NRS 293.182(1), that the challenge
substantially complied with the procedural requisites of NRS 293.182(2), and that, as a matter
of law, the address stated in Williams' declaration of candidacy failed to meet the statutory
actual residency requirements. Accordingly, we affirm the district court's order.
DISCUSSION
Timeliness of challenge
[Headnote 1]
Williams first contends that Ferrence's challenge to his candidacy was untimely because it
was not filed within the five-day period provided in NRS 293.182(1). NRS 293.182(1) allows
a voter to file a written challenge to a candidate's qualifications not later than five days after
the last day the candidate may withdraw his or her candidacy:
After a person files a declaration of candidacy or an acceptance of candidacy to be a
candidate for an office, and not later than 5 days after the last day the person may
withdraw his candidacy pursuant to NRS 293.202, an elector may file with the filing
officer for the office a written challenge of the person on the grounds that the person
fails to meet any qualification required for the office pursuant to the constitution or a
statute of this state, including, without limitation, a requirement concerning age or
residency.
Under NRS 293.202, a candidate may withdraw his or her candidacy for office in writing
within 7 days, excluding Saturdays, Sundays and holidays, after the last day for filing. NRS
293.177(1) provides that the last day a candidate can file a declaration for candidacy is the
third Monday in May at 5:00 p.m.
Applying these deadlines to this case, the third Monday in May fell on May 20, 2002, and so
the last day for Williams to withdraw his candidacy was Thursday, May 30, 2002. Thus, a
written challenge to Williams' qualifications under NRS 293.182 was due five days after May
30, 2002. The parties dispute whether this five-day period excludes Saturday, Sunday, and
non-judicial days from its calculation. If we apply a straight five-day period, as Williams
argues, then the deadline for filing a challenge fell on Tuesday, June 4, 2002. If, on the other
hand, Saturday, June 1, and Sunday, June 2, are excluded from the five-day calculation, as
Myrna Williams argues, then the last day for filing a challenge fell on Thursday, June 6,
2002. Because Ferrence's challenge was filed on June 6, 2002, how the five-day period is
calculated determines whether the challenge was timely.
[Headnote 2]
We conclude that Saturday, Sunday, and non-judicial days are excluded from the five-day
calculation under NRS 293.182(1). The construction of the five-day time period in NRS
293.182(1) is a legal question, subject to independent appellate review.
1
We have previously
held that when a statute does not specify how to compute a particular time period, NRCP 6(a)
governs the computation.
2
In fact, NRCP 6(a)'s express language provides that when a
statute's time period is less than seven days, then Saturdays, Sundays, and non-judicial days
are excluded from the computation.
In Rogers v. State,
3
we applied NRCP 6(a) to calculate the time under a statute requiring tort
claims against the state to be brought within six months (NRS 41.036). More importantly,
however, we overruled Kirk v. Parsons,
4
a 1960 election case in which we had refused to
apply NRCP 6(a) to an election statute that required a candidate, who desired to contest
another candidate's nomination, to proceed within five days after completion of the canvass.
5
We stated that Kirk was wrongly decided because the special election law referenced in Kirk
did not specify how to compute the time.
6
Here, by analogy, NRS 293.182(1) does not
specify how to compute the five days, and thus NRCP 6(a) applies.
We are mindful that NRS 293.182(4) gives the district attorney 5 working days after
receiving the challenge to petition the district court to order the candidate's court appearance,
and that our interpretation of "5 days"
__________

1
See Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).

2
Rogers v. State, 85 Nev. 361, 364, 455 P.2d 172, 173 (1969).

3
Id.

4
76 Nev. 442, 357 P.2d 120 (1960).

5
See NRS 294.295 (repealed 1961).

6
Rogers, 85 Nev. at 364, 455 P.2d at 174.
interpretation of 5 days in section 1 renders superfluous the word working in section 4.
7
However, when the legislature adopted NRS 293.182(1) in 2001, it used the same 5 days
language we had previously construed in the context of the former election statute in Kirk and
Rogers. It is reasonable to assume that the legislature was aware that we applied NRCP 6(a)
in calculating the time period, and employed its language in a consistent manner.
8
Thus, we
conclude that NRCP 6(a) applies to exclude Saturday, Sunday, and non-judicial days from the
five-day calculation under NRS 293.182(1), and Ferrence's June 6, 2002 challenge was
timely.
Compliance with procedural requisites of NRS 293.182(2)
[Headnote 3]
Williams next contends that Ferrence's challenge was insufficient under NRS 293.182(2)
because Ferrence's June 6, 2002 affidavit merely stated his belief rather than his personal
knowledge that Williams did not reside at the address listed in his declaration of candidacy.
Williams further contends that Ferrence failed to attach any supporting documentation or
evidence to his affidavit as required by the statute. Although, on June 12, 2002, Ferrence
submitted the private investigator's supporting affidavit, Williams argues that the submission
was untimely.
NRS 293.182(2) requires that a challenge must indicate the qualification(s) the candidate fails
to meet, have attached all documentation and evidence supporting the challenge, and be in the
form of an affidavit. First, it is questionable whether Ferrence's affidavit was sufficient, as it
was based on belief rather than personal knowledge. NRS 293.182(2) is silent as to whether it
permits affidavits on information and belief or requires the affidavits to be based on personal
knowledge.
9
Other courts have permitted affidavits on information and belief when the
facts would otherwise be difficult or impossible to establish.
__________

7
Cf. County of Clark v. Doumani, 114 Nev. 46, 51, 952 P.2d 13, 16 (1998) (providing that the court should
interpret a statute to avoid rendering any language nugatory).

8
See Silvera v. EICON, 118 Nev. 105, 109, 40 P.3d 429, 432 (2002) (stating that when the legislature amends
a statute without changing the language previously interpreted by the supreme court, it is presumed that the
legislature approves the court's interpretation); Agricultural Ins. Co. v. Biltz, 57 Nev. 370, 387, 64 P.2d 1042,
1048 (providing that the court must presume that the legislature employed words in a manner previously
construed by the court), modified on other grounds sub nom. Insurance Cos. v. Biltz, 57 Nev. 389, 64 P.2d 568
(1937).

9
See City of Santa Cruz v. Municipal Court, 776 P.2d 222, 230 (Cal. 1989) (acknowledging that the
legislature may expressly authorize the use of affidavits based on information and belief or may require
affidavits based on personal knowledge). Compare NRS 31.330 (providing that affidavit charging a garnishee
with liability may be made upon information and belief), with NRCP 56(e) (stating that affidavits supporting or
opposing a summary judgment motion shall be made on personal knowledge).
affidavits on information and belief when the facts would otherwise be difficult or impossible
to establish.
10
Here, however, facts pertaining to Williams' residency at the Koval Lane
apartment were not impossible to establish, as demonstrated by the private investigator's
affidavit detailing the investigator's attempts to connect Williams to the Koval Lane
apartment.
Even assuming that Ferrence's affidavit alone was insufficient, we conclude that Ferrence
substantially complied with the statute by supplementing his affidavit with the private
investigator's.
11
The private investigator's affidavit provided detailed information about his
unsuccessful attempts to reach Williams at the Koval Lane apartment and his research
revealing no connection between Williams and the Koval Lane apartment in the public
record.
[Headnotes 4, 5]
Ferrence did not attach the private investigator's affidavit to his own affidavit, but submitted
it six days later. While NRS 293.182(2) contemplates that the challenging affidavit will have
attached all supporting documentation and evidence at the time it is filed, only substantial
compliance with this statutory provision is required. Courts have defined substantial
compliance as compliance with essential matters necessary to ensure that every reasonable
objective of the statute is met.
12
In the context of other election laws, we have required only
substantial compliance with statutory requirements.
13
For instance, in Cirac v. Lander
County,
14
we applied a rule of substantial compliance to a statutory provision concerning the
qualifications for electors to sign a petition for relocation of a county seat. We reasoned that a
rule of substantial compliance best furthers the purpose of insuring that only registered
voters are engaged in the qualifying procedures.
15

[Headnotes 6, 7]
Here, Ferrence's challenge substantially complied with the statute. NRS 293.182(2)'s
requirement that all supporting documentation and evidence be attached to the affidavit is
meant to provide the district attorney with information to make a timely probable cause
determination concerning a candidate's qualifications for office.
__________

10
City of Santa Cruz, 776 P.2d at 230.

11
See generally NRCP 56(e) (providing that affidavits supporting or opposing a summary judgment motion
may be supplemented with further affidavits).

12
See, e.g., Orr v. Heiman, 12 P.3d 387, 389 (Kan. 2000); Rogers v. Roberts, 717 P.2d 620, 622 (Or. 1986);
Baker v. Atkinson, 625 N.W.2d 265, 272 (S.D. 2001).

13
See Cirac v. Lander County, 95 Nev. 723, 731, 602 P.2d 1012, 1017 (1979); Cleland v. District Court, 92
Nev. 454, 456, 552 P.2d 488, 490 (1976).

14
95 Nev. 723, 602 P.2d 1012.

15
Id. at 731, 602 P.2d at 1017.
provide the district attorney with information to make a timely probable cause determination
concerning a candidate's qualifications for office. Indeed, if the district attorney determines
that probable cause supports the challenge, the attorney must petition the district court, within
five working days after receiving the challenge, for an order directing the candidate to appear.
16
Here, Ferrence ultimately submitted the private investigator's affidavit, and the district
attorney had an opportunity to review the affidavit before filing the petition. Thus, Ferrence's
challenge met the statute's objective.
17

Statutory residency requirements
Williams finally contends that the district court erred in determining that he did not legally
reside at the Koval Lane address for purposes of NRS 293.1755 and NRS 281.050. In its
written order, the district court concluded that the Koval Lane apartment address Williams
listed in his declaration of candidacy was not his legal address and that he therefore does
not live in the commission district for which he filed. Although the district court's written
order does not explain the court's reasoning further, the court, in its oral ruling, explained that
the Koval Lane address was not Williams' legal address because Williams did not have
permission from the apartment's owner for an assignment or sublease. Although we agree
with the district court's conclusion, we do so for other reasons.
18

[Headnote 8]
Our review of this residency issue necessarily turns on a reading of two related statutes, NRS
293.1755 and NRS 281.050. NRS 293.1755 requires that a candidate actually reside in the
area to which the office pertains at least thirty days before the close of filing for candidacy:
[N]o person may be a candidate for any office unless, for at least the 30 days
immediately preceding the date of the close of filing of declarations of candidacy or
acceptances of candidacy for the office which he seeks, he has, in accordance with NRS
2S1.050,
__________

16
NRS 293.182(4).

17
We reject Williams' argument that the district attorney did not have probable cause to support the
challenge. Even though the district attorney referenced a scintilla of evidence standard at the first hearing, the
district attorney later clarified at the evidentiary hearing that the correct standard was probable cause. Moreover,
given the supplementary private investigator's affidavit, we conclude that the district attorney had enough
information to make a valid probable cause determination.

18
See, e.g., Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (noting that this court will
affirm a district court's order if the district court reached the correct result, even if for different reasons).
dance with NRS 281.050, actually, as opposed to constructively, resided in the state,
district, county, township or other area prescribed by law to which the office pertains
and, if elected, over which he will have jurisdiction or which he will represent.
NRS 281.050(1) explains that the residence of a person with reference to his eligibility to
office is his actual residence within the state or county or district, as the case may be, during
all the period for which residence is claimed by him. Although section 1 focuses on the term
actual residence, NRS 281.050(4) defines actual residence in conjunction with legal
domicile: [A]ctual residence' means the place where a person is legally domiciled and
maintains a permanent habitation. Under this definition, a candidate must meet both actual
residency requirements as well as legal domicile requirements in order to run for a particular
office. NRS 293.1755(1)'s use of the term actually resided and reference to NRS 281.050,
when viewed in conjunction with the statutory requirement and definition of actual
residence in NRS 281.050, requires that the candidate have what is both an actual residence
and legal domicile in the pertinent district for at least thirty days before the close of filing for
candidacy.
[Headnotes 9-13]
Legal domicile, also known as legal residence, requires both the fact of living at a place and
the intention to remain there; if one leaves a domicile temporarily, one must have the
intention to return.
19
Similarly, if a person temporarily leaves a legal domicile or leaves for a
particular purpose, and does not take up a permanent residence somewhere else, then that
person's legal domicile has not changed.
20
In other words, once a legal domicile is fixed, the
fact of living elsewhere, the intention to remain in the other residence and the intention to
abandon the former domicile must all exist before the legal domicile can change.
21
Actual
residence, in contrast, is the place of actual living, of physical presenceit does not require
an intent to remain or return.
22
A person may have an actual residence in one place and a
legal residence in another,
__________

19
Presson v. Presson, 38 Nev. 203, 207, 147 P. 1081, 1082 (1915); Fleming v. Fleming, 36 Nev. 135, 140,
134 P. 445, 447 (1913); see also Haack v. Ranieri, 200 A.2d 522, 531-32 (N.J. Super. Ct. Law Div. 1964);
DeBlois v. Clark, 764 A.2d 727, 734 (R.I. 2001).

20
Presson, 38 Nev. at 207, 147 P. at 1082.

21
Id.; Blount v. Boston, 718 A.2d 1111 (Md. 1998); see also DeBlois, 764 A.2d at 735.

22
Fleming, 36 Nev. at 140, 134 P. at 447; Farnsworth v. Jones, 441 S.E.2d 597, 600 (N.C. Ct. App. 1994).

another, and a person may have several actual residences, but a person may have only one
legal residence or domicile.
23

Similarly, Black's Law Dictionary defines domicile as follows: A person's legal home.
That place where a man has his true, fixed, and permanent home and principal establishment,
and to which whenever he is absent he has the intention of returning. . . . A person may have
more than one residence but only one domicile. . . . It is his legal residence, as distinguished
from his temporary place of abode . . . .
24

[Headnote 14]
By requiring actual residence as well as legal domicile, NRS 281.050 focuses on the one
place where a person is located and intends to remain permanently. Under NRS 293.1755 and
NRS 281.050, Williams failed to qualify as a resident of District E in Clark County at least
thirty days before the close of candidacy filings.
Evidence introduced at the district court's hearing showed that Williams' legal domicile
before April 2002 was his house in Henderson. Williams testified that he spends two nights
or more at the Koval Lane apartment each week and approximately two nights each week at
the Henderson house. His fiance and cat still live at the Henderson house. Williams' bills are
sent to the Henderson house, his telephone listing identifies the Henderson address, and the
Henderson address is still listed with his employer. Additionally, in early April 2002,
Williams obtained a second mortgage on the Henderson house, named it as his primary
residence and filed a homestead declaration. During the thirty-day period under NRS
293.1755, Williams' driver's license reflected his Henderson address. Although Williams
listed the Henderson house for sale in June 2002, suggesting an intent to change his domicile,
this event occurred well outside the statutory thirty-day window.
Based upon these facts, Williams never changed his legal domicile from the Henderson house
to the Koval Lane apartment, for he still physically resides at his Henderson house and
intends to return there on a weekly basis. Even if he could be deemed to have left his
Henderson house, it is only on a part-time basis for a particular purpose (to run for
commissioner in District E), and he did not take up permanent residence at the Koval Lane
apartment.
25
Although the district court did not make express factual findings on the issue of
domicile, the record before us, even construing the facts in Williams' favor, demonstrates
that, as a matter of law,
__________

23
Fleming, 36 Nev. at 140, 134 P. at 447; Herpin v. Boudreaux, 709 So. 2d 269, 271 (La. Ct. App. 1998);
DeBlois, 764 A.2d at 734.

24
Black's Law Dictionary 484-85 (6th ed. 1990).

25
Presson, 38 Nev. at 207, 147 P. at 1082.
struing the facts in Williams' favor, demonstrates that, as a matter of law,
26
the Koval Lane
apartment was not Williams' legal domicile at least thirty days before the close of candidacy
filings.
27
Williams did not timely abandon his Henderson house with the intention to remain
permanently in the Koval Lane apartment.
28
His legal domicile remained in Henderson.
[Headnote 15]
Nevertheless, Williams points to the second portion of NRS 281.050(4), which, interestingly,
states that [i]f the [candidate] maintains more than one [permanent] habitation, the place he
declares to be his principal permanent habitation when filing a declaration or affidavit
pursuant to NRS 293.177 or 293C.185 shall be deemed to be his actual residence. According
to Williams, he maintains more than one place of permanent habitation, and he declared the
Koval Lane address to be his actual, as opposed to constructive, residence in his candidacy
declaration. Williams therefore contends that the Koval Lane address must be considered his
actual residence.
This second part of NRS 281.050(4), if read alone, is facially inconsistent with the first part
of NRS 281.050(4), which requires an actual residence to be the place where a candidate is
legally domiciled. In other words, if a candidate with more than one permanent habitation
can simply choose which habitation is the actual residence for purposes of candidacy,
without any consideration of legal domicile, then the requirement of legal domicile, within
the definition of actual residence, ceases to exist.
[Headnotes 16-21]
When faced with inconsistent statutory provisions, we turn to the rules of construction. A
statute's construction is governed by legislative intent, and we discern this intent from the
entire statute, not from a single provision.
29
In determining the legislature's intent,
__________

26
See Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 376, 793 P.2d 1324, 1327 (1990) (drawing a
conclusion as a matter of law, based on the facts in the record and the language of a statute, that appellant was
not entitled to relief).

27
See, e.g., Mobley v. Armstrong, 978 S.W.2d 307, 310 (Ky. 1998) (noting that [i]f someone's actions
conclusively show he resides in one place, his intention to live in another place may not override these facts);
Blount v. Boston, 718 A.2d 1111, 1115 (Md. 1998) (stating that determinative factor in determining a person's
domicile is intent, and that intent may be more ascertainable by the individual's acts than his words); DeBlois,
764 A.2d at 735 (acknowledging that a person's intent regarding domicile must necessarily be shown by
objective manifestations of that intent).

28
Blount, 718 A.2d 1111; see also DeBlois, 764 A.2d at 735.

29
A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971).
ture's intent, we should consider what reason and public policy indicate was intended, and we
should avoid reaching absurd results.
30
We are obliged to construe statutory provisions so
that they are compatible, provided that in doing so, we do not violate the legislature's intent.
31
Additionally, we should not render any part of a statute ineffective if such consequence can
be avoided.
32
A statute's express definition of a term controls the construction of that term no
matter where the term appears in the statute.
33
Finally, we generally presume that a statutory
term has its common-law meaning.
34

With these concepts in mind, we examine the provisions of NRS 281.050(4). The legislature's
definition of actual residence controls that term throughout the provision, and the term
legally domiciled contained in that definition is presumed to have its common-law
meaning. Thus, although the latter portion of the section suggests that a person with more
than one permanent habitation can choose his or her actual residence when filing for
candidacy, such an interpretation would fail to give effect to the meaning of actual
residence, which requires that it be a candidate's legal domicile. The necessity of legal
domicile would be rendered ineffective. As previously stated, a person can have but one
legal domicile, and cannot simply declare this legal domicile, because it, by definition,
depends on permanency and intent.
35

Here, only one reading of NRS 281.050(4) retains meaning in both the first and second parts
and provides harmony between the two. The second part, that candidates with more than one
permanent habitation may designate one of them to be deemed their actual residence, must be
limited by the definition of actual residence that precedes it. Thus, a candidate's selection of
a principal permanent habitation under the statute must also meet the requirements of legal
domicile.
__________

30
Gallagher v. City of Las Vegas, 114 Nev. 595, 599-600, 959 P.2d 519, 521 (1998).

31
Bowyer v. Taack, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); City Council of Reno v. Reno
Newspapers, 105 Nev. 886, 892, 784 P.2d 974, 978 (1989).

32
Rodgers v. Rodgers, 110 Nev. 1370, 1373, 887 P.2d 269, 271 (1994).

33
1A Norman J. Singer, Statutes and Statutory Construction 20:8, at 135-36 (6th ed. 2002).

34
Evans v. United States, 504 U.S. 255, 259 (1992); Lorillard v. Pons, 434 U.S. 575, 583 (1978).

35
Presson v. Presson, 38 Nev. 203, 207, 147 P. 1081, 1082 (1915); Herpin v. Boudreaux, 709 So. 2d 269,
271 (La. Ct. App. 1998); DeBlois v. Clark, 764 A.2d 727, 734 (R.I. 2001).
This reading of the statute gives effect to the legislature's intent, to require both physical
presence and intent to remain at a residence, and to avoid sham residences.
36
It also avoids
absurd results: if candidates with more than one residence could simply choose from among
them for purposes of actual residence, then they could declare as their primary residence a
place where they spend relatively little time and have few community associations. Such a
result would conflict with the public policy behind residency requirements for candidates,
which is to ensure that elected officials reside in the communities or districts that elected
them so they [are] connected' with their constituents and have particular knowledge of their
affairs.'
37

As discussed above, Williams failed to change his legal domicile to the Koval Lane
apartment at least thirty days before the close of candidacy filings. Consequently, the
apartment cannot constitute his actual residence under the statutes, and the district court
properly upheld the challenge to his residency.
CONCLUSION
Having concluded that the challenge to Williams' candidacy was timely and procedurally
sufficient, and that Williams' Koval Lane apartment address did not meet the statutory
residency requirements, we affirm the district court's order sustaining the challenge and
directing that Williams' name be removed from the ballot.
38

I agree with the majority's conclusion that the Koval Lane apartment in Las Vegas was not
Kevin Williams' legal domicile (your home is where your cat lives, and for Kevin that was
not at Koval Lane), and also its analysis of NRS 281.050(4). However, I do not believe
NRCP 6(a)a court ruleshould be used in this instance to enlarge the time for filing from
5 to 7 days when the legislature clearly expressed an intent to provide an election challenger
only 5 days to act. I conclude that Ferrence's challenge was untimely,
__________

36
The amendment was discussed at both the 1997 and 1999 legislative session, but approved in 1999.
Hearing on A.B. 614 Before the Senate Comm. on Government Affairs, 70th Leg. (Nev., May 13, 1999);
Hearing on A.B. 23 Before the Senate Comm. on Government Affairs, 69th Leg. (Nev., March 3, 1997).

37
James Thomas Tucker, Redefining American Democracy: Do Alternative Voting Systems Capture the True
Meaning of Representation?, 7 Mich. J. Race & L. 357, 389 (2002) (citation omitted).

38
The Honorable Nancy A. Becker, Justice, voluntarily recused herself from participation in the decision of
this matter.
was untimely, and accordingly I would reverse the district court's decision.
The 2001 legislation expressly provided that a person has 5 days after the last date that a
candidate may withdraw his or her candidacy to file a legal challenge under NRS 293.182.
Sections (1) and (4) of that statute provide as follows:
1. After a person files a declaration of candidacy or an acceptance of candidacy to be a
candidate for an office, and not later than 5 days after the last day the person may
withdraw his candidacy pursuant to NRS 293.202, an elector may file with the filing
officer for the office a written challenge of the person on the grounds that the person
fails to meet any qualification required for the office pursuant to the constitution or a
statute of this state, including, without limitation, a requirement concerning age or
residency.
. . . .
4. If the attorney general or district attorney determines that probable cause exists to
support the challenge, the attorney general or district attorney shall, not later than 5
working days after receiving the challenge, petition a court of competent jurisdiction to
order the person to appear before the court.
1

The statute, on its face, demonstrates that the legislature knew the difference between 5 days
and 5 working days, and chose to give only 5 days within which to file a challenge. When a
clear intent to set a specific time limit is shown by a statute, we should accept it and enforce
the legislative directive. It is a long-standing legal rule that clear and unambiguous legislation
should be enforced as written,
2
and that no word or clause should be made superfluous by
our interpretation.
3
The majority baldly admits that its reading does make the word
working superfluous when NRCP 6(a) is applied, but the majority goes ahead and applies it
anyway. This sort of judicial legislation should be avoided when possible, and it is possible in
this case.
I would limit our holding in Rogers v. State
4
so that NRCP 6(a) is applied only to those time
limits where no clear intent is shown by the legislature to exclude additional days. The
legislature used both 5 days and 5 working days in the same statute, and we have often
said that the legislature is presumed to know what it is doing and purposefully uses the
specific language.
__________

1
Emphases added.

2

3
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970).

4
85 Nev. 361, 455 P.2d 172 (1969).
doing and purposefully uses the specific language.
5
As if the statute were not enough, the
legislative history of this law also demonstrates that the legislators were well aware of the
difference between 5 days and 5 working days, debated the point, and chose the more
stringent 5-day limit to apply to section (1).
6

And in the future, how will the legislature provide for a 5-day limit when that is exactly what
the legislators want? Must the statute say 5 days, and we really mean just 5 days, or must
the legislature make the limit 3 days, knowing that the courts will automatically add 2 days to
any time limit?
This does not leave Myrna Williams or Ferrence without any remedy. NRS 281.050(3)
specifically contemplates that an action for declaratory judgment may be filed in the district
court to challenge the claimed residency of a candidate. While this will necessitate the filing
of another action, it is an alternative legal path available to those who have not filed a
challenge under NRS 293.182(1) within the strict 5-day time limit.
____________
118 Nev. 488, 488 (2002) Glover v. Concerned Citizens for Fuji Park
ALAN GLOVER, Carson City Clerk, and the CARSON CITY BOARD OF SUPERVISORS,
Appellants, v. CONCERNED CITIZENS FOR FUJI PARK AND FAIRGROUNDS, a
Nevada Corporation, Respondent.
No. 39601
July 25, 2002
50 P.3d 546
Appeal from a district court order granting a writ of mandamus and directing appellants to
place an initiative concerning the preservation of Fuji Park and Carson City Fairgrounds on
the ballot. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
The supreme court held that: (1) statute prohibiting a political subdivision from incurring an
expense or making an expenditure to support or oppose a ballot question did not prevent city
from challenging the validity of the proposed initiative before it was placed on ballot; (2) the
proposed initiative was administrative in nature and therefore beyond the constitutional
initiative power (3) the proposed initiative would violate the city charter; and (4) pre-election
intervention is warranted to declare void an initiative petition that concerns an administrative
rather than a legislative act, disapproving of Barrows v. District Court,
__________

5
City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985).

6
Hearing on A.B. 487 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 2, 2001).
act, disapproving of Barrows v. District Court, 112 Nev. 339, 913 P.2d 1296 (1996).
Reversed.
Noel S. Waters, District Attorney, Mark R. Forsberg, Chief Deputy District Attorney, and
Melanie L. F. Bruketta, Deputy District Attorney, Carson City, for Appellants.
Smith & Harmer, Carson City, for Respondent.
Statute prohibiting a political subdivision from incurring an expense or making an expenditure to support or oppose a ballot question
merely prevents the government from incurring an expense to support or oppose, for political reasons, a ballot question already placed
on a ballot. It does not prevent the government from incurring expenses to challenge a ballot question's validity in a legal action prior to
the question's inclusion on the ballot. NRS 293.725.
2. Statutes.
When the language of a statute is unambiguous, a court should give that language its ordinary meaning.
3. Statutes.
If the statutory language is susceptible to more than one reasonable interpretation, it is ambiguous, and the court must construe it in
accordance with what reason and public policy indicate the legislature intended.
4. Statutes.
A statute's language should not be read to produce absurd or unreasonable results.
5. Counties.
Proposed initiative to enact a county ordinance preserving park in perpetuity was an administrative act rather than a legislative act,
and thus, the proposed initiative was not within the constitutional initiative power of the people; the proposed initiative involved a land
use decision that had been legislatively delegated to local government by statute, county's decisions regarding its land were
administrative, to be made in accordance with existing state statutes governing zoning, planning, redevelopment, preservation, and sale
of county property, and the proposed initiative did not set forth new course of policy regarding county property, and instead called for
preservation of one specific park and fairgrounds. Const. art. 19, 4; NRS 244.265, 244.270, 244.281, 278.030 et seq.
Proposed initiative to enact a city ordinance preserving park in perpetuity violated city charter by prohibiting city from selling its real
property, and also constituted an improper attempt to bind future city boards of supervisors. Rather, the proper means to achieve the
purposes of the proposed initiative was to amend the city charter. Const. art. 4, 37[A].
7. Counties.
Pre-election court intervention was warranted to prevent city, which was considered a county under state statutes, from placing on
ballot an initiative to enact an ordinance preserving park in perpetuity, where the proposed initiative improperly concerned
an administrative matter
the proposed initiative improperly concerned an administrative matter and therefore was beyond the constitutional power of the people
to enact legislation by initiative, and the proposed initiative would violate the city charter. Const. art. 4, 37[A], art. 19, 4.
Courts generally permit pre-election review for challenges asserting that an initiative measure does not fall within the proper subject
matter for legislation. Const. art. 19, 4.
Pre-election intervention is warranted to declare void an initiative petition that concerns an administrative rather than a legislative act;
disapproving of Barrows v. District Court, 112 Nev. 339, 913 P.2d 1296 (1996). Const. art. 19, 4.
OPINION
Per Curiam:
Concerned Citizens for Fuji Park and Fairgrounds submitted an initiative petition to the
Carson City Clerk/Recorder, which proposed that an ordinance be enacted to preserve Fuji
Park and Carson City Fairgrounds in perpetuity. Because the Carson City Board of
Supervisors took no action on the initiative petition, Concerned Citizens filed the underlying
petition for a writ of mandamus in the district court to compel the Clerk to place the initiative
on the ballot. The district court granted the writ of mandamus and directed the Clerk and
Board to place the initiative on the ballot.
The Clerk and Board filed the instant appeal challenging the district court's order and seeking
to prevent the initiative from being placed on the ballot. We conclude that the initiative
concerns an administrative matter and exceeds the electorate's initiative power, and that the
proposed ordinance improperly restricts the Board's authority under the Carson City Charter
to sell real property. We further conclude that pre-election court intervention is warranted to
preclude the initiative's inclusion on the ballot. Consequently, we reverse the district court's
order.
FACTS
Concerned Citizens for Fuji Park and Fairgrounds, respondents, submitted an initiative
petition to the Carson City Clerk/Recorder that proposed enactment of the following
ordinance:
The People of the City of Carson City, State of Nevada, do enact as follows: That Fuji
Park and Carson City Fairgrounds
(Carson City APN 9-303-2, 3, 5 & 7; Douglas County APN 13-210-01) be maintained
and improved in not less than its present size as a park in perpetuity.
The Clerk determined that the petition complied with the requirements of NRS chapter 295,
and certified the petition to the Carson City Board of Supervisors. The Board took no action
on the petition, and apparently voted against placing the initiative on the ballot.
Concerned Citizens then filed the underlying petition for a writ of mandamus in the district
court against the Clerk and Board, seeking to compel the Clerk to place the initiative on the
September 3, 2002 primary election ballot. Concerned Citizens cited NRS 295.115, which
provides that if the Board fails to adopt a certified initiative petition, the petition shall be
placed on the next primary or general election ballot.
The district court issued a writ of mandamus, directing the Clerk and the Board (collectively
Carson City) to place the proposed ordinance on the September 3, 2002 ballot, or show cause
why they refused to do so. Carson City moved to quash the writ and dismiss the petition on
the basis that the initiative process may not be used to control the sale or use of Fuji Park or
the Fairgrounds because it concerned an administrative rather than a legislative matter.
After conducting a hearing, the district court entered a written order granting the writ of
mandamus and directing Carson City, under NRS 295.115, to place the initiative petition on
the election ballot. Carson City filed the instant appeal challenging the district court's order,
and seeking to prevent the initiative's placement on the ballot.
DISCUSSION
Interpretation of NRS 293.725
[Headnote 1]
As a preliminary matter, Concerned Citizens argue that NRS 293.725 precludes Carson City
from spending money to oppose this initiative petition. That statute provides, [t]he
government of this state or a political subdivision of this state or an agency thereof shall not
incur an expense or make an expenditure to support or oppose: 1. A ballot question [or] 2. A
candidate. In response, Carson City asserts that it should be allowed to defend the action
brought against it. Carson City further argues that this case does not involve Carson City's
support or opposition to a ballot question, but involves issues concerning the initiative's
constitutionality.
[Headnotes 2-4]
NRS 293.725 is a new statute, enacted in 2001.
1
It is well established that when the language
of a statute is unambiguous, a court should give that language its ordinary meaning.
2
If the
statutory language is susceptible to more than one reasonable interpretation, however, it is
ambiguous, and we must construe it in accordance with what reason and public policy
indicate the legislature intended.
3
Further, the statute's language should not be read to
produce absurd or unreasonable results.
4

Here, we conclude that the language prohibiting the government from incurring an expense
to support or oppose a ballot question is ambiguous. It could, read narrowly, refer only to
the government's expenditure to politically support or oppose a ballot question already placed
on a ballot and set for an election. Construed broadly, the language could refer to any
government expenditure relating to a ballot question, including expense incurred in
challenging a ballot question's validity in a legal action prior to the question's inclusion on the
ballot.
Since the language of NRS 293.725 is ambiguous, we look to the legislature's intent, which
supports a narrow construction of the statutory language to prevent the government from
incurring expense to support or oppose, for political reasons, a ballot question already placed
on a ballot. The legislative history reveals that the statute was intended to prevent the
government from spending money on campaigning, directly or indirectly, for or against a
ballot question or candidate. There is some indication that the bill was introduced in response
to past elections in which a city sponsored and paid for televised events that featured
incumbent candidates in a positive light with one-sided election discussions, and circulated a
city employee newsletter just two weeks before the election with only the incumbents
featured.
5
Thus, the legislature did not intend to prevent the government from incurring
expense in challenging the validity of a ballot question in court. A broader reading of the
statute could lead to an absurd result,
__________

1
2001 Nev. Stat., ch. 294, 3, at 1347.

2

3
Id. at 649, 730 P.2d at 442 (citing Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983)).

4
Attorney General v. Board of Regents, 114 Nev. 388, 392, 956 P.2d 770, 774 (1998).

5
Hearing on A.B. 443 Before the Assembly Comm. on Elections, Procedures, and Ethics, 71st Leg. (Nev.,
May 3, 2001) (testimony of Mike Tracey, Reno resident and prior candidate for Reno City Council, read into the
record); Hearing on A.B. 443 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 9, 2001)
(testimony from Douglas G. Smith, a lobbyist for the Citizens for a Scenic Reno).
reading of the statute could lead to an absurd result, as it would prevent the government from
ever challenging an initiative's validity before placement on the ballot. Thus, NRS 293.725
does not bar Carson City's court opposition to the initiative petition in this case.
Legislative versus administrative acts
[Headnote 5]
We next address Carson City's argument that the initiative petition is not within the scope of
the initiative power because it concerns an administrative rather than a legislative act.
Initiative is the power of the people to propose and enact new laws.
6
The power is contained
within Article 19, Section 2(1) of the Nevada Constitution: [T]he people reserve to
themselves the power to propose, by initiative petition, statutes and amendments to statutes
and amendments to this constitution, and to enact or reject them at the polls. The initiative
powers provided in Article 19 are further reserved to the registered voters of each county
and each municipality as to all local, special and municipal legislation of every kind in or for
such county or municipality.
7

Carson City is considered a county under the Nevada Revised Statutes.
8
The procedures
for county initiatives are found in NRS 295.075 to NRS 295.125. Generally, NRS 295.085(1)
allows county registered voters to propose ordinances to the board of county commissioners
and, if the board fails to adopt the proposed ordinance without change in substance, the voters
may adopt or reject the proposed ordinance at the next primary or general election. In
particular, if an initiative petition is procedurally sufficient, the board shall promptly consider
it.
9
But if the board fails to adopt the proposed initiative ordinance without any change in
substance within thirty days, the board shall submit the proposed . . . ordinance to the
registered voters of the county.
10
The county-wide vote on the proposed ordinance must be
held at the next primary or general election.
11

This statutory authority requires the Board to place a procedurally sufficient initiative petition
on the ballot. Here, the parties stipulated to the initiative petition's procedural sufficiency.
Carson City argues, however, that it should not be compelled to place the initiative on the
ballot because it concerns an administrative rather than a legislative act, and is thus not
within the scope of the initiative power.
__________

6
Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 537, 516 P.2d 1234, 1236 (1973).

7

8
NRS 0.033.

9
NRS 295.115(1).

10
Id. (emphasis added).

11
NRS 295.115(2).
initiative on the ballot because it concerns an administrative rather than a legislative act, and
is thus not within the scope of the initiative power.
The Nevada Constitution expressly reserves to county and municipality voters the power to
enact all local, special and municipal legislation of every kind.
12
We held in Forman v.
Eagle Thrifty Drugs & Markets
13
that this initiative power applies only to legislation;
administrative acts are excepted from the initiative process.
14
Forman involved an initiative
that amended certain Reno zoning laws to prohibit commercial or industrial use of property
within 300 feet of elementary or junior high schools.
15
The citizens sought to prevent
construction of a supermarket near a school. To determine whether a municipal ordinance is
legislative or administrative, we set forth the following test:
An ordinance originating or enacting a permanent law or laying down a rule of
conduct or course of policy for the guidance of the citizens or their officers and agents
is purely legislative in character and referable, but an ordinance which simply puts into
execution previously-declared policies, or previously-enacted laws, is administrative or
executive in character, and not referable.
16

We concluded that the initiative process does not apply to matters legislatively delegated to
governing boards, such as the power to zone. Additionally, we noted that the legislature had
already enacted extensive enabling legislation for zoning regulation, and [u]nless that
general law is affected by repeal or amendment by the legislature, or by referendum or
initiative by the people of the state, the statute guides the zoning processes of the cities and
directs the means by which it is to be accomplished.
17
Guided by these principles, we held
the initiative in Forman to be administrative in nature, stating that [t]he legislature has
delegated the power to zone to the legislative bodies of cities and towns,
__________

12
Nev. Const. art. 19, 4 (emphasis added).

13
89 Nev. 533, 516 P.2d 1234 (1973).

14
Id. at 537, 516 P.2d at 1236. Other states are in accord. See, e.g., CJE v. County of Orange, 115 Cal. Rptr.
2d 90, 106 (Ct. App. 2002) (providing that the electorate has no power to initiate administrative acts); Hilton
Head Island v. Expressway Opponents, 415 S.E.2d 801, 806 (S.C. 1992) (stating that administrative measures
are not proper subjects for initiated ordinances); see also 42 Am. Jur. 2d Initiative and Referendum 7, 8
(2000); 5 Eugene McQuillin, The Law of Municipal Corporations 16.49, at 276, 16.55, at 296 (3d rev. ed.
1996).

15
Forman, 89 Nev. at 535, 516 P.2d at 1235.

16
Id. at 537, 516 P.2d at 1236 (quoting Denman v. Quin, 116 S.W.2d 783, 786 (Tex. App. 1938)).

17
Id. at 539, 516 P.2d at 1238.
power to zone to the legislative bodies of cities and towns, so that the need for a
comprehensive plan might be met, and has provided means for the protection of private
property through notice and public hearing.
18

Under the principles set forth in Forman, we conclude that the initiative to preserve Fuji Park
and Carson City Fairgrounds in perpetuity is not legislation. Rather, it constitutes an
administrative act and is not subject to the initiative power of the people. The initiative
involves a land use decision that has been legislatively delegated to the local government by
statute. Carson City's decisions regarding its land are administrative, to be made in
accordance with existing state statutes governing zoning, planning, redevelopment,
preservation and sale of county property. The board of county commissioners, for instance,
has the statutory power to control, manage, take care of, and preserve the county's real
property.
19
NRS 244.281 gives the board authority and discretion to sell or exchange the
county's property by resolution if the sale will be in the county's best interest, and that statute,
as well as NRS 244.282, prescribes the manner of sale and requires notice and a public
meeting under certain circumstances. Additionally, NRS 278.030 to NRS 278.265 provide for
the creation of a planning commission to adopt long-term development plans and zoning
regulations, and to consider any changes. These statutory provisions reflect the legislature's
delegation of decisions concerning the use, sale and preservation of Carson City's real
property to the local government, and provide the means to execute those decisions.
Further, the initiative does not set forth a new course of policy to guide citizens or their
officers and agents regarding the way in which Carson City makes decisions about its real
property. Rather, the initiative calls for the preservation of one specific park and fairgrounds.
To allow the electorate to invoke such an administrative act by initiative would destroy or
impede the efficient administration of governmental affairs.
20

Our 1996 decision in Barrows v. District Court,
21
cited by Concerned Citizens, is not to the
contrary. We did not specifically address in Barrows whether the referendum at issue was
administrative or legislative. Barrows involved a referendum petition to repeal an ordinance
that created a regional landfill and imposed a tax to fund it.
__________

18
Id. at 539, 516 P.2d at 1237.

19
NRS 244.265; NRS 244.270.

20
See City of San Diego v. Dunkl, 103 Cal. Rptr. 2d 269, 280 (Ct. App.), cert. denied, 534 U.S. 892 (2001);
Wilson v. Manning, 657 P.2d 251, 254 (Utah 1982).

21
112 Nev. 339, 913 P.2d 1296 (1996).
tax to fund it. The board of county commissioners voted to keep the referendum off the ballot
because the ordinance was administrative rather than legislative, and not subject to repeal by
referendum.
22
In our recitation of the procedural history, we referred to a prior unpublished
decision in the matter, in which we ordered the county clerk to place the referendum on the
ballot, finding it unwise and unnecessary to resolve whether the ordinance was administrative
or legislative prior to the election.
23
We issued the Barrows opinion after the referendum
passed, and held that the voters' repeal of the landfill ordinance mandated a refund of the
taxes already collected under the ordinance.
24
But we did not expressly consider or decide in
Barrows whether the landfill referendum was administrative or legislative, as that issue was
apparently not raised in the post-election legal proceedings. Thus, Barrows does not change
our decision in the instant case.
Violation of Carson City Charter
[Headnote 6]
In a related argument, Carson City contends that the ordinance proposed by the initiative
petition violates the Carson City Charter by prohibiting the City from selling its real property.
We agree. In City & County of San Francisco v. Patterson,
25
the California Court of Appeal
invalidated an initiative petition that would have restricted the ability of the City, County, and
Unified School District of San Francisco (collectively San Francisco) to lease and sell its
property. The initiative petition specifically provided that San Francisco could not lease any
of its real property for longer than five years or sell any of its real property for less than ninety
percent of its fair market value, unless the transfer was approved by the voters.
26
The court
held that a municipality's charter is its constitution; thus, any restriction on the board's
authority to sell or lease property under the charter must be accomplished by charter
amendment, not by the proposed initiative ordinance.
27
The court noted that the board of
supervisors had the power to sell property for less than ninety percent of its appraised value if
the sale served a public purpose. Thus, [t]he initiative ordinance as drafted sought to change
this discretionary power of the board granted by the charter.
__________

22
Id. at 341, 913 P.2d at 1297.

23
Id. at 341 n.3, 913 P.2d at 1297 n.3 (citing Blackmore v. Bath, Docket No. 26214 (Order Granting Petition
for Writ of Mandamus, October 13, 1994)).

24
Id. at 343-44, 913 P.2d at 1298-99.

25
248 Cal. Rptr. 290 (Ct. App. 1988).

26
Id. at 291.

27
Id. at 294-95.
power of the board granted by the charter. Such attempt to amend the charter by the proposed
initiative measure [was] patently invalid.
28

Here, the initiative petition proposes enactment of an ordinance to preserve Fuji Park and
Carson City Fairgrounds in perpetuity. But the Carson City Charter specifically gives the
Carson City Board of Supervisors authority to control, hold, sell, lease, and dispose of Carson
City's real property.
29
The legislature expressly established the charter for the government of
Carson City,
30
and the Nevada Constitution grants Carson City all powers conferred by its
charter.
31
Thus, any restriction on the Board's discretionary authority to sell or lease property
under the charter must be accomplished by charter amendment, not by an initiative ordinance.
32

Moreover, this type of perpetual restriction would necessarily bind future boards, and neither
the electorate nor the board itself can bind any future boards in this manner, except by
amending the charter.
33
For this additional reason, the initiative petition is invalid.
Pre-election intervention
[Headnote 7]
Having concluded that the initiative petition is administrative and not subject to the initiative
process and improperly restricts the Board's authority to sell Carson City's property under the
charter, we next determine whether to intervene and declare the initiative void prior to the
election. We have recognized a general rule against pre-election court intervention unless the
initiative clearly and palpably violates the constitution.
34
And recently, we intervened
pre-election to declare void an initiative petition that did not meet a threshold constitutional
funding requirement, as the initiative required a legislative appropriation without raising a
sufficient tax to fund the appropriation.
__________

28
Id. at 295-96.

29
Carson City Charter 2.140.

30
Id. 1.010(1).

31
Nev. Const. art. 4, 37[A].

32
City & Cty. of San Francisco v. Patterson, 248 Cal. Rptr. 290, 295 (Ct. App. 1988).

33
Id. at 296.

34
Compare Las Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990) (declining
to intervene pre-election in a constitutional challenge to a corporate tax initiative that arguably might have
applied in a constitutional manner), with Stumpf v. Lau, 108 Nev. 826, 839 P.2d 120 (1992) (intervening
pre-election to declare void an initiative petition imposing term limits on federal elected officials because it
clearly and palpably violated the United States Constitution).
sufficient tax to fund the appropriation.
35
But we have not previously addressed whether
pre-election court intervention is warranted when an initiative petition improperly proposes
an administrative measure, or otherwise exceeds the electorate's power. In Barrows, we cited
a prior unpublished order in which we found it unwise and unnecessary to resolve whether an
ordinance was administrative or legislative before the election.
36
But we did not expressly
hold that pre-election intervention was unwarranted, and any inference to that effect is
nonbinding dictum.
[Headnotes 8, 9]
Courts generally permit pre-election review for challenges asserting that an initiative measure
does not fall within the proper subject matter for legislation.
37
In particular, many courts will
void, before an election, initiative petitions that do not propose legislation, but are
administrative in nature.
38
We agree with these courts and conclude that pre-election
intervention is warranted to declare void an initiative petition that concerns an administrative
rather than a legislative act. As the initiative power under Article 19, Section 4 of the Nevada
Constitution applies only to legislation, the electorate simply does not have the power to
enact administrative acts through the initiative process. Nor does the electorate have the
power to enact an ordinance restricting the Board's authority to sell property under the
charter.
39
There is little value in putting a measure before the people that they have no power
to enact.
40
Thus, the requirement that an initiative propose only legislation is a threshold
requirement, and an initiative that fails to meet the threshold is void.
__________

35
Rogers v. Heller, 117 Nev. 169, 18 P.3d 1034 (2001); Nev. Const. art. 19, 6.

36
112 Nev. at 341 n.3, 913 P.2d at 1297 n.3.

37
James D. Gordon III & David B. Magleby, Pre-election Judicial Review of Initiatives and Referendums, 64
Notre Dame L. Rev. 298, 313 (1989).

38
See, e.g., Transamerica Title Ins. Co. v. Tucson, 757 P.2d 1055 (Ariz. 1988) (enjoining initiative measure
that sought to amend zoning ordinances); Hazelwood Yellow Ribbon Committee v. Klos, 35 S.W.3d 457, 468
(Mo. Ct. App. 2000) (stating general rule against pre-election review of ballot measures, but recognizing
exception for administrative/legislative determination); Lane Transit Dist. v. Lane County, 957 P.2d 1217, 1218
& n.1 (Or. 1998) (noting that initiatives concerning administrative matters are properly excluded from the
ballot); Priorities First v. City of Spokane, 968 P.2d 431, 433 (Wash. Ct. App. 1998) (stating that courts will
rule on the constitutionality of proposed initiatives before enactment when it affects administrative rather than
legislative matters).

39
See City & Cty. of San Francisco v. Patterson, 248 Cal. Rptr. 290, 293 (Ct. App. 1988).

40
See City of San Diego v. Dunkl, 103 Cal. Rptr. 2d 269, 276-77 (Ct. App.), cert. denied, 534 U.S. 892
(2001).
fails to meet the threshold is void.
41
To the extent the dictum in Barrows
42
is inconsistent
with our decision today, we disapprove it. Accordingly, we intervene pre-election in the
instant case to declare the initiative petition void as beyond the scope of the electorate's
initiative power.
43

CONCLUSION
We conclude that NRS 293.725 does not preclude Carson City from challenging the
initiative's validity in this legal proceeding. We further conclude that the initiative to preserve
Fuji Park and Carson City Fairgrounds in perpetuity exceeds the electorate's initiative power
because it concerns an administrative rather than a legislative act and usurps the Board's
authority to sell property under the Carson City Charter. We finally conclude that pre-election
intervention is warranted to preclude the initiative's inclusion on the ballot. Accordingly, we
reverse the district court's order that directed appellants to place the initiative on the ballot.
I would reverse, but only on the following grounds.
The initiative petition proposes enactment of an ordinance to preserve Fuji Park and Carson
City Fairgrounds in perpetuity. Such ordinance clearly usurps the Carson City Board of
Supervisor's power to alienate Carson City's real property. This power is vested in the board
through the Carson City Charter, providing that the board has the power to control, sell, lease,
and dispose of its real property.
1
The legislature expressly established the charter for the
government of Carson City,
2
and the Nevada Constitution grants Carson City all powers
conferred by its charter.
3
Thus, any restriction on the board's discretionary authority to sell or
lease property under the charter must be accomplished by charter amendment, not by an
initiative ordinance.
4

__________

41
See Rogers, 117 Nev. at 173, 18 P.3d at 1036 (holding that the funding requirement under Nevada
Constitution Article 19, Section 6 is a threshold content restriction, and an initiative that does not comply is
void).

42
112 Nev. at 341 n.3, 913 P.2d at 1297 n.3.

43
Given our conclusion that the initiative petition concerns an administrative matter and violates the Carson
City Charter, we need not address Carson City's additional argument that the initiative petition requires Carson
City to appropriate money to preserve the park without providing the necessary tax or stream of revenue to fund
the appropriation. See Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212 (1979) (stating that this court will
not decide constitutional issues that are unnecessary to the determination of an appeal).

1
Carson City Charter 2.140.

2
Id. 1.010(1).

3
Nev. Const. art. 4, 37[A].

4
City & Cty. of San Francisco v. Patterson, 248 Cal. Rptr. 290, 294 (Ct. App. 1988).
Moreover, this type of perpetual restriction will necessarily bind future boards, and neither
the electorate nor the board itself can bind any future boards in this manner, except by
amending the charter.
5
Consequently, the electorate has no power to adopt the proposed
initiative ordinance. If Concerned Citizens seek to change the board's prerogative as to its
property, they must address such a proposed change through a proper charter amendment.
____________
118 Nev. 500, 500 (2002) Gebers v. State
PATRICIA GEBERS, aka PATRICIA BURKLAND, aka KIM WILKES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 34836
RUSSELL KIPER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35950
August 2, 2002
50 P.3d 1092
Consolidated proper person appeals from orders of the district court denying post-conviction
petitions for writs of habeas corpus. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Petitioners sought post-conviction writs of habeas corpus, alleging ineffective assistance of
trial or direct appellate counsel. The district court denied the petitions following evidentiary
hearings at which the petitioners were not present. Petitioners appealed. The supreme court
held that: (1) the presence of the petitioner for habeas corpus relief is required, by statute, at
any evidentiary hearing conducted on the merits of the claims asserted in the petition; and (2)
the failure of the trial court to provide for the presence of the petitioners at the evidentiary
hearings was not harmless.
Patricia Gebers, Las Vegas, in Proper Person.
Russell Kiper, Indian Springs, in Proper Person.
__________

5
Id. at 296.
Robert L. Langford, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
1. Habeas Corpus.
The presence of the petitioner for habeas corpus relief is required, by statute, at any evidentiary hearing conducted on the merits of the
claims asserted in the petition. NRS 34.390(2), 34.400, 34.470, 34.770(1), (3).
2. Habeas Corpus.
Failure of trial court to provide for presence of habeas corpus petitioner, at evidentiary hearing on merits of ineffective assistance of
counsel claims asserted in the petition, was not harmless error. Petitioner may have been able to bolster her claims by presenting
additional evidence or testimony or by cross-examining and impeaching her former counsel's testimony. U.S. Const. amend. 6; NRS
34.390(2), 34.400, 34.470, 34.770(1), (3).
3. Habeas Corpus.
If a petitioner for writ of habeas corpus can demonstrate that he was denied the right to a direct appeal due to the ineffective assistance
of counsel, then the petitioner is entitled to the appointment of counsel to assist him in filing a petition for writ of habeas corpus raising
direct appeal claims, regardless of whether he initially asserted any direct appeal claims in his petition for writ of habeas corpus. U.S.
Const. amend. 6.
OPINION
Per Curiam:
In separate proceedings below, appellants filed proper person post-conviction petitions for
writs of habeas corpus alleging, in part, that the attorneys that represented them in the
proceedings leading to their convictions had provided ineffective assistance of counsel.
1
The
district court conducted hearings concerning appellants' petitions. At both hearings, the
district court received evidence and testimony, including testimony from appellants' former
counsel regarding the merits of the claims raised in appellants' petitions. Appellants, however,
were not present at these hearings, nor was post-conviction counsel appointed to represent
appellants at the hearings. Thereafter, the district court denied appellants' petitions, relying in
part on the evidence presented at the hearings. As discussed below, we conclude that the
district court violated appellants' statutory rights as set forth in NRS chapter 34 by conducting
evidentiary hearings regarding the merits of the claims raised in the petitions without first
providing for appellants' presence at the hearings.
__________

1
We elect to consolidate these appeals for disposition. See NRAP 3(b).
FACTS
Gebers v. State, Docket No. 34836
On July 15, 1998, the district court convicted appellant Patricia Gebers, pursuant to a guilty
plea, of grand larceny. The district court sentenced Gebers to serve forty-eight to one hundred
twenty months in the Nevada State Prison, to be served consecutively to two terms of
imprisonment imposed in two other district court cases. Gebers did not file a direct appeal.
On June 7, 1999, Gebers filed a proper person post-conviction petition for a writ of habeas
corpus in the district court. In the petition, Gebers claimed that her former counsel rendered
ineffective assistance and that her guilty plea was invalid. The State opposed the petition.
Pursuant to NRS 34.750, the district court declined to appoint counsel to represent Gebers.
On August 6, 1999, the district court determined that a hearing should be conducted wherein
appellant's former counsel, Paul Wommer, could testify regarding what he did and did not tell
Gebers prior to the entry of Gebers' plea of guilty.
2

On August 31, 1999, the district court conducted the hearing. Gebers was not present.
Nonetheless, the district court questioned attorney Wommer, who represented Gebers in the
proceedings leading to her conviction, regarding the merits of the claims raised in the
petition. On September 13, 1999, after hearing and considering the evidence and testimony
from Gebers' former counsel, the district court denied the petition. This appeal followed.
Kiper v. State, Docket No. 35950
On January 21, 1999, the district court convicted appellant Russell Kiper, pursuant to a guilty
plea, of driving while under the influence of alcohol. The district court sentenced Kiper to
serve a term of ninety-six to two hundred forty months in the Nevada State Prison. This court
dismissed Kiper's untimely appeal from his judgment of conviction and sentence.
3

On December 30, 1999, Kiper filed a proper person post-conviction petition for a writ of
habeas corpus in the district court. In the petition, Kiper claimed, among other things, that he
asked his counsel to file a direct appeal and his counsel failed to do so.
__________

2
During the proceedings conducted on August 6, 1999, counsel for the State inquired if the hearing with Mr.
Wommer would be an evidentiary hearing. The district court replied, In the sense that I would want Mr.
Wommer to indicate what his recollections are. Because the district court subsequently heard testimony from
Mr. Wommer on August 31, 1999, directly addressing the claims presented in Gebers' petition, it is clear that the
hearing conducted on August 31, 1999, is properly characterized as an evidentiary hearing.

3
Kiper v. State, Docket No. 34020 (Order Dismissing Appeal, May 3, 1999).
asked his counsel to file a direct appeal and his counsel failed to do so. The State opposed the
petition. Pursuant to NRS 34.750, the district court declined to appoint counsel to represent
Kiper. On March 31, 2000, the district court conducted a hearing. Kiper was not present at the
hearing. At the hearing, the district court questioned the attorney who had formerly
represented Kiper in the proceedings leading to his conviction regarding the merits of the
claims raised in the petition. On May 31, 2000, the district court denied the petition. The
district court's decision denying the petition relied on the testimony that Kiper's former
counsel presented at the hearing of March 31, 2000. This appeal followed.
PROCEDURAL POSTURE
Our preliminary review of the record in these matters revealed that the district court may have
violated appellants' rights by conducting evidentiary hearings on the claims raised in their
petitions without first securing appellants' presence at the hearings. Thus, on March 26, 2002,
this court ordered the State to show cause why these appeals should not be remanded to the
district court for further proceedings. The State filed its response on April 29, 2002.
Additionally, at this court's request, the Nevada Attorneys for Criminal Justice (NACJ) has
filed an amicus brief discussing whether appellants' statutory or constitutional rights were
violated in the proceedings below. Accordingly, these appeals are now fully at issue and
ready for decision.
DISCUSSION
[Headnote 1]
NRS 34.770(1) provides that, in post-conviction habeas corpus proceedings, the judge shall
determine whether an evidentiary hearing is required. Under NRS 34.770(3), [i]f the judge .
. . determines that an evidentiary hearing is required, he shall grant the writ and shall set a
date for the hearing. Such a writ does not entitle a petitioner to be discharged from the
custody or restraint under which he is held . . . [but] requires only the production of the
petitioner to determine the legality of his custody or restraint.
4
The writ must be directed
to the person who has the petitioner in custody . . . commanding him to have the body of the
petitioner produced before the district court . . . .
5
A petitioner brought before the judge on
the return of the writ may deny or controvert any of the material facts or matters set forth in
the return or answer, deny the sufficiency thereof, or allege any fact to show either that his
imprisonment or detention is unlawful or that he is entitled to his discharge.
__________

4
NRS 34.390(2).

5
NRS 34.400; see also NRS 34.440 (upon service of the writ, the person to whom the writ is directed shall
bring the body of the party in custody according to the command of the writ).
fact to show either that his imprisonment or detention is unlawful or that he is entitled to his
discharge.
6
Thus, it is clear that the provisions of NRS chapter 34 require the presence of
the petitioner at any evidentiary hearing conducted on the merits of the claims asserted in a
post-conviction petition for a writ of habeas corpus. Such an evidentiary hearing conducted
without first providing the petitioner an opportunity to be present violates the provisions set
forth in NRS chapter 34.
In Gebers' case, the district court conducted an evidentiary hearing on the merits of the claims
Gebers raised in her petition. Gebers was not present or represented by post-conviction
counsel at the hearing. During the hearing, testimony and evidence was presented refuting
Gebers' claims.
The State nonetheless contends that Gebers was not entitled to an evidentiary hearing because
the claims she raised in her petition were belied by the record. The State further contends that
because Gebers was not entitled to an evidentiary hearing, it was harmless error for the
district court to conduct a hearing on the merits of the claims Gebers raised in her petition
outside her presence. We disagree.
[Headnote 2]
It is clear from the record that the district court determined that an evidentiary hearing was
warranted wherein Gebers' former counsel would be questioned and would testify regarding
the claims asserted in Gebers' petition. Once the district court decided to conduct that
evidentiary hearing, it was required by statute to grant the writ, to order Gebers to be
produced for the hearing, and to permit her an opportunity to deny, controvert, or present
evidence to demonstrate that her imprisonment was unlawful.
7
Even assuming that the
district court could have initially denied the claims presented in Gebers' petition as belied by
the record, because the district court determined in this instance that an evidentiary hearing
was necessary and then conducted such a hearing on the merits of the claims set forth in the
petition, the district court was required by statute to grant the writ and to provide for Gebers'
presence at the evidentiary hearing on the petition. The failure of the district court to do so
violated Gebers' statutory rights. Had Gebers been present at the hearing, she may have been
able to bolster her claims by presenting additional evidence or testimony or by
cross-examining and impeaching her former counsel's testimony. Therefore, we cannot say
that Gebers was not prejudiced or that this error was harmless beyond a reasonable doubt.
__________

6
NRS 34.470(1).

7
See NRS 34.770(3); NRS 34.390; NRS 34.400; NRS 34.470.
Kiper claimed in his petition that he asked his counsel to file an appeal and his counsel did
not do so. The district court conducted an evidentiary hearing on the merits of the claims
Kiper raised in his petition. Kiper was not present or represented by post-conviction counsel
at the hearing. During the hearing, testimony and evidence was presented refuting Kiper's
claims.
The State concedes that Kiper was entitled to an evidentiary hearing because his claim that
his counsel failed to file a direct appeal after Kiper requested him to do so was not belied by
the record. The State also concedes that the district court violated Kiper's statutory rights by
conducting the required evidentiary hearing and by receiving testimony from Kiper's former
counsel regarding the claims asserted in Kiper's petition without securing Kiper's presence at
the hearing. Nonetheless, the State contends that Kiper was not prejudiced by any violation of
his statutory rights because the direct appeal claims that Kiper might have subsequently
litigated below were presented to and properly denied by the district court. We disagree.
[Headnote 3]
In Lozada v. State,
8
this court held that if a petitioner demonstrates that he or she was denied
the right to a direct appeal due to ineffective assistance of counsel, the remedy is to appoint
counsel for the petitioner and to allow the petitioner with the assistance of counsel to file a
post-conviction petition for a writ of habeas corpus raising issues appropriate for a direct
appeal.
9
This remedy is incomplete if the district court does not provide the petitioner with
the assistance of counsel to identify and pursue any potential direct appeal claims.
10
Thus, if
Kiper can demonstrate that he was denied the right to a direct appeal due to the ineffective
assistance of counsel, then Kiper is entitled to the appointment of counsel to assist him in
filing a post-conviction petition for a writ of habeas corpus raising direct appeal claims
regardless of whether or not he initially asserted any direct appeal claims in his petition.
Additionally, we conclude that the failure of the district court in this instance to adhere to the
statutory provisions of NRS chapter 34 by granting the writ and by providing for Kiper's
presence at the evidentiary hearing violated Kiper's statutory rights. Again, under the
circumstances, we cannot say that this error was harmless beyond a reasonable doubt.
In its amicus brief, the NACJ contends that the district court's failure to provide for
appellants' presence at the evidentiary proceedings below violated appellants' constitutional
rights. We decline to reach the merits of this issue and decide this case solely on the basis
of the statutory violations noted above.
__________

8
110 Nev. 349, 871 P.2d 944 (1994).

9
See id. at 359, 871 P.2d at 950.

10
See id.
decline to reach the merits of this issue and decide this case solely on the basis of the
statutory violations noted above.
11

CONCLUSION
We conclude that the district court violated appellants' statutory rights when it conducted ex
parte hearings on the merits of the claims appellants raised in their petitions. Therefore, we
reverse the district court's orders denying appellants' petitions and remand these matters to a
different district court judge for evidentiary hearings on the merits of the claims appellants
raised in their petitions. The district court shall provide for appellants' presence at the
hearings.
12

____________
118 Nev. 506, 506 (2002) Pressler v. City of Reno
DAVID A. PRESSLER, Appellant, v. THE CITY OF RENO; DORI OWEN; RALPH
JAECK; CHARLES McNEELY; and SUZANNA STIGER, Respondents.
No. 36662
August 2, 2002
50 P.3d 1096
Appeal from a district court order granting summary judgment. Second Judicial District
Court, Washoe County; Brent T. Adams, Judge.
City employee brought action against City and its employees involved in investigation of
sexual harassment complaints against him, alleging his termination from employment and the
denial of payment for all accumulated sick leave violated due process. The district court
granted summary judgment for defendants. Plaintiff appealed. The supreme court, Leavitt, J.,
held that: (1) city charter amendment, providing that department heads were at-will
employees, did not apply retroactively; and (2) a right to payment for all accumulated sick
leave had not vested.
__________

11
See, e.g., Hollis v. State, 96 Nev. 207, 210, 606 P.2d 534, 536 (1980) (where a jury instruction violated a
statute, it was unnecessary to decide the constitutional claim because of the rule that [t]his court will not
consider constitutional issues which are not necessary to the determination of an appeal); State of Nevada v.
Plunkett, 62 Nev. 265, 270-71, 149 P.2d 101, 104 (1944) ([A] constitutional question will not be determined
unless clearly involved, and a decision thereon is necessary to a determination of the case.).

12
The district court may of course exercise its discretion to appoint post-conviction counsel. See NRS 34.750.
Goedert & Michaels, Reno, for Appellant.
Patricia A. Lynch, City Attorney, and Donald L. Christensen, Deputy City Attorney, Reno,
for Respondents.
An order granting summary judgment is reviewed by the appellate court using a de novo standard of review. NRCP 56.
Any questions of law are reviewed de novo, with respect to an order granting summary judgment. NRCP 56.
3. Judgment.
If there is the slightest doubt as to any material issue of fact, summary judgment is not appropriate, and the litigant has a right to trial
by a jury. NRCP 56(c).
4. Judgment.
The court, when considering a motion for summary judgment, must construe the pleadings and evidence in the light most favorable to
the nonmoving party. NRCP 56.
The protections of due process attach only when there is a deprivation of a protected property or liberty interest. Const. art. 1, 8, cl. 5.
Protected due-process property interests are created, and their dimensions are defined, by existing rules or understandings that stem
from an independent source such as state law. Const. art. 1, 8, cl. 5.
Public employees who may be terminated only for cause have a constitutionally protected property interest and are entitled to due
process before being deprived of that interest. Const. art. 1, 8, cl. 5.
Merely having an expectation of continued public employment does not create a due-process property interest. Const. art. 1, 8, cl. 5.
A contract can be the basis of a due-process property right. Const. art. 1, 8, cl. 5.
10. Constitutional Law; Municipal Corporations.
City employee had due-process property interest in continued employment. Employee, after completing his probationary period, had
civil service status, and city charter allowed his removal as director of parks and recreation only for cause. Const. art. 1, 8, cl. 5.
City charter amendment, providing that department heads were at-will employees, did not apply retroactively to a department head who
had been appointed to his position as director of parks and recreation when earlier city charter provision, which had required cause for
termination from employment, had been in effect, and who had an employment contract requiring cause for his discharge. Charter
amendment did not expressly provide for retroactive application, and the legislative history for the state legislation authorizing the
charter amendment indicated that the legislature intended the charter amendment to have only prospective effect.
12. Constitutional Law; Municipal Corporations.
Fact that city employee became sick, and was placed on sick leave, did not cause city employee's right to sick leave
benefits to become vested,
did not cause city employee's right to sick leave benefits to become vested, for purposes of constitutional provision prohibiting laws
impairing the obligation of contracts, and thus, if the employee was properly terminated from employment, he had no right to
compensation for unused sick leave beyond the maximum benefit for accumulated sick leave provided for in city's sick leave policy.
Const. art. 1, 15.
OPINION
Appellant David Pressler raises several claims of error relating to a district court order
granting summary judgment in favor of the City of Reno and its employees (City). We
conclude that the amendment to the City's charter converting various appointed positions to
at-will status was not intended to apply retroactively and that the district court erred in
concluding that Pressler was an at-will employee at the time of his termination. Thus,
summary judgment was therefore improper. In addition, in the interest of judicial economy
and to provide guidance to the district court in the subsequent proceedings, we consider
Pressler's issue regarding whether sick benefits vest once an employee becomes ill. We
conclude that sick benefits that are provided as a benefit of employment do not vest simply
because they are being utilized and, accordingly, may be ended upon proper termination of
employment.
FACTS
David Pressler was terminated from his position as Director of Parks and Recreation for the
City of Reno on January 23, 1998. Pressler had been employed by the City for over
twenty-six years prior to his termination. Until July 1, 1997, when legislative changes to the
City charter became effective, Pressler, as an appointed employee, could be terminated only
for cause.
Pressler was terminated following an investigation into allegations that he created a hostile
work environment and sexually harassed other employees. The allegations arose on June 10,
1997, and were self-reported by Pressler. Pressler was placed on administrative leave while
an investigation was conducted. After an investigation by the City's affirmative action officer
and a deputy city attorney, both recommended that Pressler be terminated.
Throughout the course of the investigation, Pressler was not provided the names of the
employees bringing allegations of misconduct against him, though he knew the identity of
some of the employees from his discussions with them before he reported the complaints.
employees from his discussions with them before he reported the complaints. In addition,
while on leave, he was instructed to stay away from his workplace and his employees. While
still on leave, Pressler requested that his status be changed to sick leave, citing an inability to
work due to illness relating to the stress of the investigation. Pressler's request was granted,
and he remained on sick leave until his termination.
The City provided Pressler with a hearing before a hearing officer selected by the city
manager but opposed by Pressler. During the hearing, the city employees who conducted the
investigation into the allegations of Pressler's misconduct orally presented their findings.
Based on their recollection and notes, these employees provided testimony, which included
hearsay statements from employee interviews they conducted. The interviews were not taped
or documented in their entirety, and the employees who were interviewed were not present at
the hearing. At the hearing, Pressler responded to questions, but his testimony was cut short
because the hearing officer needed to leave for his return flight. Pressler's request to continue
the hearing at a later time was rejected, and he was instead assured that all of his
documentation would be reviewed. Pressler had previously submitted documents rebutting
each of the allegations and a large number of letters from individuals attesting to his good
character and reputation. Pressler was subsequently terminated pursuant to the hearing
officer's recommendation. Upon his termination, the City paid Pressler for 300 of the 786 sick
leave hours he had remaining.
Pressler brought suit against the City and various city employees involved in the investigation
against him. He claims that his termination and the denial of all of his accrued sick leave
without an adequate hearing was a violation of his right to due process. The district court
granted summary judgment in favor of all of the defendants, and Pressler brought this appeal.
DISCUSSION
[Headnotes 1-4]
An order granting summary judgment is reviewed by this court using a de novo standard of
review.
1
Any questions of law are also reviewed de novo.
2
Summary judgment should be
granted only when there is no genuine issue as to any material fact and the moving party is
entitled to a 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.
__________

1
Nicholas v. Public Employees' Ret. Board, 116 Nev. 40, 43, 992 P.2d 262, 264 (2000).

2

3
NRCP 56(c).
is the slightest doubt as to any material issue of fact, the litigant has a right to trial by a jury.
4
The court must construe the pleadings and evidence in the light most favorable to the
nonmoving party.
5

Here, the district court granted the City's motion for summary judgment on all causes of
action on the basis that at the time of his termination, Pressler was an at-will employee and
therefore did not have a property interest in continued employment or in his accrued sick
leave. We conclude that the district court erred in concluding that Pressler had only at-will
employment status, thus making summary judgment improper.
Retroactivity of city charter amendments
[Headnotes 5-9]
The protections of due process only attach when there is a deprivation of a protected property
or liberty interest.
6
Property interests are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state law.
7
Employees who may be terminated only for cause have a constitutionally protected property
interest and are entitled to due process before being deprived of that interest.
8
However,
merely having an expectation of continued employment does not create a property interest.
9
A contract also can be the basis of a property right,
10
and the state may not pass a law
impairing the obligation of contracts.
11

[Headnote 10]
It is uncontroverted that from the time Pressler completed his probationary period after being
hired in 1971, until June 30, 1997,
__________

4
Roy v. Lancaster, 107 Nev. 460, 462, 814 P.2d 75, 76 (1991).

5
Ortega v. Reyna, 114 Nev. 55, 58, 953 P.2d 18, 20 (1998).

6
Nev. Const. art. 1, 8, cl. 5; see also Tarkanian v. Nat'l Collegiate Athletic Ass'n, 103 Nev. 331, 337, 741
P.2d 1345, 1349 (1987), rev'd on other grounds, 488 U.S. 179 (1988).

7
Board of Regents v. Roth, 408 U.S. 564, 577 (1972), modified on other grounds by Paul v. Davis, 424 U.S.
693 (1976).

8
State ex rel. Sweikert v. Briare, 94 Nev. 752, 755, 588 P.2d 542, 544 (1978).

9
Vancheri v. GNLV Corp., 105 Nev. 417, 422, 777 P.2d 366, 368 (1989).

10
Perry v. Sindermann, 408 U.S. 593, 601 (1972), overruled in part on other grounds by Rust v. Sullivan,
500 U.S. 173 (1991).

11
1997, he had a property interest in his employmentfirst by virtue of his status as a civil
servant, and later by the provision in the Reno City Charter which allowed removal only for
cause.
12

[Headnote 11]
During the 1997 legislative session, the City proposed changes to its charter, including
removal of the for-cause provision. Pressler contends the conduct underlying his termination
occurred when he was protected by the charter's for-cause provision and that the amendment
to the charter did not convert him to an at-will employee. He further contends that the
changes to the charter could not be applied retroactively because he had an employment
contract with the City based on the charter provision in effect when he accepted his
appointment. Conversely, the City alleges that Pressler became an at-will employee on July 1,
1997, and that the city manager could properly terminate Pressler for no reason.
13
We
conclude that the City's argument lacks merit.
We have previously concluded that when the Legislature does not state otherwise, statutes
have only prospective effect.
14
Here, the statute does not provide for retroactive application,
and the legislative history indicates that the Legislature intended it to have only prospective
effect.
When the bill draft was requested, one of the senators asked the city's legislative relations
administrator if the changes [were] considered a housekeeping measure with no expectation
of controversy and received an affirmative response.
15
The serious implications of the
change if applied to current employees, as evidenced by this controversy, would appear to be
more than a housekeeping matter and arguably would raise some controversy. On the other
hand, a prospective application of the change would arguably be less controversial and more
in the line of a housekeeping matter since affected employees would have been aware of their
status at the inception of their employment. In addition, one senator questioned whether
notice of the appeals process would be provided to the employee before acceptance of the
appointment, while another questioned whether employees would be given notice that they
were not afforded the for-cause protection when they accepted appointments,
__________

12
Reno City Charter 3.020(5), prior to being amended in 1997, provided that department heads could be
removed only for cause. See 1997 Nev. Stat., ch. 210, 5, at 736.

13
See Coast Hotels v. State, Labor Comm'n, 117 Nev. 835, 843, 34 P.3d 546, 551-52 (2001) (explaining
employer has right to terminate at-will employee for any reason, subject to limited public policy exceptions).

14
Nevada Power v. Metropolitan Dev. Co., 104 Nev. 684, 686, 765 P.2d 1162, 1163 (1988).

15
Hearing on S.B. 44 Before the Senate Comm. on Government Affairs, 69th Leg., 5 (Nev., Jan. 27, 1997).
tion when they accepted appointments,
16
both of which indicate that the legislators
envisioned only a prospective application. Further, senators asked various questions which
indicated concern regarding decreased protection for affected employees.
17

Based on the presumption that statutes apply prospectively unless otherwise stated and on the
legislative history, we conclude that the city charter amendments apply only prospectively.
Accordingly, we conclude that the district court erred in granting summary judgment on the
basis that Pressler was an at-will employee. We conclude that as a matter of law, Pressler
could be removed only for cause as provided by the city charter at the time he accepted his
appointment.
18

Vesting of sick leave
[Headnote 12]
Pressler contends that his right to sick leave benefits was a contractual right protected by
Article 1, Section 15 of Nevada's Constitution that became a vested interest once he was
placed on sick leave. We disagree.
Pressler relies on our decision in Nicholas v. Public Employees' Retirement Board
19
to
support his contention. However, Pressler has not demonstrated that he has a contractual or a
vested right to utilize sick leave once he is no longer an employee. Therefore, our holding in
Nicholas, that once a public employee's pension benefits are vested, that right is
constitutionally protected,
20
is inapplicable to this case. The City's sick leave policy
specifically provided that upon termination, an employee would be paid only a portion of the
accumulated sick leave up to a specified maximum. If Pressler was properly terminated, he
was paid the amount due under the policy and has failed to support his contention that he is
entitled to more.
We conclude that the district court erred in concluding that Pressler was an at-will employee
and as a result granting summary judgment with respect to all of his claims. We reverse the
order of the district court and remand this case for further proceedings consistent with
this opinion.
__________

16
Hearing on S.B. 44 Before the Senate Comm. on Government Affairs, 69th Leg., 10 (Nev., Feb. 3, 1997).

17
Id. at 7-11.

18
Based on this conclusion, Pressler had a right to due process before being deprived of his employment.
However, it is unnecessary for us to consider at this time whether the hearing Pressler was provided with
comported with due process requirements. This is an issue that the district court will need to consider on remand.

19
116 Nev. 40, 992 P.2d 262 (2000).

20
Id. at 43-44, 992 P.2d at 264-65.
of the district court and remand this case for further proceedings consistent with this opinion.
21

Maupin, C. J., Young, Shearing, Rose and Becker, JJ., concur.
____________
118 Nev. 513, 513 (2002) Hernandez v. State
FERNANDO HERNANDEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36859
August 2, 2002
50 P.3d 1100
Appeal from a judgment of conviction, pursuant to a jury verdict, of burglary while in
possession of a weapon, first-degree murder with use of a deadly weapon, second-degree
kidnapping, and unlawful sexual penetration of a dead human body, and from a sentence of
death. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
The supreme court held that: (1) defendant was not prejudiced by alleged juror misconduct
when jurors bought gift for victim's daughter, (2) defendant could be convicted of kidnapping
his own daughter, (3) evidence supported convictions, and (4) sentence of death was not
excessive.
Affirmed.
JoNell Thomas, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney,
Lynn M. Robinson, Chief Deputy District Attorney, and Robert J. Daskas, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
Record did not support defendant's claim that two jurors violated admonition not to talk about case, even though jurors purchased a
gift for murder victim's daughter prior to starting deliberations. Jurors testified that they discussed only what would fit daughter and
what would be an appropriate gift.
2. Criminal Law.
Jurors must not engage in discussions of a case before they have heard both the evidence and the court's legal instructions and have
begun formally deliberating as a collective body.
__________

21
The Honorable Deborah A. Agosti, Justice, voluntarily recused herself from participation in the decision of
this appeal.
3. Criminal Law.
Not every incidence of juror misconduct requires a new trial. If it appears beyond a reasonable doubt that no prejudice occurred, a new
trial is unnecessary.
4. Criminal Law.
Even if jurors committed misconduct by discussing case prior to start of deliberations when they purchased a gift for murder victim's
daughter, defendant was not prejudiced; that fact merely demonstrated that jury was sympathetic to an innocent child who was a
collateral victim of the murder.
5. District and Prosecuting Attorneys.
Prosecutors had discretion to charge defendant with kidnapping his daughter, rather than charging him with violating a court order by
removing child from a person having lawful custody. NRS 200.310, 200.359(1)(a).
6. Statutes.
Rule of lenity calls for the liberal interpretation of criminal statutes to favor the accused in resolving ambiguities.
Statutes enjoy a presumption of validity, and the burden is on the party attacking them to show their unconstitutionality.
A statute violates due process if it is so vague that it fails to give persons of ordinary intelligence fair notice of what conduct is
prohibited and fails to provide law enforcement officials with adequate guidelines to prevent discriminatory enforcement. U.S. Const.
amend. 14.
9. Criminal Law.
Where First Amendment interests are not implicated, the challenged statute must be shown to be impermissibly vague in all its
applications or at least as applied to the defendant in question. U.S. Const. amend. 1.
10. Constitutional Law; Kidnapping.
Kidnapping statute is not void for vagueness in violation of due process. U.S. Const. amend. 14; NRS 200.310.
11. Kidnapping.
Defendant's status as sole surviving parent of child once defendant murdered child's mother did not render his seizure of child lawful,
and thus defendant could be convicted of kidnapping child. Defendant violated protective order, custody decree, and criminal statutes
when he murdered mother and took child. NRS 200.310.
Relevant inquiry in determining whether prosecutor's statements amount to misconduct is whether a prosecutor's statements so infected
the proceedings with unfairness as to make the results a denial of due process. U.S. Const. amend. 14.
13. Criminal Law.
When misconduct is alleged, prosecutor's statements should be considered in context, and a criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone.
14. Criminal Law.
No reversible error occurred during penalty phase when prosecutor told jury that she disagree[d] with a witness called by defense.
Defense counsel immediately objected to comment, and trial court sustained objection.
In penalty phase of capital murder trial, evidence of uncharged domestic abuse by defendant was relevant in considering alleged
mitigating circumstance of no significant criminal history.
During a penalty phase, the State may properly present evidence for just three purposes: to prove an enumerated aggravator, to rebut
specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any enumerated aggravating circumstances
have been weighed against any mitigating circumstances.
During penalty phase of capital murder trial, prosecutor did not improperly argue that defendant's failure to show remorse warranted
death when prosecutor argued that defendant did not tell officer at time of arrest that defendant was sorry to his child for taking child's
mother away. Prosecutor was fairly responding to earlier contention by defense counsel that defendant expressed remorse after he was
first stopped.
18. Criminal Law.
Arguments that a family will have no more holidays with the murder victim are improper because they are aimed only at the jury's
emotions and encourage it to impose a sentence under the influence of passion.
Statute defining term deadly weapon gave murder defendant fair notice that knife he used in murdering victim was a deadly weapon
for purposes of sentence enhancement. NRS 193.165(5)(b).
In considering death sentence for murder defendant, jury could use same set of facts to support aggravating circumstance of mutilation
as well as aggravating circumstance of sexual penetration.
21. Courts.
Decision of supreme court in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), in which court held that postmortem mutilation was
an aggravating circumstance for purpose of imposing death penalty, applied retroactively; ruling was consistent with prior case law and
based on language of statute. NRS 200.033(8).
22. Criminal Law.
In reviewing the sufficiency of the evidence, supreme court must determine whether the jury, acting reasonably, could have been
convinced by the competent evidence of the defendant's guilt beyond a reasonable doubt.
23. Criminal Law.
Supreme court will not disturb a jury verdict where there is substantial evidence to support it.
24. Criminal Law.
Circumstantial evidence alone may support a conviction.
25. Homicide.
There was sufficient evidence of premeditation and deliberation to convict defendant of first-degree murder of his former wife;
defendant had repeatedly threatened to kill former wife, defendant had told a friend that he wanted to kill former wife, and defendant
killed former wife on anniversary of their failed marriage.
26. Burglary.
Evidence that defendant intended to kill victim when he entered her home also supported conviction of burglary, even though there was
no sign that defendant had forcibly entered victim's home.
27. Burglary.
Forcible entry is not an element of burglary.
Torture, for purposes of murder by torture and torture as an aggravating circumstance, involves a calculated intent to inflict pain for
revenge, extortion, persuasion or for any sadistic purpose and intent to inflict pain beyond the killing itself.
There was sufficient evidence to support conviction of murder by torture and to support torture as an aggravating circumstance for
imposition of death penalty; defendant inflicted multiple injuries on victim before her death, and defendant's act of thrusting knife into
victim's vagina reflected an intent to inflict pain beyond the killing itself for sadistic purposes. NRS 200.030(1)(a), 200.033(8).
30. Constitutional Law; Criminal Law.
Limit of eighty pages for murder defendant's appellate brief did not violate his rights to meaningful appellate review and equal
protection. U.S. Const. amend. 14; NRAP 28(g).
31. Criminal Law.
Even if trial court erred in refusing to dismiss member of venire for cause, defendant was not prejudiced, where member did not serve
on jury.
32. Criminal Law.
The cumulative effect of errors may violate a defendant's constitutional right to a fair trial even though errors are harmless individually.
Sentence of death was not excessive for conviction of first-degree murder with use of a deadly weapon; defendant stalked his wife and
murdered her without provocation in a horrific, savage manner in the presence of their young daughter. NRS 177.055(2).
OPINION
Per Curiam:
Appellant Fernando Hernandez was convicted of, among other things, first-degree murder for
stabbing his ex-wife to death and second-degree kidnapping for taking their three-year-old
daughter immediately after the murder. He received a death sentence.
Hernandez does not dispute that he killed his wife but claims that his conviction is invalid
due to numerous errors, including that he cannot be convicted of kidnapping his own
daughter. We conclude that none of his claims warrant relief and affirm his conviction and
sentence.
FACTS
Hernandez and Donna Hernandez were married on October 6, 1991, and their daughter Ana
was born in February 1996. In October 1998, the marriage ended in divorce. Ana lived with
Donna, but Hernandez was permitted custody of Ana from 8 a.m. on Wednesdays until 5 p.m.
on Fridays.
Francisco Landeros rented a room from Donna from late August until mid-December 1998.
He and Donna were friends but did not have a romantic relationship. During that time,
Hernandez left insulting messages on Donna's answering machine, calling her a whore and a
fool. Landeros testified that a couple of times Hernandez threatened to kill her.
In January 1999, Donna informed the Las Vegas Metropolitan Police Department (LVMPD)
of a threat. She was very upset and excited, reporting that when she went to pick her daughter
up from Hernandez, he said that he would make her life very sorry and was going to take
Ana to Mexico. Donna feared for her own safety.
In March 1999, Landeros gave Donna a ride home from work in his pickup one evening.
When they got to the house, Hernandez was there in his car and drove toward them. Landeros
was forced to pull to the side of the road to avoid him. Donna activated the garage door
opener, and Landeros drove into the garage. As the garage door was closing, Hernandez drove
under it, causing it to open again. He got out of his car and tried to hit Landeros. Landeros
grabbed and held Hernandez, who pleaded to be let go so he would not get in trouble with the
police. After Landeros let Hernandez get back into his car, Hernandez threatened to kill
Landeros and said you're going to die, dogs. Late that same night, Hernandez called
Donna's mother three times. He threatened to kill Donna. He also said that he had money in
Mexico and was going to take Ana there to raise her because Donna was an unfit mother.
Immediately after these incidents, Donna obtained a protective order against Hernandez. She
later had it extended until April 13, 2000. It was therefore in effect at the time of the subject
offense in October of 1999.
About two weeks before Hernandez killed Donna, he told a friend that he wanted to kill her,
their daughter, and himself. He was intoxicated at the time.
Around 7 a.m. on October 6, 1999, LVMPD Officer David Swoboda was driving an
unmarked police car south on Highway 95 towards Laughlin, Nevada. A car passed him
going well over the speed limit. Swoboda turned on his red lights and gave chase. The car
reached a speed of 96 miles per hour and traveled about eight miles before Swoboda was able
to pull it over. Hernandez, who was driving the car, got out.
who was driving the car, got out. He was crying, raised his hands, and said, just shoot me,
just kill me. He walked around the car to the passenger side and said, I'm sorry, baby.
Because of his unusual behavior, Swoboda handcuffed him and placed him in front of the
police car.
Swoboda went to Hernandez's car, where Ana sat in a car seat in the back, crying. He tried to
calm her and then returned to Hernandez and obtained his driver's license. He noticed that
Hernandez had cuts on his face and hand and asked him what happened. Hernandez said that
he had fought with his ex-wife. Swoboda learned through his police computer of Donna's
protective order against Hernandez, so Swoboda suspected a domestic violence situation and
requested that officers be sent to Donna's home.
LVMPD Detective Tom Allen arrived at the scene of the confrontation with Hernandez.
Swoboda left Allen with Hernandez and returned to Ana. He noticed a blood stain on the seat
near her. She was still crying and said, [D]addy hurt mommy real bad.
Hernandez smelled of alcohol and admitted to drinking three beers. He failed a horizontal
gaze nystagmus test administered by Detective Allen and was placed under arrest. Swoboda
put him in his police car. Hernandez alternated between calm and almost hysterical moments.
He asked to kiss Ana goodbye. Allen brought her to him, Hernandez kissed her, and Allen
took her away. Hernandez began crying and said, I killed them and I killed her. Swoboda
advised Hernandez of his Miranda rights, and Hernandez continued to say, I killed them
and I killed her.
Detective Allen found some children's clothing and underwear in Hernandez's car and noticed
bloodstains on the pajamas that Ana was wearing. Allen eventually took her to his vehicle
where she told him that her father had hurt her mother on the stairs. Ana also told him that
she and her father were going to Mexico.
Hernandez was driven to the police facility in Laughlin, and analysis of his breath showed
blood alcohol levels of 0.165 and 0.154 percent. He was then driven to the Clark County
Detention Center. During the drive he acted erratically, sometimes yelling and crying. At one
point he tried to jump out of the moving vehicle. He stated that his life was over and asked
the police officer to shoot him. After Hernandez was in the booking area at the jail, he began
to hit the back of his head against the concrete wall behind the bench he was sitting on and
had to be restrained. Property taken from Hernandez included, among other things, a ring
from his right hand and over $1,000 in cash.
LVMPD officers went to Donna's residence, broke open the door, and found her body lying
on the stairs. There was blood all over the body and the walls by the stairs, and a broken knife
lay nearby. There was no sign of forced entry (other than by the police), and the home
otherwise appeared undisturbed.
police), and the home otherwise appeared undisturbed. A crime scene analyst found blood
elsewhere in the house, including around the kitchen sink. The broken knife by Donna's body
was a kitchen knife with a seven-and-a-half-inch serrated blade. Another analyst identified a
palm print taken from the knife as Hernandez's. DNA analysis of the blood found at the crime
scene showed it to be both Donna's and Hernandez's. Donna's blood was also found on Ana's
pajamas and on the ring taken from Hernandez.
The autopsy showed that the cause of Donna's death was strangulation, with significant
contributing conditions including multiple stab and slash wounds and blunt head trauma.
Some of the bruises on Donna's neck were caused by fingers and others by an object such as a
foot or knife placed against her neck. She suffered numerous contusions on her body and face
and numerous defensive slash wounds on her hands. A stab wound in the area of her heart
pierced her left lung, striking a rib in the back; stab wounds to each side of her neck
penetrated into the area of the carotid arteries. It appeared that Hernandez was able to inflict
these three major wounds to such vital areas because Donna had ceased to struggle against the
attack. Finally, the autopsy revealed the tip of the handle of a dinner knife protruding from
her vagina. The knife had been thrust to the left of the cervix, perforating the vaginal wall and
penetrating into the abdominal cavity. This last wound caused minimal hemorrhaging and
likely occurred after Donna's death.
Hernandez presented the following evidence. In April 1999 he alleged to Child Protective
Services (CPS) that Landeros was sexually molesting Ana. However, an investigation proved
the allegation groundless.
The director of Ana's preschool testified that a couple of days before Donna's murder she saw
Donna and Hernandez together at the preschool. She was surprised because she knew that
they did not get along. She did not know whether they had driven there in the same car. The
director said that Hernandez usually picked Ana up on Wednesdays, but occasionally, if
Donna called first to give the preschool her approval, he picked her up on a different day.
Nelly Hernandez, a friend of Hernandez's, testified that she helped him with translations
during his divorce and custody proceedings. Hernandez was upset because he still wanted to
be married and have his family together. He was also upset when he filed his complaint with
CPS against Landeros. After Hernandez's arrest, Nelly went to his house to gather his
belongings. She did not see any blood or signs that he had been packing, and she recovered
his passport and Ana's birth certificate from the house. Another friend, Juan Trillo, testified
that in the month before Donna's murder, Hernandez repeatedly said that he was trying to
get Donna back.
Donna's murder, Hernandez repeatedly said that he was trying to get Donna back. Trillo saw
them together in Hernandez's car a couple of times. Trillo also went with Nelly to gather
Hernandez's belongings and saw no blood or indications that he had been packing.
Hernandez's neighbor testified that he had seen Donna at Hernandez's house a few times in
the afternoon, but he could give no dates.
The prosecution and defense stipulated that the caller ID on Donna's telephone showed that a
call was received from Hernandez's phone at 9:32 p.m. on October 5, 1999.
In rebuttal, the prosecution presented videotape of family court proceedings involving Donna
and Hernandez in November 1998, soon after their divorce. In the proceedings, Hernandez
expressed his desire to take Ana on vacation to Mexico. Donna told the court, He tells me all
the time that I'm a bad mother, and he's going to take my child away from me. I'm afraid of
him.
On July 14, 2000, the jury returned verdicts finding Hernandez guilty of burglary while in
possession of a weapon, first-degree murder with use of a deadly weapon, second-degree
kidnapping, and unlawful sexual penetration of a dead human body.
During the penalty phase, the State presented victim impact evidence through the testimony
of Donna's mother and brother and Ana's therapist. The evidence showed that Donna's murder
had severely affected her brother, sister, mother, and father, but Ana had been particularly
traumatized and would likely require therapy until she was sixteen to eighteen years old.
Hernandez called a number of witnesses, including his brother, an employer, and friends and
fellow workers. According to their testimony, he held multiple jobs, was hard-working, was
polite and friendly, and was a loving and devoted father. Hernandez spoke in allocution.
At the end of the penalty phase, the jury found three aggravating circumstances: Hernandez
subjected the victim to non-consensual sexual penetration immediately before, during, or
immediately after the commission of the murder; the murder was committed while Hernandez
was engaged in the commission of a burglary; and the murder involved the torture and/or
mutilation of the victim. Seven mitigating circumstances were found: Hernandez had no
significant history of prior criminal activity; he committed the murder while under the
influence of extreme mental or emotional disturbance; he had accepted responsibility for the
crime; he had expressed remorse for the crime; he was intoxicated at the time of the crime; he
had been gainfully employed throughout his adult life; and he spared the life of his daughter
even though he had threatened to kill her. The jury found that the aggravating circumstances
outweighed the mitigating and returned a verdict of death.
DISCUSSION
1. Juror misconduct: buying a gift for the murder victim's daughter
Hernandez contends that a mistrial should have been granted because of juror misconduct.
The following facts are pertinent.
[Headnote 1]
The jurors returned guilty verdicts on a Friday, and the district court excused the jurors until
the next Tuesday, when the penalty phase was to begin. As required by NRS 175.401, the
court admonished them in the meantime not to talk among themselves or with anyone else on
any subject related to the trial; not to read, watch, or listen to any report or commentary
pertaining to the trial; and not to form or express any opinion on any subject connected with
the trial.
Penalty deliberations began on Wednesday afternoon. At that time the district court informed
the parties that the bailiff had learned that three jurors had bought a present for Ana and the
court had instructed the bailiff to tell the jurors to set the present aside to be dealt with later.
The court decided to wait until after a verdict was returned before it questioned the three
jurors whether they discussed the case or any facts of the case or discussed potential
punishment or anything that jurors are precluded from discussing, when they made the
decision to purchase a present for the child. After the jury returned a death sentence on
Thursday, the court excused all but two jurors, and the following colloquy occurred.
The Court: Thank you. Miss Lorren and Miss Almond, I understand that the two of you
along with one of the alternates who is not with . . . us anymore, purchased a gift for the
minor child, Ana Hernandez, and if you have that, you may certainly give that either to
the grandmother or to the district attorney to transfer to the grandmother. However, we
do have to know, because we give you this admonishment that you can't talk to each
other, you can't discuss the trial or any of the facts, etc., etc., I do have to ask you how it
was that you decided . . . to go together to purchase a present for the child.
Juror Lorren: The day that we were here all day on Friday, we were walking out, and I
think it was Amber that said I wish we can get something for Ana. I said, why don't we
do that, and we took Traci [Almond] because she has a little girl too about the same
age. We just got the sizes of clothes. We didn't talk about the trial at all.
. . . .
The Court: [Miss Almond, is] that your recollection of how that happened, and you tell
us that you did not discuss the trial at all?
Juror [Almond]: No. We basically discussed what would fit her and what we thought
was cute.
Defense counsel also questioned the two jurors and then moved for a mistrial, which the court
denied.
Hernandez contends that the jurors violated the admonition not to talk about the case. He also
contends that the presence of the gift in the jury room during deliberations was prejudicial
error.
[Headnote 2]
It is a generally accepted principle of trial administration that jurors must not engage in
discussions of a case before they have heard both the evidence and the court's legal
instructions and have begun formally deliberating as a collective body.
1
The record does not
support appellant's claim that the jurors discussed the case prematurely. Hernandez asserts
that discussing the child of the victim necessarily constituted a discussion about the case, but
based on the jurors' testimony, we do not agree.
[Headnotes 3, 4]
Even if the jurors' behavior was misconduct, not every incidence of juror misconduct requires
a new trial.
2
If it appears beyond a reasonable doubt that no prejudice occurred, a new trial is
unnecessary.
3
The question of prejudice is a factual one for the district court, and this court
will not reverse absent an abuse of discretion.
4
Intra-jury discussions are far less of a threat
to a defendant's right to trial by an impartial jury than are extra-jury influences.
5
Here, the
facts do not establish prejudice but merely demonstrate that the jury was sympathetic to an
innocent child, who was a collateral victim of the murder. We conclude that the district court
did not abuse its discretion and that the record indicates beyond a reasonable doubt that no
prejudice occurred.
6
Further, we conclude that Hernandez fails to show that the presence of
the gift constituted plain error or affected his substantial rights.
7

__________

1
U.S. v. Resko, 3 F.3d 684, 688 (3d Cir. 1993).

2
Tanksley v. State, 113 Nev. 997, 1003, 946 P.2d 148, 151 (1997).

3
Id.

4
Id.

5
Resko, 3 F.3d at 690.

6
Cf. Lewis v. State, 94 Nev. 727, 729, 588 P.2d 541, 542 (1978).

7
See NRS 178.602 (Plain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.).
2. Appellant's kidnapping conviction for taking his own daughter
Hernandez asserts, as he did below, that it is impossible for him to be convicted of
kidnapping his daughter. Hernandez attacks the applicability and validity of the kidnapping
statute in a number of ways.
NRS 200.359(1)(a) provides that it is a category D felony for a parent with no right of
custody or a person having a limited right of custody to a child to violate a court order and
remove the child from a person having lawful custody. Hernandez argues that this statute is
more specific than and takes precedence over NRS 200.310, which proscribes kidnapping as
either a category A or B felony, but does not explicitly address the taking of a child by a
parent with limited custody. He claims that application of NRS 200.310 to his case violated
his rights to due process, equal protection, and a fair trial. We conclude that this argument
lacks merit.
[Headnote 5]
Hernandez has not shown that NRS 200.359 and 200.310 are in conflict, and this court has
never treated such statutes as conflicting. The matter at issue here involves not conflicting
statutes but prosecutorial discretion in charging. We have followed the United States
Supreme Court's holding that neither due process nor equal protection were violated under
federal constitutional principles by virtue of the fact that the government prescribed different
penalties in two separate statutes for the same conduct.
8
[A] defendant's rights are
adequately protected in this area by the constitutional constraints' on a prosecutor's
discretion, which prevent the prosecutor from selectively enforcing the law based on such
unjustifiable criteria as race or religion.
9
This court has also stated that where conviction
for multiple offenses might be redundant, accepting [a guilty plea without the State's
approval] undermines prosecutorial discretion in charging and the state's interest in obtaining
a conviction on the other charges, which may be the more serious' charges.
10
We conclude
that the prosecutors acted within their reasonable discretion in charging kidnapping here.
[Headnote 6]
In addition, Hernandez invokes the rule of lenity. This rule calls for the liberal interpretation
of criminal statutes to favor the accused in resolving ambiguities.
__________

8
Sheriff v. Killman, 100 Nev. 619, 621, 691 P.2d 434, 436 (1984) (citing United States v. Batchelder, 442
U.S. 114 (1979)).

9
Id. (quoting Batchelder, 442 U.S. at 125).

10
State of Nevada v. Dist. Ct., 116 Nev. 127, 139 n.10, 994 P.2d 692, 700 n.10 (2000).
accused in resolving ambiguities.
11
But NRS 200.310, the kidnapping statute, applies
unambiguously to Hernandez's actionshe simply wants NRS 200.359 applied instead.
Hernandez further argues that the State was equitably estopped from prosecuting him under
NRS 200.310 rather than NRS 200.359; however, his authorities are not apposite, and his
argument is meritless.
[Headnotes 7-10]
Hernandez also claims that NRS 200.310 is unconstitutionally vague. Statutes enjoy a
presumption of validity, and the burden is on the party attacking them to show their
unconstitutionality.
12
A statute violates due process if it is so vague that it fails to give
persons of ordinary intelligence fair notice of what conduct is prohibited and fails to provide
law enforcement officials with adequate guidelines to prevent discriminatory enforcement.
13
Where, as here, First Amendment interests are not implicated, the challenged statute must be
shown to be impermissibly vague in all its applications or at least as applied to the defendant
in question.
14
NRS 200.310(2) provides in relevant part that [a] person who willfully and
without authority of law seizes . . . another person . . . for the purpose of conveying the person
out of the state without authority of law, . . . is guilty of kidnapping in the second degree.
Hernandez fails to show that this language did not provide him with fair notice that his
conduct in taking Ana was criminal, let alone that the statute is vague in all its applications.
[Headnote 11]
Finally, Hernandez argues that it was a legal impossibility for him to kidnap Ana because
upon Donna's death he became Ana's sole legal custodian. Although this court did not decide
this issue in Sheriff v. Dhadda,
15
that case supports the proposition that a parent having legal
custody of a child can nevertheless be convicted of kidnapping the child. In Dhadda, we
concluded that there was sufficient evidence under NRS 200.310(1) to prosecute a mother for
kidnapping her own daughter because the State demonstrated . . . probable cause to believe
that [the mother] took [the daughter] to the river for the purpose of killing her or inflicting
substantial bodily harm upon her.
16
In this case, Hernandez acted without authority of law
in taking Ana because he violated a protective order, a custody decree, and criminal statutes
when he murdered Donna and took Ana.
__________

11
State v. Stull, 112 Nev. 18, 23, 909 P.2d 1180, 1182 (1996).

12
Sheriff v. Vlasak, 111 Nev. 59, 61-62, 888 P.2d 441, 443 (1995).

13
Id.

14
Republic Entertainment v. Clark County, 99 Nev. 811, 816, 672 P.2d 634, 638 (1983); Lyons v. State, 105
Nev. 317, 320, 775 P.2d 219, 221 (1989).

15
115 Nev. 175, 980 P.2d 1062 (1999).

16
Id. at 183, 980 P.2d at 1067.
statutes when he murdered Donna and took Ana.
17
We conclude that his status as sole
surviving parent of Ana once he murdered Donna did not render his seizure of Ana lawful.
18

3. Prosecutorial misconduct
[Headnotes 12, 13]
Hernandez contends that prosecutorial misconduct occurred at his trial in the form of
numerous instances of improper comments. The relevant inquiry is whether a prosecutor's
statements so infected the proceedings with unfairness as to make the results a denial of due
process.
19
The statements should be considered in context, and a criminal conviction is not
to be lightly overturned on the basis of a prosecutor's comments standing alone.
20
Although
some of the prosecution's comments were improper, none so infected either the guilt or
penalty phase with unfairness as to deny Hernandez due process.
A. Unpreserved challenges
Hernandez failed to object to most of the instances of misconduct that he now alleges.
Generally, for this court to consider whether a prosecutor's remarks were improper, the
defendant must have objected to them at the time, allowing the district court to rule upon the
objection, admonish the prosecutor, and instruct the jury.
21
Under NRS 178.602, this court
may nevertheless address a claim if Hernandez can show that it was plain error that affected
his substantial rights. We conclude that the unobjected-to comments either were not
erroneous or did not amount to plain error.
B. Preserved challenges
[Headnote 14]
During the penalty phase, the prosecutor told the jury that she disagree[d] with a witness
called by the defense. Hernandez says that this was an improper statement of opinion.
Because defense counsel immediately objected to the comment and the district court
sustained the objection, we conclude that no reversible error occurred.
22

__________

17
See NRS 200.310(2) (prohibiting seizures of other persons without authority of law).

18
Cf. NRS 41B.250-.300 (providing that the felonious, intentional killer of a decedent forfeits any interest in
the estate of the decedent).

19
Darden v. Wainwright, 477 U.S. 168, 181 (1986).

20
United States v. Young, 470 U.S. 1, 11 (1985).

21
Riley v. State, 107 Nev. 205, 218, 808 P.2d 551, 559 (1991).

22
See, e.g., Manley v. State, 115 Nev. 114, 124, 979 P.2d 703, 709 (1999) (concluding reversal not warranted
where appellant objected immediately to improper question and district court sustained the objection and struck
the question).
[Headnote 15]
Also in the penalty phase, the prosecutor argued that evidence of uncharged domestic abuse
by Hernandez was relevant in considering the alleged mitigating circumstance of no
significant criminal history. Defense counsel objected that such bad acts could not enter into
the jury's weighing of aggravating and mitigating circumstances, and the district court
sustained the objection. Hernandez claims that the prosecutor misstated the law and
purposefully misled the jury on the use of this evidence.
[Headnote 16]
During a penalty phase, the State may properly present evidence for just three purposes: to
prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in
determining the appropriate sentence after any enumerated aggravating circumstances have
been weighed against any mitigating circumstances.
23
We conclude that the prosecutor's
argument was an appropriate attempt to employ the evidence of domestic abuse to rebut the
specific mitigating circumstance of no significant criminal history asserted by the defense.
[Headnotes 17, 18]
Finally, the prosecution argued during the penalty phase that Hernandez didn't tell Sergeant
Swoboda out on U.S. 95 that he was sorry to Ana for taking her mother away . . . [or] that he
apologized to the Griego family because they would never have another holiday with their
daughter. Defense counsel objected, and the district court sustained the objection. Hernandez
challenges this argument on two grounds. First, he contends that it is improper to argue that a
defendant is worthy of death because he has not shown remorse. In this case there was no
error because the prosecutor was fairly responding to an earlier contention by defense counsel
that Hernandez expressed remorse after he was first stopped.
24
Second, Hernandez is correct
that arguments that a family will have no more holidays with the murder victim are improper
because they are aimed only at the jury's emotions and encourage it to impose a sentence
under the influence of passion.
25
Therefore, the last part of the prosecutor's argument was
improper, but objection was immediate and sustained by the court, and we conclude that no
prejudice resulted.
4. Jury instructions
Hernandez claims that numerous jury instructions were erroneous. He failed to object to
many of them at trial.
__________

23
Hollaway v. State, 116 Nev. 732, 746, 6 P.3d 987, 997 (2000).

24
See Sherman v. State, 114 Nev. 998, 1016, 965 P.2d 903, 915 (1998).

25
Hollaway, 116 Nev. at 742-43, 6 P.3d at 994.
A. Unpreserved challenges
Hernandez failed to object to the following jury instructions which he now challenges: guilt
phase instruction no. 26 defining felony murder; guilt phase instruction no. 27 defining
murder by torture; guilt phase instruction no. 47 and penalty phase instruction no. 15 defining
reasonable doubt; guilt phase instruction no. 55 and penalty phase instruction no. 22 directing
the jury to do equal and exact justice; and penalty phase instruction no. 19 directing the jury
not to be influenced by sympathy. Hernandez must demonstrate that there was error in regard
to these instructions, that it was plain, and that it affected his substantial rights. He fails to do
so.
Hernandez also challenges guilt phase instruction no. 32 on voluntary intoxication.
Hernandez claims that he objected to this instruction below, while the State contends that he
objected only to its final line. Our reading of the record reveals that defense counsel did not
object to the instruction at all. Three alternative instructions were discussed, and defense
counsel did not object to the instruction that the district court finally decided to give.
Hernandez fails to show that the instruction given was erroneous in any way.
Hernandez also complains that the district court remarked that [j]ury instructions are the
purview of the appellate court and that jurors would not understand the distinction between
general- and specific-intent crimes, but he does not explain how this constituted error.
Finally, he asserts that there appears to be no authority to support guilt phase instruction no.
34, which provided that intoxication that follows the formation of a premeditated, deliberate
intent to commit murder does not reduce the degree of murder. Although this instruction may
be too broadly stated, Hernandez offers no analysis or authority demonstrating that it was
plainly erroneous.
B. Preserved challenges
[Headnote 19]
Hernandez objected to guilt phase instruction no. 44, defining deadly weapon. The
instruction was based on NRS 193.165(5), which provides in part that deadly weapon
means:
(a) Any instrument which, if used in the ordinary manner contemplated by its design
and construction, will or is likely to cause substantial bodily harm or death; [or]
(b) Any weapon, device, instrument, material or substance which, under the
circumstances in which it is used, attempted to be used or threatened to be used, is
readily capable of causing substantial bodily harm or death.
Hernandez contends that this definition is vague and ambiguous. He relies on Zgombic v.
State.
26
In Zgombic, this court considered whether the Legislature intended a broad,
functional definition of deadly weapon under a former version of NRS 193.165, which did
not define the term.
27
We concluded that the statutory term deadly weapon' is indeed
uncertain, and thus the broader functional interpretation is not warranted. . . . [T]he
enhancement penalty for use of a deadly weapon in the commission of a crime pursuant to
NRS 193.165 is limited to firearms and other instrumentalities that are inherently dangerous.
28

Hernandez fails to note that Zgombic preceded (and apparently prompted) the amendment of
NRS 193.165 to include both a functional and an inherently dangerous definition of
deadly weapon.
29
Therefore, the statute is no longer unclear in this regard. The definition
set forth in NRS 193.165(5)(b) is broad, but that is clearly the Legislature's intent. The
definition is not without limit, however; it requires an instrument to be readily capable of
causing death as used, not that it simply caused death.
Because the statute does not implicate First Amendment interests, Hernandez has the burden
to show that it is impermissibly vague in all its applications or at least as applied to him.
30
He does not meet this burden. Even using the stricter, inherently dangerous test set forth in
Zgombic and NRS 193.165(5)(a), the knife that Hernandez useda kitchen knife with a
seven-and-a-half-inch, serrated bladewas a deadly weapon.
31
The statute gave Hernandez
fair notice that the knife was a deadly weapon for purposes of sentence enhancement.
Hernandez also objected to instruction no. 35 in the guilt phase that informed the jury that it
did not need to agree unanimously on the theory of first-degree murder as long as its verdict
of first-degree murder was unanimous. He argues that this violates due process, but concedes
that this court has already ruled otherwise.
32
We decline to reconsider this issue.
__________

26
106 Nev. 571, 798 P.2d 548 (1990).

27
See id. at 573-76, 798 P.2d at 549-51.

28
Id. at 575-76, 798 P.2d at 551.

29
See 1995 Nev. Stat., ch. 455, 1, at 1431.

30
Republic Entertainment, 99 Nev. at 816, 672 P.2d at 638; Lyons, 105 Nev. at 320, 775 P.2d at 221.

31
See Steese v. State, 114 Nev. 479, 499, 960 P.2d 321, 334 (1998) (approving a jury instruction that a large
kitchen knife, a butcher's knife with a five- to seven-inch blade, was a deadly weapon as a matter of law);
Thomas v. State, 114 Nev. 1127, 1146, 967 P.2d 1111, 1123 (1998) (following Steese in concluding that a
meat-carving knife with a five- to seven-inch blade was a deadly weapon).

32
See, e.g., Evans v. State, 113 Nev. 885, 894-96, 944 P.2d 253, 259-60 (1997).
Hernandez also objected to guilt phase instruction no. 15 on express and implied malice,
which stated in part that malice may be implied . . . when all the circumstances of the killing
show an abandoned and malignant heart, essentially the definition set forth in NRS
200.020(2). Hernandez argued that the language abandoned and malignant heart is archaic,
vague, and ambiguous. In addition, Hernandez now challenges all the malice instructions,
nos. 13, 14, and 15, arguing that they created an unconstitutional presumption, interfered with
the presumption of innocence, and relieved the State of its burden to prove guilt beyond a
reasonable doubt. These issues were not preserved below, and Hernandez does not
demonstrate any plain error. As to whether implied malice is defined in impermissibly vague,
archaic terms, this court considered and rejected this argument last year.
33

In the penalty phase, Hernandez objected to instruction no. 11, which informed the jury that
mutilate means to cut off or permanently destroy a limb or essential part of the body
or to cut off or alter radically so as to make imperfect.
In order for mutilation to be found as an aggravating circumstance, there must be
mutilation of the victim beyond the act of killing.
Hernandez argued that the instruction was vague, ambiguous, and overbroad, making every
cause of death mutilation. He makes two additional arguments on appeal: applying Byford
v. State,
34
which held that mutilation can occur postmortem, to his case would be an
improper retroactive application of law; and the mutilation aggravator duplicated the
sexual-penetration aggravator. These last two issues were not preserved and do not have
merit.
[Headnote 20]
First, the aggravating circumstances in question are not duplicative. In this case, the same
conduct gave rise to both the mutilation and the sexual penetration, but in other cases these
two aggravating circumstances would likely be based on different facts since sexual
penetration is generally accomplished without mutilation. This factor indicates that the
aggravators are not duplicative.
35
So does a second factor: each aggravator addresses
distinguishable state interests. One is apparently aimed at preventing disfigurement,
__________

33
Leonard v. State, 117 Nev. 53, 78-79, 17 P.3d 397, 413 (2001).

34
116 Nev. 215, 994 P.2d 700 (2000).

35
See Geary v. State, 112 Nev. 1434, 1448, 930 P.2d 719, 728 (1996), clarified on rehearing, 114 Nev. 100,
952 P.2d 431 (1998).
venting disfigurement, the other at preventing sexual abuse and perversion.
36
We conclude
that the gravamen of each aggravator is different and that basing them both on the same facts
is not improper.
37

[Headnote 21]
Second, a finding of postmortem mutilation in this case does not implicate improper
retroactivity. In Byford, this court noted that it had never expressly decided whether
postmortem mutilation was an aggravating circumstance under NRS 200.033(8). We then
explicitly held that it was, reasoning as follows. Basing aggravating circumstances on the
actions of the murderer following the victim's death is proper.
38
This court's earlier case law
tends to support the conclusion that the aggravating circumstance set forth in NRS
200.033(8) includes postmortem mutilation. More important, this conclusion is consistent
with the statutory language.
39
This reasoning belies Hernandez's assertion that Byford
pronounced a new, unexpected judicial expansion of NRS 200.033(8). A judicial
interpretation of a statute may be retroactively applied if it is both authoritative and
foreseeable.
40
The holding in Byford was authoritative and foreseeable since it was
consistent with prior case law and based on the language of the statute.
Finally, Hernandez argues that the aggravating circumstance of mutilation is
unconstitutionally vague as set forth in NRS 200.033(8) and the jury instruction given in this
case. This court upheld the constitutionality of this statute and this instruction in Browne v.
State.
41
We decline to revisit the issue. Hernandez also contends that application of this
aggravating circumstance to his case was unconstitutional because the uterus has not
previously been defined as an essential part of the body and no evidence establishing it as
such was presented. We consider this contention utterly without merit.
5. The evidence supporting premeditation and deliberation, burglary, kidnapping, and
torture
Hernandez claims that there was insufficient evidence of premeditation and deliberation,
burglary, kidnapping, and torture.
__________

36
See id.

37
Cf. Servin v. State, 117 Nev. 775, 789-90, 32 P.3d 1277, 1287 (2001).

38
Byford, 116 Nev. at 241, 994 P.2d at 717.

39
Id.

40
Kreidel v. State, 100 Nev. 220, 222, 678 P.2d 1157, 1158 (1984) (citing Bouie v. City of Columbia, 378
U.S. 347 (1964)), overruled on other grounds by Nevada Dep't Prisons v. Bowen, 103 Nev. 477, 745 P.2d 697
(1987); see also Stevens v. Warden, 114 Nev. 1217, 1221, 969 P.2d 945, 948 (1998).

41
113 Nev. 305, 315-16, 933 P.2d 187, 193 (1997).
[Headnotes 22-24]
In reviewing the sufficiency of the evidence, this court must determine whether the jury,
acting reasonably, could have been convinced by the competent evidence of the defendant's
guilt beyond a reasonable doubt.
42
This court will not disturb a jury verdict where there is
substantial evidence to support it, and circumstantial evidence alone may support a
conviction.
43

[Headnote 25]
Hernandez contends that there was insufficient evidence of premeditation and deliberation.
He says that there is no suggestion in the record that he brought a weapon to Donna's home,
engaged in any planning of the offenses, or packed clothing in his car or otherwise prepared
to leave town with his daughter. He notes that he parked his car in Donna's driveway without
attempting to hide it and stresses that he was experiencing emotional turmoil and was heavily
intoxicated.
We conclude, on the contrary, that there was strong evidence of premeditation and
deliberation. The record shows that Hernandez repeatedly threatened to kill Donna. He left
such threats on her answering machine. He made a veiled threat to kill her when he told
Landeros you're going to die, dogs. Later that evening, he made the threat explicit over the
phone to Donna's mother. And about two weeks before the murder, he told a friend that he
wanted to kill Donna. Further, the jury could reasonably have found that Hernandez acted
premeditatedly and deliberately in murdering his ex-wife on October 6, the anniversary of
their failed marriage. Hernandez's possession of over $1,000 in cash immediately after the
murder could also reasonably be considered evidence that he planned the crime and his flight
afterwards.
[Headnotes 26, 27]
The evidence that Hernandez intended the murder also supports the jury's finding of burglary.
If Hernandez entered Donna's house with the intent to murder her or to kidnap Ana, he
committed burglary.
44
Hernandez emphasizes that he and Donna had been seen together on
various occasions not long before her murder and that there was no sign that he forcibly
entered her home. However, forcible entry is not an element of burglary; so even if Donna
consented to his entry, he still committed a burglary as long as he entered with a felonious
intent.
45

__________

42
Collman v. State, 116 Nev. 687, 711, 7 P.3d 426, 441 (2000), cert. denied, 532 U.S. 978 (2001).

43
Id.

44
See NRS 205.060(1).

45
See id.; Barrett v. State, 105 Nev. 361, 364, 775 P.2d 1276, 1277 (1989).
Hernandez contends that there was also insufficient evidence of second-degree kidnapping.
As discussed above, he argues that he had legal custody of his daughter. He further argues
that the divorce decree permitted him to take Ana out of state. These arguments are of no
avail. To reiterate, NRS 200.310(2) provides in relevant part that [a] person who willfully
and without authority of law seizes . . . another person . . . for the purpose of conveying the
person out of the state without authority of law, . . . is guilty of kidnapping in the second
degree. Hernandez violated a protective order, a custody decree, and criminal statutes when
he murdered Donna and took Ana. Therefore, he seized Ana without authority of law. And
the evidence that his purpose was to convey her out of state to Mexico is overwhelming: he
had threatened more than once to do so, he was driving with her in that direction when
stopped by the police, and she told the police that was where her father was taking her.
[Headnote 28]
Hernandez contends that there was insufficient evidence of murder by torture and of torture
as an aggravating circumstance. Torture involves a calculated intent to inflict pain for
revenge, extortion, persuasion or for any sadistic purpose and intent to inflict pain beyond
the killing itself.
46
In Domingues v. State, this court concluded that there was insufficient
evidence of torture where the evidence did not indicate that the appellant's intent was
anything other than to kill the victim and there was no evidence that the specific intent
behind the attempted electrocution or the stabbing was to inflict pain for pain's sake or for
punishment or sadistic pleasure.
47

[Headnote 29]
Hernandez argues that the record here shows simply that he stabbed Donna to death and did
not intend to torture her. We disagree. Coupled with the multiple injuries he inflicted on her
before her death, Hernandez's act of thrusting the knife into Donna's vagina reflects an intent
to inflict pain beyond the killing itself for a sadistic purpose. Hernandez counters that this act
occurred after Donna's death and therefore cannot be torture; he cites Byford v. State.
48
Although the evidence was not conclusive that Donna was dead when the act occurred, we
presume that she was because in the guilt phase the jurors found Hernandez guilty of sexual
penetration of a dead body.
__________

46
Domingues v. State, 112 Nev. 683, 702 & n.6, 917 P.2d 1364, 1377 & n.6 (1996).

47
Id. at 702, 917 P.2d at 1377.

48
116 Nev. at 241, 994 P.2d at 717 (Although a victim who has died cannot be tortured, mutilation can
occur after death.).
of sexual penetration of a dead body. Nevertheless, even if the knife was thrust into Donna's
vagina after her death, it is relevant evidence of his state of mind before her death as he beat
her, stabbed her repeatedly, and strangled her. We conclude that this evidence was sufficient
to prove torture as an aggravator under NRS 200.033(8) and murder by torture under NRS
200.030(1)(a). There was also sufficient evidence of the torture or mutilation aggravator on
the basis of the mutilation evident in the record.
49

6. The page limit on appellant's opening brief
[Headnote 30]
In June 2001, this court issued an opinion in this case denying Hernandez's motion for leave
to file an opening brief of 124 pages and allowing him to file an eighty-page brief.
50
He
contends that this violated his rights to meaningful appellate review and equal protection. He
claims that he was forced to omit several issues, and he points out that this court has allowed
opening briefs in excess of eighty pages in a number of other cases.
Hernandez's contention has no merit. In the past, this court has allowed longer briefs, but for
the reasons set forth in our prior opinion in this case, we have decided to limit the length of
briefs. This is not an arbitrary decision, and we are implementing it in a consistent manner. It
is not just for the convenience of this court either: the interests of the appellant are best served
when counsel focuses on key issues and omits weaker ones.
51
Here, Hernandez was allowed
to file a brief fifty pages longer than the limit prescribed in NRAP 28(g). Moreover, the State
points out that the font used in Hernandez's brief has approximately fourteen characters per
inch, in violation of the limit of ten characters per inch required by NRAP 32(a). We flatly
reject Hernandez's contention that the eighty-page limit on his brief forced him to omit issues
which he should have included. A reasonable page limit does not prevent an appellant from
presenting arguments, but merely limits the manner in which he can present them.
52

7. Other claims
[Headnote 31]
Hernandez contends that his right to a fair and impartial jury was denied when the district
court refused to dismiss a member of the venire for cause after he expressed some
reluctance to consider all relevant mitigating evidence.
__________

49
See id. at 240, 994 P.2d at 716 (stating that establishing either torture or mutilation is sufficient to support
the aggravating circumstance set forth in NRS 200.033(8)).

50
Hernandez v. State, 117 Nev. 463, 24 P.3d 767 (2001).

51
See generally id.

52
Id. at 467, 24 P.3d at 770 (citing Weeks v. Angelone, 176 F.3d 249, 271-72 (4th Cir. 1999), aff'd, 528 U.S.
225 (2000)).
was denied when the district court refused to dismiss a member of the venire for cause after
he expressed some reluctance to consider all relevant mitigating evidence. Even assuming
that the court should have excused the veniremember for cause, Hernandez was not
prejudiced because the member did not serve on the jury.
53

Hernandez complains that numerous bench and in-chamber conferences were conducted
during the trial but not reported. He claims that this violated his right to meaningful appellate
review. SCR 250(5)(a) generally requires proceedings in a capital case to be reported and
transcribed. However, defense counsel did not object to holding these unreported
conferences, and Hernandez fails to show that any plain error affecting his substantial rights
occurred.
Hernandez contends that he should have been allowed to argue last in the penalty phase and
that this court should overrule precedent to the contrary. This court has held that the State
properly argues last in a capital penalty phase because NRS 175.141 mandates it and because
the State has the burden of proving aggravators beyond a reasonable doubt.
54
Hernandez
argues that the aggravators in his case were already proved in the guilt phase so he had the
more significant burden in the penalty phase. We conclude that he has provided no
justification for this court to disregard NRS 175.141.
Hernandez next argues that the aggravators of burglary and torture cannot be applied to his
case because they were the basis for his murder conviction. He cites State v. Middlebrooks
and State v. Cherry, opinions from Tennessee and North Carolina respectively.
55
Neither he
nor the State cites Atkins v. State, where this court considered Middlebrooks and Cherry and
rejected this argument, noting that the United States Supreme Court has implicitly approved
the use of the underlying felony as an aggravator in felony-murder cases.
56

Hernandez asserts that the death penalty is unconstitutionally cruel and unusual punishment.
He also argues that Nevada's death penalty scheme is unconstitutional because it does not
sufficiently narrow the number of people eligible for the death penalty.
__________

53
It is not clear if Hernandez used a peremptory challenge to remove the member, but even if that was the
case, Hernandez has not demonstrated that any other jurors proved unacceptable and would have been excused
had an additional peremptory challenge been available. Thompson v. State, 102 Nev. 348, 350, 721 P.2d 1290,
1291 (1986).

54
See Witter v. State, 112 Nev. 908, 923, 921 P.2d 886, 896 (1996), receded from on other grounds by
Byford, 116 Nev. 215, 994 P.2d 700.

55
840 S.W.2d 317 (Tenn. 1992); 257 S.E.2d 551 (N.C. 1979).

56
112 Nev. 1122, 1134, 923 P.2d 1119, 1127 (1996).
narrow the number of people eligible for the death penalty. He asserts that statistics from the
U.S. Department of Justice show that Nevada has more persons on death row per capita than
any other state in the country. He also claims that this court reverses an inordinately low
number of death sentences. At trial defense counsel voiced a general objection to the
constitutionality of the death penalty in Nevada. This was not sufficient to preserve the issues
now raised on appeal, nor do we consider the claims to have merit.
57

[Headnote 32]
Hernandez argues that his conviction and sentence should be reversed due to cumulative
error. The cumulative effect of errors may violate a defendant's constitutional right to a fair
trial even though errors are harmless individually.
58
We conclude that any errors which
occurred were minor and, even considered together, do not warrant reversal.
8. Mandatory statutory review of the death penalty
NRS 177.055(2) requires this court to review every death sentence and consider:
(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.
Hernandez claims that his death sentence should be reversed under this statute. He invokes
his earlier arguments challenging burglary, torture, and mutilation to suggest that the evidence
did not support two pertinent aggravating circumstances. As discussed above, those
arguments fail, and we conclude that the evidence supports all three aggravators. Claiming
that his sentence was imposed under the influence of passion, prejudice, or an arbitrary factor,
he again notes that two jurors purchased the victim's daughter a gift during the penalty phase.
We do not agree that this shows that the jury acted under the influence of passion, prejudice,
or any arbitrary factor, and we see no indication of such influence in the record.
[Headnote 33]
In arguing that his death sentence is excessive, Hernandez claims that [i]n nearly all other
recent Nevada cases involving the murder of a person by their spouse or ex-spouse,
__________

57
See Gallego v. State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001); Leonard, 117 Nev. at 82-83, 17 P.3d at
415-16.

58
Byford, 116 Nev. at 241-42, 994 P.2d at 717.
the murder of a person by their spouse or ex-spouse, the death penalty has not been imposed.
He then cites with little or no analysis six opinions by this court. This court has stated that
our determinations regarding excessiveness of the death sentences of similarly situated
defendants may serve as a frame of reference for determining the crucial issue in the
excessiveness analysis: are the crime and defendant before us on appeal of the class or kind
that warrants the imposition of death?
59
Here, Hernandez provides no cogent argument
demonstrating that the cases he cites involve similarly situated defendants.
The jury recognized seven mitigating circumstances, but finding that the three aggravating
circumstances outweighed them, imposed a death sentence. We perceive no basis to set aside
this decision. Hernandez stalked his wife; murdered her without provocation in a horrific,
savage manner; and did so in the presence of her, and his own, young daughter. We conclude
that the death sentence is not excessive in this case.
CONCLUSION
We affirm Hernandez's judgment of conviction and sentence of death.
____________
118 Nev. 536, 536 (2002) Williams v. State
JESSICA WILLIAMS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37785
August 2, 2002
50 P.3d 1116
Appeal from a judgment of conviction, pursuant to a jury verdict, of six counts of driving
with a prohibited substance in the blood or urine, one count of use of a controlled substance,
and one count of possession of a controlled substance. Eighth Judicial District Court, Clark
County; Mark W. Gibbons, Judge.
The supreme court, Leavitt, J., held that: (1) prohibited substance statute is constitutional, (2)
conviction under prohibited substance theory did not violate Double Jeopardy Clause, (3) trial
court properly instructed jury on proximate cause, and (4) independent laboratory's failure to
refrigerate defendant's blood sample did not violate her due process rights.
Affirmed.
Law Office of John G. Watkins, Las Vegas; Law Office of Ellen J. Bezian, Las Vegas, for
Appellant.
__________

59
Dennis v. State, 116 Nev. 1075, 1085, 13 P.3d 434, 440 (2000).
Bruce W. Nelson, Deputy District Attorney, Clark County, for Respondent.
Statutes that involve fundamental rights, such as privacy, or that are based on suspect classifications, such as race, are subject to strict
scrutiny in equal protection analysis. Const. art. 4, 21; U.S. Const. amend. 14, 1.
Statutes that do not infringe upon fundamental rights nor involve a suspect classification are reviewed using the lowest level of scrutiny
in equal protection analysisrational basis. Under this standard, legislation will be upheld so long as it is rationally related to a
legitimate governmental interest. Const. art. 4, 21; U.S. Const. amend. 14, 1.
Legislation affecting the right to drive is subject to rational basis standard of review in equal protection analysis. Const. art. 4, 21;
U.S. Const. amend. 14, 1.
All statutes are presumed constitutional and the party attacking the statute has the burden of establishing that the statute is invalid.
5. Automobiles; Constitutional Law.
Equal Protection Clause is not violated by statute making it unlawful for any person to drive or be in physical control of a vehicle with
prohibited substance above certain levels in the blood or urine, even though statute treats drivers differently from other individuals and
makes a distinction between legal and illegal users of marijuana, because statute is rationally related to State's interest in highway
safety and in deterring illicit drug use. Const. art. 4, 21; U.S. Const. amend. 14, 1; NRS 484.379(3).
Substantive due process rights are not violated by statute making it unlawful for any person to drive or be in physical control of a
vehicle with prohibited substance above certain levels in the blood or urine. U.S. Const. amend. 14, 1; NRS 484.379(3).
7. Criminal Law.
A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that her conduct is forbidden by statute.
8. Criminal Law.
Although a facial attack may be asserted as to a statute that implicates constitutionally protected conduct, a statute that does not
implicate constitutionally protected conduct may be void for vagueness only if it is vague in all of its applications.
The Due Process Clause does not require impossible standards of specificity in penal statutes. Instead, a statute will be deemed to have
given sufficient warning as to proscribed conduct when the words utilized have a well settled and ordinarily understood meaning when
viewed in the context of the entire statute. U.S. Const. amend. 14.
Statutes are presumptively valid and the burden is on those attacking them to show their unconstitutionality.
Statute making it unlawful for any person to drive or be in physical control of a vehicle with prohibited substance above certain levels
in the blood or urine is not void for vagueness under Due Process Clause. U.S. Const. amend. 14, 1; NRS 484.379(3).
Statute making it unlawful for any person to drive or be in physical control of a vehicle with prohibited substance above certain levels
in the blood or urine does not infringe upon First Amendment rights and is thus not overbroad. U.S. Const. amend. 1; NRS 484.379(3).
The overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights. U.S. Const.
amend. 1.
An overbreadth challenge may only be made if a statute infringes upon conduct protected by the First Amendment. Absent such
infringement, an overbreadth challenge must fail. U.S. Const. amend. 1.
15. Double Jeopardy.
Acquittal of charges of driving under the influence of a controlled substance did not, under Double Jeopardy Clause, preclude
conviction of charges of driving with a prohibited substance in the blood; charges constituted alternative means of committing the
offense, and defendant was subjected to only one prosecution and one punishment for each charge. U.S. Const. amend. 5; NRS
173.075(2), 484.3795(1)(d), (f).
16. Double Jeopardy.
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.
17. Automobiles.
In prosecution for driving with prohibited substance in the blood or urine, in which defendant claimed that county's purported
negligence contributed to fatal accident, jury instruction adequately defined proximate cause as that cause which is natural and a
continuous sequence, unbroken by any other intervening causes, that produces the injury and without which the injury would not have
occurred, and that which necessarily sets in operation the factors that accomplish the injury.
18. Criminal Law.
The contributory negligence of another does not exonerate the defendant unless the other's negligence was the sole cause of injury.
19. Automobiles.
County's alleged negligence in placing teenagers in median of highway was irrelevant in prosecution of motorist for driving with
prohibited substance in the blood or urine. County's act was a preexisting condition to defendant's act of veering off road and colliding
with teenagers.
20. Automobiles; Constitutional Law; Criminal Law.
Defendant's due process rights were not violated when independent laboratory stored her blood sample in unrefrigerated location
without State's knowledge, where defendant did not request retest of her sample for over ten months after it was drawn, jury was
permitted to consider evidence relating to original test, retest, delay in retesting, and lack of refrigeration. Defendant failed to show that
State acted in bad faith or that exculpatory value of the blood samples was apparent or material to defense at time it was stored. U.S.
Const. amend. 14.
21. Automobiles; Criminal Law.
Trial court acted within its discretion in refusing to conduct evidentiary hearing on defendant's motion to suppress during trial when
defendant learned that her blood sample had not been stored in refrigeration. Trial court allowed both sides ample time to examine
expert witness in presence of jury, and court advised parties that if motion to suppress was renewed post-trial, an evidentiary hearing
would then be conducted. NRS 174.125.
OPINION
In this appeal, appellant Jessica Williams raises several claims of error relating to her
conviction and challenges the constitutionality of NRS 484.379(3) on various grounds.
FACTS
On March 19, 2000, while returning to Las Vegas from the Valley of Fire via Interstate 15,
Williams drove her van off the road, into the median, and then struck and killed six teenagers.
Testimony at trial revealed that Williams had stayed up all night on March 18, 2000.
Williams admitted to using marijuana approximately two hours prior to the collision.
Williams also admitted to using a designer drug, ecstasy, on the evening prior to the
collision. After the collision, Williams admitted to being the driver of the van. She also
voluntarily turned over her marijuana pipe to police. Residue in the pipe was subsequently
analyzed and found to be marijuana. Williams was also found to be in possession of a plastic
bag containing a substance that subsequent tests confirmed was marijuana. Williams gave
three blood samples for testing purposes, which were subsequently analyzed and found to
contain in excess of the proscribed levels of the active ingredient in marijuana and its
metabolite.
Williams claimed that she fell asleep at the wheel. Several witnesses testified at trial that they
saw Williams' vehicle pass them and then drift to the right. The passenger in Williams' van
testified that she awoke when the van drifted into the median, then looked over and saw
Williams asleep.
Williams was charged, in part, with six counts of driving while intoxicated and/or driving
with a prohibited substance in her bloodstream, six counts of reckless driving, six counts of
involuntary manslaughter, one count of possession of a controlled substance, and one count
of using a controlled substance. After extensive pretrial motions, including challenges to the
constitutionality of the prohibited substance statute, to the form of the indictment,
indictment, and to Williams' attempts to raise the issue of the county's purported negligence,
Williams proceeded to trial. At the conclusion of a two-week trial, the jury was instructed that
it could find Williams guilty of either the DUI, the reckless driving, or the involuntary
manslaughter charges. As to the DUI charges, the verdict form contained two options for each
countone for driving under the influence and one for driving with a prohibited substance in
the bloodstream. The jury was instructed that it could find Williams guilty under either or
both DUI theories but that it could not find her guilty of involuntary manslaughter and
reckless [driving] and one or both of the [DUI's].
Williams was convicted by a jury of six counts of driving with a prohibited substance in the
blood or urine, one count of use of a controlled substance, and one count of possession of a
controlled substance. The jury returned not guilty verdicts on the six counts of driving while
under the influence, six counts of involuntary manslaughter, six counts of reckless driving,
and on the single count of being under the influence of a controlled substance. Williams'
subsequent motion for a new trial was denied. The judgment of conviction was entered on
April 5, 2001, and Williams timely filed this appeal.
DISCUSSION
Williams challenges the constitutionality of NRS 484.379(3) on various grounds. In addition,
Williams claims that under the Double Jeopardy Clause, her acquittal of the charges pursuant
to NRS 484.3795(1)(d) (driving under the influence of a controlled substance) precluded her
conviction of the charges pursuant to NRS 484.3795(1)(f) (driving with a prohibited
substance in the blood). Williams also claims: that the district court erred in prohibiting her
from raising Clark County's purported negligence as the proximate cause of the deaths; that
the failure to refrigerate her blood samples constituted destruction of evidence and violated
her right to due process; and that the district court erred in refusing to conduct a suppression
hearing on her motion to exclude the blood evidence until after the close of trial. We have
considered these, and Williams' other claims of error, and conclude that they lack merit.
A. Constitutionality of NRS 484.379(3)
In 1999, the Nevada Legislature enacted NRS 484.379(3), which provides, in pertinent part,
that [i]t is unlawful for any person to drive or be in actual physical control of a vehicle on a
highway . . . with an amount of a prohibited substance in his blood . . . that is equal to or
greater than two nanograms per milliliter of marijuana or five nanograms per milliliter of
marijuana metabolite
juana metabolite.
1
The Legislature also added subsection (f) to NRS 484.3795(1).
2
Under
that section, a person is guilty of a felony if the person [h]as a prohibited substance in his
blood or urine in an amount that is equal to or greater than the amount set forth in subsection
3 of NRS 484.379 and the person neglects a duty imposed by law while driving that
proximately causes the death of or substantial bodily harm to another person.
At a pretrial hearing to consider the constitutionality of the prohibited substance statute,
Senator Jon Porter, who initially proposed the legislation, testified that the Legislature
intended to create a per se statute similar to the alcohol per se statute. During this hearing,
Senator Porter noted that there were twelve different hearings on the bill and that the wording
changed during the course of these hearings. The original draft of the bill provided that
driving or being in control of a vehicle with a detectable amount of a controlled substance
constituted a DUI violation.
3
The bill was subsequently amended to include a short list of
controlled substances, which were deemed to be prohibited substances, and if found in a
driver's system, would constitute a per se DUI violation.
4
In response to concerns over the
absence of a defined level of drugs required for a conviction, the bill was amended, where
possible, to include the federal standards set by the Substance Abuse and Mental Health
Services Administration (SAMHSA).
5
SAMHSA is the agency responsible for setting
standards for toxicology testing of airline pilots, train engineers, and others who must be
tested for drugs under federal law.
Williams challenges the constitutionality of the resulting prohibited substance statute, NRS
484.379(3), on several bases, each of which will be separately addressed.
1. Equal protection
[Headnotes 1, 2]
Williams first contends that NRS 484.379(3) violates the Equal Protection Clause because it
impermissibly treats drivers with proscribed levels of drugs in their systems differently from
others.
6
In analyzing equal protection challenges, the appropriate level of judicial scrutiny
must first be determined by considering the nature of the right being asserted.
__________

1
1999 Nev. Stat., ch. 622, 23, at 3415-16.

2
Id. 28, at 3422.

3
S.B. 481, 70th Leg. (Nev. 1999) (referred to Senate Comm. on Judiciary on March 18, 1999).

4
Hearing on S.B. 481 Before the Senate Comm. on Judiciary, 70th Leg., 6 (Nev., April 9, 1999).

5
Hearing on S.B. 481 Before the Assembly Comm. on Judiciary, 70th Leg., 12-15 (Nev., May 5, 1999).

6
U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.
the nature of the right being asserted.
7
Statutes which involve fundamental rights (such as
privacy) or which are based on suspect classifications (such as race) are subject to strict
scrutiny.
8
Statutes which do not infringe upon fundamental rights nor involve a suspect
classification are reviewed using the lowest level of scrutinyrational basis.
9
Under the
rational basis standard, legislation will be upheld so long as it is rationally related to a
legitimate governmental interest.
10

[Headnote 3]
In a footnote in Williams' opening brief, she argues that this court should apply a strict
scrutiny standard because the right to drive is a fundamental right. In the context of a
license revocation proceeding, we have previously held that there is no constitutional right to
drive; rather, driving is a privilege.
11
Other courts have similarly held that neither driving nor
using illicit drugs constitute fundamental rights.
12
The appropriate level of scrutiny is thus
the rational basis standard. During oral argument, Williams' counsel conceded that rational
basis is the appropriate standard of review.
[Headnote 4]
All statutes are presumed constitutional and the party attacking the statute has the burden of
establishing that the statute is invalid.
13
The United States Supreme Court has provided the
following guidelines in determining the rational basis of a statute:
[A] legislature that creates these categories need not actually articulate at any time the
purpose or rationale supporting its classification. Instead, a classification must be
upheld against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.
A State, moreover, has no obligation to produce evidence to sustain the rationality of a
statutory classification. [A] legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or empirical data. .
. . Finally, courts are compelled
__________

7
See Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000).

8
Id.

9
Id.

10
Id.

11
Zamarripa v. District Court, 103 Nev. 638, 642, 747 P.2d 1386, 1388 (1987).

12
State v. Phillips, 873 P.2d 706, 709 & n.5 (Ariz. Ct. App. 1994); see also Shepler v. State, 758 N.E.2d 966,
969 (Ind. Ct. App. 2001); People v. Gassman, 622 N.E.2d 845, 853 (Ill. App. Ct. 1993).

13
Sheriff v. Martin, 99 Nev. 336, 340, 662 P.2d 634, 637 (1983).
. . . to accept a legislature's generalizations even when there is an imperfect fit between
means and ends. A classification does not fail rational-basis review because it is not
made with mathematical nicety or because in practice it results in some inequality.'
The problems of government are practical ones and may justify . . . rough
accommodations[however] illogical . . . and unscientific [the accommodations may
be].
14

[Headnote 5]
The State contends that the prohibited substance statute is rationally related to the State's
interest in highway safety and in deterring illicit drug use. We agree.
In passing the prohibited substance statute, the Legislature clearly articulated its intent to
follow the lead of nine other states and create a per se drug violation
15
similar to the alcohol
per se statute. The Legislature considered extensive testimony before passing the law and
rejected the concerns expressed by those opposed to the law, who argued it lacked a direct
correlation between the prohibited drugs in a driver's system and impairment. Since the law
was passed in 1999, the Legislature in 2001 had an opportunity to amend the statute and did
not do so, although other aspects of the DUI statute were amended during the 2001 legislative
session.
We have previously recognized traffic safety as a rational basis for upholding statutes that
regulate the use of substances that may impair a person's ability to drive.
16
In considering
Arizona's per se drug statute, the Arizona Court of Appeals concluded in State v. Phillips that
banning driving by persons with any measurable amount of illicit drugs was constitutional
because the legislature was reasonable in determining that there is no level of illicit drug
use which can be acceptably combined with driving a vehicle;
__________

14
Heller v. Doe, 509 U.S. 312, 320-21 (1993) (citations omitted) (emphasis added).

15
In considering this legislation, the Legislature received information that nine other states had already
enacted per se drug statutes. These states included Arizona, Georgia, Illinois, Indiana, Iowa, Minnesota, Rhode
Island, South Dakota, and Utah. At the time, statutes in Arizona, Georgia, and Illinois had been challenged and
found to be a proper exercise of legislative authority. Since then, Indiana and Iowa have also upheld their per se
drug statutes. Shepler, 758 N.E.2d at 969; Loder v. Iowa Dept. of Transp., 622 N.W.2d 513, 516 (Iowa Ct. App.
2000). Based on another statute providing for medical use of marijuana, Georgia concluded that as to marijuana,
the per se drug statute violated the Equal Protection Clause because it treated legal and illegal marijuana users
differently without a rational basis. Love v. State, 517 S.E.2d 53, 57 (Ga. 1999). However, Georgia has
subsequently recognized the validity of the statute as applied to drivers with cocaine in their system. See
Carthon v. State, 548 S.E.2d 649, 654 (Ga. Ct. App. 2001); Keenum v. State, 546 S.E.2d 288, 289 (Ga. Ct. App.
2001).

16
Sereika v. State, 114 Nev. 142, 149, 955 P.2d 175, 180 (1998).
was reasonable in determining that there is no level of illicit drug use which can be
acceptably combined with driving a vehicle; the established potential for lethal consequences
is too great.
17
Likewise, we conclude that the governmental interest in maintaining safe
highways is sufficient for our prohibited substance statute to survive a constitutional attack on
the basis that it impermissibly treats drivers with the proscribed levels of illicit drugs in their
system differently from others.
To the extent that Williams' argument is premised on the distinction made between legal and
illegal users of marijuana, we likewise conclude that it lacks merit. This portion of Williams'
argument is based on language in NRS 484.1245 that exempts substances used by persons
with a valid prescription for that substance from the definition of prohibited substances as
used in NRS 484.379(3). Williams also points to the exclusion of certain parts of the
marijuana plant from the definition of marijuana in NRS 453.096 in asserting there could
be legal users, as well as the fact that doctors in Nevada may prescribe Marinol
18
to certain
persons.
The State contends that Nevada did not recognize any lawful users of marijuana at the time of
Williams' collision or conviction.
19
In addition, the State contends that even if such a
distinction existed, it would be rationally related to a legitimate state objective in deterring
illicit drug use. We agree.
The Legislature could have reasonably determined that illegal use of a substance poses a
greater threat to the publicand therefore warrants a harsher punishmentbecause unlike
prescribed use, illegal use of drugs is not controlled. Specifically, a prescription is generally
for a drug which has been reviewed and/or approved by the Food and Drug Administration
(FDA), is of a specific potency, is prescribed at a certain dosage, and is often accompanied
by warnings not to drive. Conversely, people who use illicit drugs do so to impair
themselvesto obtain a specific effect or desired high, which arguably makes them more
likely to be unable to drive safely. Under Heller v. Doe,
20
this or any other reasonably
conceivable rationale need not have been actually considered by our Legislature to provide a
basis for upholding a statute reviewed under the rational basis test.
__________

17
873 P.2d at 710.

18
Marinol is a drug containing one of the active ingredients in marijuana.

19
Though Nevada voters in the 2000 election approved a referendum authorizing the Legislature to draft a
medicinal marijuana statute, the referendum was passed after Williams' collision and such a statute has not yet
been enacted.

20
509 U.S. at 319-21.
We conclude that NRS 484.379(3) is rationally related to a legitimate state objective and is
therefore constitutional. In doing so, we reiterate that it is the province of the Legislature to
pass legislation, while our duty is to determine whether such legislation passes constitutional
scrutiny and is therefore valid law.
21
Opponents of a valid statute must look to the
Legislature rather than the judiciary to amend the law.
2. Due process
[Headnote 6]
Williams next argues that the statute violates her right to substantive due process.
22
In this
claim, Williams seems to mimic her equal protection arguments. Williams claims that the
State may not deprive her of her right to drive while having low levels of marijuana
because there is no rational, non-arbitrary connection to a legitimate purpose. In addition,
Williams claims that the means utilized by the Legislature to achieve its legitimate purpose
are too onerous because there is no legitimate interest in prosecuting unimpaired drivers for
DUI. We conclude this argument lacks merit.
As previously discussed, there are several ways in which the statute could be rationally
related to legitimate governmental objectives. One plausible rationale suffices even if not
considered or articulated by the Legislature.
23
Further, when the constitutionality of a statute
is examined using the rational basis standard, the state is not compelled to use the least
restrictive means to reach the desired objective.
24
A statute analyzed under this standard
must survive a constitutional challenge even when there is an imperfect fit between means
and ends.
25

3. Vagueness
Williams claims that the prohibited substance statute is void for vagueness because she
cannot tell what part of the marijuana plant or which marijuana metabolites are prohibited or
when she has reached the levels proscribed by NRS 484.379(3).
[Headnotes 7-10]
A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice
that her conduct is forbidden by statute.
__________

21
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

22
U.S. Const. amend. XIV, 1.

23
Heller, 509 U.S. at 319-21.

24
Id. at 320-21.

25
Id. at 321.
statute.
26
While a facial attack may be asserted as to a statute that implicates constitutionally
protected conduct, a statute that does not implicate constitutionally protected conduct, as in
this instance, may be void for vagueness only if it is vague in all of its applications.
27
The
Due Process Clause does not require impossible standards of specificity in penal statutes.'
28
Instead, a statute will be deemed to have given sufficient warning as to proscribed conduct
when the words utilized have a well settled and ordinarily understood meaning when viewed
in the context of the entire statute.
29
Statutes are presumptively valid and the burden is on
those attacking them to show their unconstitutionality.
30
Williams thus has the burden of
proving that the statute failed to provide adequate notice of the proscribed conduct.
In Phillips, the Arizona Court of Appeals considered the argument that Arizona's per se drug
statute was unconstitutionally vague.
31
The court rejected the claim and held that the statute
provided adequate warning of the proscribed conduct because none of the terms utilized in
the statute defied common understanding, and interpretation of the statute was not dependent
on a third party's judgment.
32
Phillips held that a potential offender was therefore on notice
that any driver who has ingested a prohibited drug would be subject to prosecution.
33
In
People v. Gassman,
34
the Illinois Court of Appeals rejected a vagueness challenge to the
Illinois per se drug statute for similar reasons. Like the Arizona statute, the Illinois statute
prohibits driving with any detectable amount of drugs in the system.
35

[Headnote 11]
Nevada's prohibited substance statute is even more explicit than the Arizona or Illinois
statutes because only ten substances or metabolites are prohibited and the proscribed amount
is indicated for both blood and urine levels. In addition, because the statute contains the
specific amount of drug that is prohibited, there is even less need to depend on a third party's
judgment.
__________

26
United States v. Harriss, 347 U.S. 612, 617 (1954).

27
Martin, 99 Nev. at 340, 662 P.2d at 637.

28
Sheriff v. Vlasak, 111 Nev. 59, 61, 888 P.2d 441, 443 (1995) (quoting Wilmeth v. State, 96 Nev. 403, 405,
610 P.2d 735, 737 (1980) (citations omitted)).

29
Id.

30
Id. at 61-62, 888 P.2d at 443.

31
873 P.2d at 708-09.

32
Id. at 709.

33
Id.

34
Gassman, 622 N.E.2d at 853.

35
See 625 Ill. Comp. Stat. Ann. 5/11-501(a)(6) (West Supp. 2002).
The substance at issue in the present case is marijuana and its metabolite. Although marijuana
is not defined in NRS Chapter 484, it is defined in NRS 453.096. A metabolite, as defined in
an ordinary dictionary, means a product of metabolism.
36
Considering the plain meaning
of the terms, we conclude that a person of ordinary intelligence has adequate notice of the
meaning of marijuana, and that marijuana metabolites are those metabolites that result from
ingesting marijuanaas defined in NRS 453.096. We note that Williams appears to have
clearly understood the common meaning of the term marijuana. Williams acknowledged
being a regular marijuana user and turned over her pipe containing marijuana residue to a
police officer at the collision site. She was also found to be in possession of a plastic bag later
found to contain marijuana.
Williams' second vagueness claim is that a person cannot tell when he or she will reach the
prohibited levels of marijuana. In Slinkard v. State, we considered and rejected this same
argument with regard to the alcohol per se statute.
37
We determined that a person of average
intelligence could reason that consumption of a substantial quantity of alcohol could result in
the proscribed level and held that this sufficed to satisfy the notice requirement.
38
In the
context of this case, the argument is even weaker because unlike alcoholwhich may be
legally possessed and consumedit is unlawful to use or possess marijuana in any amount.
39
Williams was given adequate notice that she was not permitted to legally possess or use
marijuana, yet she chose to do both and then drive a vehicle. Further, the statute provides
adequate notice that it is unlawful to drive with clearly defined levels of marijuana or
marijuana metabolite in the bloodstream.
4. Overbreadth
[Headnote 12]
Williams' last constitutional challenge is that NRS 484.379(3) fails to recognize the lawful
use of the parts of the marijuana plant that are excluded from the definition of marijuana
under NRS 453.096(2). Williams argues that this impermissibly punishes the use of all
marijuana and that since it captures legal conduct, the statute is overbroad. She also argues
that marijuana is not precisely defined in NRS 484.3795.
__________

36
See Random House Webster's College Dictionary 823 (2d ed. 1996).

37
106 Nev. 393, 395, 793 P.2d 1330, 1331 (1990).

38
Id.

39
NRS 453.336 (possession of a controlled substance); NRS 453.411 (being under the influence of a
controlled substance).
[Headnotes 13, 14]
[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of
First Amendment rights.
40
An overbreadth challenge may only be made if a statute infringes
upon constitutionally protected conduct.
41
Absent such infringement, an overbreadth
challenge must fail.
42

We have already determined that the statute being challenged by Williams does not affect
constitutionally protected conduct. Therefore, Williams' overbreadth argument is without
merit.
B. Double jeopardy
[Headnote 15]
Next, Williams argues that her conviction under the prohibited substance theory violates the
Double Jeopardy Clause.
43
Specifically, she claims that since she was charged under two
subsections of NRS 484.3795(1), and the district court treated the alternative theories as
separate offenses by asking the jury to return verdicts as to each theory, that acquittal under
the first theory precluded conviction under the second theory.
[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution
for the same offense after acquittal; a second prosecution for the same offense after
conviction; and multiple punishments for the same offense.'
44

[Headnote 16]
To determine whether a single act which allegedly violates two statutory provisions
constitutes a single offense for purposes of double jeopardy analysis, we recently reiterated
that the test set forth in Blockburger v. United States
45
is the appropriate tool.
46
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.
47
Here, NRS 484.3795(1)(d) makes it unlawful to
drive or be in actual physical control of a vehicle while under the influence of a controlled
substance. NRS 484.3795(1)(f) prohibits a person from driving or being in actual physical
control of a vehicle while having a prohibited substance in his or her blood in excess of
the amount set forth in NRS 4S4.379{3).
__________

40
Chicago v. Morales, 527 U.S. 41, 52 (1999) (plurality opinion).

41
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 (1982).

42
Id.

43
U.S. Const. amend. V.

44
Gordon v. District Court, 112 Nev. 216, 220, 913 P.2d 240, 243 (1996) (quoting United States v. Halper,
490 U.S. 435, 440 (1989), abrogated on other grounds by Hudson v. United States, 522 U.S. 93 (1997)).

45
284 U.S. 299 (1932).

46
Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001).

47
Id.
or being in actual physical control of a vehicle while having a prohibited substance in his or
her blood in excess of the amount set forth in NRS 484.379(3). Impairment is not necessary
for a conviction under NRS 484.3795(1)(f); and, unlike NRS 484.3795(1)(f), no specific level
of a prohibited substance must be found in order to convict a person under NRS
484.3795(1)(d). In addition, we previously recognized the existence of a per se violation, in
the alcohol context, and stated that [t]his violation exists completely apart from a violation
based on being under the influence of intoxicating liquor or a controlled substance.
48
Under
the Blockburger test, each of these subsections defines a separate offense for purposes of
double jeopardy analysis.
We previously concluded that multiple convictions under separate DUI theories are
impermissibly redundant.
49
In Dossey v. State,
50
the driver was charged and convicted of
three counts of driving while intoxicated, each brought under a different subsection of NRS
484.379(1). We concluded that the [L]egislature intended the subsections of [the DUI]
statute to define alternative means of committing a single offense, not separable offenses
permitting a conviction of multiple counts based on a single act.
51
Accordingly, using the
redundant conviction analysis, we vacated the conviction on two of the counts as redundant
but affirmed the conviction and sentence as to the third count.
Under NRS 173.075(2), alternative means of committing a crime may be alleged within a
single count. We previously have held that although a charging document may set forth
alternative means of committing an offense within a single count, alternative offenses must
be charged in separate counts.
52
Further, setting forth alternative and distinct theories of
prosecution in one count does not fail to give the defendant adequate notice of the charges
against him.
__________

48
Long v. State, 109 Nev. 523, 530, 853 P.2d 112, 116 (1993); see also State v. Dow, 806 P.2d 402, 405-07
(Haw. 1991) (holding that Hawaii's DUI statute provides two alternative means of proving a single offense and
that trying a defendant on a per se DUI theory, after she had been acquitted of the impairment theory, did not
constitute double jeopardy because acquittal on one theory was not fatal to completely separate theory); State
v. Abbott, 514 P.2d 355 (Or. Ct. App. 1973) (holding that there was no prohibition against convicting a
defendant of a per se violation while simultaneously acquitting a defendant of driving under the influence); State
v. Superior Court of Pima County, 721 P.2d 676 (Ariz. Ct. App. 1986) (explaining that per se violation and
driving under the influence involve different factual elements).

49
Dossey v. State, 114 Nev. 904, 964 P.2d 782 (1998); see also Albitre v. State, 103 Nev. 281, 283, 738 P.2d
1307, 1309 (1987) (holding that redundant convictions that do not comport with legislative intent should be
stricken).

50
114 Nev. at 904, 964 P.2d at 782.

51
Id. at 909, 964 P.2d at 785.

52
Jenkins v. District Court, 109 Nev. 337, 339-40, 849 P.2d 1055, 1057 (1993).
does not fail to give the defendant adequate notice of the charges against him.
53
Based on our
decision in Dossey, the State properly alleged alternative theories in one count. The purpose
of NRS 173.075 is clearly to ensure that the defendant is given proper notice of the charges
he is faced with so as to adequately defend against them. The record here indicates that
Williams was clearly on notice as to the charges she faced.
We conclude that NRS 484.3795(1)(d) and (f) constitute alternative means of committing an
offense and that appellant's acquittal under the one subsection and her conviction under the
other does not violate the Double Jeopardy Clause. Further, we conclude that Williams'
argument also lacks merit because she has been subjected to only one prosecution and one
punishment for each DUI charge.
C. Proximate cause
Williams claims that the trial court erred in excluding evidence of the county's purported
negligence because that decision improperly shifted the burden of proof to the defense on the
issue of proximate cause. We disagree.
[Headnotes 17, 18]
The State's motion in limine to exclude this evidence was granted on the basis that any
purported negligence by a third party would not exculpate Williams if she was found to be a
proximate cause of the deaths. Proximate cause was defined in Jury Instruction No. 15, which
stated:
Proximate Cause is that cause which is natural and a continuous sequence, unbroken
by any other intervening causes, that produces the injury and without which the injury
would not have occurred.
A proximate cause of an injury can be said to be that which necessarily sets in operation
the factors that accomplish the injury.
The contributory negligence of another does not exonerate the defendant unless the
other's negligence was the sole cause of injury.
We have previously held that a similar instruction was an accurate statement of Nevada law
because an intervening cause must be a superseding cause or the sole cause in order to
completely excuse the prior act.
54
We conclude that the instruction given in this case was
also proper.
__________

53
Sheriff v. Aesoph, 100 Nev. 477, 478, 686 P.2d 237, 238 (1984).

54
Etcheverry v. State, 107 Nev. 782, 785, 821 P.2d 350, 351 (1991).
[Headnote 19]
Further, we conclude that the district court did not abuse its discretion by excluding the
evidence as irrelevant.
55
Our point is illustrated by a California case involving similar facts.
In People v. Autry,
56
the California Court of Appeals considered the question of whether
alleged negligence by a construction company in placing work crews in the median without
the required attenuator truck behind the workers to absorb any collisions and prevent injuries
to the workers relieved a defendant of criminal liability. There, as in this case, the defendant
was charged with driving under the influence and second-degree murder based on the deaths
that resulted from the collision with the workers.
57
The court found as a matter of law that
the construction company's alleged negligence was a preexisting condition and therefore
could not be an intervening or superceding cause.
58
The court reasoned that [i]n the normal
meaning of the words, . . . an intervening' or superseding' cause which relieves the criminal
actor of responsibility is one which breaks the chain of causation' after the defendant's
original act.
59

Likewise, in the present case, the county's placement of the teenagers in the median was a
preexisting condition to Williams' act of veering off the road and colliding with the teenagers
in the median. The district court thus properly held that any purported negligence would not
exonerate Williams and properly rejected the evidence as irrelevant.
We conclude that the district court properly exercised its discretion in concluding that
evidence of the county's purported negligence was irrelevant because such negligence could
not exculpate Williams. This decision did not shift the burden of proof because the State was
still required to prove beyond a reasonable doubt that Williams was the proximate cause of
the resulting deaths.
D. Destruction of evidence
Williams next contends that her conviction should be vacated because the State failed to
preserve her blood sample. Williams raised this argument in a motion to suppress the blood
evidence and also claims that the district court committed plain error in refusing to
conduct a suppression hearing until the close of trial.
__________

55
NRS 48.025 provides that only relevant evidence is admissible. The determination of whether evidence is
relevant lies within the sound discretion of the trial judge. Atkins v. State, 112 Nev. 1122, 1127, 923 P.2d 1119,
1123 (1996). That decision will not be disturbed on appeal absent a clear abuse of that discretion. Id.

56
43 Cal. Rptr. 2d 135, 137 (Ct. App. 1995).

57
Id. at 136.

58
Id. at 140.

59
Id.
and also claims that the district court committed plain error in refusing to conduct a
suppression hearing until the close of trial.
1. Suppression of evidence
In Arizona v. Youngblood,
60
the United States Supreme Court held that the State's failure to
preserve evidence does not warrant dismissal unless the defendant can show bad faith by the
government and prejudice from the loss of the loss of the evidence.
61
We have reached a
similar conclusion:
[T]he 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.'
62

Additionally, in State v. Hall, we held that a lab's routine destruction of a DUI defendant's
blood sample, after a year, did not constitute bad faith.
63

[Headnote 20]
Here, the blood evidence was not lost or destroyed by the State. Instead, without the State's
knowledge, the blood sample was stored by an independent lab (APL) in an unrefrigerated
location-according to the lab's normal procedures. Williams did not request a retest of her
blood sample for over ten months after it was drawn. Upon request, the State stipulated to
allow the retest and there is no evidence that the State delayed the request in any way.
The district court concluded that Williams had failed to show that the State acted in bad faith
or that the exculpatory value of the blood samples was apparent or material to her defense at
the time that it was stored at room temperature. Nevada case law, as clearly articulated in
Leonard v. State,
64
supports this conclusion.
__________

60
488 U.S. 51 (1988).

61
Id. at 57-58.

62
Leonard v. State, 117 Nev. 53, 68, 17 P.3d 397, 407 (2001) (citations omitted).

63
105 Nev. 7, 9, 768 P.2d 349, 350 (1989).

64
117 Nev. 53, 17 P.3d 397.
sion. Williams has failed to demonstrate how this decision was erroneous.
Accordingly, we conclude that the district court properly determined that Williams failed to
show the non-refrigeration constituted a due process violation. We also concur with the
district court's decision to allow the jury to consider all of the evidence relating to the original
test, the retest, the delay in retesting, and the lack of refrigeration. The jury was free to weigh
the evidence as it deemed appropriate.
2. Delay in suppression hearing
[Headnote 21]
Williams claims that the trial court's refusal to conduct an evidentiary hearing on her motion
to suppress the blood evidence until after the close of trial was plain error.
The fact that Williams' blood samples had not been refrigerated did not become known until
near the end of the presentation of evidence phase, when Williams sought to introduce the
retest results and the testimony of an expert witness not previously disclosed to the State. The
State had introduced the blood evidence and the lab analyst's testimony, without objection,
six days before this information became known. When this new information arose, the district
court recognized that this information was new to all parties and considered the motion to
suppress but denied it, without prejudice, on the basis that given the stage of the proceedings,
it was not timely.
The district court allowed counsel on both sides to examine the expert offered by Williams
outside the presence of the jury. After hearing the testimony, the district court ruled that it
would allow both sides ample time to examine the witness in the presence of the jury and
would allow both sides to elicit testimony as to how the blood evidence would have been
affected by the delay in retesting and by having been stored at room temperature. The district
court also advised the parties that if the motion to suppress was renewed post-trial, an
evidentiary hearing would then be conducted.
NRS 174.125(1) provides that motions to suppress evidence must be made before trial, unless
the moving party was unaware of the grounds for the motion before trial. NRS 174.125(3)(a)
requires that motions to suppress must be made in writing not less than 15 days before the
date set for trial except in certain circumstances not present in this case. NRS 174.125(3)(b)
allows the district court to permit the motion to be filed at a later date if a defendant waives
hearing on the motion or for other good cause shown.
Here, Williams was unaware of the grounds for filing the motion before trial. The district
court could have thus considered the motion during trial under NRS 174.125{3){b).
the motion during trial under NRS 174.125(3)(b). However, the terms in the statute are
discretionary and the decision to consider the motion was therefore within the discretion of
the district court. The district court considered the motion but refused to stop the proceedings
in order to immediately conduct an evidentiary hearing. We conclude that this decision was
within the district court's discretion.
E. Other claims of error
Williams further claims that the district court erred in admitting the testimony of the lab
analyst who handled the blood sample, though Williams did not object or cross-examine the
witness. In addition, Williams contends that the district court erred by prohibiting her attorney
from talking about an unrelated case, in refusing a proffered jury instruction, and in admitting
photographs of the victims taken at the scene of the collision. These arguments were fully
briefed. We have considered them and conclude that they too lack merit.
Accordingly, we order the judgment of conviction affirmed.
Maupin, C. J., Young, Shearing, Agosti, Rose and Becker, JJ., concur.
____________
118 Nev. 554, 554 (2002) Mason v. State
MACK MASON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37964
August 9, 2002
51 P.3d 521
Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with
use of a deadly weapon, second-degree kidnapping with use of a deadly weapon, and two
counts of burglary while in possession of a firearm. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
The supreme court held that: (1) jury was properly instructed on reasonable doubt; (2)
evidence was sufficient to support finding that defendant was person who shot victim; and (3)
court erred in sentencing phase by admitting testimony of two witnesses whom State did not
identify in notice to defendant required in capital cases, but that error was not reversible error,
as defendant did not receive death sentence.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
118 Nev. 554, 555 (2002) Mason v. State
1. Criminal Law.
Jury in murder trial was properly instructed on reasonable doubt, and thus defendant was not entitled to jury instruction that if the
evidence was susceptible of two reasonable interpretations, one of which would point to the defendant's guilt and the other would
admit of his innocence, then it is your duty in considering such evidence to adopt that interpretation which will admit of defendant's
innocence and reject that which would point to his guilt.
2. Criminal Law.
The decision to admit photographs is within the district court's sound discretion and will not be reversed absent an abuse of discretion.
3. Homicide.
Evidence was sufficient at murder trial to support finding that defendant was person who shot victim, although one witness had lied on
stand and another witness's description of the gun that he saw defendant holding differed from the color and size of the murder
weapon; one witness gave eyewitness account of murder, another witness testified that defendant, asking for victim, arrived at victim's
apartment with a gun just before the murder, and defendant's cousin testified that defendant said he was leaving town because he had
got him a person.
4. Criminal Law.
The jury determines the weight and credibility to give conflicting testimony, and the jury's verdict will not be disturbed on appeal if
substantial evidence supports the verdict.
5. Criminal Law.
The question for the reviewing court on a challenge to the sufficiency of the evidence is 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.
State failed to identify two witnesses in its notice to murder defendant of evidence it intended to present at the penalty phase of trial, at
which it sought death penalty, and thus court erred in admitting testimony by those witnesses. SCR 250(4)(f).
Error in admission of testimony by two witnesses at sentencing phase of capital murder trial was not reversible error, although
defendant was not given notice of the witnesses and they testified as to prior unrelated offenses allegedly committed by defendant;
testimony was relevant and would have been admissible without prior notice at an ordinary sentencing or a noncapital penalty hearing,
and defendant was not sentenced to death. NRS 48.035; SCR 250(4)(f).
Evidence of unrelated offenses for which a defendant has not been convicted is admissible at a penalty phase unless it is dubious or
tenuous or its probative value is substantially outweighed by the danger of unfair prejudice or other concerns. NRS 48.035.
9. Criminal Law.
So long as the record does not demonstrate prejudice resulting from consideration of information or accusations founded on facts
supported only by impalpable or highly suspect evidence,
118 Nev. 554, 556 (2002) Mason v. State
only by impalpable or highly suspect evidence, the supreme court will refrain from interfering with the sentence imposed. NRS 48.035.
The State is required to provide notice of all evidence it intends to introduce at a capital penalty hearing. SCR 250(4)(f).
OPINION
Per Curiam:
As discussed below, we hold that SCR 250(4)(f) requires the State to provide notice of all
evidence it intends to introduce at a capital penalty hearing. The district court in this case
erred in admitting certain evidence at appellant Mack Mason's penalty hearing without
determining whether the State had good cause for not providing notice of it earlier. But
Mason did not receive a death sentence, and we conclude that the error was not prejudicial.
FACTS
Mason had been living with his aunt, Flora Mason, for a month or two when he moved out of
her house in North Las Vegas in March or April 1999. On May 10, 1999, Flora returned
home from work and found that her home had been broken into and ransacked. Her father's
.38 caliber revolver and a neighbor's shotgun were missing. Earlier that morning, one of
Flora's neighbors had seen Mason walk to the back of Flora's house. Mason reappeared ten or
fifteen minutes later carrying a long object wrapped in a blanket or rug and walked away
down the street. At around 10:30 a.m., Mason pawned the stolen shotgun.
Felicia Jackson encountered Mason that same day. Jackson first met Mason in 1995, and they
became romantically involved. Jackson claimed that at some point she ended the romance but
that the two continued to be friends. According to Jackson, Mason wanted to renew their
romance around early 1999, but Jackson did not. He told Jackson that she was not going to
live in the same state with him and be with someone else. Jackson nevertheless began a
romantic relationship in April 1999 with Dudley Thomas. Jackson testified that on May 10,
Mason first approached her outside a store in North Las Vegas. She told Mason she did not
want to talk with him and got into a car and drove away with Thomas. The two stopped at
another location, and she sat in the passenger seat of the car while Thomas talked with some
other men. Mason approached the car and lunged at Jackson with a knife. She fled out the
driver's side of the car and ran past Thomas.
118 Nev. 554, 557 (2002) Mason v. State
and ran past Thomas. Thomas confronted Mason, and Jackson ran down an alley and
eventually got a ride to Thomas's apartment.
Jackson further testified that that evening she and Thomas were in the bedroom of his
apartment. Kevin Brown was in the front room of the apartment. Jackson was writing a letter,
and Thomas was on the telephone when Mason walked into the bedroom. He asked Thomas
if he still thought it was funny. Thomas said he didn't think anything was funny if Mason was
trying to hurt Jackson. Mason said that he thought Thomas still thought it was funny, raised a
gun he was holding, and shot Thomas in the head. Mason then grabbed Jackson and forced
her out of the apartment. Mason later told Jackson that after their confrontation earlier in the
day, Thomas had tried to run him over and had laughed.
Brown testified that Mason came to the door of the apartment and asked if Thomas was
home. After Brown said he was, Mason pulled a revolver, pointed it at Brown, and told him
to leave. Brown ran from the apartment and heard a gunshot. He soon saw Mason pulling
Jackson by the arm up the street. Brown returned to the apartment and saw Thomas lying on
the bedroom floor with blood on his head.
Mason had a friend give him and Jackson a ride to downtown Las Vegas. They rented a room
at a motel. The next day they did some shopping, ate at a restaurant, and went to the bus
station. Mason was interested in taking the bus to California, but the line at the bus station
was long, so they left. Mason called his cousin in California from a pay phone and said that
he was leaving Las Vegas because he had got him a motherfucker. The cousin understood
Mason's words to mean, Actually done something to someone. You know, he was planning
to get out of the State of Nevada. It obviously had to be something bad for him just to come
to Sacramento.
Mason and Jackson then returned to the motel. The police had discovered their whereabouts
and phoned their motel room. Mason would not answer the phone, but Jackson looked out the
window and saw the police. The police then used a bullhorn and told Mason to allow Jackson
to leave. He refused to let her leave and told her to get under the mattress of the bed. She did
so. Mason then made a hole in the wall and tried unsuccessfully to squeeze through to the
next room. After the police threatened to send in a police dog, he left the room and was
arrested. Police later found a .38 caliber revolver in the air duct of the room. The bullet
recovered from Thomas's brain was consistent with a .38 caliber bullet.
The day after his arrest, Mason was advised of his rights under Miranda
1
and gave a
statement. At that time he said that on the night of May 10 he went to Thomas's apartment,
__________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
118 Nev. 554, 558 (2002) Mason v. State
night of May 10 he went to Thomas's apartment, picked up his girlfriend (Jackson), and left
without incident. At trial, Mason testified that he had a key to his Aunt Flora's house, which
he used on May 10 to enter and take the shotgun. He denied taking the revolver. He also
testified that he went to Thomas's apartment that night and picked up Jackson. As soon as he
and Jackson left, Jackson returned to the apartment for some reason. As Mason followed and
came to the apartment, he heard Thomas shouting and saw him go into the bedroom with a
machete in his hand. Mason heard a shot, entered the bedroom, and saw Jackson holding a
gun and Thomas lying at the foot of the bed. Mason grabbed Jackson, and they left.
The jurors found Mason guilty of first-degree murder with use of a deadly weapon,
second-degree kidnapping with use of a deadly weapon, and two counts of burglary while in
possession of a firearm. They found him not guilty of grand larceny of a firearm. There was a
penalty hearing because the State sought a death sentence. The jurors returned a verdict of life
in prison without the possibility of parole. The district court accordingly sentenced Mason to
two consecutive terms of life in prison without the possibility of parole for the murder as well
as prison terms for the other three counts.
DISCUSSION
Various assignments of error
Mason claims that the district court erred in overruling his objections to three jury
instructions. However, case law supports the use of all three instructions. First, Mason
challenges the instruction on implied malice, arguing that it is vague due to its archaic
language. This court has already considered and rejected this challenge.
2
Next, he challenges
the instruction on reasonable doubt required by NRS 175.211(1). He argues at length that this
instruction is even worse than the instruction deemed unconstitutional in Cage v. Louisiana.
3
He fails, however, to cite our decision in Lord v. State,
4
where we considered Cage and
concluded that the two instructions were not similar and that the Nevada instruction is
constitutional. Finally, he argues that the jury was improperly instructed that it need not agree
unanimously on the theory of guilt, but we have repeatedly approved this statement of law.
5

__________

2
See Leonard v. State, 117 Nev. 53, 78-79, 17 P.3d 397, 413 (2001).

3
498 U.S. 39 (1990).

4
107 Nev. 28, 38-40, 806 P.2d 548, 554-56 (1991).

5
See, e.g., Walker v. State, 113 Nev. 853, 870, 944 P.2d 762, 773 (1997).
118 Nev. 554, 559 (2002) Mason v. State
[Headnote 1]
Mason also contends that the district court erred in refusing to instruct the jury that if the
evidence is susceptible of two reasonable interpretations, one of which would point to the
defendant's guilt and the other would admit of his innocence, then it is your duty in
considering such evidence to adopt that interpretation which will admit of defendant's
innocence and reject that which would point to his guilt. This court has held that it is not
error to refuse to give this kind of instruction where the jury has been properly instructed on
the standard of reasonable doubt.
6

[Headnote 2]
Mason contends that the district court erred in admitting a photograph of the victim's body
over Mason's objection. The decision to admit photographs is within the district court's sound
discretion, and this court will not reverse absent an abuse of discretion.
7
Despite
gruesomeness, photographs have been held admissible when they accurately show the scene
of the crime, the cause of death, or the severity of wounds and the manner of their infliction.
8
We conclude that the district court acted within its discretion in admitting the photograph.
Sufficiency of the evidence
[Headnotes 3-5]
Mason contends that the evidence presented at trial was insufficient to prove that he shot
Thomas and therefore to support the jury's finding that he was guilty of murder. The jury
determines the weight and credibility to give conflicting testimony, and the jury's verdict will
not be disturbed on appeal where substantial evidence supports the verdict.
9
The question for
the reviewing court is 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.
10

Mason stresses that the evidence presented at trial was conflicting, particularly his and
Jackson's testimony. He points out that Jackson was not truthful in claiming that she had
ended her romantic relationship with him long before Thomas's murder.
__________

6
Bails v. State, 92 Nev. 95, 96-98, 545 P.2d 1155, 1155-56 (1976) (citing Holland v. United States, 348 U.S.
121 (1954)).

7
Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997).

8
Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668, 674 (1976), overruled on other grounds by Alford v.
State, 111 Nev. 1409, 906 P.2d 714 (1995).

9
Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).

10
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
118 Nev. 554, 560 (2002) Mason v. State
Also, Mason presented witnesses who testified that they saw Jackson trying to sell a gun
shortly before the murder that looked like the murder weapon, and he considers it significant
that the jury did not convict him of stealing the murder weapon. He also claims that his
testimony was corroborated by evidence showing that Thomas kept a machete in his
bedroom. He argues that evidence showed that Jackson was hiding from the police when she
was under the mattress in the motel room. There was also some indication that Jackson stayed
with Mason willingly after the murder. Finally, Mason points out that Brown's description of
the gun that he saw Mason holding differed from the color and size of the murder weapon.
The jury, however, heard this evidence and argument and still found that Mason was guilty of
murder beyond a reasonable doubt. We conclude that this finding was based on more than
sufficient incriminating evidence. In addition to Jackson's eyewitness account of the murder,
we note particularly Brown's testimony that Mason arrived just before the murder with a gun
asking for Thomas and the testimony of Mason's own cousin that Mason said he was leaving
Las Vegas because he had got him a motherfucker.
Notice of evidence which the State intends to present at a penalty hearing
[Headnote 6]
Finally, Mason contends that the State failed to give him notice of all the evidence it intended
to present at the penalty phase of the trial, violating SCR 250, and that the district court
therefore erred in denying his motion to limit the State's evidence.
In September 1999, the State filed a notice of intent to seek the death penalty, in conformity
with SCR 250(4)(c).
11
In August 2000, the State filed a notice declar[ing] its intention to
present the following evidence in support of aggravating circumstance and/or character
evidence at a penalty hearing and specifying a variety of documentary, physical,
photographic, and testimonial evidence. This notice was in accordance with SCR 250(4)(f),
which provides in part:
The state must file with the district court a notice of evidence in aggravation no later
than 15 days before trial is to commence. The notice must summarize the evidence
which the state intends to introduce at the penalty phase of trial,
__________

11
SCR 250(4)(c) provides:
No later than 30 days after the filing of an information or indictment, the state must file in the district
court a notice of intent to seek the death penalty. The notice must allege all aggravating circumstances
which the state intends to prove and allege with specificity the facts on which the state will rely to prove
each aggravating circumstance.
118 Nev. 554, 561 (2002) Mason v. State
the state intends to introduce at the penalty phase of trial, if a first-degree murder
conviction is returned, and identify the witnesses, documents, or other means by which
the evidence will be introduced. Absent a showing of good cause, the district court shall
not admit evidence not summarized in the notice.
On February 27, 2001, the jury returned its verdict finding Mason guilty of murder. Two days
later, and four days before the penalty phase began, Mason moved to limit the State's penalty
evidence to that identified in the August 2000 notice. The State opposed the motion, and the
district court denied it, ruling that SCR 250(4)(f) required notice only of evidence in support
of aggravating circumstances, not other evidence admissible at a capital penalty hearing. The
court also concluded that the State had substantially complied with the notice requirement,
assuming it applied, and noted that the defense had not indicated a need for a continuance to
address the evidence at issue. As a result, two witnesses not identified in the August 2000
notice testified for the State during the penalty phase. Ronald Kie testified that Mason threw a
Molotov cocktail at Kie's house in January 1999, apparently because Jackson was then
staying with Kie. Mason's aunt testified that Mason told her in March 1995 that he had shot a
man in the back because the man had hit Mason's girlfriend; later he told her that nothing
happened to him because there were no witnesses.
The district court concluded and the State asserts that SCR 250(4)(f) applies only to evidence
that supports enumerated aggravating circumstances,
12
not other admissible evidence
introduced by the State at a capital penalty hearing, because the provision refers to a notice
of evidence in aggravation. They overlook, however, that the provision also expressly
requires that notice to summarize the evidence which the state intends to introduce at the
penalty phase of trial.
13
This language is plain and without qualification; it applies to any
evidence which the State intends to introduce. Moreover, the district court and the State also
overlook this court's case law. In Emmons v. State,
14
we considered the appellant's
contention
that just as prior notice to the accused is required before the state can introduce
evidence of aggravating circumstances, the due process clause of the United States
Constitution also requires that the state give prior notice of its intent to introduce
additional relevant evidence,
__________

12
See NRS 200.033 (setting forth [t]he only circumstances by which murder of the first degree may be
aggravated).

13
SCR 250(4)(f).

14
107 Nev. 53, 62, 807 P.2d 718, 723-24 (1991), modification on other grounds recognized by Harte v.
State, 116 Nev. 1054, 13 P.3d 420 (2000).
118 Nev. 554, 562 (2002) Mason v. State
requires that the state give prior notice of its intent to introduce additional relevant
evidence, such as the character evidence at issue here.
We agreed with the appellant and held: Consistent with the constitutional requirements of
due process, defendants should be notified of any and all evidence to be presented during the
penalty hearing.
15

[Headnotes 7-9]
Therefore, the district court erred in admitting the evidence at issue without determining
whether there was good cause for not providing notice of it earlier.
16
Nevertheless, no
reversible error occurred. SCR 250(4)(f) provides a heightened procedural safeguard for
defendants who may be sentenced to death. Had Mason received a death sentence, the State's
failure to provide full notice allowing him to prepare to meet the testimony from his aunt and
from Kie might have been unfairly prejudicial. We need not make this determination,
however. Mason did not receive a death sentence, and aside from the insufficient notice, the
evidence in question was otherwise permissible, being relevant to determining his sentence.
Therefore, it would have been admissible without prior notice at an ordinary sentencing or a
noncapital penalty hearing.
17
As we have explained elsewhere, evidence of unrelated
offenses for which a defendant has not been convicted is admissible at a penalty phase unless
it is dubious or tenuous or its probative value is substantially outweighed by the danger of
unfair prejudice or the other concerns set forth in NRS 48.035.
18
So long as the record does
not demonstrate prejudice resulting from consideration of information or accusations founded
on facts supported only by impalpable or highly suspect evidence, this court will refrain from
interfering with the sentence imposed.
19
Mason has not argued and the record does not
show that the testimony in question ran afoul of these strictures. Therefore, despite the
insufficient notice under SCR 250, because the jurors did not return a sentence of death, we
conclude that it was permissible for them to consider that testimony in deciding between the
other possible sentences.
__________

15
Id. at 62, 807 P.2d at 724.

16
SCR 250(4)(f) (Absent a showing of good cause, the district court shall not admit evidence not
summarized in the notice.).

17
See NRS 175.552(1), (2) (providing that absent waiver by both parties, the court must conduct a separate
penalty hearing when a defendant is found guilty of first-degree murder even if the death penalty is not sought).

18
See Jones v. State, 107 Nev. 632, 635-36, 817 P.2d 1179, 1181 (1991).

19
Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976).
118 Nev. 554, 563 (2002) Mason v. State
CONCLUSION
[Headnote 10]
SCR 250(4)(f) requires the State to provide notice of all evidence it intends to introduce at a
capital penalty hearing. The district court therefore erred in admitting evidence without
determining whether the State had good cause for not providing notice of it earlier. However,
the error did not prejudice Mason, nor do his other assignments of error have merit. We
therefore affirm his judgment of conviction.
____________
118 Nev. 563, 563 (2002) Matter of Parental Rights as to T.M.C.
In the Matter of the Parental Rights as to T.M.C., a Minor.
BRIAN M., Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF HUMAN
RESOURCES, WELFARE DIVISION, CHILD SUPPORT ENFORCEMENT PROGRAM,
Respondent.
No. 38306
August 28, 2002
52 P.3d 934
Appeal from a district court order denying a father's petition to terminate his parental rights.
Eighth Judicial District Court, Clark County; Cheryl B. Moss, Judge, Family Court Division.
Father filed petition to terminate his parental rights to child. The district court denied petition.
Father appealed. The supreme court held that: (1) termination of parental rights was not in
child's best interests, and thus father could not voluntarily terminate his rights; and (2) parent
cannot voluntarily terminate his parental rights and obligations unless such termination is
deemed to be in child's best interests.
Affirmed.
Law Offices of Robert T. Knott Jr. and Vicki Carlton, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Donald W. Winne Jr. and Heather E. Kemp,
Deputies Attorney General, Carson City, for Respondent.
1. Infants.
Since termination of parental rights is exercise of awesome power, supreme court closely scrutinizes whether district
court properly preserved or terminated parental rights at issue.
supreme court closely scrutinizes whether district court properly preserved or terminated parental rights at issue.
2. Infants.
Although district court must find at least one of enumerated factors for parental fault in order to terminate parental rights, court must
give primary consideration to child's best interests.
3. Infants.
There must be clear and convincing evidence established in order to justify termination of parental rights.
4. Infants.
Supreme court will not overturn district court's decision on terminating parental rights if decision was based on substantial evidence.
5. Infants.
Termination of parental rights of father who did not see child until child was approximately fourteen years old and who never wanted
to have children was not in child's best interests, and thus father could not voluntarily terminate his parental rights, although father
expressed intent to abandon child, and although father stated that his relationship with child might have been enhanced if his future
financial obligations toward child were cut, since father's reasons for termination served best interests of father, not child, and public
policy demanded that parents, not state, provide for their children when possible. NRS 128.015(1), 128.105.
6. Infants.
Parent cannot voluntarily terminate his parental rights and obligations unless such termination is deemed to be in child's best interests.
NRS 128.015(1), 128.105.
7. Infants.
Termination of parental rights is aimed at protecting welfare of children.
8. Infants.
It is inappropriate to use termination of parental rights as means to reward parent by shielding him from his obligation to provide
support for his child.
9. Infants.
Order terminating parental rights absolves all parental obligations, including child support. NRS 128.015(1).
10. Infants.
Even if parent engages in conduct that satisfies statutory parental-fault provisions, child's best interests must be served by termination
of parental rights for such termination to be appropriate. NRS 128.105.
11. Infants.
Father seeking to terminate his parental rights failed to preserve for appellate review his claim that trial court improperly precluded him
from examining child's mother as to child's best interests, where father did not renew request to examine mother after trial court's
interruption and did not object that he was denied opportunity to examine mother.
Failure to object to asserted errors at trial will bar review of issue on appeal.
OPINION
Per Curiam:
In this appeal, we consider whether the factors presented by appellant Brian M. provide clear
and convincing evidence that termination of his own parental rights serves the best interests
of his child.
FACTS
On December 10, 1985, T.M.C. was born to Leah G. and Brian. Leah testified that she and
Brian were surprised to find out she had become pregnant because she previously had been
told that she could not have children. Further, she was aware that Brian never wanted
children.
Leah allowed her sister to become the child's legal guardian because Leah acknowledged that
she had a substance abuse problem.
1
Leah's sister raised the child and then Leah's mother
obtained custody for three years before the proceeding to consider terminating Brian's
parental rights.
Respondent Welfare Division, Child Enforcement Program (Division) became involved
when Leah's sister applied for assistance pursuant to NRS Chapter 422. A judge ordered a
blood test to establish paternity, and the test results confirmed that Brian was the child's
father. During the termination of parental rights hearing, Brian did not contest the results of
the paternity test. Leah testified that while she had always paid child support and been
involved in the child's life, Brian had never been forced to provide for the child. She also
testified that once paternity was established, Brian had some sporadic involvement with the
child, calling to talk with the child and attending events with the child.
On May 3, 2001, Brian filed a petition to terminate his parental rights. A hearing on the
petition was conducted on June 28, 2001. The Division opposed the motion and argued that if
Brian's parental rights were terminated, the child would remain on welfare. Leah also opposed
the termination of Brian's parental rights, and testified that she believed the child could
benefit from a relationship with him. Brian's counsel expressed a desire to question Leah
regarding her testimony that the child's best interests would not be served by terminating
Brian's parental rights. The district court judge interrupted Brian's counsel and asked if he
thought it was good public policy to permit a father to terminate his own rights at any time in
order to avoid having to pay child support. Further, the district court expressed concern that
granting Brian's request would result in "millions" of fathers rushing into court.
__________

1
Brian alleges that he was not notified of the guardianship petition.
request would result in millions of fathers rushing into court. Brian's counsel responded
that those fathers would be rushing to court to seek similar relief only if they had astute
attorneys. Nevertheless, Brian's counsel did not object to being denied the opportunity to
examine Leah.
Brian's counsel maintained that Brian told Leah he would not support the child and that she
agreed. Further, Brian's counsel argued that the child's best interests would be served by
terminating Brian's parental rights since he never wanted to be involved with the child. In
addition, his counsel claimed that if Brian was not required to pay child support, Brian and
the child would have a better chance of re-establishing a relationship. The district court
denied Brian's petition to terminate his parental rights on public policy grounds as well as the
child's best interests. Brian now appeals the district court's order denying his petition.
DISCUSSION
[Headnotes 1-4]
Termination of parental rights is an exercise of awesome power.'
2
Accordingly, this
court closely scrutinizes whether the district court properly preserved or terminated the
parental rights at issue.
3
Although the district court must find at least one of the
enumerated factors for parental fault in order to terminate parental rights, the court must
give primary consideration to the child's best interests.
4
There must be clear and convincing
evidence established in order to justify termination.
5
This court will not overturn the district
court's decision if the decision was based on substantial evidence.
6

[Headnote 5]
In the present case, Brian argues that numerous factors provide clear and convincing evidence
that terminating his parental rights is in the child's best interests including: (1) Leah did not
give the child Brian's surname; (2) Leah did not intend that Brian would have a role in the
child's life; (3) Brian did not see the child until the child was approximately fourteen years
old; (4) Brian was only in contact with the child because the child's maternal aunt filed a
petition for support; (5) Brian never wanted to have children;
__________

2
Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000) (quoting Smith v. Smith,
102 Nev. 263, 266, 720 P.2d 1219, 1220 (1986), overruled on other grounds by Matter of N.J., 116 Nev. 790, 8
P.3d 126).

3
Id.

4
Id. at 801, 8 P.3d at 133.

5
Id.

6
Id. at 795, 8 P.3d at 129.
dren; (6) both Brian and Leah never thought pregnancy was a possibility; (7) Leah allowed
her sister to become guardian of the child; (8) the child now lives with Leah's mother; (9) the
child does not desire a parent-child relationship; and (10) it is the Division, rather than Leah
or Leah's mother that seeks reimbursement for the support that has been provided.
The district court heard testimony from Leah that the child could benefit from a relationship
with Brian, albeit not a parent-child relationship. The Division argued that in addition to
receiving reimbursement for support already provided to the child, obtaining future support
from Brian would provide additional resources to assist in raising the child. The district court
noted that public policy considerations are served by requiring that fathers pay child support,
and also noted that taxpayers have been supporting the child for years when the biological
father has been available and nearby. Brian only countered that cutting off his future financial
obligations toward the child would not destroy his relationship with the child but might
actually enhance it.
We conclude that none of the arguments presented by Brian provides clear and convincing
evidence that his parental rights should be terminated. Brian's arguments do not satisfy either
the parental fault or the best interests prongs set forth in NRS 128.105. Although Brian has
expressed an intent to abandon his child, he did not provide evidence that any other basis for
parental fault existed at the time of the hearing. Furthermore, none of the reasons articulated
by Brian serves his child's best interests. Instead, these factors serve Brian's personal
financial interest, a consideration not enumerated in NRS 128.105(2).
[Headnotes 6-8]
The termination of parental rights is aimed at protecting the welfare of children.
7
However, it
is inappropriate to use termination of parental rights as a means to reward a parent by
shielding him from his obligation to provide support for his child. It would be a rare
circumstance in which the termination of parental rights would enhance, rather than
deteriorate, the relationship between a parent and his child.
[Headnote 9]
We have previously held that parental rights and parental obligations, as articulated in NRS
128.015(1), are inseparable.
8
An order terminating parental rights absolves all parental
obligations, including child support.
9

__________

7
Id. at 801, 8 P.3d at 133.

8
State ex rel. Welfare Div. v. Vine, 99 Nev. 278, 283, 662 P.2d 295, 298 (1983).

9
Id.
While the Nevada Revised Statutes do not specifically address limits on voluntary
termination, courts in other states have considered this issue at length. The Tennessee Court
of Appeals recently examined this situation in C.J.H. v. A.K.G.,
10
and its analysis is both
informative and persuasive.
In C.J.H., the Tennessee Court of Appeals held that proper consideration of a termination
order involves a requirement that, in addition to appropriate grounds, the court must
determine that the termination is in the child's best interests, not the parents'.
11
It noted with
interest the Alabama Supreme Court's opinion that in cases where the parents jointly agree to
termination, the parents agree by mutual consent to waive the child's right to support from
one parent with the child receiving nothing in return.
12
The Tennessee Court of Appeals held
that such agreements are void as a matter of public policy.
13
The court further held that even
when a parent chooses not to establish or maintain contact with the child, the child's right to
receive support from the parent remains intact.
14

The Supreme Court of Iowa has similarly held that parents cannot abdicate their
responsibilities through their conduct, rejecting a father's claim that parental fault was proven
by his announced intention to constructively abandon his child by avoiding any parental
involvement with the child.
15
The father unsuccessfully argued that a best interests of the
child analysis was irrelevant in light of his proposed abandonment.
16
In refusing to
terminate the father's rights, the court addressed public policy concerns by stating that:
Acceptance of [the father's] argument ultimately would open a hatch for a parent to
escape his or her duty to support a child. We cannot be persuaded that the legislature
intended . . . to alter so radically the parental support obligation. Our determination is
reinforced by decisions from other jurisdictions holding a parent may not voluntarily
avoid a duty to support his or her child.
17

__________

10
No. M2001-01234-COA-R3-JV, 2002 WL 1827660 (Tenn. Ct. App. Aug. 9, 2002).

11
Id. at *3.

12
Id. at *5 (citing Ex parte Brooks, 513 So. 2d 614, 617 (Ala. 1987), overruled on other grounds by Ex parte
Beasley, 564 So. 2d 950 (Ala. 1990)).

13
Id. at *4-6.

14
Id. at *5-7.

15
Interest of D.W.K., 365 N.W.2d 32, 34-35 (Iowa 1985).

16
Id.

17
Id. at 35.
In the present case, Brian seeks to terminate his parental rights, ostensibly because it is in the
child's best interests. We conclude that termination would serve only Brian's best interests.
While we cannot force Brian to supply the child with most of the amenities typically provided
by a fathersuch as love, companionship, and guidancewe can require that Brian satisfy
his parental obligations and provide for the financial well-being of his child. Moreover,
public policy considerations demand that parents, not the State, provide for their children
when possible.
[Headnote 10]
We therefore hold that a parent cannot voluntarily terminate his parental rights and
obligations unless such termination is deemed to be in the child's best interests. Even if the
parent engages in conduct that satisfies the parental fault provisions of NRS 128.105, the
child's best interests must be served by the termination of parental rights for such termination
to be appropriate.
18
Here, Brian's contention that the child would be better off without him
and his continued financial support is unpersuasive.
[Headnotes 11, 12]
Brian also argues that the district court improperly precluded him from examining Leah
concerning the child's best interests and other issues. [F]ailure to object to asserted errors at
trial will bar review of an issue on appeal.'
19
Here, Brian's counsel expressed interest in
examining Leah on the child's best interests but the district court interrupted Brian's counsel,
questioning whether Brian's position was consistent with public policy. Brian's counsel did
not renew his request to examine Leah and did not object that he was denied the opportunity
to examine Leah. Therefore, we conclude that Brian is precluded from raising this argument
on appeal.
When considering requests for termination of parental rights, the child's best interests must
prevail. Here, Brian's contention that the child's best interests would be served by termination
is unpersuasive. A minor child has a right to support from a parent that cannot be abdicated
unless the best interests threshold is satisfied. Additionally, Brian's claim that he was
improperly precluded from questioning Leah is not supported by the record and was not
properly preserved for appeal.
Accordingly, we affirm the district court's order denying Brian's petition to terminate his
parental rights.
__________

18
NRS 128.105.

19
Allum v. Valley Bank of Nevada, 114 Nev. 1313, 1324, 970 P.2d 1062, 1069 (1998) (quoting McCullough
v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983)).
____________
118 Nev. 570, 570 (2002) Matter of Candidacy of Hansen
In the Matter of the Challenge to the Candidacy of NICHOLAS A. HANSEN.
NICHOLAS A. HANSEN, Appellant, v. STEWART L. BELL; EARL T. MITCHELL; JOHN
J. CAHILL; and FRANK FULL TIME MAHONEY, Respondents.
No. 39875
September 6, 2002
52 P.3d 938
Appeal from a district court order sustaining a challenge to appellant's candidacy for office of
constable and directing the Clark County Registrar of Voters to remove appellant's name
from the November 2002 ballot. Eighth Judicial District Court, Clark County; Sally L.
Loehrer, Judge.
Incumbent constable challenged qualifications of challenger to run for office. The district
court ordered that challenger be removed from ballot. Challenger appealed. The supreme
court held that candidate for constable was exempt from minimum requirements for and
certification as peace officer.
Reversed and remanded with instructions.
Hansen & Hall, LLC, Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark
County, for Respondent Bell.
Tony Terry, Las Vegas, for Respondent Mitchell.
Frank Full Time Mahoney, Henderson, in Proper Person.
John J. Cahill, Henderson, in Proper Person.
Sheriffs and Constables.
Constable attained peace officer status by virtue of the office, and thus, candidate for constable was exempt from minimum standards
and certification requirement for peace officer. Minimum requirements for constable were limited to general constitutional
requirements to qualify as an elector. NRS 258.070, 289.110, 289.550.
OPINION
Per Curiam:
The constables of this state are elected by the voters of their townships and are peace officers
in their respective townships. No statute prescribes qualifications for the constable's office,
statute prescribes qualifications for the constable's office, but an administrative regulation,
applicable to appointed peace officers, requires that a peace officer be at least twenty-one
years of age at the time of his appointment. Earl Mitchell, the incumbent candidate for
Constable of Henderson Township, challenged Nicholas A. Hansen's candidacy for that
office, on the ground that the twenty-year-old Hansen did not meet the minimum age for an
appointed peace officer, and hence, by extension, for a constable. Following a hearing, the
district court sustained the challenge and ordered that Hansen's name be removed from the
November 2002 ballot. In its written order, the court concluded that a candidate for the office
of constable must be a peace officer on the day he takes office, and Hansen could not meet
this requirement because of his age.
Through this appeal, Hansen seeks reversal of the order, asserting in part that the minimum
age requirement for appointed peace officers does not apply to elected constables. We
conclude that constables are statutorily granted peace officer status by virtue of their office,
with no requirement that they satisfy the peace officer minimum standards. Accordingly, we
reverse the district court's order and remand this matter with instructions for the district court
to direct the Clark County Registrar of Voters to restore Hansen's name on the November
2002 ballot.
BACKGROUND
Appellant Nicholas Hansen, currently twenty years old, filed a declaration of candidacy for
the Office of Constable of Henderson in Clark County. Earl Mitchell, the incumbent
candidate for Henderson's constable office, filed a timely affidavit of challenge with the Clark
County Registrar of Voters regarding Hansen's qualifications. Citing NRS 258.070, which
provides that a constable shall . . . [b]e a peace officer in his township, and NAC 289.110,
which prescribes in part that peace officers must be twenty-one years of age at the time of
appointment, Mitchell contended that Hansen was disqualified from running for office
because of Hansen's inability to meet the minimum age requirement for peace officers. The
new constable's term begins January 6, 2003; Hansen will turn twenty-one years old on
February 3, 2003.
The Registrar of Voters transmitted Mitchell's challenge to the Clark County District
Attorney.
1
The District Attorney then filed a petition for an order to show cause regarding
the validity of Hansen's candidacy, framing the issue as whether a candidate for the office of
constable must be twenty-one years old at the time of taking office.
__________

1
See NRS 293.182 (setting forth the procedure for challenges concerning candidates' qualifications).
of taking office. The district court issued an order directing Hansen to show cause why the
challenge was invalid, and Hansen filed a response to the show cause order.
Following a hearing, the district court entered a written order concluding that NRS 258.070
requires a constable candidate to be a peace officer as of the date he or she assumes the office,
which in turn means that a candidate has to be able to satisfy the minimum standards for
peace officers as of that date. Because Hansen could not meet that requirement due to his age,
the court sustained the challenge to Hansen's candidacy and directed the Registrar of Voters
to remove his name from the November 2002 ballot. Hansen then filed this appeal
challenging the district court's order.
DISCUSSION
A constable in Nevada is a county officer elected by the voters of his township.
2
The
legislature has enacted no statute prescribing the qualifications for constables. At a minimum,
however, the Nevada Constitution requires that all persons running for any office be qualified
electors, that is: (1) have resided in the state at least six months, and in a district or county at
least thirty days preceding an election, (2) be at least eighteen years old and (3) be a United
States citizen.
3
Here, it is undisputed that Hansen meets these constitutional requirements for
holding a public office.
Nevertheless, Mitchell contends that because NRS 258.070(1)(a) provides that [e]ach
constable shall . . . [b]e a peace officer in his township, constables are subject to the
minimum age requirement for peace officers under NAC 289.110,
4
and must satisfy that
requirement on the day they take office. We disagree.
The resolution of this appeal lies in NRS 258.070(1)(a). It is axiomatic that when the words
of a statute are plain and unambiguous, they will be given their plain meaning.
5
In our view,
the unequivocal language of NRS 258.070(1)(a)that [e]ach constable shall . . . [b]e a
peace officer in his townshipautomatically confers upon constables peace officer status
by virtue of being elected,
__________

2
See NRS 258.010(1); Langon v. Washoe County, 116 Nev. 115, 993 P.2d 718 (2000).

3
Nev. Const. art. 15, 3(1); id. art. 2, 1; see also Mengelkamp v. List, 88 Nev. 542, 501 P.2d 1032 (1972).

4
NAC 289.110 provides in relevant part:
1. No person may be appointed to perform the duties of a peace officer unless he:
. . .
(c) Is at least 21 years of age at the time of his appointment.

5
See, e.g., SIIS v. Miller, 112 Nev. 1112, 1120, 923 P.2d 577, 582 (1996).
ically confers upon constables peace officer status by virtue of being elected, without any
additional requirements or qualifications for fulfilling that duty. If the legislature intended
constables to be subject to the minimum standards of peace officersor any other specific
standardsin order to be elected, it would statutorily have established such qualifications for
holding the constable's office.
6
The legislature has not done so. We conclude, therefore, that
the peace officer status of a constable is conferred upon assuming office, with no need to
satisfy NAC 289.110.
For the same reason, we further conclude that constables are not required to be certified as
peace officers under NRS 289.550, which requires certain persons possessing peace officer
powers to become certified by the Peace Officers' Standards and Training Commission within
one year after becoming peace officers.
7
NRS 289.550(1) applies to those upon whom some
or all of the powers of a peace officer are conferred pursuant to NRS 289.150 to 289.360,
inclusive. (Emphasis added.) The elected constable is granted the powers of a peace officer
by NRS Chapter 258, which pertains to the office of constable, not Chapter 289, which
concerns peace officers. Significantly, although constables are listed in NRS 289.150
8
as
persons having peace officer powers, NRS Chapter 258 sets forth the method of selection, the
duties, the powers, the compensation and other aspects of the constable's office. As noted
previously, the legislature has chosen not to impose any qualifications for those seeking
election to the position of constable other than the constitutional requirement of being a
qualified elector. Regardless of the benefits of having elected constables trained and certified,
the Nevada Legislature has apparently concluded that it would not interfere with the choice of
the voters for constable by adding additional requirements after a person has been duly
elected to the post. Thus, the district court erroneously disqualified Hansen from running
for Henderson's constable office.
__________

6
Cf., e.g., Tenn. Code Ann. 8-10-102 (Supp. 2001) (prescribing the qualifications for holding the office of
constable).

7
In relevant part, NRS 289.550(1) provides:
[A] person upon whom some or all of the powers of a peace officer are conferred pursuant to NRS
289.150 to 289.360, inclusive, must be certified by the commission within 1 year after the date on which
the person commences employment as a peace officer unless the commission, for good cause shown,
grants in writing an extension of time, which must not exceed 6 months, by which the person must
become certified. A person who fails to become certified within the required time shall not exercise any
of the powers of a peace officer after the time for becoming certified has expired.

8
Specifically, NRS 289.150(5) states that [c]onstables and their deputies whose official duties require them
to carry weapons and make arrests have peace officer powers.
district court erroneously disqualified Hansen from running for Henderson's constable office.
9

CONCLUSION
We conclude that constables attain peace officer status by virtue of their office, and they are
therefore exempt from the minimum standards of NAC 289.110 and the certification
requirement under NRS 289.550. Accordingly, we reverse the order of the district court and
remand this matter with instructions for the district court to forthwith direct the Clark County
Registrar of Voters to restore Hansen's name on the November 2002 ballot.
____________
118 Nev. 574, 574 (2002) Citizens for Train Trench Vote v. Reno
CITIZENS FOR A PUBLIC TRAIN TRENCH VOTE, a Nevada Political Action Committee;
MIKE TRACY, aka MICHAEL TRACY, aka JAMES MICHAEL TRACY;
MICHAEL ROBINSON; MARTHA GOULD; GEORGE FLINT; and BERNARD
CLARK, Appellants, v. CITY OF RENO, a Municipal Corporation; DANIEL G.
BURK, in His Capacity as Washoe County Registrar of Voters; CITIZENS FOR
PRIVATE ENTERPRISE; RAY HEATING PRODUCTS, INC.; STEVE SCOLARI,
as Trustee of the ALVIN E. SCOLARI FAMILY TRUST; RECORD SUPPLY
COMPANY; SDA INC.; CARAVAN CAMPER TOPS, INC.; ROSS MANOR LLC;
MARTIN IRON WORKS, INC.; AMERICAN READY MIX, INC.; ELDORADO
RESORTS, LTD.; HARRAH'S OPERATING COMPANY, INC.; THE CIRCUS
AND ELDORADO JOINT VENTURE, a Nevada General Partnership, dba SILVER
LEGACY; and GUY B. ZEWADSKI, Respondents.
No. 39898
September 6, 2002
53 P.3d 387
Appeal from a district court order permanently enjoining the Washoe County Registrar of
Voters from placing on the ballot an initiative prohibiting the construction of a depressed
trainway within the existing railroad right of way through Reno. Second Judicial District
Court, Washoe County; James W. Hardesty, Judge.
__________

9
In light of our disposition, we need not address Hansen's remaining contentions on appeal. We note that
Hansen included in his appendix documents that were not part of the district court record. Although we conclude
that the sanctions requested by Mitchell are not warranted, we did not consider these documents in the resolution
of this appeal. See NRAP 30(g)(1).
Citizens' group that opposed building of railroad trench filed petition for judicial review, writ
of prohibition, or injunctive relief, together with motion for temporary restraining order and
preliminary injunction, to stop City from issuing bonds for trench construction. City moved to
dismiss petition and filed petition for declaratory judgment that municipal initiative, which
proposed prohibition against construction of railroad trench within existing railroad right of
way, was unconstitutional, and for injunction barring its placement on ballot, and pro-trench
citizens' group filed application for writ of mandamus or complaint for declaratory and
injunctive relief seeking to prevent initiative's placement on ballot. The district court entered
order that declared initiative unconstitutional and permanently enjoined its placement on
ballot. Citizens' group appealed. The supreme court held that initiative was administrative,
not legislative, and thus was unconstitutional.
Affirmed.
Young, J., dissented.
Patricia D. Cafferata, Reno, for Appellants.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP and Michael A. Pagni,
Reno, for Respondents.
Patricia A. Lynch, City Attorney, and Randall K. Edwards and Jonathan D. Shipman, Deputy
City Attorneys, Reno, for Respondent City of Reno.
Richard A. Gammick, District Attorney, and Leslie H. Admirand and David L. Watts-Vial,
Deputy District Attorneys, Washoe County, for Respondent Washoe County Registrar of
Voters.
Guy B. Zewadski, Reno, in Proper Person.
Initiative is the power of the people to propose and enact new laws. Const. art. 19, 2(1).
Initiative power applies only to legislation. It does not extend to administrative acts.
Permissible legislative ordinance is one that creates a permanent law or lays down a rule of conduct or course of policy for the
guidance of the citizens or their officers, but on the other hand, an impermissible administrative ordinance is one that
simply puts into execution previously-declared policies or previously-enacted laws,
administrative ordinance is one that simply puts into execution previously-declared policies or previously-enacted laws, or directs a
decision that has been delegated to the local government.
Power to be exercised is legislative in its nature if it prescribes a new policy or plan, whereas, it is administrative in its nature if it
merely pursues a plan already adopted by the legislative body itself, or some power superior to it.
Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally
classified as calling for the exercise of legislative power, whereas acts that are to be deemed as acts of administration, and classed
among those governmental powers properly assigned to the executive department, are those that must be done to carry out legislative
policies and purposes already declared by the legislative body, or that are inherent in its existence.
Ordinances relating to subjects of permanent and general character are regarded as legislative, whereas ordinances relating to
subjects of temporary and special character are regarded as administrative.
Distinction between legislative and administrative matters is the distinction between making laws of general applicability and
permanent nature, on the one hand, as opposed to decisions implementing such general rules, on the other.
Regardless whether an initiative proposes enactment of a new statute or ordinance, or a new provision in a constitution or city charter,
or an amendment to any of these types of laws, it must propose policy, and it may not dictate administrative details.
Whether a particular municipal activity is administrative or is legislative often depends not on the nature of the action but the nature of
the legal framework in which the action occurs.
Initiative, which proposed prohibition against construction of railroad trench within existing railroad right of way, was administrative,
not legislative, and thus was unconstitutional, even if trench were not underpass, which city had authority to construct, and even
though land was owned by railroad, given that initiative was specifically addressed to particular manner in which project was to be
performed, not to all railroad projects or projects in general, city's authority to undertake public works projects, without obtaining voter
approval, was not limited to underpasses, and project was public when railroad was to transfer land to city. NRS 271.245, 271.265,
338.010(11), 482.135.
Pre-election judicial intervention is warranted when an initiative petition improperly proposes an administrative measure, or otherwise
exceeds the electorate's power. Pre-election intervention is warranted because an initiative that fails to meet the threshold requirement
that it propose only legislation is void.
OPINION
Per Curiam:
The Reno City Council, after years of study and with county, state and federal support,
decided to lower the railroad tracks through downtown Reno below street level to mitigate
the adverse effects of downtown train traffic. Pre-construction steps have been completed,
and the City is now ready to begin construction. This grade separation project, officially
designated the Reno Transportation Rail Access Corridor (ReTRAC) and sometimes referred
to as the Reno Railroad Corridor, is commonly known as the train trench.
Citizens for a Public Train Trench Vote submitted to the Reno City Clerk a municipal
initiative petition, which proposed that the following prohibition be enacted: The City of
Reno shall not construct a depressed trainway (train trench) within the existing railroad
right of way through the central portion of the City of Reno. The Reno City Clerk certified
the initiative petition, and the Reno City Council forwarded the initiative petition to the
Registrar of Voters under NRS 295.215 for placement on the September 3, 2002 primary
ballot. The Reno City Attorney, at the City Council's direction, then sought a judicial
declaration that the initiative is unconstitutional and an injunction to keep the initiative off
the ballot. On June 19, 2002, the day the primary election ballots had to be sent to the printer,
the district court entered a written order declaring the initiative unconstitutionalbecause it
dictates an administrative decision and because it impairs contractual obligationsand
permanently enjoining the Washoe County Registrar of Voters from placing the initiative on
any city ballot.
The initiative's proponents filed this appeal, challenging the district court's injunction and
seeking to have the initiative included on the November 5, 2002 general election ballot. We
conclude that the initiative concerns an administrative matter, which exceeds the electorate's
initiative power, and that the district court properly enjoined its inclusion on the ballot.
BACKGROUND
The railroad tracks through downtown Reno have long been both boon and bane, and the City
has considered various solutions to the problems posed by the tracks' location. In 1936, the
United States Bureau of Public Roads, precursor to the Federal Highway Administration
(FHWA), proposed elevating the tracks. In response, the City Engineer recommended
lowering the tracks below street level to maintain the City's character. A 1942 report,
which evaluated various alternatives, including relocation, recommended maintaining the
tracks in their current location and lowering them below street level. The report estimated that
lowering the tracks would cost $1.4 million. That same year, the Reno Chamber of
Commerce endorsed the lowered tracks project as A No. 1 civic improvement for the
readjustment period after the war. Subsequent reports, prepared in 1944, 1968, 1972, 1976
and 1980, all further described the benefits to be obtained by lowering the tracks and updated
the associated cost estimates.
In 1996, the United States Surface Transportation Board (STB) approved a merger between
the Union Pacific Railroad Company (UP) and the Southern Pacific Railroad Company (SP).
In evaluating the proposed merger, STB estimated that rail traffic through Reno would
increase from twelve trains per day to as many as thirty-six trains per day by 2030 and
determined that the increase would adversely impact ground transportation, pedestrian safety,
service delivery systems and other environmental factors. STB identified Reno, Nevada, as
one of two cities that would need special assistance to mitigate the adverse effects of
increased traffic following the merger. Reno filed a lawsuit in federal court to prevent the
merger.
On June 17, 1997, during negotiations with UP to develop a depressed trainway project to
settle the dispute, the City Council passed a resolution declaring the depressed trainway
project a priority for Reno. On December 1, 1998, Reno and UP reached a settlement and
executed a Memorandum of Understanding (MOU) that cleared the way for construction of a
railway trench through Reno. The MOU specified that UP would transfer real property, air
rights and leases to Reno, and provide $15-17 million in engineering services, materials and
labor to construct the trench, and that Reno would withdraw its appeal and petition STB
jointly with UP to remove all restrictions on the number of trains that could pass through the
city. Later that month, at UP and Reno's joint request, STB approved the MOU and made it a
condition of the UP/SP merger. Reno and UP subsequently modified and amended the MOU,
and extended its term to December 3, 2005.
In May 1999, Reno and the Nevada Department of Transportation began a
federally-sponsored process to develop preliminary engineering, technical and environmental
reports, which would be used to complete the mandatory Final Environmental Impact
Statement (FEIS) for the project. The FEIS, which took eighteen months and $2 million to
complete, identified twenty-six alternatives to ameliorate the adverse effects of train traffic
through Reno. Five alternatives, including a no-build alternative, were chosen for further
consideration, and in February 2001, the FHWA selected one of the alternatives as the best
choice for the Reno Railroad Corridor: Alternative 5, a
Modified Extended Depressed Trainway in the current UP right-of-way. On February 27,
2001, the City Council approved Alternative 5 and directed city staff to take all necessary
action to advance that alternative.
In April 2001, Reno formally solicited a Project Management Consultant for the ReTRAC
project. In July 2001, the City Council awarded a $4.9 million contract to the Truckee
Meadows ReTRAC Team to assist in various matters relating to engineering and design
specifications, and the City began the design/build proposal process. In November 2001, the
City Council selected four design/build team finalists and accepted the Project Management
Consultant's project cost estimate review. In December 2001, the City Council approved
$300,000 to reimburse unsuccessful design/build proposers, and on January 16, 2002, the
City issued the final request for proposal. On July 16, 2002, the City Council selected Granite
Construction Company's design/build proposal and decided to award Granite the construction
contract. The City has until September 13, 2002, to give Granite Construction the notice to
proceed with work on the project; after that, the City incurs a substantial penalty (about
$15,000 per day), and if the notice to proceed is not issued by November 12, 2002, Granite
Construction can raise its bid price or walk away from the project altogether.
The City Council, with county, state and federal assistance, has also developed
comprehensive financing plans for the train trench project. Financing will come from
numerous sources, some of which have been in place for several years:
1. A 1/8 cent countywide sales tax, which was authorized by the Nevada Legislature in 1997,
was approved by the Washoe County Commission in 1998 and took effect April 1, 1999;
2. A 1 percent room tax increase within a specially designated district, which was authorized
by the Nevada Legislature in 1997, was adopted by the City in 1998 and took effect January
1, 1999;
3. $115 million in revenue bonds and FHWA/DOT loans, which will be repaid from the
countywide sales tax and 1 percent room tax;
4. State and federal grants;
5. UP contributions under the MOU;
6. Tax revenue from a Downtown Special Assessment District, which was created in
November 1998; and
7. City of Reno general funds.
The tax proceeds, plus any interest and other income generated by it, must be used for the
cost of the acquisition, establishment, construction or expansion of one or more railroad grade
separation projects, including the payment and prepayment of principal and interest on
notes,
and interest on notes, bonds or other obligations issued to fund such projects.
1

The initiative
On January 23, 2002, the individual appellants filed with the City a Notice of Intent to
circulate an initiative petition, which provides:
The people of the City of Reno, of the State of Nevada, do enact as follows:
The City of Reno shall not construct a depressed trainway (train trench) within the
existing railroad right of way through the central portion of the City of Reno.
These five individuals formed Citizens for a Public Train Trench Vote, a political action
committee organized to bring the train trench initiative to a public vote, and gathered almost
15,000 signatures on the petition.
On April 11, 2002, the trench opponents submitted the municipal initiative petition to the
Reno City Clerk, who certified the petition's sufficiency on April 19, 2002.
The Reno City Council accepted the Clerk's certificate of sufficiency, declined to adopt the
proposed ordinance and forwarded the initiative petition to the Registrar of Voters under NRS
295.215 for placement on the September 3, 2002 primary ballot. The City Council also
directed the City Attorney to challenge the initiative's constitutionality in court.
The litigation
On May 6, 2002, the trench opponents filed a petition for judicial review or a writ of
prohibition or injunctive relief, together with a motion for temporary restraining order and
preliminary injunction, to stop the City from issuing the ReTRAC bonds. On May 9, 2002,
the City moved to dismiss the petition, and filed a counterclaim for a declaratory judgment
that the initiative is unconstitutional and for an injunction enjoining its placement on the
ballot.
Also on May 9, 2002, a political action committee that supports the train trench, Citizens for
Private Enterprise, and several pro-trench businesses, filed an application for writ of
mandamus or complaint for declaratory and injunctive relief, seeking to prevent the
initiative's placement on the ballot.
On June 3, 2002, the two cases were consolidated. The trench opponents moved for summary
judgment against the City, and for dismissal against the trench supporters, on the basis that all
lacked standing to challenge the initiative's validity. The City and the trench supporters
opposed the motions,
__________

1
1997 Nev. Stat., ch. 506, 24, at 2407.
trench supporters opposed the motions, and the district court denied them.
On June 6 and 7, 2002, the district court conducted a bench trial. During closing argument,
counsel for the trench opponents conceded that the train trench is a public work project,
which the City may undertake without passing an ordinance. Counsel also conceded that the
initiative would be unconstitutional if it concerned an administrative, rather than a legislative,
act and in that instance should be kept off the ballot. Counsel further conceded that the
initiative would force the City to breach the MOU, which probably impairs the obligations of
that contract.
On June 11, 2002, the district court entered an order denying the trench opponents' petition to
prevent the bond sale. That order is not at issue on appeal.
On June 19, 2002, the district court entered findings of fact, conclusions of law and an order
granting a declaratory judgment in favor of the City and the trench supporters, and
permanently enjoining the Washoe County Registrar of Voters from placing the initiative on
any city election ballot. The court ruled that the initiative is unconstitutional because it
dictates an administrative decision to the City, which the people may not do through the
initiative process, and because it would impair the obligation of contracts, in violation of
Nevada Constitution Article 1, Section 15.
The trench opponents challenge the injunction and its basis. They assert that the voters have a
constitutional right to propose and enact new laws through the initiative process, and contend
that whether the initiative is administrative or legislative and whether it violates the
constitution should be decided after the election.
DISCUSSION
[Headnotes 1, 2]
Initiative is the power of the people to propose and enact new laws.
2
The power is contained
within Article 19, Section 2(1) of the Nevada Constitution: [T]he people reserve to
themselves the power to propose, by initiative petition, statutes and amendments to statutes
and amendments to this constitution, and to enact or reject them at the polls. According to
the Nevada Constitution, the initiative powers provided in Article 19 are further reserved to
the registered voters of each county and each municipality as to all local, special and
municipal legislation of every kind in or for such county or municipality.
3
The initiative
power applies only to legislation,
__________

2

3
only to legislation, however; it does not extend to administrative acts.
4

Legislative versus administrative acts
[Headnote 3]
Recently, in Glover v. Concerned Citizens for Fuji Park,
5
we discussed the principles for
determining whether a municipal ordinance is legislative or administrative. We held that a
permissible legislative ordinance is one that creates a permanent law or lays down a rule of
conduct or course of policy for the guidance of the citizens or their officers. On the other
hand, an impermissible administrative ordinance is one that simply puts into execution
previously-declared policies or previously-enacted laws, or directs a decision that has been
delegated to the local government.
6

[Headnotes 4, 5]
Other state courts have also drawn distinctions between legislative matters and administrative
matters. The California Court of Appeal, for example, stated in City of San Diego v. Dunkl
7
that [t]he power to be exercised is legislative in its nature if it prescribes a new policy or
plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by
the legislative body itself, or some power superior to it. The Dunkl court explained further
that acts constituting a declaration of public purpose, and making provisions for ways and
means of its accomplishment, may be generally classified as calling for the exercise of
legislative power; whereas, acts which are to be deemed as acts of administration, and classed
among those governmental powers properly assigned to the executive department, are those
which must be done to carry out legislative policies and purposes already declared by the
legislative body, or which are inherent in its existence.
8

[Headnote 6]
The Wisconsin Court of Appeals drew a similar distinction in Save Our Fire Department
Paramedics v. City of Appleton,
9
and added that ordinances relating to subjects of permanent
and general character are regarded as legislative, whereas ordinances relating to subjects of
temporary and special character are regarded as administrative.
__________

4

5
118 Nev. 488, 50 P.3d 546 (2002).

6
Id. at 494, 50 P.3d at 550.

7
103 Cal. Rptr. 2d 269, 280 (Ct. App.) (quotations and emphasis omitted), cert. denied, 534 U.S. 892 (2001).

8
Id.

9
389 N.W.2d 43, 47-48 (Wis. Ct. App. 1986).
relating to subjects of temporary and special character are regarded as administrative.
[Headnote 7]
The Oregon Supreme Court phrased the distinction slightly differently in Foster v. Clark,
10
stating that the distinction between legislative and administrative matters is the distinction
between making laws of general applicability and permanent nature, on the one hand, as
opposed to decisions implementing such general rules, on the other.
[Headnote 8]
From all of these cases and others like them, one overarching principle may be derived:
regardless whether an initiative proposes enactment of a new statute or ordinance, or a new
provision in a constitution or city charter, or an amendment to any of these types of laws, it
must propose policyit may not dictate administrative details.
11

[Headnote 9]
While courts draw similar distinctions, they are not entirely consistent about which category
any particular type of measure fits within. In Foster,
12
the Oregon Supreme Court explains
one reason why this is so, using the issue before itwhether naming or renaming a street is a
legislative matter or an administrative matterto demonstrate:
A city's practice of naming or renaming streets only through specific ordinances may
establish that the activity is legislation subject to the initiative and referendum
process. Another city's practice of naming and renaming streets only through a process
akin to that established for the City of Portland by [municipal ordinance] may establish
that the activity is administrative and not subject to the initiative and referendum
process. The point is, whether a particular municipal activity is administrative or is
legislation often depends not on the nature of the action but the nature of the legal
framework in which the action occurs.
[Headnote 10]
Applying these principles, and considering the legal framework within which the train trench
initiative was proposed, we conclude that the initiative is not legislation. The initiative does
not establish a new course of policy to guide Reno's citizens or their officers regarding the
choice of public work projects in general or railroad grade separation projects in
particular,
__________

10
790 P.2d 1, 6 (Or. 1990).

11
The initiative petition did not specify that it was proposing the enactment of an ordinance, but counsel for
the initiative proponents characterized it that way.

12
790 P.2d at 7.
lish a new course of policy to guide Reno's citizens or their officers regarding the choice of
public work projects in general or railroad grade separation projects in particular, and it does
not declare any public purpose or make any provisions for accomplishing it. Instead, the
initiative prohibits the construction of a particular public work project, the train trench, in a
particular location, the existing right of way through the city. The initiative does not prohibit
the construction of a train trench in general, or the construction of a different type of grade
separation project within the right of way. The initiative relates to a subject of very special
character, not one of general character.
The authority to undertake public work projects has been legislatively delegated to local
governments by statute.
13
And although Reno must comply with various state and federal
statutes governing public works, no regulation requires it to take legislative action or obtain
voter approval before commencing a local improvement or public work project. To the
contrary, NRS 271.265 specifically authorizes cities, without any election, to acquire,
improve, equip, operate and maintain various local improvement projects, including overpass,
underpass, street and transportation projects, and any combination of these projects.
Similarly, the Reno City Charter, section 6.010, permits the City Council, without any
election, to acquire, improve, equip, operate and maintain, convert to or authorize various
local improvement projects, including overpass, underpass and street projects.
The trench opponents argue that the ReTRAC project is not an underpass project as
contemplated in these laws, because NRS 271.245 defines an underpass project as any
tunnel, tube or other structure or facilities for the transportation of pedestrians, motor and
other vehicles, and utility lines, and NRS 482.135 defines vehicle in a manner that
excludes trains. The argument is not persuasive because the NRS 482.135 definition of
vehicle is limited to that chapter, and the trench opponents have provided no reason for
grafting it into NRS chapter 271. But even if the ReTRAC project could not be considered an
underpass project, it fits within the other project descriptions and qualifies as a local
improvement project authorized by NRS 271.265 and the City Charter.
In addition, although they conceded in the district court that the train trench is a public work
project, the trench opponents now assert that it is notbecause the train track property is
owned by the railroad, not the City, and because the train trench is not within NRS
338.010(11)'s definition of public work. The trench opponents' new assertion is without
merit. UP agreed in the MOU to transfer the real property upon which the trench will be
located to the City.
__________

13
See NRS chapter 338 (public works projects); see also NRS chapter 271 (local improvements).
the MOU to transfer the real property upon which the trench will be located to the City. NRS
338.010(11) defines public work to include any project for the new construction, repair or
reconstruction of: (a) A project financed in whole or in part from public money for: . . . (5)
Public streets and alleys; . . . and (10) All other publicly owned works and property whose
cost as a whole exceeds $20,000. The train trench fits within the NRS 338.010(11)(a)(5) and
(10) definitions. We conclude that the grade separation project is a public work and that the
choice of the train trench as the best way to execute the project is an administrative decision
to be made by the Reno City Council, not the electorate.
14

Pre-election intervention
[Headnote 11]
In Fuji Park,
15
we resolved the question whether pre-election judicial intervention is
warranted when an initiative petition improperly proposes an administrative measure, or
otherwise exceeds the electorate's power; we held that pre-election intervention is warranted
because an initiative that fails to meet the threshold requirement that it propose only
legislation is void.
Substantive validity and standing
We need not reach the question whether the train trench initiative, if enacted, would violate
the contract clause or any other provision in the state constitution. Nevertheless, we note that
when a proposed initiative meets all threshold procedural requirements, pre-election review
of substantive challenges is not generally permitted,
16
unless the proposed initiative is
patently, or plainly and palpably, unconstitutional.
17

__________

14
We note that although the dissent raises some interesting points with respect to the train trench project, it
does not address the legal issues that we are called upon to decide.

15
118 Nev. at 498-99, 50 P.3d at 552-53.

16
Hessey v. Burden, 615 A.2d 562, 572-74 (D.C. 1992) (reviewing various states' cases regarding
pre-election challenges to the validity of proposed initiatives); see James D. Gordon III & David B. Magleby,
Pre-election Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298 (1989); see also Las
Vegas Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990) (noting that this court had
always strictly limited its pre-election intervention to cases involving violations of state constitutional or
statutory rules governing the procedures for placing initiatives and referendums on the ballot, and declining to
enjoin an initiative that, if enacted, could later be held unconstitutional).

17
Hessey, 615 A.2d at 573; see Stumpf v. Lau, 108 Nev. 826, 839 P.2d 120 (1992) (holding that this court
may enjoin a ballot question that, if enacted, would constitute a plain and palpable violation of the United States
Constitution and would be inoperative under any circumstances or conditions).
We also need not reach the question whether the non-governmental respondents have
standing to challenge the initiative's validity, because the City's standing was clearly
sufficient to sustain the action.
18

CONCLUSION
We conclude that the initiative prohibiting construction of a train trench within the existing
right of way through downtown Reno exceeds the electorate's initiative power because it
concerns an administrative rather than a legislative act. Accordingly, we affirm the district
court order permanently enjoining the Washoe County Registrar of Voters from placing the
train trench initiative on any city election ballot.
19

Young, J., dissenting:
I respectfully dissent.
Nevada's Constitution expressly reserves the right of the people to propose initiative petitions
as to all local, special and municipal legislation of every kind.
1
The scope of this right is
broad.
2
This provision was added to our constitution to enable voters to directly enact
legislation when public officials are not responsive to public concerns.
3

Here, nearly 15,000 Reno voters signed a petition to place an initiative measure regarding the
train trench project on the ballot. The City Clerk certified that the petition met procedural
requirements, and the Council forwarded the petition to the Registrar of Voters to be put on
the ballot. I submit the initiative petition is valid and would allow the voices of the people to
be heard.
__________

18
See In re Ballot Title 1999-2000 No. 215, 3 P.3d 11, 14 (Colo. 2000) (choosing not to address an
association's standing when its arguments were identical to those of a registered elector with standing); Mazzone
v. Attorney General, 736 N.E.2d 358, 363 n.4 (Mass. 2000) (noting that it had often chosen not to reach the
question of organizational or official standing when the standing of the individual voters was sufficient to sustain
the action).

19
The Honorable A. William Maupin, Chief Justice, and The Honorable Nancy Becker, Justice, voluntarily
recused themselves from participation in the decision of this matter.

1

2

3
See Wilson v. Koontz, 76 Nev. 33, 36-37, 348 P.2d 231, 232 (1960) (stating that this provision was designed
to empower people to enact or reject laws independent of the legislature); Hugh A. Bone, The Initiative and
The Referendum 5 (2d ed. 1975) ([A]s an alternative to legislative unresponsiveness, the initiative and
referenda were to give the citizen the means to protest specific policy grievances, and to implement on a
collective basis those programs deemed desirable by the majority.).
However, the City seeks to prevent a public vote and challenges the constitutionality of the
initiative. A reasonable inference to be drawn from this action is that the City has a concern
that a public vote on the project would be adverse to the City's plans.
4
We live in a country
where the right to vote is fundamental to our way of life.
5
There may be no purer form of a
democracy of the people, by the people, [and] for the people
6
than when an issue is
decided by a public vote.
Clearly, not every government action can be subject to a vote. The pace at which a democratic
government moves is frequently slow. The practical problems arising from a direct form of
democracy on every issue would be overwhelming. Some issues are undoubtedly best
resolved by elected officials. We are faced with competing interests: that of protecting
government from unwarranted harassment and the equal interest in protecting benefits to be
won through direct legislation.
7

It is argued that we have established an administrative-legislative test for determining when
an issue falls within the traditional discretion afforded to public officials.
8
As the majority
notes, only decisions considered legislative in nature are subject to a direct vote by the
people. The majority concludes that the City's decision to proceed with the trench project is
purely administrative; therefore, any initiative proposal is barred. We have previously stated
that the administrative-legislative distinction is often vague.
9
In my view, the decision of
the City to proceed with the project does not neatly fit into the administrative category.
On one hand, although the railroad has operated above ground in Reno for over 130 years, the
legislature recently concluded that there are traffic problems created by the above ground
railroad.
10
Clearly, the City has the authority to complete various local improvement
projects, including overpasses, underpasses, and street and transportation projects.
11
However, the trench project constitutes more than a mere local improvement, public work, or
transportation project. Rather, the trench project is a part of an economic policy to revitalize
the downtown area that involves both a permanent change to the character of the City
and the largest single financial commitment in its history.
__________

4
It is troubling that the City recently entered into a $170 million contract for the project while the initiative
issue remained unresolved. This action seems premature and somewhat suggestive of a
be-reasonable-do-it-our-way attitude on the part of the City.

5
See Bush v. Gore, 531 U.S. 98, 104 (2000).

6
Abraham Lincoln, Address at Dedication of National Cemetery at Gettysburg (Nov. 19, 1863).

7

8
Id.

9
Id.

10
See 1997 Nev. Stat., ch. 506, 23, at 2405.

11
See NRS 271.265; NRS 338.010; Reno City Charter 6.010.
economic policy to revitalize the downtown area that involves both a permanent change to the
character of the City and the largest single financial commitment in its history. This suggests
that the project is not merely administrative but policy driven and legislative in nature.
The decision to proceed with the train trench project constitutes a decision unlike any the City
has ever before made. It is unique in the financial burden it will impose on the taxpayers,
possibly for generations to come.
12
The City estimates that the project will cost an additional
$260 million. To many observers, this figure appears to be conservative. The City has
acknowledged that project expenses could run much higher, as the builders have a design and
build contract. It thus appears that the builders have what almost amounts to a blank check.
The City concedes that it has already spent $15 million on the project, including $300,000 to
reimburse unsuccessful design/build proposers. The City is now poised to spend projected tax
revenueand probably moreon what it refers to as a transportation project. We should
perhaps be thankful that City visionaries of long ago did not see a need to make an expensive
and long-term commitment to a transportation system designed largely for horses and
wagons.
The cost of this single project is more than the City's total 1999-2000 annual budget.
13
The
funds to pay for this project will be derived from various sources, including money from
room and sales taxes, grants, bonds, loans, and the City's general fund, and bonded
indebtedness will be repaid over a period of forty years. The magnitude of this undertaking is
more than a mere administrative decision by the City's elected officials.
The ramifications of this project may be long-lasting. What if the project does not rise to the
level of expectations for success? We should not forget the lessons of the Lincoln County
Million Dollar Courthouse.
14

In 1871, elected officials of then-thriving Lincoln County rushed to build a courthouse and
jail for a total cost of $26,400.
15
A construction contract was entered into with a reputable
builder, but by the time the courthouse was completed just a year later, costs had nearly
tripled and totaled $75,000.
__________

12
This case is distinguishable from our recent decision in Glover v. Concerned Citizens for Fuji Park, 118
Nev. 488, 495-96, 50 P.3d 546, 550-51 (2002). There, the issue involved Carson City's use and management of
real property under authority granted to it by statute and the city charter. Such land use decisions are
traditionally administrative in nature and do not possess the unique policy and financial aspects present here.

13
Judicial notice is taken that the actual budget of the City for 1999-2000 was $243,944,393.

14
Ronald M. James, Temples of Justice: County Courthouses of Nevada 99-100 (University of Nevada Press
1994).

15
Id. at 100.
costs had nearly tripled and totaled $75,000.
16
During the following years, the economic
boom in Lincoln County declined, while the interest on the debt mounted.
17
Not until 1938,
sixty-six years later, were the people of Lincoln County able to pay bonds used to finance the
project.
18
By that time, the estimated cost of the project had reached over $800,000.
19
The
courthouse became famous for the county's inept financing, resulting in a nearly seven
figure debt.
20
In serious need of repair, the courthouse was closed in the 1930s, just as the
bonds were finally paida fitting commentary on how badly the county handled the
situation.
21

If the same ratio between contract price and actual cost in the Lincoln County Courthouse
case occurs here, it is not totally unforeseeable that Reno's $282 million
22
project could be
called the Billion Dollar Train Trench.
23
The economic future of Northern Nevada is far
from settled. Where will the City get the money to pay for this project if tax revenue
decreases further? Competition from gaming on Native American reservations in nearby
states poses a threat to tax income. Should we place a high-stakes bet on a project that
effectively amounts to a gamble on Reno's economic future?
The answers to these questions are uncertain and lead to troubling conclusions. During
current economic uncertainty, when our state is facing a sizable budget shortfall, it is apparent
that thousands of voters who signed petitions are hesitant to support the trench project.
Funds used for the project could assist in building schools and parks and employ countless
teachers and police officers. In budget year 1999-2000, the City spent $45,099,788 on police
and $17,273,986 on parks and recreation. These figures are a mere fraction of the cost of the
train project. If the City desires to improve the economy of the downtown area, the place to
start may be by making it both more safe and attractive.
__________

16
Id.

17
Id.

18
Id.

19
Id. at 102.

20
Id. at 99-100.

21
Id.

22
Susan Voyles, Rigdon Tells Forum New Council Might Stop Trench, Reno Gazette-Journal, Aug. 16, 2002,
at 1C.

23
I am reminded of a quote attributed to former United States Senator Everett M. Dirksen from Illinois during
debate on an appropriation bill: A billion here, a billion there, and pretty soon you're talking about real money.
Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service 155
(Suzy Platt ed., Library of Congress 1989).
be by making it both more safe and attractive. Instead, the City seeks to build a quarter of a
billion dollar trench through which private trains will pass. If the project fails, the impact may
have financial consequences not only for the City, but the entire region as well. It seems only
fair that citizens who ultimately will bear the financial burden be allowed to vote on it.
We teach our children and constantly remind our fellow citizens that voting is a civic
responsibility. Yet, when an issue such as the one at hand sparks voter interest, the City
argues that voting is impermissible. This result is difficult to justify. If not here, then when
and under what circumstances does our constitution allow initiative petitions?
Enormous financial commitments should not be left only to the unfettered discretion of public
officials. A tenet of democracy is that people generally sense what is in their best interests,
although sometimes it appears that politicians, for a variety of reasons, may believe
otherwise.
24
Whether the train trench project would be approved by the people, we will never
know. Their voices have been silenced on the dubious premise that the $282 million decision
to proceed on by far the most costly project in the history of the city (which may take nearly a
half century to pay off) is merely an administrative matter and not appropriate for voters to
consider. One thing, however, is certain: the old adage of being railroaded may be aptly
applied to the situation confronting the residents of Washoe County today.
____________
118 Nev. 590, 590 (2002) Gonzales v. State
RALPH M. GONZALES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36908
September 13, 2002
53 P.3d 901
Proper person appeal from a district court order denying a post-conviction petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Following affirmance of convictions of driving under the influence (DUI), petitioner filed
post-conviction petition for writ of habeas corpus. The district court denied petition.
Petitioner appealed. The supreme court held that: (1) petition had to be filed within one year
of supreme court's issuance of remittitur,
__________

24
Should the isolated voice of one council person dictate the long-term economic future of the citizens of
Washoe County? Here, a nearly $300 million project proceeds based on a 4-3 vote by the Council, despite a
unanimous decision by County Commissioners to allow the citizens to vote. Hearing before the Washoe County
Board of Commissioners (July 9, 2002); Hearing before the Reno City Council (July 16, 2002).
within one year of supreme court's issuance of remittitur, and (2) prison mailbox rule did not
apply to filing of post-conviction habeas petitions.
Affirmed.
[Rehearing denied October 30, 2002]
Ralph M. Gonzales, Ely, in Proper Person.
Frankie Sue Del Papa, Attorney General, and Brandee Ramos Mooneyhan, Deputy Attorney
General, Carson City; Stewart L. Bell, District Attorney, Clark County, for Respondent.
Franny A. Forsman, Federal Public Defender, and Jason F. Carr, Assistant Federal Public
Defender, Las Vegas, for Amicus Curiae.
1. Habeas Corpus.
In cases where the defendant has filed a timely direct appeal, the one-year period for filing a post-conviction habeas petition
commences to run from the date that supreme court issues its remittitur. NRS 34.726.
2. Habeas Corpus.
Post-conviction petition for writ of habeas corpus is deemed filed when it is filed with appropriate district court, rather than when it is
delivered into hand of a prison official. NRS 34.726(1).
3. Habeas Corpus.
Under some circumstances, a petitioner may be able to demonstrate good cause to excuse the untimely filing of a post-conviction
habeas petition based on official interference with the timely filing of a petition. NRS 34.726(1).
OPINION
Per Curiam:
Appellant Ralph M. Gonzales challenges a district court order denying his post-conviction
petition for a writ of habeas corpus. The primary question before this court is whether the
district court erred in concluding that the post-conviction petition was procedurally barred
because it was not timely filed. To answer that question, we must determine the date on
which the one-year filing period under NRS 34.726 commenced and the date on which a
proper person post-conviction habeas petition is deemed filed for purposes of determining its
timeliness. We first conclude that where a timely appeal has been taken from a judgment of
conviction, the one-year time period for filing a post-conviction habeas petition commences
to run and is to be computed from the date of this court's issuance of its remittitur.
date of this court's issuance of its remittitur. We next decline to extend the prison mailbox
rule adopted in Kellogg v. Journal Communications
1
to the filing of post-conviction habeas
petitions under NRS chapter 34.
PROCEDURAL HISTORY
On October 10, 1996, the district court convicted Gonzales, pursuant to a jury verdict, of four
counts of driving under the influence in violation of NRS 484.3795. The district court
sentenced Gonzales to serve consecutive prison terms totaling approximately twenty-eight to
seventy-one years.
Gonzales pursued a direct appeal, raising numerous issues. This court rejected his appeal and
affirmed the judgment of conviction in an unpublished order entered on December 8, 1998.
2
After denying a timely petition for rehearing and staying the remittitur while Gonzales
applied to the United States Supreme Court for a writ of certiorari,
3
this court issued its
remittitur on May 20, 1999.
Gonzales then filed a proper person post-conviction petition for a writ of habeas corpus in the
district court. The district court received the petition on May 23, 2000, and filed it on May 24,
2000. The petition raised numerous claims of ineffective assistance of counsel.
The State filed a motion to dismiss the petition alleging, among other things, that it was
untimely filed. Although it had not been appointed as counsel in this case, the Federal Public
Defender's Office was representing Gonzales in a pending federal habeas petition and filed an
opposition to the State's motion to dismiss the state habeas petition. There is some confusion
in the record regarding the district court's decision on the motion to dismiss. However, the
final written order entered by the district court includes a finding and conclusion that the
petition was not timely filed and that Gonzales had not demonstrated good cause to excuse its
untimeliness. This appeal followed.
On July 23, 2002, this court issued an order requesting the attorney general to file points and
authorities addressing certain issues presented in this appeal. In addition, this court requested
the Office of the Federal Public Defender to participate in this appeal and to file similar
points and authorities as amicus curiae. Both the attorney general and the federal public
defender have now complied with our request and the questions presented in this appeal are
now fully at issue and ready for decision.
__________

1
108 Nev. 474, 835 P.2d 12 (1992).

2
Gonzales v. State, Docket No. 29498 (Order Dismissing Appeal, December 8, 1998).

3
See NRAP 41.
DISCUSSION
Triggering event for purposes of NRS 34.726
The first question we must address is on what date the one-year period for filing a
post-conviction habeas petition commenced to run in this case. This question involves the
meaning of the phrase within one year as applied to the facts of this case.
[Headnote 1]
NRS 34.726(1) provides that where an appeal has been taken from a judgment of conviction,
a post-conviction petition for a writ of habeas corpus that challenges the judgment of
conviction must be filed with the district court within 1 year after the supreme court issues
its remittitur. This language is clear and unambiguous. In cases where the defendant has
filed a timely direct appeal, the one-year period for filing a post-conviction habeas petition
commences to run from the date that this court issues its remittitur.
4
The statute only refers
to the date on which this court issues its remittitur, not the date on which the district court
subsequently acknowledges receipt of the remittitur or on which this court later files the
remittitur upon receiving the district court's receipt for the remittitur.
5

This court issued its remittitur in Gonzales' direct appeal on May 20, 1999, after denying a
timely petition for rehearing and staying the remittitur pending application to the United
States Supreme Court for a writ of certiorari.
6
Thus, Gonzales had until Monday, May 22,
2000, to file a timely post-conviction petition for a writ of habeas corpus in the district court.
7

Application of prison mailbox rule
[Headnote 2]
The next question we must answer is when did Gonzales file his petition for purposes of NRS
34.726(1). The district court received the petition on May 23, 2000,
__________

4
See Dickerson v. State, 114 Nev. 1084, 967 P.2d 1132 (1998).

5
Thus, Gonzales' reliance on Glauner v. State, 107 Nev. 482, 813 P.2d 1001 (1991), is misplaced. Glauner
interpreted the timeliness provision for filing a petition for post-conviction relief under former NRS chapter 177.
Id. at 484, 813 P.2d at 1003. That provision was repealed, effective January 1, 1993. The NRS chapter 177
provision used different language than that used in NRS 34.726(1), and although this court's decision in Glauner
used the terms filed and issued interchangeably in discussing the remittitur, it is clear from the dates
specified in the opinion and from this court's files that this court determined in Glauner that the one-year time
period for filing a post-conviction petition under former NRS chapter 177 commenced to run from the date this
court first issued the remittitur.

6
See NRAP 41.

7
The year 2000 was a leap year; thus, the end of the one-year period from the issuance of the remittitur
technically fell on Saturday, May 20, 2000.
received the petition on May 23, 2000, and filed it on May 24, 2000more than one year
after this court issued its remittitur on direct appeal. However, Gonzales apparently dated and
signed the petition on May 19, 2000, within the one-year time limit. He also presented
evidence to the district court that he used money in his inmate account to purchase legal
postage on May 19, 2000. He thus argued that he delivered his petition into the hand of a
prison official on May 19, 2000, and the petition was therefore timely filed under the prison
mailbox rule that this court adopted in Kellogg v. Journal Communications.
8
We disagree
and decline to extend Kellogg to the filing of post-conviction habeas petitions.
In Kellogg, we considered the issue of when a notice of appeal submitted by a prisoner acting
in proper person is deemed filed for purposes of determining its timeliness. After considering
the situation faced by such appellants and the vagaries of the prison mail system, we
adopted the prison mailbox rule that the United States Supreme Court had adopted in
interpreting rules governing the timeliness of notices of appeal filed in federal courts.
9
We
therefore held in Kellogg that a notice of appeal submitted by a prisoner acting in proper
person is deemed filed on the date that it is delivered into the hand of a prison official.
10

Gonzales argued below that Kellogg applies to the filing of a post-conviction habeas petition.
Although we recognize that a majority of federal courts have applied the prison mailbox rule
to the filing of federal habeas petitions by prisoners acting in proper person,
11
we are not
bound by those decisions in our interpretation of NRS 34.726(1).
12

__________
Pursuant to NRS 178.472, however, the last day of any period to be computed under the Nevada Revised
Statutes is not included in the computation if it falls on a Saturday, Sunday or non-judicial day.

8
108 Nev. at 474, 835 P.2d at 12.

9
Id. at 477, 835 P.2d at 13 (citing Houston v. Lack, 487 U.S. 266 (1988)).

10
Id.

11
See, e.g., Noble v. Kelly, 246 F.3d 93 (2d Cir.), cert. denied, 534 U.S. 886 (2001); McPherson v. McBride,
188 F.3d 784 (7th Cir. 1999); Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999); Morales-Rivera v. U.S., 184
F.3d 109 (1st Cir. 1999); Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999); Hoggro v. Boone, 150 F.3d 1223
(10th Cir. 1998); Burns v. Morton, 134 F.3d 109 (3d Cir. 1998); In re Sims, 111 F.3d 45 (6th Cir. 1997).

12
See Kellogg, 108 Nev. at 477, 835 P.2d at 13 (observing that Supreme Court decision to adopt prison
mailbox rule in interpreting federal rules of appellate procedure was not binding on this court in its interpretation
of the Nevada Rules of Appellate Procedure); accord Adams v. LeMaster, 223 F.3d 1177, 1182 n.4 (10th Cir.
2000) (noting that Supreme Court decision adopting prison mailbox rule was based on interpretation of federal
statutes and procedural rules, not constitutional principles, and, therefore, state courts are not bound by that
decision), cert. denied, 531 U.S. 1195 (2001).
While a prisoner submitting a post-conviction petition in proper person faces many of the
difficulties and the vagaries of the prison mail system identified in Kellogg, those concerns
are more pronounced in the limited time period within which a notice of appeal must be filed,
generally thirty days. In contrast, a prisoner has one year to file a post-conviction habeas
petition. Given the ample time that NRS 34.726(1) affords prisoners to file a post-conviction
habeas petition, we conclude that the policy reasons underlying the prison mailbox rule are
not as compelling in the habeas context as in the notice-of-appeal context.
[Headnote 3]
Moreover, unlike the strict jurisdictional time limits for filing a notice of appeal, the one-year
time limit for filing a post-conviction habeas petition may be excused by a showing of good
cause and prejudice.
13
Thus, in the notice-of-appeal context, absent the prison mailbox rule,
a prison official's interference with the timely filing of a notice of appeal would not extend
the time for filing the notice of appeal or allow this court to excuse the untimely filing of the
notice of appeal.
14
In contrast, we recognize that under some circumstances, a petitioner may
be able to demonstrate good cause to excuse the untimely filing of a post-conviction petition
based on official interference with the timely filing of a petition.
15

For these reasons, we decline to extend the prison mailbox rule to the filing of
post-conviction habeas petitions. Those petitions must be filed with the appropriate district
court within the applicable time period set forth in NRS 34.726(1).
16

Here, Gonzales failed to file his petition with the district court within one year after this court
issued its remittitur on direct appeal. He therefore had to demonstrate good cause to excuse
his procedural default and prejudice.
__________

13
See NRS 34.726(1).

14
See Dickerson, 114 Nev. at 1087, 967 P.2d at 1134 (The filing of a timely notice of appeal is a
fundamental jurisdictional requirement; without it, this court never obtains jurisdiction over an appeal and has no
power to consider the issues raised, no matter how much merit they may have.).

15
See Harris v. Warden, 114 Nev. 956, 959 & 960 n.4, 964 P.2d 785, 787 & n.4 (1998) (explaining that good
cause must be some impediment external to the defense and noting such an impediment could include
some interference by officials [that] made compliance impracticable' (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986) (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)))). We are not faced with that situation in
this case because, accepting Gonzales' allegations as true, the untimely filing of Gonzales' petition in the district
court was not the result of official interference. We therefore express no opinion as to the factual allegations and
evidence necessary to make such a showing of good cause.

16
See NRS 34.738(1) (A petition that challenges the validity of a conviction or sentence must be filed with
the clerk of the district court for the county in which the conviction occurred.).
procedural default and prejudice.
17
Gonzales failed to demonstrate good cause. Accordingly,
we conclude that the district court did not err in denying the petition as untimely under NRS
34.726(1).
CONCLUSION
We conclude that where a timely direct appeal is taken from a judgment of conviction, a
post-conviction petition challenging the judgment of conviction must be filed within one year
after this court issues its remittitur.
18
We further conclude that the prison mailbox rule
adopted in Kellogg does not apply to the filing of post-conviction habeas petitions. Those
petitions must be filed in the district court within the applicable time period set forth in NRS
34.726(1). Because Gonzales filed his post-conviction habeas petition in the district court
more than one year after this court issued its remittitur on direct appeal and failed to
demonstrate good cause to excuse the delay, we conclude that the district court properly
denied the petition as untimely. We therefore affirm the district court's order.
19

____________
118 Nev. 596, 596 (2002) McDaniel v. Sierra Health & Life Ins. Co.
LYNDALE D. McDANIEL, Appellant, v. SIERRA HEALTH AND LIFE INSURANCE
COMPANY, INC., Respondent.
No. 38008
September 18, 2002
53 P.3d 904
Appeal from an order granting summary judgment in a declaratory relief action to an
insurance company that denied appellant's claim for insurance benefits. Second Judicial
District Court, Washoe County; Steven P. Elliott, Judge.
Beneficiary of accidental death policy brought action against insurer for declaratory judgment
that the policy did not exclude coverage for insured's death from felonious drunk driving. The
district court entered summary judgment in favor of the insurer. Beneficiary appealed. The
supreme court held that felony exclusion applied to insured's death from felonious drunk
driving.
Affirmed.
__________

17
See NRS 34.726(1).

18
One exception to this rule is worthy of note. Pursuant to NRAP 42(b), this court does not issue remittiturs
in appeals that are voluntarily dismissed. Thus, we conclude that where a timely direct appeal is voluntarily
dismissed, the one-year time period for filing a post-conviction petition under NRS 34.726 commences to run
from the date of entry of this court's order granting the motion for voluntary dismissal.

19
We have considered all proper person documents filed or received in this matter, and we conclude that the
relief requested is not warranted.
Peter Toft Combs, Reno, for Appellant.
Burton Bartlett & Glogovac, Reno, for Respondent.
1. Insurance.
Felony exclusion of coverage for accidental death that directly or indirectly resulted from the commission of a felony by the insured
applied to insured driver's death from felonious drunk driving, even if the exclusion were limited to conscious wrongdoing; the
exclusion was not ambiguous, drunk driving could no longer be characterized as an accident, and the death followed from the drunk
driving.
2. Insurance.
Courts interpreting an insurance policy examine the language from the viewpoint of one not trained in law or insurance, giving the
terms their plain, ordinary, and popular meaning.
OPINION
Per Curiam:
This appeal arises from the district court's grant of summary judgment to Sierra Health and
Life Insurance Company, Inc. (Sierra Health), a California corporation authorized to
underwrite insurance in Nevada, which had denied death benefits to the named beneficiary,
appellant Lyndale D. McDaniel. McDaniel was listed as the beneficiary of an accidental death
benefit policy that David B. Dawson, a resident of Nevada, held with Sierra Health. While
driving intoxicated, Dawson failed to negotiate a left turn, allowing his vehicle to drift right,
causing it to strike a guardrail and flip over, thereby killing himself and injuring McDaniel,
his passenger.
1
Both McDaniel and Sierra Health agree that had Dawson survived the
accident, the State of California could have prosecuted him for felonious drunk driving.
2

__________

1
The parties stipulated below that Dawson died as a result of the accident. However, it is not clear from the
record whether Dawson died at the scene of the accident or sometime thereafter.

2
Because the accident occurred in California, California law applies to determine whether Dawson's conduct
was felonious. See NRS 484.3795 (stating that this statute only applies to drunk driving incidents that occur
within Nevada). An officer of the California Highway Patrol testified that he arrested Dawson for violation of
California Vehicle Code Section 23153(b) (West 2000), which states:
It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her
blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by
law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than
the driver.
Pursuant to Dawson's accidental death benefit policy, McDaniel made a timely request for
payment. Sierra Health denied his request, relying on the policy's felony exclusion, which
precludes accidental death coverage if the insured dies while committing a felony. McDaniel
then filed for declaratory relief from the district court. Both parties moved for summary
judgment. The district court initially denied both parties' motions. The parties then submitted
a joint motion for reconsideration with a stipulated set of facts. Based upon the stipulated
facts, the district court granted Sierra Health's motion for summary judgment and denied
McDaniel's motion. This appeal followed. McDaniel does not argue that summary judgment
was improper, but only that the district court should have granted summary judgment on his,
not Sierra Health's, behalf. We disagree, and affirm the district court's order of summary
judgment.
DISCUSSION
On appeal, McDaniel argues that the policy's felony exclusion does not bar his claim for
recovery because: (1) it is ambiguous and must, therefore, be interpreted in his favor; (2) it
does not include felonious drunk driving, which is not an intentional crime; and (3) the
felony-exclusion provision is not triggered here because Dawson's death was not proximately
caused by his felonious drunk driving. We conclude that all of McDaniel's allegations lack
merit.
[Headnote 1]
If the insurance policy were ambiguous, we would be required to interpret it narrowly against
the insurer.
3
However, the felony exclusion contained in Sierra Health's accidental death
benefit policy is not ambiguous. The exclusion plainly states that [a] loss that is directly or
indirectly a result of one of the following is not a Covered Loss even though it was caused by
an accidental bodily injury. . . . (6) An attempt to commit, or committing, an assault or felony
by the insured. McDaniel argues that this provision is ambiguous as applied here because it
is not clear that death from felonious drunk driving would trigger the exclusion. We disagree.
__________
California Vehicle Code Section 23554 provides that a first-time violation of Section 23153 may be punished
as either a misdemeanor or a felony. Under California law, an offense that is punishable as either a felony or a
misdemeanor is deemed a felony for all purposes up to the imposition of sentence. Barker v.
California-Western States Life Insurance Co., 61 Cal. Rptr. 595, 599 (Ct. App. 1967).

3
National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 365, 682 P.2d 1380, 1383 (1984).
[Headnote 2]
In interpreting an insurance policy, this court examines the language from the viewpoint of
one not trained in law or insurance, giving the terms their plain, ordinary, and popular
meaning.
4
Contrary to McDaniel's argument, the ordinary meaning of the term felony
plainly includes felonious drunk driving. Because the felony exclusion is not ambiguous, we
review it, like any other contract, as it is written,
5
without giving McDaniel the benefit of the
doubt
6
or attempting to effectuate his reasonable expectations.
7

McDaniel urges this court to follow the Utah Supreme Court's 1988 decision in LDS Hospital
v. Capitol Life Insurance Co., which held that drunk driving did not trigger the felony
exclusion in Capitol Life's death benefit policy.
8
LDS Hospital, however, is both
unpersuasive and distinguished from the case at hand.
The policy at issue in LDS Hospital suggested that insurance coverage would be denied for an
accidental injury if it were the result of some intentional act.
9
Here, the policy does not
include similar language requiring that the injury resulted from an intentional act. In addition,
the list of exclusions in the policy at issue in LDS Hospital consisted of acts that all required
some element of intent.
10
Again, the exclusions listed in the Sierra Health policy do not
suggest a similar requisite element of intent.
__________

4
Id. at 364, 682 P.2d at 1382.

5
See Farmers Ins. Exchange v. Young, 108 Nev. 328, 332, 832 P.2d 376, 378 (1992).

6
See National Union, 100 Nev. at 365, 682 P.2d at 1383.

7
See Farmers Ins. Exchange, 108 Nev. at 333 n.3, 832 P.2d at 379 n.3 (holding that the reasonable
expectations doctrine only applies if the policy is ambiguous).

8
765 P.2d 857, 860 (Utah 1988). McDaniel also relies on Harbeintner v. Crown Life Insurance Co., 612 P.2d
334 (Or. Ct. App. 1980), which is distinguishable from this case. In Harbeintner, the policy was arguably
ambiguous. The policy listed specific exceptions to recovery, including the commission of a felony, but did not
specifically state whether an automobile accident was an exception to coverage. Id. at 336 n.1. Furthermore, the
Harbeintner court never discussed whether the underlying offense for which the insurer was excluding coverage
was a felony in Oregon. Id. at 355. It merely held that the insurer did not clearly define what was and was not a
covered accident. Id. Here, the Sierra Health policy was very specific and stated that an attempt to commit or
committing an assault or felony by the insured was not a covered loss even if it was an accidental bodily injury.
Both parties agree that had Dawson survived the accident, California may have prosecuted him for a felony.

9
The policy at issue in LDS Hospital stated that for accidental bodily injuries the insurer would not pay
charges arising out of an attempt at assault or felony. 765 P.2d at 858. Accidental bodily injury was defined as
that which is not intentional and not foreseen. Id. at 861.

10
Id. at 861.
icy do not suggest a similar requisite element of intent.
11
As a result, unlike the felony
exclusion in the policy considered by the Utah Supreme Court in LDS Hospital, the felony
exclusion in the Sierra Health policy at issue here applies to all felonies regardless of criminal
intent.
In addition, we note that even if the felony exclusion in Sierra Health's accidental death
policy were limited to conscious wrongdoings, the exclusion would still apply, as a matter of
law, to felonious drunk driving. By statute, felonious drunk driving, in both California and
Nevada, does not require criminal intent, but merely driving while intoxicated resulting in
serious bodily harm to another.
12
Although the Utah Supreme Court may have been correct
that incidents involving drunk driving were commonly regarded as accidents in 1988, when it
decided LDS Hospital,
13
that conclusion is not accepted by the courts today. Drunk driving is
now widely recognized as criminal conduct that is too reckless to be characterized as an
accident.
14

Courts interpreting exclusionary provisions like the one at issue here have uniformly held that
recovery is not limited unless there is some causal connection between the felony and the loss
suffered.
15
The parties do not disagree that some causal connection is required, but disagree
as to the degree of causal connection necessary to trigger the felony exclusion. A similar
disagreement appears to exist between the courts that have considered this question.
On the one hand, some courts apply a narrow but for standard, whereby the beneficiary
recovers unless the insured's death was proximately related to his or her commission of a
felony.
16
Specifically, when the insured's death results from drunk driving, which by statute
is felonious in this case only because it causes harm to another,
__________

11
The Sierra Health policy excludes coverage for various injuries that result from non-intentional acts, such
as (1) [a] disease or infirmity of the mind or body, (2) [p]tomaine or bacterial infection, and (9) [r]iding or
descending from any kind of aircraft.

12
See NRS 484.3795; Cal. Veh. Code 23153 (West 2000).

13
765 P.2d at 861.

14
See Baker v. Provident Life & Acc. Ins. Co., 171 F.3d 939, 942-43 (4th Cir. 1999); Cozzie v. Metropolitan
Life Ins. Co., 140 F.3d 1104, 1110 (7th Cir. 1998); Barnes v. Greater Georgia Life Ins. Co., 530 S.E.2d 748,
750 (Ga. Ct. App. 2000).

15
See, e.g., Romero v. Volunteer State Life Insurance Company, 88 Cal. Rptr. 820, 824 (Ct. App. 1970);
Metropolitan Life Ins. Co. v. Goodwin, 184 S.E. 208, 209 (Va. 1936); 10 Lee R. Russ & Thomas F. Segalla,
Couch on Insurance 3d 140:26 (1998); 43 Am. Jur. 2d Insurance 580 (1982).

16
See Murdock v. Monumental Life Ins. Co., 2 P.3d 963, 965 (Utah Ct. App. 2000); LDS Hospital, 765 P.2d
at 860; Penn Mutual Life Insurance Company v. Gibson, 418 P.2d 50, 52 (Colo. 1966).
which by statute is felonious in this case only because it causes harm to another,
17
the death
of the insured is not considered sufficiently related to the felonious conduct, i.e., the harm
caused to another, to trigger the felony exclusion.
18
Under this approach, McDaniel would
not be barred from recovering for Dawson's death.
However, the majority of courts interpreting felony exclusions have adopted a broader, more
comprehensive approach to causation. These courts have applied felony exclusions when the
loss is remotely connected to any aspect of the insured's felonious conduct.
19
This approach,
as opposed to the but for approach, looks at the totality of the circumstances, rather than the
individual acts comprising the felony.
20

The Sierra Health policy plainly states that recovery will be barred where the loss is
indirectly or directly a result of the insured's commission of a felonious act. Here,
McDaniel is barred from recovering for Dawson's death. Although Dawson's death did not
follow directly from the fact that he injured his passenger, looking at the totality of the
circumstances, his death did follow from his commission of felonious drunk driving. We,
therefore, conclude that the felony exclusion in Sierra Health's policy bars McDaniel from
recovering the accidental death benefit for Dawson's death.
CONCLUSION
The felony exclusion in Sierra Health's accidental death policy is not ambiguous. It excludes
coverage for deaths caused either directly or indirectly from the insured's commission of a
felonious act. Driving while intoxicated, if it results in bodily injury to another, is a felony
under California law.
__________

17
See NRS 484.3795; Cal. Veh. Code 23153 (West 2000). Under both California and Nevada law, drunk
driving becomes a felony when it causes some degree of harm to another.

18
See Penn Mutual, 418 P.2d at 51-52.

19
See Weisenhorn v. Transamerica Occidental Life Ins., 769 F. Supp. 302, 305-06 (D. Minn. 1991); LDS
Hospital, 765 P.2d at 863 (Howe, J., dissenting) (explaining that Penn Mutual is an aberration); Romero, 88 Cal.
Rptr. at 824 (rejecting the level of causation required by the Colorado Supreme Court in Penn Mutual); John
Hancock Mut. Life Ins. Co. v. Long, 149 S.W.2d 510, 514 (Ky. Ct. App. 1941); Metropolitan Life, 184 S.E. at
210; Runyon v. Western & Southern Life Ins. Co., 192 N.E. 882, 883-84 (Ohio Ct. App. 1934); 10 Russ &
Segalla, supra note 15, 140:32. McDaniel argues that Weisenhorn is not relevant here because the insurance
policy in that case was governed by the Employee Retirement Income Security Act of 1974 (ERISA). Although
the ordinary rules of construction favoring the insured do not apply to policies governed by ERISA, Weisenhorn,
769 F. Supp. at 305, the court's discussion in Weisenhorn, specifically rejecting but for causation, is
nevertheless instructive.

20
Weisenhorn, 769 F. Supp. at 305.
another, is a felony under California law.
21
Here, the parties do not dispute that Dawson
injured another passenger and killed himself while driving under the influence of alcohol. He
died as a result of his felonious drunk driving. Therefore, under the plain and ordinary
language of the felony exclusion in Sierra Health's accidental death policy, McDaniel may not
recover accidental death benefits for Dawson's death.
We, therefore, affirm the district court's order granting Sierra Health's motion for summary
judgment.
____________
118 Nev. 602, 602 (2002) Matter of Parental Rights as to Q.L.R.
In the Matter of the Parental Rights as to Q.L.R., a Minor.
ROGER D. R., Appellant, v. DINAL. M., Respondent.
No. 38221
September 18, 2002
54 P.3d 56
Appeal from a district court order terminating parental rights. Eighth Judicial District Court,
Clark County; William O. Voy, Judge, Family Court Division.
Father appealed from decision of the district court terminating his parental rights. The
supreme court held that: (1) as matter of first impression, voluntary conduct resulting in
incarceration does not alone establish an intent to abandon a minor child for termination of
parental rights purposes, and (2) substantial evidence did not exist to support a finding of
abandonment.
Reversed.
[Rehearing denied October 31, 2002]
[En banc reconsideration denied December 31, 2002]
Paul M. Gaudet, Las Vegas, for Appellant.
Jerome A. DePalma, Las Vegas, for Respondent.
1. Infants.
Termination of the parent-child relationship implicates fundamental liberty interests that are protected by the United States
Constitution.
2. Infants.
Appellate court will only uphold parental termination orders if they are supported by substantial evidence.
__________

21
See Cal. Veh. Code 23153 (West 2000).
3. Infants.
In order to terminate parental rights, a petitioner must prove by clear and convincing evidence that termination is in the best interests of
the child and must also establish parental fault. NRS 128.105.
4. Infants.
Voluntary conduct resulting in incarceration does not alone establish an intent to abandon a minor child for termination of parental
rights purposes. NRS 128.012.
5. Infants.
Substantial evidence did not exist to support a finding of abandonment in termination of parental rights case. Although father had been
unable to provide consistent financial support while in prison, he had attempted to continue his relationship with child, was able to
send small amount of money for child's financial support, and attempted to send child cards and drawings he made for child while he
was in prison. NRS 128.012.
6. Infants.
Substantial evidence did not support trial court's finding that it was in child's best interests to terminate father's parental rights; father
was eligible for parole when child would be seven, nothing in the record supported finding that child could not form a loving and
supportive relationship with her father in the future, and father had completed a number of programs while he was in prison that should
assist him in becoming a positive part of child's life upon his release. NRS 128.005(2)(c).
7. Infants.
Nevada's statutory termination scheme does not support termination of parental rights based solely on the duration of incarceration.
NRS 128.106(6).
OPINION
Per Curiam:
Appellant Roger D. R. challenges a district court order terminating his parental rights to his
minor child, Q.L.R. This appeal presents an issue of first impression for this court: Does
incarceration, as a matter of law, support a determination that a parent intended to abandon
his or her minor child? Roger contends that the district court erred by finding that, as a result
of his incarceration, he abandoned Q.L.R. and that termination of his parental rights was in
the child's best interests. We agree and, therefore, reverse the district court's order terminating
Roger's parental rights.
FACTS
In 1997, the minor child, Q.L.R, was born to appellant Roger D. R. and his wife, respondent
Dina L. M. Roger and Dina permanently separated in August 1999. During the parental rights
termination hearing in June 2001,
termination hearing in June 2001, Roger admitted that in the summer of 1999, he developed
an addiction to crack/cocaine, had what he described as an idiotic two months, and took a
leave of absence from his job. He began calling Dina at work eighty to one hundred times per
day. Dina, however, refused his calls, so Roger was unable to speak with her about Q.L.R.
Based on the numerous phone calls Roger placed to both Dina and her parents, Dina filed for
a temporary protection order (TPO) against Roger, which a district court issued in September
1999. The TPO prohibited Roger from any contact with Dina or Q.L.R. and granted Dina
temporary custody of the child. The TPO was still in effect in November 1999, when the
following incident occurred.
The record shows that Roger approached Dina outside Q.L.R.'s daycare center. He forced his
way into her car and drove around Las Vegas with Dina and Q.L.R. for approximately six
hours. During this time, Roger did not physically harm Q.L.R. At one point, they went to a
grocery store to buy diapers and food for Q.L.R., and again later stopped at Jack-in-the-Box
to eat.
At approximately 2 p.m., Dina, who at that point was driving the car, dropped Roger off at a
friend's house and called 911. As a result of this incident, Roger was imprisoned in November
1999. In April 2000, the district court convicted Roger of aggravated stalking, burglary,
robbery, and second-degree kidnaping. He was sentenced to five to fifteen years in prison,
with the sentences to run concurrently. Shortly thereafter, Dina petitioned the district court to
terminate Roger's parental rights.
In addition to the facts described above, the following relevant evidence was also introduced
during the parental rights termination hearing. Roger testified that he was really happy
when Q.L.R. was born and that he read to her, sang to her, and played games with her. He
testified that he loves Q.L.R. very much. Dina testified that Roger interacted affectionately
with Q.L.R. prior to his incarceration. Dina further testified, however, that prior to her
separation from Roger, Roger never picked up Q.L.R. at daycare. According to Dina, on four
occasions when Q.L.R. was sick and had to receive medical attention in the middle of the
night, Roger did not accompany Dina and Q.L.R. to the hospital. Dina also testified that when
she left Roger, he withdrew all of the money from their checking and savings accounts,
forcing her to declare bankruptcy.
Additionally, the record establishes that prior to August 1999, Roger lived with Dina and
Q.L.R. and contributed to the family expenses. Between August 1999, when Roger and Dina
separated, and June 2001, when the district court held the parental rights termination hearing,
Roger gave Dina $50.00 for Q.L.R.'s care. From November 1999 until the parental rights
termination hearing,
ing, however, Roger was in prison, where he worked at a nonpaying job and, therefore, was
unable to provide financial support for Q.L.R. He did make Q.L.R. cards and drawings, which
he attempted to send to her. He has also filed a civil lawsuit to regain possession of his
personal property from Dina's father, so that he can sell it to provide money for Q.L.R.
At the time of this appeal, Roger remains in prison. The record shows that, while in prison,
Roger has completed programs in addiction, commitment to change, stress management,
conflicts and resolutions, vital issues, resumes and interviews, and athletics. At the time of
the parental rights termination hearing, Roger was in the process of completing a structured
living program, which is a boot camp, military-based program. He had also received a
scholarship bond and was taking college courses through a University of Nevada at Reno
correspondence program. Roger is eligible for parole in 2004.
DISCUSSION
[Headnotes 1, 2]
The bond between parent and child is a fundamental societal relationship.
1
Termination of
the parent-child relationship implicates fundamental liberty interests that are protected by the
United States Constitution.
2
This court will only uphold parental termination orders if they
are supported by substantial evidence.
3
As this court has previously explained, termination of
a parent's rights to his child is tantamount to imposition of a civil death penalty.
4

[Headnote 3]
In order to terminate parental rights, a petitioner must prove by clear and convincing evidence
that termination is in the best interests of the child and must also establish parental fault.
5
In
its order terminating Roger's parental rights, the district court found that Roger's incarceration
constituted abandonment of Q.L.R. The district court explained:
__________

1
See Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972).

2
See Santosky, 455 U.S. at 753.

3
Matter of Parental Rights as to Carron, 114 Nev. 370, 374, 956 P.2d 785, 787 (1998), overruled on other
grounds by Matter of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000).

4
Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989).

5
NRS 128.105. The district court in this case erred when, in explaining its decision to the parties, it stated that
it must first find parental fault and then analyze the best interests of the child. That is not the law in the State of
Nevada. See Matter of N.J., 116 Nev. at 790, 8 P.3d at 126.
Due to [Roger's] conduct . . . , he has not provided for the care, support and nurturing of
the minor child since August, 1999. Also, [Roger's] voluntary conduct . . . has
hampered and impeded continual contact and relationships with the minor child, so that
little or no contact has occurred between the minor child and [Roger]. [Roger's]
incarceration . . . is as a result of his own conduct.
The district court apparently relied on the rationale that by committing a crime, Roger
intended to go to prison and, therefore, to abandon Q.L.R. We simply cannot agree with the
district court's reasoning.
6

[Headnotes 4, 5]
The Nevada Legislature has not provided that incarceration constitutes abandonment as a
matter of law. NRS 128.012 defines abandonment of a child and prescribes the
circumstances in which abandonment may be presumed:
1. Abandonment of a child means any conduct of one or both parents of a child
which evinces a settled purpose on the part of one or both parents to forego all parental
custody and relinquish all claims to the child.
2. If a parent or parents of a child leave the child in the care and custody of another
without provision for his support and without communication for a period of 6 months,
. . . the parent or parents are presumed to have intended to abandon the child.
This court has held that [i]ntent is the decisive factor in abandonment and may be shown by
the facts and circumstances.
7
Consistent with the statute and our prior decisions regarding
abandonment, we hold that voluntary conduct resulting in incarceration does not alone
establish an intent to abandon a minor child.
8
For the following reasons, we conclude that
substantial evidence did not exist to support a finding of abandonment in this case.
__________

6
Cf. Staat v. Hennepin County Welfare Board, 178 N.W.2d 709, 713 (Minn. 1970) (Thus, since an intention
to forsake the duties of parenthood must be present before abandonment can be found, it necessarily follows that
a separation of child and parent due to misfortune and misconduct alone, such as incarceration of the parent,
does not constitute intentional abandonment.).

7
Matter of Parental Rights of Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996), superseded by
statute on other grounds as stated in Matter of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000).

8
Cf. Crawford v. Arkansas Dept. of Human Serv., 951 S.W.2d 310, 313 (Ark. 1997) (Although
imprisonment imposes an unusual impediment to a normal parental relationship, we have held that it is not
conclusive on the termination issue.); Diernfeld v. People, 323 P.2d 628, 631 (Colo. 1958) (We cannot hold
that every convicted felon, by that fact alone, loses all parental rights in children. . . . It is not one of the
punishments prescribed by law that conviction of a felony works also for forfeiture of parental rights.), cited in
dence did not exist to support a finding of abandonment in this case.
The facts and circumstances in this case do not satisfy either NRS 128.012(1) or NRS
128.012(2). Roger's conduct did not demonstrate a settled purpose to relinquish all claims to
Q.L.R. The record in this case shows that although Roger has been unable to provide
consistent financial support while in prison, he has attempted to continue his relationship
with Q.L.R.
9
He was able to send a small amount of money for Q.L.R.'s financial support
after his father sold some of his personal possessions. Roger also filed a civil lawsuit to
reclaim more of his personal possessions from Dina's father, so that he can sell the items to
provide more money for Q.L.R. Additionally, Roger attempted to send Q.L.R. cards and
drawings he made for her while in prison, which Dina admittedly refused to give to Q.L.R.
Based on Roger's attempts to maintain contact with and to provide support for Q.L.R. while
in prison, we conclude that the record does not contain substantial evidence to support a
finding of abandonment.
[Headnote 6]
Substantial evidence also does not support the district court's finding that it is in Q.L.R.'s best
interests to terminate her father's parental rights. In analyzing the best interests of the child,
the district court should look to the factors outlined in NRS 128.005(2)(c) and consider each
matter on a case-by-case basis. Under that statute, the decisive considerations in proceedings
for termination of parental rights are the continuing needs of a child for proper physical,
mental and emotional growth and development.
10

[Headnote 7]
In its best interests analysis, however, the district court focused on the length of Roger's
incarceration as the decisive factor to support termination of his parental rights. The district
court stated in its order that any attempted re-establishment of a relationship that far in the
future will not be in the child's best interest.
__________
Petition of R.H.N., 710 P.2d 482, 487 n.4 (Colo. 1985); In Interest of B.W., 498 So. 2d 946, 948 (Fla. 1986)
(Incarceration does not, as a matter of law, constitute abandonment.).

9
Cf. In re J.D.C., 819 So. 2d 264, 267 (Fla. Dist. Ct. App. 2002) (holding that a finding of abandonment was
improper where father maintained communication with the child through the grandmother, even though he was
unable to provide emotional or financial support while incarcerated); Staat, 178 N.W.2d at 713 ([I]f a
parental relationship existed prior to a father's imprisonment and he continued this relationship to the best of his
ability during incarceration through letters, cards, and visits where possible . . . his parental rights would be
preserved. (emphasis added)).

10
NRS 128.005(2)(c).
Nevada's statutory scheme does not support termination based solely on the duration of
incarceration.
11
To do so would deprive a parent of his or her parental rights without
adequate consideration of the child's best interests and the existence of parental fault, which
factors the State of Nevada has deemed fundamental to its statutory scheme.
12

Roger is eligible for parole in 2004, when Q.L.R. will be seven. Nothing in the record
supports a finding that Q.L.R. could not form a loving and supportive relationship with her
father in the future. While in prison, he has completed a number of programs that should
assist him in becoming a positive part of Q.L.R.'s life upon his release. The record shows that
prior to August 1999, Roger contributed to the family expenses. During the parental rights
termination hearing, Dina testified that when she saw Roger interact with Q.L.R., he
interacted affectionately with her. At the time of this appeal, Q.L.R. lived with her mother,
who had not remarried, and there was no one seeking to adopt Q.L.R. This case, therefore, is
unlike those cases where a step-parent wants to adopt the child of an incarcerated parent or
the child is placed in foster care and has formed other bonds.
13
This case does not warrant
imposition of a civil death penalty.
14

__________

11
See NRS 128.106(6). This NRS statutory provision, entitled Specific considerations in determining
neglect by or unfitness of parent, is the only parental rights termination provision that directly addresses
incarceration. It addresses the nature of the crime, not the duration of incarceration. Compare id. (Conviction of
the parent for commission of a felony, if the facts of the crime are of such a nature as to indicate the unfitness of
the parent to provide adequate care and control to the extent necessary for the child's physical, mental or
emotional health and development. (emphasis added)), with Fla. Stat. Ann. 39.806(1)(d)(1) (West Supp.
2002) ((1) [A]ny person who has knowledge of the facts alleged or who is informed of those facts and believes
that they are true may petition for the termination of parental rights under any of the following circumstances: . .
. . (d) When the parent of a child is incarcerated in a state or federal correctional institution and . . . 1. The
period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the
period of time before the child will attain the age of 18 years . . . .).

12
Cf. Stanley, 405 U.S. at 651, 653. We do not intend, however, for this opinion to be interpreted as holding
that the nature of the crime for which a parent is convicted is not a relevant factor in determining the child's best
interests. Here, however, the district court found that Roger's criminal conduct was not directed at Q.L.R., nor
does the record show that Q.L.R.'s physical, mental and emotional growth and development would be threatened
by continued interaction with her father. Compare Crawford, 951 S.W.2d at 311, 313 (parental rights of
incarcerated parent terminated where parent convicted of violation of a minor in the first degree).

13
Cf. Bush v. State, Dep't Hum. Res., 112 Nev. 1298, 1303, 929 P.2d 940, 944 (1996) (concluding that there
was clear and convincing evidence that the best interests of the children would be served by termination of the
parental rights of the incarcerated parent, where the children spent four years in a foster home and the foster
parents were willing to adopt them).

14
Drury, 105 Nev. at 433, 776 P.2d at 845.
Because the district court's findings were not supported by substantial evidence, we reverse
its order terminating Roger's parental rights.
ORDER DENYING REHEARING*
Respondent has petitioned this court for rehearing of the opinion issued September 18, 2002.
We note that this court did not misapprehend the record. Rather, as the district court's
decision was based primarily upon the fact of incarceration, without consideration of other
issues, this court could not consider other bases for termination. Nothing in our opinion is
intended to prevent consideration of termination on other grounds. Accordingly, we deny
rehearing. NRAP 40(c).
Dated this 31st day of October, 2002.
____________
118 Nev. 609, 609 (2002) State of Nevada v. Dist. Ct. (Ducharm)
THE STATE OF NEVADA; EDWARD PAIGE, NANCY GAMMIE, and ARNOLD
SIERRA, Individually and as Agents and Employees of the State of Nevada;
COLLETTE LANCASTER and SCOTT LANCASTER, Individually and as Licensed
Foster Parents of Azeria Ducharm; MONTY LOPER and SHALA LOPER,
Individually and as Parents of a Teenage Daughter, Jaime Beesley, Jointly and
Severally; JOHN BROWN and JANE BROWN, Individuals, Petitioners, v. THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for
THE COUNTY OF WASHOE, and THE HONORABLE STEVEN R. KOSACH,
District Judge, Respondents, and AZERIA DUCHARM, a Minor Child Now
Deceased; ESTATE OF AZERIA DUCHARM; and MONIQUE DUCHARM,
Individually and as the Natural Mother, Heir and the Legal Representative of the
Estate of Azeria Ducharm, Real Parties in Interest.
No. 38543
October 16, 2002
55 P.3d 420
Original petition for a writ of mandamus or prohibition, challenging a district court order
granting in part and denying in part petitioners' motion for judgment on the pleadings.
__________
*Editor's Note: By order entered on December 31, 2002, the en banc court directed the clerk of this court to
publish the panel's order denying rehearing.
Mother, individually and as representative of infant's estate, brought negligence claims
against State, State employees in their individual capacities, foster parents, and babysitter's
parents, relating to infant's death from choking on hot dog while infant was supervised by
babysitter in foster care home. The district court granted partial summary judgment for State
and State employees. State and State employees petitioned for writ of mandamus or
prohibition. The supreme court held that State and State employees were not entitled to
quasi-judicial immunity as to actions taken or not taken after district court's order made infant
a ward of the State.
Petition denied.
[Rehearing denied January 30, 2003]
Frankie Sue Del Papa, Attorney General, and Charles Hilsabeck, Deputy Attorney General,
Carson City, for Petitioners State of Nevada, Edward Paige, Nancy Gammie, and Arnold
Sierra.
Laxalt & Nomura, Ltd., and Daniel T. Hayward, Reno, for Petitioners Collette and Scott
Lancaster.
Rands, South & Gardner, Reno, for Petitioners Monty and Shala Loper.
Law Offices of Sharon McDonald, Reno, for Real Parties in Interest.
1. Mandamus.
A writ of mandamus is an extraordinary remedy that will not issue if the petitioner has a plain, speedy, and adequate remedy at law.
NRS 34.170, 34.330.
2. Mandamus.
Whether to consider a petition for mandamus is entirely within the discretion of the supreme court.
3. Mandamus.
The writ of mandamus 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. NRS 34.160.
4. Mandamus.
Even when an arguable adequate remedy exists, the supreme court may exercise its discretion to entertain a petition for mandamus
under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy
and administration favor the granting of the petition.
The granting of immunity is a matter of public policy that balances the social utility of the immunity against the social loss of being
unable to attack the immune defendant.
Absolute immunity is a broad grant of immunity not just from the imposition of civil damages, but also from the burdens of litigation,
generally.
Whereas absolute immunity defeats a suit at the outset of litigation as long as the official's actions were within the scope of the
immunity, qualified immunity depends on the circumstances and motivation of the official's actions as established by evidence
presented at trial.
8. Judges.
Judicial immunity serves to provide absolute immunity from subsequent damages liability for all persons, governmental or otherwise,
who are integral parts of the judicial process.
9. Judges.
A grant of absolute judicial immunity applies even when a judicial officer has been accused of acting maliciously and corruptly.
The application of absolute judicial immunity to a non-judicial officer depends not on the status of the individual, but on the function
the individual serves with respect to the judicial process.
11. Torts.
Absolute quasi-judicial immunity applies to witnesses, official or private, deriving their power from long recognized common-law
principles protecting witness testimony.
The official seeking absolute quasi-judicial immunity bears the burden of showing that such immunity is justified for the function in
question.
The presumption is that qualified rather than absolute quasi-judicial immunity is sufficient to protect government officials in the
exercise of their duties.
14. Infants; States.
State and State employees in their individual capacities were not entitled to quasi-judicial immunity from mother's negligence claims,
relating to infant's death from choking on hot dog while infant was supervised by babysitter in foster care home; mother was not
challenging the recommendations made to district court by State and State employees regarding infant's placement and medical needs,
and instead she was alleging negligence relating to actions taken or not taken after district court's order made infant a ward of the State.
NRS 432B.260, 432B.390.
15. Infants.
State employees engaged in child protective services are entitled to quasi-judicial immunity when they provide information to the
court, e.g., reports, case plans, testing evaluations, and recommendations pertaining to a child who is or may become a ward of the
State.
16. States.
When a state agency or its employees provide their decision-making expertise to the court, they act as an arm of the court and are
entitled to absolute quasi-judicial immunity.
17. Infants.
Once the court makes a decision ratifying the recommendations of the state agency or state employees engaged in child protective
services, e.g., placement in foster care or need for further medical evaluation, the state agency and its employees are no longer acting as
an arm of the court,
court, and instead, their function in carrying out the order of the court falls within the executive branch of government and pursuant to
their statutory duties. Specifically, quasi-judicial immunity does not apply to state agencies or their employees for the day-to-day
management and care of their wards.
OPINION
Per Curiam:
On January 21, 1999, fourteen-month-old Azeria Ducharm was removed from the care of her
biological parents and made a ward of the State by the Division of Child and Family Services
based on allegations of neglect. Since she had several serious and permanent medical
conditions that necessitated further evaluation, Azeria was placed in licensed therapeutic
foster care. On April 3, 1999, during her placement with the foster parents, Azeria was
watched, along with several other children, by a fifteen-year-old babysitter. The babysitter
fed, or allowed Azeria to be fed, a hot dog. Azeria choked to death despite the babysitter's
attempts to render aid.
Real party in interest Monique Ducharm, individually and as heir and representative for
Azeria Ducharm, filed a negligence claim against the State of Nevada, State employees
individually, Azeria's foster parents, and the parents of the babysitter charged with Azeria's
care at the time of her death. Monique generally alleged that the petitioners had been
negligent in: (1) failing to evaluate Azeria's medical needs as a child with special medical
conditions; (2) failing to take Azeria's medical needs into consideration in selecting the foster
parents; (3) failing to inform the foster parents of Azeria's special needs; (4) failing to seek
medical evaluations or treatment regarding Azeria's special needs; and (5) failing to supervise
Azeria's care in light of her special medical needs.
Petitioners filed a motion for judgment on the pleadings pursuant to NCRP 12(c) based on the
theory of absolute quasi-judicial immunity. Because the district court considered matters
outside the pleadings in rendering its judgment, petitioners' motion was treated as one for
summary judgment. Thereafter, the district court dismissed Monique's claim for relief
regarding the State's failure to have a policy or procedure in place for special needs children.
However, the district court refused to dismiss the remaining claims against the petitioners on
the grounds of quasi-judicial immunity, concluding that genuine issues of material fact
prohibited summary judgment at this early stage of the proceeding.
Petitioners then filed their petition for a writ of mandamus or, in the alternative, a writ of
prohibition, compelling the district court to dismiss the claims against them.
For the reasons discussed herein, we conclude that the district court did not err in denying
petitioners' motion to dismiss based upon the theory of quasi-judicial immunity.
DISCUSSION
On January 21, 1999, Monique Ducharm and her domestic partner, Allen Teddy Taylor, were
arrested and incarcerated. Five minor children were living with Monique and Taylor at the
time of their arrest. Based on the arrest and the living conditions in the home, the children
were placed in protective custody. The youngest of these children, Azeria, a
fourteen-month-old girl, had several serious and permanent medical conditions.
After an evidentiary hearing, the juvenile division of the district court determined that,
because of her medical needs, Azeria should be placed in a licensed therapeutic foster home.
The court also ordered additional medical evaluations to devise a case plan that would meet
Azeria's special needs. The remaining children were placed in a group home.
Azeria was placed in the care of Scott and Collette Lancaster. On April 3, 1999, the
Lancasters entrusted Azeria's care to a fifteen-year-old babysitter. Unfortunately, while in the
babysitter's care, Azeria choked on a hot dog and died.
Real party in interest Monique Ducharm, individually and as heir and representative, filed a
negligence claim against the State of Nevada, State employees individually, Azeria's foster
parents, and the babysitter's parents. The complaint alleged multiple claims for relief.
1
In
particular, the complaint asserted that petitioners, the State and its employees, were negligent
because the State failed to have adequate policies or procedures in place to address the care of
special needs children. In addition, the complaint alleged that the social workers and
supervisors assigned to Azeria's case failed to properly: (1) evaluate her medical needs; (2)
take her medical needs into consideration in selecting the foster parents; (3) inform the foster
parents of Azeria's needs; (4) seek medical treatment or evaluations regarding her needs; and
(5) supervise her care in light of her special needs.
After the State indicated its intent to move for dismissal based on absolute immunity, all
parties stipulated to a stay of the proceedings pending resolution of the absolute immunity
issue. The State defendants moved for judgment on the pleadings pursuant to NRCP 12(c).
The State asserted that it and the individual State employees were acting as agents of the
courts and, as such, were entitled to absolute quasi-judicial immunity.
__________

1
In her amended complaint, Monique alleged twenty-one claims for relief.
The district court considered matters outside the pleadings, and thus treated the motion as one
for summary judgment.
2
The district court dismissed the first claim for relief regarding the
State's failure to have a policy or procedure for special needs children, because Monique
failed to demonstrate that this failure proximately caused Azeria's death. However, the district
court refused to dismiss the remaining claims on the ground of quasi-judicial immunity.
Petitioners assert that they are entitled to absolute quasi-judicial immunity and that such
immunity protects them not only from litigation but also from the burdens of litigation. They
argue that the district court was obligated to grant their motion for judgment on the pleadings
and seek a writ of mandamus to compel the district court to dismiss the proceedings against
them.
[Headnotes 1-4]
A writ of mandamus is an extraordinary remedy that will not issue if the petitioner has a
plain, speedy, and adequate remedy at law.
3
Whether to consider a petition for mandamus is
entirely within the discretion of this court.
4
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.
5
However, even when an
arguable adequate remedy exists, this court may exercise its discretion to entertain a petition
for mandamus under circumstances of urgency or strong necessity, or when an important
issue of law needs clarification and sound judicial economy and administration favor the
granting of the petition.
6

Because this case involves an important issue of law, we take this opportunity to clarify the
application of absolute quasi-judicial immunity.
7

[Headnotes 5-11]
The granting of immunity is a matter of public policy that balances the social utility of the
immunity against the social loss of being unable to attack the immune defendant.
__________

2
See NRCP 12(c); see also Lumberman's Underwriting v. RCR Printing, 114 Nev. 1231, 1234, 969 P.2d 301,
303 (1998).

3
See NRS 34.170; NRS 34.330.

4

5
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).

6
Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997); Ashokan v. State, Dep't of Ins., 109
Nev. 662, 667, 856 P.2d 244, 247 (1993).

7
Petitioners did not raise below and we take no position regarding whether prosecutorial or discretionary
immunity applies to the claims set forth in this case.
being unable to attack the immune defendant.
8
Absolute immunity is a broad grant of
immunity not just from the imposition of civil damages, but also from the burdens of
litigation, generally.
9
Judicial immunity originates from the common-law protection of
judicial participants
10
which formed a cluster of immunities protecting the various
participants in judge-supervised trials' that stemmed from the characteristics of the
judicial process.'
11
Judicial immunity serves to provide[ ] absolute immunity from
subsequent damages liability for all personsgovernmental or otherwisewho [are] integral
parts of the judicial process.
12
Indeed, a grant of absolute immunity applies even when a
judicial officer has been accused of acting maliciously and corruptly.
13
The initial purpose of
judicial immunity was to discourag[e] collateral attacks [against judges] and thereby help[ ]
to establish appellate procedures as the standard system for correcting judicial error.
14
Absolute judicial immunity has been extended to various non-judicial participants in the
judicial process. The application of absolute judicial immunity to a non-judicial officer
depends not on the status of the individual,
__________

8
James L. Knoll, Protecting Participants in the Mediation Process: The Role of Privilege and Immunity, 34
Tort & Ins. L.J. 115, 122 (1998).

9
Id. (noting that absolute immunity is distinguishable from qualified immunity, an affirmative defense the
defendant must plead). Whereas absolute immunity defeats a suit at the outset of litigation as long as the
official's actions were within the scope of the immunity, qualified immunity depends on the circumstances and
motivation of the official's actions as established by evidence presented at trial. See also Imbler v. Pachtman,
424 U.S. 409, 419 n.13 (1976)

10
Briscoe v. LaHue, 460 U.S. 325, 332 n.12 (1983) (stating that [t]he demands of public policy on which
the rule [of absolute immunity] is based are so controlling that there is only one considered case in the English or
American reports in which the existence of the general doctrine of absolute immunity under the common law has
ever been questioned' (quoting Van Vechten Veeder, Absolute Immunity in Defamation: Judicial Proceedings,
9 Colum. L. Rev. 463, 465-66 (1909))); see also Cutler v. Dixon, 76 Eng. Rep. 886 (K.B. 1585); Anfield v.
Feverhill, 80 Eng. Rep. 1113 (K.B. 1614); Henderson v. Broomhead, 157 Eng. Rep. 964, 968 (Ex. Ch. 1859);
Dawkins v. Lord Rokeby, 176 Eng. Rep. 800, 812 (C.P. 1866).

11
Briscoe, 460 U.S. at 335 (quoting Butz v. Economou, 438 U.S. 478, 512 (1978)). The United States
Supreme Court first recognized the doctrine of judicial immunity in Bradley v. Fisher, 80 U.S. (13 Wall.) 335,
347 (1871), where it concluded that it is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon
his own convictions, without apprehension of personal consequences to himself.

12
Briscoe, 460 U.S. at 335.

13
Imbler, 424 U.S. at 418 n.12 (quoting Pierson v. Ray, 386 U.S. 547, 553-54 (1967)).

14
Forrester v. White, 484 U.S. 219, 225 (1988); see also Mireles v. Waco, 502 U.S. 9, 9-13 (1991).
judicial officer depends not on the status of the individual, but on the function the individual
serves with respect to the judicial process.
15
That is, absolute quasi-judicial immunity has
been extended to individuals who perform functions integral to the judicial process. For
example, absolute quasi-judicial immunity applies to witnesses, official or private, deriving
their power from long recognized common-law principles protecting witness testimony.
16
Additionally, absolute quasi-judicial immunity has been extended to prosecutors
17
and
executive branch officials acting in a prosecutorial capacity (i.e., administrative law judges,
hearing examiners and agency officials).
18
However, the United States Supreme Court has
declined to extend absolute quasi-judicial immunity to presidential aides,
19
court reporters,
20
public defenders
21
and the United States Attorney General when not acting in a prosecutorial
capacity.
22

In Butz v. Economou,
23
the Supreme Court considered three factors that would support an
award of absolute quasi-judicial immunity. First, they considered whether the official in
question performed functions sufficiently comparable to those of officials who have
traditionally been afforded absolute immunity at common law (i.e., functional inquiry).
Second, they considered whether the likelihood of harassment or intimidation by personal
liability was sufficiently great to interfere with the official's performance of his or her duties.
Third, they considered whether procedural safeguards exist in the system that would
adequately protect against unconstitutional conduct by the official.
24
These factors reflect
the fundamental justification for absolute judicial immunity: where other means exist to
correct errors, decision-makers in the judicial process must be free to exercise their discretion
without fear of personal consequences.
25

__________

15
Knoll, supra note 8, at 124; see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 434-36 (1993).

16
Briscoe, 460 U.S. at 336 n.15.

17
Imbler, 424 U.S. at 431 (immunity granted to prosecutors in initiating a prosecution and in presenting the
state's case); see also Yaselli v. Goff, 275 U.S. 503 (1927) (extending absolute immunity to federal prosecutors
through summary affirmance), aff'g 12 F.2d 396 (2d Cir. 1926).

18
Butz v. Economou, 438 U.S. 478, 508-17 (1978).

19
Harlow v. Fitzgerald, 457 U.S. 800, 808-13 (1982).

20
Antoine, 508 U.S. at 434-37.

21
Tower v. Glover, 467 U.S. 914, 921-23 (1984).

22
Mitchell v. Forsyth, 472 U.S. 511, 520-24 (1985).

23
438 U.S. at 513-17.

24
Caroline Turner English, Stretching the Doctrine of Absolute Quasi-Judicial Immunity: Wagshal v. Foster,
63 Geo. Wash. L. Rev. 759, 765-66 (1995).

25
Id. at 768 (citing Bradley, 80 U.S. at 347).
[Headnotes 12, 13]
Adhering to this functional approach, the Court has concluded that the burden of justifying
absolute quasi-judicial immunity rests on the official asserting the claim.
26
Specifically,
the official seeking absolute immunity bears the burden of showing that such immunity
is justified for the function in question. The presumption is that qualified rather than
absolute immunity is sufficient to protect government officials in the exercise of their
duties. We have been quite sparing in our recognition of absolute immunity, and have
refused to extend it any further than its justification would warrant.
27

Following the Court's decision in Butz, lower courts have extended absolute quasi-judicial
immunity to non-judicial officers, primarily in the context of civil actions asserting violations
of 42 U.S.C. 1983. In Miller v. Gammie,
28
the circuit court of appeals extended absolute
quasi-judicial immunity for the placement of a child in a foster home to state child services
workers involved in ongoing state court dependency proceedings. The court concluded that,
because the child services workers' actions took place in connection with, and incident to,
ongoing child dependency proceedings,' the workers were entitled to absolute immunity
even when claims of intentional wrongdoing were asserted.
29
The court's decision in Miller
was based upon previous grants of absolute quasi-judicial immunity to social service workers
engaged in the investigation of child abuse allegations
30
and to social service workers
performing investigative and placement services in child dependency proceedings.
31
Other
jurisdictions have similarly followed suit.
32

__________

26
Antoine, 508 U.S. at 432; Harlow, 457 U.S. at 812 (citing Butz, 438 U.S. at 506).

27
Burns v. Reed, 500 U.S. 478, 486-87 (1991) (citations omitted); id. at 500 (Scalia, J., concurring in part and
dissenting in part) (noting that the touchstone for [absolute judicial immunity] was performance of the function
of resolving disputes between parties, or of authoritatively adjudicating private rights).

28
292 F.3d 982, 989-90 (9th Cir. 2002).

29
Id. at 990 (quoting Babcock v. Tyler, 884 F.2d 497, 503 (9th Cir. 1989)).

30
Mabe v. San Bernardino County, Dept. of Soc. Serv., 237 F.3d 1101 (9th Cir. 2001).

31
Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989).

32
See, e.g., Puricelli v. Houston, No. CIV.A.99-2982, 2000 WL 760522 at *6 (E.D. Pa. June 12, 2000)
(allowing that child social service workers would be absolutely immune for their decision to initiate a child
abuse investigation); Gardner by Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (concluding that a
guardian ad litem would be absolutely immune in exercising functions such as testifying in court, prosecuting
custody or neglect petitions, and making reports and recommendations to the court in which the
This court has, in limited circumstances, granted absolute quasi-judicial immunity to
non-judicial officers. In Duff v. Lewis,
33
we granted absolute quasi-judicial immunity to a
court-appointed psychologist involved in evaluating individuals in the context of a custody
dispute when allegations of physical and sexual abuse had been made. Even though the
psychologist had been the subject of disciplinary sanctions by the Nevada State Board of
Psychological Examiners for his conduct during the evaluations, this court concluded that
[a]bsolute immunity [was] necessary to assure that judges, advocates, and witnesses [could]
perform their respective functions without harassment or intimidation.'
34
This court cited
five policy reasons for allowing absolute immunity: (1) the need to save judicial time in
defending suits; (2) the need for finality in the resolution of disputes; (3) to prevent deterring
competent persons from taking office; (4) to prevent the threat of lawsuit from discouraging
independent action; and (5) the existence of adequate procedural safeguards such as change of
venue and appellate review.'
35

In a case involving the same parties, we extended absolute quasi-judicial immunity to
court-appointed special advocates (CASA) involved in a child abuse investigation.
36
This
court concluded that CASA volunteers were an integral part of the judicial process and that
public policy considerations militated in favor of immunity for their actions during child
abuse investigations.
37
Similarly, in Matter of Fine,
38
this court reaffirmed the proposition
that court-appointed experts are entitled to absolute quasi-judicial immunity when they
provide information that a court may utilize in rendering a decision because they act, in that
context, as an arm of the court.
39

__________
guardian acts as an actual functionary or arm of the court); Malachowski v. City of Keene, 787 F.2d 704, 712
(1st Cir. 1986) (extending absolute quasi-judicial immunity to a city juvenile officer accused of filing a false
delinquency petition); Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986) (extending judicial immunity to
probation officers in preparing pre-sentence investigations even where bad faith and malice have been alleged);
Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (extending absolute immunity to state social service
workers, a psychologist and two psychiatrists in a suit involving the termination of parental rights).

33
114 Nev. 564, 571, 958 P.2d 82, 87 (1998).

34
Id. at 569, 958 P.2d at 85 (quoting Butz, 438 U.S. at 512).

35
Id. (quoting Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992)).

36
Foster v. Washoe County, 114 Nev. 936, 943, 964 P.2d 788, 793 (1998).

37
Id. at 942-44, 964 P.2d at 792-93.

38
116 Nev. 1001, 1015, 13 P.3d 400, 409 (2000).

39
Id. at 1015, 13 P.3d at 409.
[Headnote 14]
In the present case, the record reveals that the State and its agents exercised their statutory
authority to investigate and provide for the protective care and custody of Azeria.
40
Ducharm
does not dispute that the State and its agents are immune from liability for the decision to
place Azeria in protective custody, or for recommending that she be made a ward of the court
and placed in a foster home. Rather, Ducharm is challenging the selection and supervision of
the foster parents as well as the handling of Azeria's case once she was placed in a foster
home.
The State contends that Azeria was a ward of the juvenile court,
41
and that all actions taken
by State employees to place her in foster care and supervise her case were done pursuant to
court order and as agents of the court. As such, the employees were quasi-judicial officers and
entitled to absolute judicial immunity. Thus, the State asserts the district court should have
dismissed the claims against the State and its employees.
[Headnotes 15-17]
We conclude that State employees engaged in child protective services are entitled to
quasi-judicial immunity when they provide information to the court (e.g., reports, case plans,
testing evaluations and recommendations) pertaining to a child who is or may become a ward
of the State. We do not intend the aforementioned examples to be an exclusive list. Rather,
they demonstrate some of the duties protective service workers engage in that are integral to
the court's decision-making processes. When a state agency or its employees provide their
decision-making expertise to the court, they act as an arm of the court and are entitled to
absolute quasi-judicial immunity.
42
However, once the court makes a decision ratifying the
recommendations of the state agency (e.g., placement in foster care, need for further medical
evaluation, etc.), the state agency and its employees are no longer acting as an arm of the
court. Rather, their function in carrying out the order of the court falls within the executive
branch of government and pursuant to their statutory duties. Specifically, quasi-judicial
immunity does not apply to state agencies or their employees for the day-to-day management
and care of their wards.
__________

40
See NRS 432B.260; NRS 432B.390.

41
We note that Azeria was made a ward of the State by the district court. The term ward of the court is an
inaccurate, archaic term insofar as the court reviews and issues orders based upon recommendations made by an
agency that provides child welfare services. See NRS 432B.044 (defining child welfare services); NRS
432B.050 (defining court); NRS 432B.550 (determination of child custody by court); NRS 432B.553 (noting
that an agency that obtains legal custody of a child pursuant to NRS 432B.550 shall adopt a permanent
placement plan for the child for review by the court).

42
This conclusion accords with the analysis set forth by the United States
In the present case, Monique has not challenged the recommendations made to the district
court by the petitioners regarding Azeria's placement and medical needs. Rather, she has
alleged negligence on the part of the petitioners for actions taken or not taken after the district
court's order made Azeria a ward of the State. Consequently, petitioners are not entitled to
quasi-judicial immunity.
We decline to broadly extend the doctrine of quasi-judicial immunity to every action taken by
a State employee while supervising the care of foster children. Thus, the district court did not
err in refusing to dismiss the claims.
43
While some of Monique's claims may be barred by
prosecutorial or discretionary immunity, these issues are not before us and cannot be resolved
until the factual basis for the claims is fully articulated.
CONCLUSION
For the foregoing reasons, we conclude that the district court did not err in refusing to dismiss
the claims against the petitioners on the ground of quasi-judicial immunity. Accordingly, we
deny the petition for a writ of mandamus or, in the alternative, a writ of prohibition.
__________
Supreme Court in Butz and followed by this court in Duff. Specifically, child welfare workers engaged in
protective service evaluations function as advisors to the court. They provide recommendations based upon their
expertise and judgment upon which the courts base their determinations. Thus, in this limited capacity, child
welfare workers provide an invaluable and singular service to the court, offering recommendations within
adversarial proceedings between the state and the natural parent. Further, were child welfare workers subject to
personal liability for every recommendation made to the court in these situations, the judicial system would be
overburdened with civil suits and such liability would likely prevent competent persons from taking positions as
child welfare workers as the threat of lawsuit would discourage independent action. Additionally, opening the
gate to personal liability for recommendations made to the court by child welfare workers would impede the
resolution and finalization of petitions seeking the safe placement of this State's children. Finally, adequate
procedural safeguards exist within the system to protect against unconstitutional conduct by a state employee or
agency which precludes the necessity for civil liability for recommendations made to the court on the issues of
child welfare (i.e., appellate review, professional disciplinary proceedings, etc.). See Butz, 438 U.S. at 513-17;
Duff, 114 Nev. at 569, 958 P.2d at 85.

43
See, e.g., Simpson v. Mars Inc., 113 Nev. 188, 190, 929 P.2d 966, 967 (1997).
____________
118 Nev. 621, 621 (2002) Matter of Parental Rights as to J.L.N.
In the Matter of the Parental Rights as to J.L.N.
DIANA L. N., Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF HUMAN
RESOURCES, DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
No. 38100
October 18, 2002 55 P.3d 955
Appeal from a district court order terminating parental rights. Eighth Judicial District
Court, Clark County; Gerald W. Hardcastle, Judge, Family Court Division.
Division of Child and Family Services (DCFS) filed petition to terminate parental
rights against incarcerated mother. The district court granted petition. Mother appealed. The
supreme court held that: (1) mother presented substantial evidence demonstrating compelling
reasons why termination of her rights would not be in child's best interest, so as to overcome
presumption of termination based on child's placement outside of home for fourteen of twenty
consecutive months; (2) incarceration alone was insufficient to satisfy statutory requirement
of parental fault for failure to adjust from circumstances giving rise to child's removal from
home; and (3) mother was not at fault in failing to adjust from circumstances giving rise to
removal of child from home.
Reversed.
Law Offices of Amesbury & Schutt and John P. Parris, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Brigid J. Duffy, Deputy Attorney
General, Carson City, for Respondent.
The parent-child relationship is a fundamental liberty interest and the Due Process Clause of the Fourteenth Amendment
protects parents' fundamental right to care for and control their children. U.S. Const. amend 14.
Statutes that infringe upon parent-child relationship are subject to strict scrutiny, as relationship is a fundamental liberty interest
under Due Process Clause, and must be narrowly tailored to serve a compelling interest. U.S. Const. amend 14.
3. Infants.
To terminate a parent's rights, a petitioner must prove, by clear and convincing evidence, that termination is in the child's best
interests and that there is parental fault. NRS 128.105.
4. Infants.
Appellate court will uphold terminations of parental rights based on substantial evidence.
5. Infants.
Mother presented substantial evidence demonstrating compelling reasons why termination of her parental rights would not be in
child's best interest, so as to overcome presumption of termination based on child's placement outside of home for fourteen of twenty
consecutive months. Even though child had positive experience in prospective adoptive home, child expressed desire for permanency,
and mother was incarcerated; mother and child had strong bond, child wished to be reunited with mother, child had loving relationship
with maternal grandparent, child never lived in adoptive home, mother's incarceration was not long term, mother's felony conviction
did not involve child abuse or neglect, and child's health and well-being were not in jeopardy. NRS 128.105, 128.109(2),
432B.553(2)(c).
6. Infants.
Main concern in cases where parental adjustment of circumstances leading to placement of child outside home is at issue is to
provide some permanency for child. NRS 128.0126.
7. Infants.
While a parent's incarceration must be considered in determining whether to terminate parental rights based on parent's failure to
correct circumstances giving rise to child's placement outside home, incarceration alone is insufficient to satisfy the statutory
requirement of parental fault for failure to adjust. When considering a parent's incarceration in termination proceedings, the court must
also consider the nature of the crime, the sentence imposed, who the crime was committed upon, the parent's conduct toward the child
before and during incarceration, and the child's specific needs. NRS 128.0126, 128.105.
8. Infants.
Mother was not at fault in failing to adjust circumstances giving rise to removal of child from home. Even though she had not
completed reunification plan, child had been outside of home for fourteen of twenty months, and mother remained incarcerated for
violation of parole based on conviction for writing bad checks and forgery; mother completed plan to extent possible while
incarcerated, plan could be completed within six months of release, mother provided stable home before incarceration, and Division of
Child and Family Services (DCFS) pursued reunification, sought termination solely based on passage of time, and acknowledged
mother and grandmother made substantial efforts to maintain relationship with child. NRS 128.0126, 128.109(1)(a), (b), 128.109(2),
432B.590(4).
9. Infants.
Presumption of parental fault in failing to adjust circumstances giving rise to child's removal from home based on failure to
substantially comply with reunification plan within six months of child's placement or plan's commencement may be rebutted by
evidence that the parent has made reasonable and consistent efforts to adjust the circumstances that led to the children being placed
outside of their home. NRS 128.0126, 128.109(1)(b).
Before Shearing, Leavitt and Becker, JJ.
OPINION
Per Curiam:
Appellant Diana N. contends that the district court erred in terminating her parental
rights when there was no clear and convincing evidence that termination would serve her
child's best interests or that there was parental fault. We agree. The record does not include
substantial evidence that termination is in the child's best interests, and Diana overcame the
statutory presumption that her child's best interests would be served by termination.
Additionally, a failure to totally complete a case plan within the statutory time period of six
months solely because of incarceration is not a ground for a finding of failure of parental
adjustment or parental fault.
FACTS
In 1997, while working together in Wisconsin, Diana N. and Larry P. became
involved in a romantic relationship. At the time, Diana was a single parent to a
seven-year-old child, J.L.N., and was on probation for a 1992 conviction for issuing worthless
checks and forgery. The couple lived together in Wisconsin for approximately one year.
Though the relationship began to sour when Diana was about six months pregnant, the couple
remained together and on June 29, 1998, their child C.E.P. was born. Diana claims that she
remained with Larry despite domestic problems because she wanted the children to have a
family. In late October or early November 1998, the couple traveled to Las Vegas to visit
Larry's parents. Larry wanted to move to Las Vegas, but Diana testified that she traveled there
intending only to visit.
On December 2, 1998, after Larry reported Diana to authorities, she was arrested at
his parents' home. Diana was told she was being picked up on a warrant from her probation
officer because she had left Wisconsin without his permission. She informed the police that
Larry was not the children's legal father and that she did not want them to remain with him or
his familythus, the children were taken into custody as well. Diana claims that she
expressly made this request because, given her prior experience with Larry, she knew he was
incapable of caring for the children. Diana believed that the children would be kept in state
custody until they could be returned to her family. However, after a hearing on December 3,
1998, the children were both released to Larry's custody.
C.E.P. subsequently incurred serious injuries which were suspected to have been
caused by child abuse. As a result, on May 12, 1999,
May 12, 1999, the children were made wards of the state and placed in a foster home. Larry
pleaded guilty to one count of physical abuse and improper supervision. Larry later submitted
to DNA testing, the results of which indicated that he is C.E.P.'s biological father.
On August 31, 2000, the Division of Child and Family Services (DCFS) filed a
petition to terminate Larry's rights as to C.E.P. and Diana's rights as to both children.
1
The
petition alleged that the children were neglected and had been abandoned, and that the parents
were unfit, had failed to adjust, and had made only token efforts to be reunited with the
children. Since her arrest, Diana had been incarcerated in Wisconsin and her mother's efforts
to obtain custody of her children and return them to that state had been denied.
DCFS acknowledged that J.L.N. had a strong bond with Diana and wanted to reunite
with Diana and her family in Wisconsin. However, J.L.N. also expressed frustration with her
life, indicating that she preferred to be adopted rather than wait another year for her mother's
release from prison.
2
DCFS also recognized that Diana had completed her case plan to the
extent possible, given her incarceration, and that the plan itself was designed to be completed
three to six months after Diana's release from prison. Additionally, DCFS personnel
acknowledged that both Diana and the maternal grandmother had maintained constant contact
with their office and with J.L.N. The DCFS supervisor in charge of this case testified that it
was an unfortunate situation but that her office was statutorily bound to initiate the petition
given the amount of time J.L.N. had been a ward of the state.
Finally, the DCFS supervisor testified that she would have preferred to wait until, at
least, the next parole board hearing before pursuing termination of Diana's parental rights.
Because of J.L.N.'s age and her bond with Diana, the supervisor was concerned with the
impact the termination would have on J.L.N. when she became a teenager. DCFS presented
no additional evidence in support of the best interest prong of the petition. Thus, the
petition was based entirely on the general theory that the length of Diana's incarceration was
too long to wait for a permanent placement.
After a hearing on April 20, 2001, the petition to terminate Diana's parental rights was
granted. The district court found that termination of Diana's parental rights was in J.L.N.'s
best interests and that Diana was an unsuitable parent based upon failure of parental
adjustment.
__________

1
Later, Diana and Larry both voluntarily relinquished their rights to C.E.P. in order to free the child for
adoption by the child's foster parents, with whom the child had bonded.

2
Diana's sentence expired in March 2002.
DISCUSSION
[Headnotes 1, 2]
[T]he parent-child relationship is a fundamental liberty interest
3
and the Due
Process Clause of the Fourteenth Amendment
4
protects parents' fundamental right to care for
and control their children.
5
Statutes that infringe upon this interest are thus subject to strict
scrutiny and must be narrowly tailored to serve a compelling interest.
6

[Headnotes 3, 4]
7
We have
previously characterized the severance of the parent-child relationship as tantamount to
imposition of a civil death penalty.'
8
To terminate a parent's rights, a petitioner must prove,
by clear and convincing evidence, that termination is in the child's best interests and that there
is parental fault.
9
We will uphold terminations based on substantial evidence.
10

The district court ruled that the best interests of the child prong was satisfied by
applying a presumption based on the length of time J.L.N. had been placed outside of Diana's
home.
11
Little other evidence was presented to support a finding that termination was in
J.L.N.'s best interests.
[Headnote 5]
Taken together, NRS 128.109(2) and NRS 432B.553(2) express the general public
policy to seek permanent placement for children rather than have them remain in foster care.
Under the statutes, the best interests of the child must be presumed to be served by
termination of parental rights if the child has been placed outside the home for fourteen of
any twenty consecutive months.
__________

3
Matter of Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000).

4
U.S. Const. amend XIV.

5
Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) (citing Stanley v. Illinois, 405 U.S. 645, 651
(1972)).

6
In re H.G., 757 N.E.2d 864, 871 (Ill. 2001).

7
Matter of N.J., 116 Nev. at 795, 8 P.3d at 129 (quoting Smith v. Smith, 102 Nev. 263, 266, 720 P.2d 1219,
1220 (1986), overruled on other grounds by Matter of N.J., 116 Nev. 790, 8 P.3d 126).

8
Id. (quoting Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989)).

9
Id. at 801, 8 P.3d at 133; see NRS 128.105.

10
Matter of N.J., 116 Nev. at 795, 8 P.3d at 129 (quoting Kobinski v. State, 103 Nev. 293, 296, 738 P.2d
895, 897 (1987)).

11
NRS 128.109(2); NRS 432B.553(2) (providing that if the child has been placed outside the home for
fourteen of any twenty consecutive months, the best interests of the child must be presumed to be served by
termination of parental rights).
placed outside the home for fourteen of any twenty consecutive months. These are, however,
rebuttable presumptions. NRS 432B.553(2)(c) specifically permits DCFS to forego pursuing
termination of parental rights when it finds compelling reasons that termination would not be
in a child's best interest. We conclude that Diana presented substantial evidence to overcome
the presumptions. Compelling reasons demonstrate why termination of parental rights was
not in J.L.N.'s best interests.
First, the record establishes that Diana and J.L.N. have a strong, loving bond and that
the child wants to be reunited with Diana. J.L.N. also has a firmly established, loving
relationship with the maternal grandparent and has expressed a desire to continue this
relationship. Though J.L.N. had spent time playing with the children in the prospective
adoptive home, and admittedly had a positive relationship with the family, J.L.N. has never
lived in that home. Even if parole were denied, Diana's incarceration would end no later than
March 2002. Diana's felony conviction did not involve conduct related to the abuse or neglect
of her children. While J.L.N. was in the care of Larry, Diana and her mother were actively
pursuing guardianship proceedings to place the children in a more suitable environment.
There is no evidence Diana suffers from alcohol or other substance abuse problems.
While J.L.N. did express concern over waiting another year for reunification, there is
no evidence to suggest that this anxiety was jeopardizing J.L.N.'s health or well being. Taken
together with the testimony regarding the potential effects of termination upon J.L.N. when
she becomes a teenager, we conclude that the positive experiences J.L.N. had as a guest in the
prospective adoptive home, and the likelihood that she might have a permanent home with
that family, together with her general wish for permanency, do not constitute substantial
evidence supporting the district court's conclusion that termination was in J.L.N.'s best
interests.
The district court also found that DCFS had proven, by clear and convincing
evidence, failure of parental adjustment.
12
Diana contends that the district court abused its
discretion in concluding that her failure to complete the case plan constituted a failure to
adjust, warranting termination of her parental rights. DCFS conceded that Diana complied
with as much of the plan as possible and that the plan was impossible to complete while
Diana remained incarcerated. We agree with Diana's position.
Under NRS 128.0126, when a parent is unable or unwilling to correct the
circumstances, conduct or conditions that led to the placement of a child outside the home,
there is a failure to adjust. NRS 128.109(1)(b) provides that if a parent fails to comply
substantially with the case plan within six months after its inception, there is a presumption
that the parent has failed to adjust.
__________

12
NRS 128.0126.
there is a presumption that the parent has failed to adjust. However, we have previously stated
that [t]he parent . . . must be shown to be at fault in some manner . . . [and] cannot be judged
unsuitable by reason of failure to comply with requirements and plans that are . . . impossible
. . . to abide by.
13

[Headnote 6]
Moreover, we have recognized that failure of parental adjustment as a basis for
termination is fraught with difficulties and must be applied with caution.'
14
The main
concern in cases where parental adjustment is at issue is to provide some permanency for a
child.
15

We now address the issue of how a parent's incarceration relates to parental
adjustment and the decision to terminate parental rights. The majority of other jurisdictions
that have considered this issue have concluded that termination should not be granted based
on the parent's incarceration alone.
16
These jurisdictions have determined that the parent's
incarceration is relevant, but that other factors must also be considered.
17

__________

13
Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 857 (1984), overruled on other
grounds by Matter of N.J., 116 Nev. 790, 8 P.3d 126.

14
Matter of Parental Rights of Montgomery, 112 Nev. 719, 729, 917 P.2d 949, 956 (1996) (quoting
Champagne, 100 Nev. at 652, 691 P.2d at 857), superseded by statute on other grounds as recognized by
Matter of N.J., 116 Nev. 790, 8 P.3d 126.

15
Id.

16
See, e.g., Johnson v. Arkansas Dep't of Human Services, 82 S.W.3d 183 (Ark. Ct. App. 2002) (holding that
the fact the parent was incarcerated was not dispositive of the termination issue but was one factor to be
considered); In re Dependency of J.W., 953 P.2d 104 (Wash. Ct. App. 1998) (holding that imprisonment alone
does not necessarily justify termination of parental rights but is relevant to the inquiry); In the Matter of R.P.,
498 N.W.2d 364 (S.D. 1993) (holding that incarceration by itself is not sufficient reason to terminate parental
rights but may be a factor in the decision).

17
See In re Dependency of J.W., 953 P.2d at 109 (holding that an incarcerated parent's inability to perform
his or her parental obligations is relevant, along with the nature of the parent's crimes and the parent's conduct
before being imprisoned); In re P.O.M., 566 S.E.2d 334, 336-37 (Ga. Ct. App. 2002) (holding that [a]lthough
criminal conviction and incarceration do not always compel termination . . . [it will suffice] when adequate
aggravating circumstances are shown to existsuch as failure to comply with goals for family reunification or
failure to provide parental care and support); In re Interest of Brettany M., 644 N.W.2d 574, 587-88 (Neb. Ct.
App. 2002) (holding that incarceration may not be utilized as the sole ground for termination of parental rights
but that it is proper to consider a parent's inability to perform his parental obligations because of imprisonment,
the nature of the crime committed, as well as the person against whom the crime was perpetrated).
[Headnote 7]
Similarly, we conclude that while a parent's incarceration must be considered in
determining whether termination is proper, incarceration alone is insufficient to satisfy the
statutory requirement of parental fault as it relates to failure of parental adjustment. When
considering a parent's incarceration in termination proceedings, the district court must
consider the nature of the crime, the sentence imposed, who the crime was committed upon,
the parent's conduct toward the child before and during incarceration, and the child's specific
needs. This approach allows for consideration of the family's individual circumstances and, in
our opinion, better accomplishes the legislature's expressed desire to give primary
consideration to the child's best interests.
18

[Headnotes 8, 9]
Additionally, the mere failure to complete a case plan within six months does not
necessarily constitute a ground for finding parental fault. The presumption in NRS
128.109(1)(b)
19
may be rebutted by evidence that the parent has made reasonable and
consistent efforts to adjust the circumstances that led to the children being placed outside of
their home. The presumption triggered by the failure to complete a case plan is rebuttable,
and in this particular case, was rebutted by evidence showing that Diana did as much as
possible while incarcerated. The remainder of the plan could not be completed until her
release, which was not so far in the future as to render her unable to complete the plan in a
reasonable length of time. This conclusion is consistent with our prior holding that there be a
finding of parental fault and not simply a failure to comply with objectives that are
impossible to abide by.
20

In this case, the record establishes that termination resulted solely because Diana was
incarcerated for more than fourteen monthsthus triggering various presumptions, all of
which accumulated against her. According to the testimony of the DCFS supervisor, the
petition itself was filed merely because the requisite time frame provided in NRS
432B.590(4) had elapsed. This passage of time also triggered the presumptions in NRS
12S.109{1){a)21
__________

18
See NRS 128.105; see also Matter of Parental Rights as to Q.L.R., 118 Nev. 602, 54 P.3d 56 (2002)
(holding that voluntary conduct resulting in incarceration does not alone establish an intent to abandon a minor
child for termination of parental rights).

19
If the parent or parents fail to substantially comply with a reunification plan within six months of a child's
placement or plan commencement, the failure to comply is evidence of failure of parental adjustment.

20
See Champagne, 100 Nev. at 652, 691 P.2d at 857.
128.109(1)(a)
21
and (b)
22
and NRS 128.109(2), resulting in Diana's rights being terminated,
essentially for writing bad checks.
DCFS acknowledged that it had ethical issues with pursuing a termination of
Diana's rights but was statutorily bound to do so under NRS 432B.590(4). Indeed, DCFS
vigorously pursued reunification because it believed it was in J.L.N.'s best interests. DCFS
only sought termination based upon the passage of time and its inability to convince
Wisconsin to permit J.L.N. to reside with her grandmother. Further, DCFS acknowledged
that, despite their physical separation, Diana and her mother had made substantial efforts to
maintain a relationship with J.L.N. Diana also made significant efforts to complete the case
plan in order to be reunited with the child. Even so, parental fault was found solely based on
the passage of time, and the obstacles the remaining prison sentence posed to reunification.
The evidence clearly demonstrated that Diana was able to provide a stable home for J.L.N.
for several years prior to her incarceration. We therefore conclude that the district court
abused its discretion in finding that the parental fault prong was satisfied.
Diana initially received probation for her conviction for writing bad checks and
forgery. She was incarcerated only when she violated her probation by coming to Las Vegas
without permission from her probation officerand only after her disgruntled boyfriend
reported her to authorities. Diana's children were taken into state custody not directly because
of her conduct, but rather because they were abused by Larry, with whom she requested the
children not be placed. Though her incarceration prevented her from being available to parent
her children, no other factors weigh in favor of imposing the civil death penalty on her.
Thus, we decline to do so. Accordingly, we reverse the order of the district court terminating
Diana's parental rights.
__________

21
If a child has resided outside the home for fourteen of any twenty consecutive months, it must be
presumed that the parent or parents have demonstrated only token efforts to care for the child.

22
If the parent or parents fail to substantially comply with a reunification plan within six months of a child's
placement or plan commencement, the failure to comply is evidence of failure of parental adjustment.
____________
118 Nev. 630, 630 (2002) Timber Tech v. Home Ins. Co.
TIMBER TECH ENGINEERED BUILDING PRODUCTS, Appellant, v. THE HOME
INSURANCE COMPANY, a New Hampshire Corporation; TRAVELERS'
CASUALTY & SURETY COMPANY, fka AETNA CASUALTY & SURETY
COMPANY, a Connecticut Corporation; and PERKINS GENERAL
CONTRACTORS, INC., a Nevada Corporation, Respondents.
No. 35642
October 18, 2002 55 P.3d 952
Appeal from district court orders dismissing appellant's complaint against The Home
Insurance Company and Travelers' Casualty & Surety Company and granting summary
judgment in favor of Perkins General Contractors, Inc. Eighth Judicial District Court, Clark
County; Stephen L. Huffaker, Judge.
Subcontractor brought action against general contractor, its liability insurer, and
liability insurer for property owner to recover for spoliation of evidence after insurers refused
to pay warehouse fees to store debris from collapsed roof. The district court dismissed
complaint against insurers and granted general contractor's summary judgment motion.
Subcontractor appealed. The supreme court, Agosti, J., held that: (1) as a matter of first
impression, no independent tort exists for spoliation of evidence; and (2) the insurers owed
no duty in tort to the subcontractor and were not liable on a theory of negligent spoliation of
evidence.
Affirmed.
Beckley, Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas, for Appellant.
Barron Vivone Holland & Pruitt, Chtd., Las Vegas, for Respondent Perkins General
Contractors, Inc.
Haney, Woloson & Mullins and Wade B. Gochnour, Las Vegas, for Respondent The
Home Insurance Company.
Morris Pickering & Sanner and Rebecca A. Risse, Las Vegas, for Respondent
Travelers' Casualty & Surety Company.
1. Torts.
No independent tort exists for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third
party.
2. Torts.
Liability insurers for property owner and general contractor owed no duty in tort to a subcontractor to preserve debris from a
collapsed roof, and thus, the insurers were not liable on a theory of negligent spoliation of evidence. The insurers' agreement with the
owner and general contractor to preserve evidence did not create a tort duty to the subcontractor.
contractor to preserve evidence did not create a tort duty to the subcontractor.
OPINION
This case asks whether Nevada should permit recovery in tort for spoliation of
evidence. Appellant Timber Tech Engineered Building Products (Timber Tech) sued the
respondents, The Home Insurance Company (Home), Travelers' Casualty & Surety
Company (Travelers' ) and Perkins General Contractors, Inc. (Perkins), for their failure to
preserve certain evidence that was relevant to a separate personal injury action.
The personal injury case arose in 1992 when Red Line Taco, L.V. LTD Partnership,
d/b/a Taco Cabana (Taco Cabana), hired Perkins as the general contractor for the
construction of a restaurant in Las Vegas. Perkins subcontracted with Timber Tech to install
trusses for the restaurant's ceiling. On March 21, 1993, the ceiling of the Taco Cabana
restaurant suddenly collapsed, and several patrons were injured. The injured patrons sued
Taco Cabana, Perkins, Timber Tech and several other parties. As a consequence, Taco
Cabana's insurer, Home, and Perkins' insurer, Travelers', became involved in the case.
Shortly after the ceiling collapse, Perkins, Taco Cabana and the Valmar Construction
Company, which had installed a decorative ceiling in the restaurant, entered into a
preservation of evidence agreement. The agreement provided that the debris from the collapse
would be stored in a warehouse until all claims arising from the incident were resolved;
Home and Travelers' would bear the cost of storage. Accordingly, the debris was stored in a
warehouse for the next three years. In early 1996, however, Home and Travelers' advised the
warehouse that they were no longer interested in paying the storage fees. The warehouse
disposed of the debris a few months later.
After settling with the injured patrons, Timber Tech brought the instant action against
Perkins, Home and Travelers', alleging that it had been harmed as a result of the destruction
of the debris. Timber Tech claimed that without the debris it was unable to prove that it was
not responsible for the collapse and the injuries sustained by the patrons in the collapse.
Timber Tech's complaint contained three claims for relief, entitled Punitive Damages,
Equitable Indemnification and Contribution; however, each claim sought relief based
upon the alleged spoliation of evidence. Both Home and Travelers' filed motions for
dismissal, arguing that Nevada does not recognize a tort for spoliation of evidence.
that Nevada does not recognize a tort for spoliation of evidence. The district court granted
both motions. Subsequently, Perkins moved for summary judgment, arguing that as a matter
of law Timber Tech could not recover from Perkins. The district court granted Perkins'
motion as well.
Timber Tech asserts on appeal that it should be permitted to recover in tort against the
respondents because they caused Timber Tech harm in the personal injury action by
destroying the ceiling debris. Timber Tech concedes that Nevada has yet to recognize an
independent tort for spoliation of evidence; however, Timber Tech urges this court to join the
minority of jurisdictions that have recognized spoliation of evidence as an independent tort
claim.
1
Because we decline to recognize a tort claim for spoliation of evidence, we affirm
the judgments of the district court.
[Headnote 1]
Whether Nevada should recognize an independent tort for spoliation of evidence is an
issue of first impression in Nevada. We review this question of law de novo.
2
In 1984,
California took the lead in recognizing a tort remedy for spoliation of evidence in Smith v.
Superior Court for County of L.A.
3
While some jurisdictions followed California's example,
4
the vast majority of jurisdictions have never recognized tort remedies for spoliation of
evidence.
5
Moreover, California recently overruled its prior precedent and eliminated both
first-party and third-party spoliation claims.
__________

1
See, e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986) (recognizing a cause of
action in tort based upon spoliation of evidence); Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 849 (D.C.
1998) (recognizing the right to recover in tort for spoliation of evidence); Smith v. Howard Johnson Co., Inc.,
615 N.E.2d 1037, 1038 (Ohio 1993) (holding that [a] cause of action exists in tort for interference with or
destruction of evidence).

2

3
198 Cal. Rptr. 829, 831 (Ct. App. 1984).

4
See, e.g., Hazen, 718 P.2d at 463 (relying upon the decision in Smith v. Superior Court as persuasive
authority for recognizing a tort for spoliation of evidence).

5
See Christian v. Kenneth Chandler Const. Co., 658 So. 2d 408, 413 (Ala. 1995) (declining to recognize a
new tort for spoliation of evidence); La Raia v. Superior Court, Etc., 722 P.2d 286, 289 (Ariz. 1986) (declining
to create a new spoliation of evidence tort); Goff v. Harold Ives Trucking Co., Inc., 27 S.W.3d 387, 391 (Ark.
2000) (joining the majority of jurisdictions that have declined to recognize a tort for intentional spoliation of
evidence); Beers v. Bayliner Marine Corp., 675 A.2d 829, 832 (Conn. 1996) (adopting the majority approach to
permitting the trier of fact to draw an adverse inference against the spoliator); Lucas v. Christiana Skating
Center, Ltd., 722 A.2d 1247, 1248-50 (Del. Super. Ct. 1998) (declining to recognize an action in tort for
spoliation of evidence after noting that most jurisdictions have reached a similar conclusion); Gardner v.
Blackston, 365 S.E.2d 545, 546 (Ga. Ct.
claims.
6
First-party spoliation claims are against parties to the underlying litigation, whereas
third-party spoliation claims are against non-parties to the underlying litigation.
7
In making
its determination of whether to recognize first- or third-party spoliation claims, the California
Supreme Court weighed the usefulness of spoliation claims against the burdens associated
with permitting them.
8
Additionally, the court examined the existing non-tort remedies that
could deter spoliation of evidence.
9
Ultimately, the California Supreme Court, which had
already eliminated claims for first-party spoliation in a similar opinion, summarized its view
as follows:
In sum, we conclude that the benefits of recognizing a tort cause of action, in order to
deter third party spoliation of evidence and compensate victims of such misconduct, are
outweighed by the burden to litigants, witnesses, and the judicial system that would be
imposed by potentially endless litigation over a speculative loss, and by the cost to
society of promoting onerous record and evidence retention policies.
10

We concur with the reasoning of the California Supreme Court, and accordingly, we decline
to recognize an independent tort for spoliation of evidence regardless of whether the alleged
spoliation is committed by a first or third party.
[Headnote 2]
Additionally, while Timber Tech asserts that it could also recover under existing
common-law negligence, we conclude that a negligence claim for spoliation does not exist
under the circumstances presented in this case.
__________
App. 1988) (holding that Georgia law did not recognize an independent tort for spoliation of evidence); Boyd v.
Travelers Ins. Co., 652 N.E.2d 267, 269-70 (Ill. 1995) (noting that Illinois has never recognized an independent
cause of action for spoliation of evidence); Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1183 (Kan.
1987) (declining to recognize a common-law tort action for the intentional spoliation of evidence); Monsanto
Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (agreeing with the majority of jurisdictions stating that [t]he vast
majority of jurisdictions have chosen to counteract a party's deliberate destruction of evidence with jury
instructions and civil penalties); Miller v. Montgomery County, 494 A.2d 761, 767-68 (Md. 1985) (declining to
recognize a cause of action for first-party spoliation of evidence); Baugher v. Gates Rubber Co., Inc., 863
S.W.2d 905, 909 (Mo. Ct. App. 1993) (noting that Missouri does not recognize a tort for intentional spoliation
of evidence).

6
See Temple Community Hospital v. Superior Court, 976 P.2d 223, 233 (Cal. 1999); Cedars-Sinai Medical
Center v. Superior Court, 954 P.2d 511, 521 (Cal. 1998); Coprich v. Superior Court, 95 Cal. Rptr. 2d 884,
888-90 (Ct. App. 2000).

7
See generally Temple Community Hospital, 976 P.2d at 227-30.

8
See id. at 227-33; Cedars-Sinai Medical Center, 954 P.2d at 514-21.

9
See Temple Community Hospital, 976 P.2d at 232; Cedars-Sinai Medical Center, 954 P.2d at 517-18.

10
Temple Community Hospital, 976 P.2d at 233.
a negligence claim for spoliation does not exist under the circumstances presented in this
case. Timber Tech cannot succeed on a negligence theory because the respondents never
owed a duty to Timber Tech to preserve the ceiling debris. The preservation of evidence
agreement did not create a duty in tort between Timber Tech and the respondents. Rather, the
preservation of evidence agreement created contractual rights and obligations between the
parties to the agreement, not Timber Tech.
Finally, we decline to reach the merits of Timber Tech's contention that it has a viable
breach of contract claim based upon the preservation of evidence agreement. Timber Tech
neither pleaded breach of contract in its complaint nor raised it in any fashion as an issue in
the district court, and therefore, we will not address the issue on appeal.
11

Accordingly, we affirm the judgment of the district court dismissing Timber Tech's
complaint against Home and Travelers' and granting summary judgment in favor of Perkins.
12

Young and Leavitt, JJ., concur.
____________
118 Nev. 634, 634 (2002) Prince v. State
CHARLES EDWARD PRINCE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38087
October 18, 2002 55 P.3d 947
Appeal from a judgment of conviction of fraudulent use of a credit card in violation of
NRS 205.760. Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge.
After Nevada refused to extradite defendant incarcerated in Arizona, defendant filed
motion to dismiss in regards to credit card fraud convictions to which defendant had
previously pleaded guilty but failed to appear at sentencing. The district court denied
defendant's motion to dismiss and sentenced defendant in absentia to twelve to thirty months,
to be served concurrently with Arizona sentence. Defendant appealed. The supreme court,
Agosti, J., held that: (1) Interstate Agreement on Detainers did not apply to sentencing
hearings; (2) assuming Sixth Amendment right to speedy trial applied to sentencing,
defendant's rights were not violated; and (3) defendant's due process right and statutory right
to sentencing within reasonable time were not violated.
Affirmed.
__________

11
See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).

12
After reviewing Timber Tech's remaining arguments, we conclude that they are without merit.
[Rehearing denied November 14, 2002]
[En banc reconsideration denied January 31, 2003]
Marcus D. Cooper, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for
Respondent.
Because Interstate Agreement on Detainers is an interstate compact approved by the United States Congress, it is subject to
federal construction. NRS 178.620.
Interstate Agreement on Detainers, which outlines procedures by which a prisoner may request speedy disposition of charges
against him in jurisdiction other than where he is incarcerated, does not apply to sentencing hearings. NRS 178.620.
Assuming Sixth Amendment right to speedy trial applied to sentencing, defendant, who did not appear at sentencing after
pleading guilty to offense in Nevada and was later incarcerated in Arizona on another offense, did not suffer Sixth Amendment
violation when Nevada did not extradite him, but rather requested that Arizona detain him for sentencing in Nevada and notify Nevada
sixty days prior to release. Delay was partially due to defendant's failure to appear at sentencing, and defendant was not prejudiced, as
incarceration on other crime negated concern of oppressive detainment and anxiety, and guilty plea negated concern about ability to
present defense. U.S. Const. amend. 6.
4. Criminal Law.
Inquiry as to whether Sixth Amendment right to speedy trial has been violated requires application of four-part test, which
balances length of delay, reason for the delay, defendant's assertion of his right, and prejudice to the defendant. Application of factors
does not result in a conclusion that a constitutional violation has occurred. U.S. Const. amend. 6.
5. Criminal Law.
Prejudice to defendant in delay of trial, for purposes of determining whether defendant's right to speedy trial was violated,
generally derives from (1) oppressive pre-trial incarceration, (2) anxiety and concern caused by excessive confinement and delay, or (3)
impairment to the defendant's ability to present a defense. U.S. Const. amend. 6.
6. Constitutional Law; Sentencing and Punishment.
Defendant, who did not appear at sentencing after pleading guilty to offense in Nevada and was later incarcerated in Arizona on
another offense, did not suffer violation of due process or statutory right to sentencing within reasonable time when Nevada did not
extradite him, but rather requested that Arizona detain him for sentencing in Nevada and notify Nevada sixty days prior to release;
delay was instigated by defendant's failure to appear for sentencing, and Nevada reasonably opposed extradition and sentencing in
absentia based on finding that Interstate Agreement on Detainers did not apply to defendants awaiting sentencing. U.S. Const. amend.
14; NRS 176.015(1), 178.620.
The due process analysis for unreasonable delay in bringing a defendant to trial generally follows test for determining whether
right to speedy trial was violated, requiring court to balance length of delay, reason for the delay, defendant's assertion of his right, and
prejudice to the defendant. U.S. Const. amends. 6, 14; NRS 176.015(1).
Delay in sentencing of defendant that is not purposeful or oppressive on the part of the government does not violate a
defendant's due process rights. U.S. Const. amend. 14.
OPINION
This appeal presents the question of whether the Interstate Agreement on Detainers
(Agreement) applies to a defendant who has pleaded guilty but has not been sentenced. We
hold that the Agreement does not apply under this circumstance.
We are also asked to determine whether either a statutory right to be sentenced
without unreasonable delay or a constitutional right to a speedy trial was violated in this case.
We hold that neither the appellant's statutory nor constitutional right was violated.
In 1997, the State charged appellant, Charles Edward Prince, with burglary, fraudulent
use of a credit card and possession of a credit card without the cardholder's consent. In early
1998, Prince, after making a plea bargain with the State, pleaded guilty to one count of
fraudulent use of a credit card. The district court scheduled the sentencing hearing for April
27, 1998. Prince failed to appear at sentencing, and the district court issued a warrant for his
arrest.
Sometime thereafter, the State received notice that Prince was in custody in Tucson,
Arizona, under an alias. On August 3, 1998, Prince signed a waiver of extradition. He desired
to be returned to Nevada for his pending sentencing here while he was serving a six-year
Arizona prison term.
Nevada decided not to extradite Prince, but requested instead that Arizona detain him
for sentencing in Nevada and notify Nevada sixty days prior to Prince's release from his
Arizona prison term so that Nevada could arrange to transport him to Nevada for sentencing.
In a letter to Arizona prison officials, a Clark County Extradition Coordinator explained that
[o]ur Governor has a policy that the Detainer Agreement does not apply when a person has
pled guilty to or been found guilty of a charge.
After Nevada refused to extradite him until he concluded his prison term in Arizona,
Prince filed an affidavit in the Eighth Judicial District Court in Nevada which contained a
request to be sentenced in absentia and a waiver of his right to be personally present at his
sentencing. The district court denied his request.
Prince next filed a motion to dismiss, contending violations of his constitutional
speedy trial and due process rights, his statutory rights under NRS 176.015, which prohibits
unreasonable delays in sentencing, and his rights under the Agreement. The district court
denied his motion to dismiss, but did find a violation of the Agreement. The district court
determined that Nevada's request that Arizona detain Prince for sentencing in Nevada upon
his release from custody in Arizona constituted a detainer within the meaning of the
Agreement. On May 31, 2001, the district court sentenced Prince in absentia
1
to twelve to
thirty months, to be served concurrently with his sentence in Arizona. Prince now appeals his
[Headnote 1]
On appeal, the parties agree that Nevada's request to Arizona met the form of a
detainer, and that the only issue is whether the Agreement applies to a defendant awaiting
sentencing. The Agreement is an interstate compact approved by Congress. Nevada is a party
to the compact.
2
The Agreement, among other things, outlines procedures by which a
prisoner may request the speedy disposition of charges against him which are pending in a
jurisdiction other than where he is incarcerated.
3
When four conditions have been satisfied, a
receiving state must bring a defendant to trial within 180 days.
4
If a state fails to do so, the
charges must be dismissed with prejudice.
5
The Agreement is embodied in NRS 17S.620;
__________

1
NRS 178.388(2)(b).

2
NRS 178.620.

3
See id.

4
NRS 178.620, Art. III(a); State v. Wade, 105 Nev. 206, 208, 772 P.2d 1291, 1293 (1989).
The four conditions are:
(1) the defendant has entered upon a term of imprisonment in a penal or correctional institution of a
party State, (2) during the continuance of that term of imprisonment the charges in question are pending
against the defendant in another party State, (3) a detainer based on such charges has been lodged
against the defendant, and (4) the defendant has caused written notice and request for final disposition
of the charges to be delivered to the appropriate prosecuting authorities and court.
United States v. Hutchins, 489 F. Supp. 710, 713 (N.D. Ind. 1980), quoted in Wade, 105 Nev. at 208, 772 P.2d
at 1293.

5
NRS 178.620, Art. V(c).
178.620; however, because it is an interstate compact approved by the United States
Congress, it is subject to federal construction.
6

Prince cites Tinghitella v. State of California
7
and Hall v. State of Florida
8
for the
proposition that the Agreement applies to a defendant awaiting sentencing. In Tinghitella, the
Ninth Circuit Court of Appeals held that the Agreement applied to sentencing proceedings,
concluding that the word trial in the Agreement should be broadly construed.
9
Tinghitella
was cited with approval in Hall.
10
The court in Hall concluded that the Agreement applied to
sentencing hearings because the United States Supreme Court has construed the term trial'
to include sentencing for purposes of federal statutory construction and the Sixth
Amendment, and because the Agreement itself provided for liberal construction to effectuate
its purposes.
11
Tinghitella and Hall represent a minority view and seem to be the only
authority for the proposition that the Agreement's 180-day dispositional requirement applies
when a defendant, who has been adjudged guilty but has not yet been sentenced, makes a
demand under the Agreement to be sentenced.
Most jurisdictions hold that the 180-day dispositional requirement does not apply to
demands for sentencing hearings.
12
In so holding, the majority of jurisdictions rely on
Carchman v. Nash,
13
wherein the United States Supreme Court held that the Agreement
does not apply to probation revocation proceedings. The Court considered its plain language,
stating:
Article III by its terms applies to detainers based on any untried indictment,
information or complaint. The most natural interpretation of the words indictment,
information, and complaint is that they refer to documents charging an individual
with having committed a criminal offense. This interpretation is reinforced by the
adjective "untried,"
__________

6
See Snyder v. Sumner, 960 F.2d 1448, 1452 (9th Cir. 1992).

7
718 F.2d 308 (9th Cir. 1983).

8
678 F. Supp. 858 (M.D. Fla. 1987).

9
718 F.2d at 311.

10
678 F. Supp. at 861-62.

11
Id. at 862.

12
See State v. Burkett, 876 P.2d 1144, 1146 (Ariz. Ct. App. 1993); (Nearly all jurisdictions that have
considered whether the [Agreement] applies to sentencing detainers have concluded that it does not.); see also
People v. Castoe, 150 Cal. Rptr. 237 (Ct. App. 1978); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); State
v. Sparks, 716 P.2d 253 (N.M. Ct. App. 1986); People v. Randolph, 381 N.Y.S.2d 192 (Sup. Ct. 1976); State v.
Barnes, 471 N.E.2d 514 (Ohio Ct. App. 1984); see generally U.S. v. Coffman, 905 F.2d 330 (10th Cir. 1990);
People v. Barnes, 287 N.W.2d 282 (Mich. Ct. App. 1979); State v. Lewis, 422 N.W.2d 768 (Minn. Ct. App.
1988).

13
473 U.S. 716 (1985).
untried, which would seem to refer to matters that can be brought to full trial, and by
Art. III's requirement that a prisoner who requests final disposition of the indictment,
information, or complaint shall be brought to trial within 180 days.
14

The Court also considered the legislative history of the Agreement and said, The legislative
history of the Agreement does not persuade us to depart from what appears to be the plain
language of the Agreement.
15
The Court noted that the Agreement's purpose is to prevent
frivolous detainers and prejudice to the defendant's ability to present a defense at trial caused
by delay.
16
The Court concluded that the Agreement's purposes were not furthered by
applying it to probation revocation proceedings since the issue of guilt is not re-litigated
there.
17

Numerous jurisdictions have relied on the Carchman analysis to support the
proposition that the Agreement does not apply to a demand for an expeditious sentencing
hearing.
18
Ordinarily, where guilt has already been adjudicated, the need for a speedy case
disposition by sentencing the offender is less compelling. Where a defendant has been
convicted or has pleaded guilty, there can be no concern that the detainer is without grounds
since the adjudication of guilt is proof of the detainer's legitimacy.
19
Likewise, the
uncertainty that confronts a prisoner with an untried detainer where guilt is at issue is much
more grave than the uncertainty involved when only sentencing remains to be resolved.
20
Further, despite Tinghitella's statement that the Sixth Amendment applies to sentencing, the
United States Supreme Court has never held that sentencing is a part of trial.
21

Because Prince's guilt has already been determined, a delay in his sentencing
proceedings will not affect his ability to assert a trial defense. In fact, as with parole
revocation proceedings, the passage of time may even help the accused by allowing him to
utilize his good behavior in prison to argue leniency.
__________

14
Id. at 724 (citation omitted).

15
Id. at 726.

16
Id. at 724-30.

17
Id. at 732-33.

18
See State v. Barefield, 756 P.2d 731, 733 (Wash. 1988) (noting that the Carchman decision calls the
Tinghitella decision into question); State v. Grzelak, 573 N.W.2d 538, 540 (Wis. Ct. App. 1997) (criticizing
Tinghitella as inharmonious with the principles espoused in Carchman); see also supra note 12.

19
See Burkett, 876 P.2d at 1148.

20
See id.

21
See id. at 1149.
Finally, we observe here that Prince willfully failed to appear for sentencing and
engaged in other criminal acts, which resulted in his imprisonment in Arizona. He caused the
delay of which he complains. It seems unfair to require the State to potentially incur two
expenses: Prince's transportation to Nevada for sentencing and then back again to Arizona for
completion of his sentence of imprisonment, all in order to timely sentence him when he is
the source of his own problems. It seems fiscally prudent to require the State to finance no
more than a one-way ticket to Nevada when, as here, a defendant has entered a plea of guilty
and then failed to appear for sentencing.
[Headnote 2]
Accordingly, we adopt the reasoning of Carchman. We determine that the plain
language of the Agreement does not include sentencing hearings within its scope. We further
determine that the purpose of the act is not furthered by extending the Agreement's reach to
sentencing hearings. Therefore, we hold that the Agreement does not apply to sentencing
hearings. Prince's rights under the Agreement were not violated by the State's decision not to
transport him to Nevada for sentencing within 180 days of his demand.
[Headnote 3]
Prince next complains that the delay between his guilty plea and sentencing violated
his Sixth Amendment right to a speedy trial. Although the United States Supreme Court has
never directly addressed the issue, it has suggested that sentencing may be a part of a trial for
Sixth Amendment purposes.
22
Several courts have either assumed or held that the
constitutional right to a speedy trial extends to sentencing proceedings.
23

[Headnote 4]
We need not decide this issue. Even were we to assume the Sixth Amendment's
applicability to sentencings, Prince would not be entitled to relief. As noted in State v.
Burkett, the inquiry as to whether or not a Sixth Amendment violation exists consists of the
application of the four-part test enunciated in Barker v. Wingo, balancing the [l]ength of
delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant.
24

__________

22
See Pollard v. United States, 352 U.S. 354 (1957) (assuming arguendo that sentencing is a part of trial
under the Sixth Amendment).

23
See State v. Burkett, 876 P.2d 1144, 1149 (Ariz. Ct. App. 1993) (citing cases extending speedy trial right).

24
407 U.S. 514, 530 (1972).
[Headnote 5]
Application of the Barker factors does not result in a conclusion that a constitutional
violation has occurred. Although the delay was long and Prince asserted his speedy trial right
long before sentencing, the delay was largely Prince's fault for absconding. Also, the
prejudice to Prince is minimal. Prejudice generally derives from (1) oppressive pre-trial
incarceration, (2) anxiety and concern caused by excessive confinement and delay, or (3)
impairment to the defendant's ability to present a defense.
25
Obviously, Prince would have
remained incarcerated in Arizona regardless of the existence of the Nevada case, and his
guilty plea negates concerns about his ability to present a defense. The degree of anxiety
caused by delay here is insubstantial, considering that Prince was already imprisoned on a
separate conviction.
26
Under these circumstances, no speedy trial violation could be found,
even assuming the applicability of the Sixth Amendment to sentencing proceedings.
[Headnotes 6, 7]
Prince's final argument is that the delay in sentencing violated his due process rights,
as well as his right to sentencing without unreasonable delay under NRS 176.015(1).
27
Prince treats NRS 176.015(1) as a codification of the due process right. The due process
analysis for unreasonable delay in bringing a defendant to trial generally follows the Barker
test.
28
As previously discussed, application of the Barker test does not result in the
conclusion of a constitutional violation here.
[Headnote 8]
Delay in sentencing that is not purposeful or oppressive on the part of the government
does not violate a defendant's due process rights.
29
The delay here was instigated by Prince's
failure to appear for sentencing. Further, it appears that the State reasonably opposed
extradition and sentencing in absentia consistent with the conclusion of most of the
jurisdictions which have addressed the question of the Agreement's application to a defendant
awaiting sentencing.
__________

25
See id. at 532.

26
But see State v. Erenyi, 85 Nev. 285, 288, 454 P.2d 101, 103 (1969) (noting that anxiety caused by untried
detainers can interfere with a prisoner's rehabilitation).

27
NRS 176.015(1) provides, in part: Sentence must be imposed without unreasonable delay.

28
See Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991); see also Barker, 407 U.S. at 536 (discussing due
process rights).

29
Pollard, 352 U.S. at 361; State v. McRoy, 85 Nev. 406, 408, 455 P.2d 918, 919 (1969).
Prince cites to cases where the government either delayed adjudicating guilt,
30
or
waited an unreasonable length of time to obey a court order to bring the defendant to
sentencing.
31
Here, in contrast, Prince previously pleaded guilty, and the State did not delay
in responding to a court order. Accordingly, neither Prince's due process right nor his
statutory right to sentencing within a reasonable time were violated.
CONCLUSION
The Interstate Agreement on Detainers does not apply to defendants who have been
adjudicated guilty, and are awaiting sentencing. Because the delay here did not violate
Prince's rights under the Agreement or other constitutional or statutory rights, we affirm the
Young and Leavitt, JJ., concur.
____________
118 Nev. 642, 642 (2002) Marshall v. State
CALVIN MILES MARSHALL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38525
October 31, 2002 56 P.3d 376
Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree
murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and
conspiracy to commit robbery. Second Judicial District Court, Washoe County; Jerome
Polaha, Judge.
The supreme court held that: (1) the fact that codefendants at a joint trial offer
mutually exclusive defenses is not, in itself, sufficient to establish that joinder was
prejudicial; and (2) defendant failed to establish that his joint trial with codefendant was
prejudicial, as would entitle him to severance.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
__________

30
See State v. Adler, 942 P.2d 439, 441 (Ariz. 1997).

31
See People v. Jones, 282 N.E.2d 248, 250 (Ill. Ct. App. 1972); Randall v. Eyman, 425 P.2d 570 (Ariz.
1967).
1. Criminal Law.
While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a very limited one.
NRS 174.165(1).
2. Criminal Law.
A defendant seeking severance must show that the codefendants have conflicting and irreconcilable defenses and there is danger
that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. NRS 174.165(1).
3. Criminal Law.
The decisive factor in any severance analysis remains prejudice to the defendant. NRS 174.165(1).
4. Criminal Law.
In a determination of whether to grant severance of trials, prejudice to the defendant is not the only relevant factor. A court must
consider not only the possible prejudice to the defendant but also the possible prejudice to the State resulting from expensive,
duplicative trials. NRS 174.165(1).
5. Criminal Law.
Joinder of defendants for trial together promotes judicial economy and efficiency as well as consistent verdicts and is preferred
as long as it does not compromise a defendant's right to a fair trial. Despite the concern for efficiency and consistency, the district court
has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. NRS 174.165(1).
6. Criminal Law.
Joinder of defendants is within the discretion of the district court, and its decision will not be reversed absent an abuse of
discretion. NRS 174.165(1).
7. Criminal Law.
To establish that joinder was prejudicial requires more than simply showing that severance made acquittal more likely.
Misjoinder requires reversal only if it has a substantial and injurious effect on the verdict. NRS 174.165(1).
8. Criminal Law.
A district court should grant a severance only if there is a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. NRS 174.165(1).
9. Criminal Law.
Antagonistic defenses are a relevant consideration but not, in themselves, sufficient grounds for concluding that joinder of
defendants is prejudicial as would entitle them to severance of trials. The district courts must determine the risk of prejudice from a
joint trial based on the facts of each case. NRS 174.165(1).
10. Criminal Law.
Defendant failed to establish that his joint trial with codefendant was prejudicial, and thus defendant was not entitled to
severance, even though the defenses were antagonistic and codefendant testified in an effort to exonerate himself and inculpate
defendant; codefendant presented no evidence against defendant except a self-serving statement, State's case was not dependent on
either defendant's testimony, and prosecution argued that both defendants were guilty and presented massive evidence, including their
own admissions, linking both to the offense. NRS 174.165(1).
Before Rose, Young and Agosti, JJ.
OPINION
Per Curiam:
Appellant Calvin Miles Marshall was tried and convicted along with his codefendant,
Raymond Edward Currington, of first-degree murder, robbery, and conspiracy to commit
robbery. Marshall contends that the district court erred in refusing to sever his trial from
Currington's. We conclude that the district court did not err and affirm its judgment.
FACTS
Early in the morning on June 25, 1999, David Kloehn was stabbed to death while
working as a bartender at Mr. O's Corner Bar in Reno. He received numerous wounds,
including to both eyes. Marshall and Currington were the last patrons seen in the bar before
Kloehn's body was discovered a little after 4:00 a.m. The next day police searched
Currington's pickup truck and a motel room occupied by him and Marshall. The police found
incriminating evidence, including blood stains in the truck matching the victim's blood and
racks of slot tokens in the motel room taken from Mr. O's Corner Bar. These basic facts are
not disputed.
Before trial, Marshall and Currington opposed the State's motion to join the two
defendants for trial, arguing that their defenses were antagonistic. The district court ordered
the joinder. Marshall and Currington later moved to sever their trials, again arguing
antagonistic defenses, but the court denied the motion.
In addition to the evidence noted above, at trial the State presented testimony by three
jailhouse informants. Two testified that while they were incarcerated in the Washoe County
Jail with Currington, he told them that he had robbed and murdered Kloehn. The third
testified that while he was incarcerated with Marshall at the jail, Marshall admitted to
committing the murder. The State also presented evidence that when arrested Marshall had
cuts on both his index fingers, swelling under his eyes, and a scratch on his face. Currington
had a wound on the back of his head when arrested. There was also evidence that Marshall
was intoxicated on the night of the crimes.
Marshall did not testify. His entire defense case consisted of the testimony of another
jailhouse informant. This witness testified that he had been incarcerated with Currington at
the jail and that Currington admitted to cutting the bartender's throat.
The only evidence presented by Currington in his defense was his own testimony. He
testified that he left the bar before the murder occurred because Marshall said he intended to
rob the bartender. Currington's testimony was inconsistent in regard to whether he believed
Marshall intended to kill the bartender. Currington claimed that he drove away from the bar
and then returned about ten minutes later and picked Marshall up. Marshall had some blood
on him and was carrying a plastic bag, and the next day Marshall gave Currington a split of
the money from the robbery. Under cross-examination by Marshall's counsel, Currington
conceded that he associated with white supremacists and told a fellow jail inmate he killed
Kloehn because the bartender was Jewish. (The record does not indicate that Kloehn was
Jewish or any particular ethnicity.) But Currington said that various claims he made to fellow
inmates about the crimes were false.
In closing argument, Marshall's counsel asserted that her client was so intoxicated on
the night in question that he was passed out in the pickup truck when the crimes occurred.
She attributed the cuts on Marshall's hands to a job injury and argued that Currington
committed the murder motivated by racist hatred. Currington's counsel argued in turn that the
forensic evidence showed that Marshall was the murderer: for example, the victim's blood
was found on the passenger side of the pickup truck where Marshall sat, and the wounds on
his hands and swelling on his face were consistent with a struggle with the victim. Counsel
argued that Currington lied to fellow inmates about committing the murder in order to bolster
his image in the jail.
The jury found both Marshall and Currington guilty of first-degree murder with the
use of a deadly weapon, robbery with the use of a deadly weapon, and conspiracy to commit
robbery. The district court sentenced them each to two consecutive terms of life in prison
without the possibility of parole for the murder and to consecutive prison terms for the
robbery and the conspiracy. They were also ordered to pay $8,800 in restitution.
DISCUSSION
Marshall contends that the district court erred in refusing to sever his trial from
Currington's because each argued that the other was solely responsible for the murder. He
relies primarily on a standard cited by this court in several opinions, most recently in
Rowland v. State.
1
Rowland states that defenses must be antagonistic to the point that they
are mutually exclusive' before they are to be considered prejudicial, requiring severance.
2

__________

1
118 Nev. 31, 39 P.3d 114 (2002).

2
Id. at 45, 39 P.3d at 122.
Defenses are mutually exclusive when the core of the codefendant's defense is so
irreconcilable with the core of [the defendant's] own defense that the acceptance of the
codefendant's theory by the jury precludes acquittal of the defendant.'
3

[Headnotes 1, 2]
To the extent that this language suggests that prejudice requiring severance is
presumed whenever acceptance of one defendant's defense theory logically compels rejection
of another defendant's theory, it is too broadly stated. As we have explained elsewhere,
[w]hile there are situations in which inconsistent defenses may support a motion for
severance, the doctrine is a very limited one.
4
A defendant seeking severance must show
that the codefendants have conflicting and irreconcilable defenses and there is danger that
the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.
5
We take this opportunity to further clarify this issue.
[Headnotes 3-7]
The decisive factor in any severance analysis remains prejudice to the defendant. NRS
174.165(1) provides in relevant part: If it appears that a defendant . . . is prejudiced by a
joinder . . . of defendants . . . 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.
6
Nevertheless, prejudice to the defendant is not the only relevant factor: a court
must consider not only the possible prejudice to the defendant but also the possible prejudice
to the State resulting from expensive, duplicative trials.
7
Joinder promotes judicial economy
and efficiency as well as consistent verdicts and is preferred as long as it does not
compromise a defendant's right to a fair trial.
8
Despite the concern for efficiency and
consistency, the district court has a continuing duty at all stages of the trial to grant a
severance if prejudice does appear.
9
Joinder of defendants is within the discretion of the
district court, and its decision will not be reversed absent an abuse of discretion.
__________

3
Id. at 45, 39 P.3d at 123 (quoting United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996)).

4
Jones v. State, 111 Nev. 848, 854, 899 P.2d 544, 547 (1995).

5
Id. (quoting United States v. Haldeman, 559 F.2d 31, 71 (D.C. Cir. 1976)) (internal quotation marks
omitted).

6
Emphasis added.

7
Lisle v. State, 113 Nev. 679, 688-89, 941 P.2d 459, 466 (1997), limited on other grounds by Middleton v.
State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998).

8
See Brown v. State, 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998); Jones, 111 Nev. at 853-54, 899
P.2d at 547; Zafiro v. United States, 506 U.S. 534, 537 (1993).

9
Neill v. State, 827 P.2d 884, 890 (Okla. Crim. App. 1992).
absent an abuse of discretion.
10
To establish that joinder was prejudicial requires more than
simply showing that severance made acquittal more likely; misjoinder requires reversal only
if it has a substantial and injurious effect on the verdict.
11

[Headnote 8]
The issue of antagonistic defenses is explored in Zafiro v. United States,
12
where the
United States Supreme Court defined the right to trial severance under Federal Rule of
Criminal Procedure 14. Rule 14 is essentially the same as NRS 174.165(1), providing that a
court may grant a severance of defendants or other relief if it appears that a defendant is
prejudiced by a joinder of defendants for trial.
13
The petitioners in Zafiro contended that it is
prejudicial whenever two defendants both claim they are innocent and each accuses the other
of the crime.
14
The Supreme Court rejected their contention, holding that [m]utually
antagonistic defenses are not prejudicial per se.
15
A district court should grant a severance
only if there is a serious risk that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.
16
The petitioners in Zafiro did not articulate any specific instances of
prejudice.
17
The Court explained that it is not prejudicial for a codefendant to introduce
relevant, competent evidence that would be admissible against the defendant at a severed
trial.
18
Nor had joinder allowed the prosecution to avoid its burden to prove its case beyond
a reasonable doubt: The Government argued that all four petitioners were guilty and offered
sufficient evidence as to all four petitioners.
19
The Court also declared that the district court
had cured any possibility of prejudice by properly instructing the jury, among other things,
that it had to consider the case against each defendant separately.
20
The Court concluded that
the district court had not abused its discretion in denying the petitioners' motions to sever.
21

__________

10
Lisle, 113 Nev. at 688, 941 P.2d at 466.

11
Middleton, 114 Nev. at 1108, 968 P.2d at 309.

12
506 U.S. 534.

13
See id. at 538 (quoting Rule 14).

14
Id. at 540.

15
Id. at 538.

16
Id. at 539.

17
Id.

18
Id. at 540.

19
Id.

20
Id. at 540-41. In this appeal, the State asserts that the jury received equivalent instructions but fails to
include the instructions in the record.

21
Id. at 541.
[Headnote 9]
Thus, antagonistic defenses are a relevant consideration but not, in themselves,
sufficient grounds for concluding that joinder of defendants is prejudicial. The district courts
must determine the risk of prejudice from a joint trial based on the facts of each case.
[Headnote 10]
Here, Marshall contends that his and Currington's defenses were prejudicial simply
because of their antagonistic nature, but such a contention is inadequate. He must show that
the joint trial compromised a specific trial right or prevented the jury from making a reliable
judgment regarding guilt or innocence. The defenses were indeed antagonistic, and
Currington testified in an effort to exonerate himself and inculpate Marshall. Aside from this
self-serving testimony, however, Currington presented no evidence against Marshall, and the
State's case was not in the least dependent on either defendant's testimony. The prosecution
argued that both defendants were guilty and presented massive evidence, including their own
admissions, linking both to the murder. We conclude that the prosecution fully met its burden
of proof beyond a reasonable doubt and did not use joinder unfairly to bolster a marginal
case. We also see no indication that anything in this joint trial undermined the jury's ability to
render a reliable judgment as to Marshall's guilt.
CONCLUSION
The fact that codefendants at a joint trial offer mutually exclusive defenses is not, in
itself, sufficient to establish that joinder was prejudicial. Marshall fails to articulate any
specific actual prejudice resulting from his joint trial. We conclude that the district court did
not err in refusing to sever the trial, and we affirm its judgment.
____________
118 Nev. 648, 648 (2002) Sharma v. State
SONU SHARMA, Appellant, v. THE STATEOF NEVADA, Respondent.
No. 36182
October 31, 2002 56 P.3d 868
Appeal from a judgment of conviction, pursuant to a jury verdict, of attempted murder
with the use of a deadly weapon. Second Judicial District Court, Washoe County; Janet J.
Berry, Judge.
The supreme court held that: (1) to be held accountable for specific intent crime of
another under an aiding or abetting theory of principal liability,
principal liability, aider or abettor must have knowingly aided other person with intent that
other person commit the charged crime; overruling Mitchell v. State, 114 Nev. 1417, 971 P.2d
813 (1998); Garner v. State, 116 Nev. 770, 6 P.3d 1013 (2000); (2) defect in instruction that
failed to require a finding of specific intent to kill for a conviction on aiding and abetting
theory was not cured by other instructions and was not harmless; and (3) instruction on
attempted murder did not improperly permit a conviction based on a finding of implied
malice.
1. Criminal Law.
To be held accountable for the specific intent crime of another under an aiding or abetting theory of principal liability, aider or
abettor must have knowingly aided the other person with the intent that the other person commit the charged crime. It is insufficient
that a specific intent crime not intended by aider and abettor was natural and probable consequence of target crime of aider and abettor;
overruling Mitchell v. State, 114 Nev. 1417, 971 P.2d 813 (1998); Garner v. State, 116 Nev. 770, 6 P.3d 1013 (2000). NRS 195.020.
2. Homicide.
Conviction for attempted murder under a theory that defendant directly attempted the murder requires proof that defendant acted
with the deliberate intention unlawfully to kill another person, and that the act tended, but failed, to kill that person, while conviction
under an aider and abettor theory requires proof that defendant, with the intent to kill, aided and abetted another person in the
commission of an act that tended, but failed to kill the victim. NRS 193.330(1), 195.020, 200.010.
3. Criminal Law.
Defect in instruction on attempted murder, in failing to inform jury that a conviction under an aiding or abetting theory required
a specific intent to kill on defendant's part, was not cured by instructions on transferred intent, instruction that an accomplice was as
culpable as person who actually perpetrated offense, or instruction that accomplice liability required that a defendant voluntarily
participate in the crime with an intent to violate the law. NRS 193.330(1), 195.020, 200.010.
4. Criminal Law.
Error in prosecution for attempted murder in which state presented alternative theories of a direct attempt to kill victim and of
aiding and abetting, in failing to instruct jury that aiding or abetting liability required proof that defendant acted with intent to kill, was
not harmless beyond a reasonable doubt, where defendant spent substantial portions of his case disputing that he harbored specific
intent to kill at time of charged shooting, and subject of defendant's intent occupied large portion of both parties' closing arguments.
NRS 193.330(1), 195.020, 200.010.
5. Criminal Law.
Instruction in attempted murder prosecution, that intent to kill could be implied as an inference from the act itself when a person
without legal justification or excuse intentionally used a deadly weapon upon the person of another at a vital part under circumstances
showing no considerable provocation, did not improperly permit a conviction based on a finding of implied malice. Rather, the
instruction properly directed jury that specific intent to kill could be inferred from an external circumstance. NRS 193.200, 193.330(1),
200.010, 200.020(1).
OPINION
Per Curiam:
The State prosecuted appellant Sonu Sharma for the attempted murder of Amit
Ranadey under two alternate theories of criminal liability: (1) that he directly attempted to kill
Ranadey by shooting him in the back, and (2) that he aided and abetted another person's
attempt to kill Ranadey. Sharma was convicted, pursuant to a jury verdict, of attempted
murder with the use of a deadly weapon. On appeal, he contends that the district court failed
to properly instruct the jury on the essential elements of aiding and abetting attempted
murder. We agree, and we issue this opinion to clarify Nevada law respecting the requisite
mens rea or state of mind for aiding and abetting a specific intent crime.
THE FACTS
On November 18, 1998, Amit Ranadey was shot in the back. Testimony at trial
established that Rajesh Vig, Anthony Barela, Arthur Richardson, and appellant Sharma were
present at the time of the shooting. After an investigation, the State charged all four men with
the attempted murder of Ranadey with the use of a deadly weapon. The cases were severed
for trial, and the State tried Sharma first.
The day after the shooting, police detectives approached Sharma at work. They
explained that Ranadey had been shot and asked Sharma to speak with them. Sharma agreed
and accompanied them to the police station. At first, Sharma denied knowing anything about
the shooting. He claimed that he and Vig spent the evening together at a restaurant, walking
around the mall, and visiting with Vig's family.
After further interrogation, however, Sharma told a different story. He explained that
Ranadey and Barela sold marijuana together, but when Barela began working with someone
else and no longer included Ranadey in the transactions, Ranadey asked Vig to help him
attack Barela. Vig then recruited Sharma to assist because he owned a vehicle.
because he owned a vehicle. Although they originally planned to beat Barela with baseball
bats, the plan changed when they subsequently included Richardson. Richardson owned a gun
and wanted to use it instead of the bats. Sharma claimed that he was surprised when
Richardson shot Ranadey instead of Barela.
Later, Sharma related another version of the shooting. He admitted that although the
original plan was to attack Barela, the plan changed when Vig warned Barela what was going
to happen. Barela decided to let the plan proceed and to attack Ranadey instead. Sharma also
admitted to the police that when Richardson joined the plan, the group intended to kill
Ranadey.
At trial, Ranadey testified that, as far as he knew, Vig, Richardson, and Sharma
intended to help him attack Barela. He had no idea that the plan had changed. Although he
did not know who actually shot him, he remembered that Sharma had told him it was
Richardson. Ranadey, however, suspected that Sharma had a gun and may have shot him
because of the way Sharma was holding his hand in his jacket. But Ranadey also remembered
seeing Richardson with a gun in his hand after the shooting.
Sharma testified in his own defense at trial. In contrast to some of his prior statements
to police, he denied that the group planned to attack Ranadey. Rather, he repeatedly testified
that Ranadey wanted to have a fistfight with Barela. Sharma also claimed that he did not
think anyone intended to kill Barela. Although Sharma admitted that he knew Richardson
owned a gun, he maintained that there was never a plan to use it. When asked about his
inconsistent statements to the police, Sharma claimed he did not understand most of the
interview because he does not speak English well, and the detective was putting words in
[his] mouth.
The jury found Sharma guilty of attempted murder with the use of a deadly weapon.
The district court sentenced him to serve two consecutive terms of forty-eight months to one
hundred and twenty months in the Nevada State Prison. This appeal followed.
On June 14, 2001, following oral argument in this appeal, this court issued an order
directing the parties to file supplemental briefs. The order specifically requested the parties to
address two concerns raised by the court during oral argument: (1) whether the jury was
correctly instructed on the mens rea or intent required to convict an accused of aiding and
abetting an attempted murder, and (2) whether the jury was correctly instructed that it must
find that acts were in fact committed that tended, but failed to complete the crime of murder.
Supplemental briefing is now complete, and this appeal is fully at issue and ready for
decision.
DISCUSSION
Before we can determine whether the jury was properly instructed respecting the
element of intent involved in aiding and abetting attempted murder,
abetting attempted murder, we must first determine what the intent requirements actually are
under Nevada law. Unfortunately, this court's case law has inconsistently defined these
requirements with respect to specific intent crimes.
1
Accordingly, we begin our analysis with
a discussion of the existing law in this state.
The elements of attempted murder
An attempt under Nevada law is an act done with the intent to commit a crime, and
tending, but failing to accomplish it.
2
Murder is the unlawful killing of a human being with
malice aforethought, either express or implied.
3
In Keys v. State,
4
however, we clarified that
attempted murder can only be committed with express malice. Keys held that implied malice
alone is insufficient to support a conviction for attempted murder.
An attempt, by nature, is a failure to accomplish what one intended to do. Attempt
means to try; it means an effort to bring about a desired result. Thus one cannot attempt
to be negligent or attempt to have the general malignant recklessness contemplated by .
. . implied malice.
5

Therefore, Keys held, [a]ttempted murder is the performance of an act or acts which tend,
but fail, to kill a human being, when such acts are done with express malice, namely, with the
deliberate intention unlawfully to kill.
6

Aider and abettor liability
Nevada law does not distinguish between an aider or abettor to a crime and an actual
perpetrator of a crime; both are equally culpable. Under NRS 195.020, every person
concerned in the commission of a crime, whether he directly commits the act constituting the
offense or aids or abets in its commission is guilty as a principal. Although NRS 195.020 also
provides that a lack of criminal intent by the person directly committing the crime shall not
be a defense to an aider or abettor,
__________

1
Compare Tanksley v. State, 113 Nev. 844, 944 P.2d 240 (1997) (holding that a conviction for an attempt to
obtain money by false pretenses could not stand where the jury was not instructed that the accused had to have
either the intent to obtain money by false pretenses, or the intent to aid and abet in the obtaining of money by
false pretenses), with Mitchell v. State, 114 Nev. 1417, 971 P.2d 813 (1998) (holding that a conviction for
attempted murder will stand even if the accused did not have the specific intent to kill, provided that the
attempted murder was the natural and probable consequence of the aider and abettor's target crime).

2
NRS 193.330(1).

3
NRS 200.010.

4
104 Nev. 736, 766 P.2d 270 (1988).

5
Id. at 740, 766 P.2d at 273.

6
Id.
of criminal intent by the person directly committing the crime shall not be a defense to an
aider or abettor, the statute does not specify what mental state is required to be convicted as
an aider or abettor. Perhaps for that reason, this court has over time defined that mental state
inconsistently. Thus, Nevada law is vulnerable to the general criticism that [c]onsiderable
confusion exists as to what the accomplice's mental state must be in order to hold him
accountable for an offense committed by another.
7

In one line of cases, for example, this court has required the State to show that the
defendant knowingly and intentionally aided another to commit the charged crime.
8
In
Tanksley v. State, a case representative of this line of cases, this court held that a defendant
could not be convicted of attempting to obtain money by false pretenses without a finding that
she either intended to obtain the money by false pretenses, or intended to aid or abet in the
obtaining of money by false pretenses.
9
Tanksley stressed that [a]n attempt crime is a
specific intent crime; thus, the act constituting [the] attempt must be done with the intent to
commit that crime.
10

In Mitchell v. State, however, this court rejected the assertion that one may never be
convicted of attempted murder as an aider and abettor in the absence of a specific intent to
kill. Instead, this court adopted and approved the natural and probable consequences
doctrine, concluding that a conviction for attempted murder will lie even if the defendant
did not have the specific intent to kill provided the attempted murder was the natural and
probable consequence of the aider and abettor's target crime.
11
Mitchell directed the trial
courts to use a specific model instruction incorporating the natural and probable
consequences doctrine in all future cases involving charges of aiding and abetting
attempted murder.
__________

7
See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 6.7(b), at 579 (2d ed. 1986).

8
See, e.g., Labastida v. State, 115 Nev. 298, 303, 986 P.2d 443, 446 (1999) (approving of jury instructions
that required a finding that the accomplice knowingly and intentionally aided in the acts that resulted in the
charged crime); Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997) (implicitly holding that the accomplice must
assist with the intent that the other person commit the charged crime); Ewish v. State, 111 Nev. 1365, 904 P.2d
1038 (1995) (recognizing that an accomplice can be convicted of a lesser related crime if he did not harbor the
specific intent required to be convicted of his cohort's crime); Hooper v. State, 95 Nev. 924, 604 P.2d 115
(1979) (approving of an instruction that required the jury to find that the accomplice acted knowingly,
voluntarily, and with a common intent to commit the crime).

9
113 Nev. 844, 849-50, 944 P.2d 240, 243 (1997).

10
Id. at 849, 944 P.2d at 243 (citing NRS 193.330; Curry v. State, 106 Nev. 317, 319, 792 P.2d 396, 397
(1990)).

11
114 Nev. 1417, 1426-27, 971 P.2d 813, 819-20 (1998).
in all future cases involving charges of aiding and abetting attempted murder.
12

This court again applied the natural and probable consequences doctrine to a specific
intent crime in Garner v. State.
13
In addressing Garner's challenge to his kidnapping
conviction, this court held that when a person enters into a common plan or scheme but does
not intend a particular crime committed by the principal, the person is liable for the crime if
in the ordinary course of things [the crime] was the natural or probable consequence of such
common plan or scheme.'
14

This doctrine has been harshly criticized by [m]ost commentators . . . as both
incongruous and unjust' because it imposes accomplice liability solely upon proof of
foreseeability or negligence when typically a higher degree of mens rea is required of the
principal.
15
It permits criminal liability to be predicated upon negligence even when the
crime involved requires a different state of mind.
16
Having reevaluated the wisdom of the
doctrine, we have concluded that its general application in Nevada to specific intent crimes is
unsound precisely for that reason: it permits conviction without proof that the accused
possessed the state of mind required by the statutory definition of the crime.
To be convicted of an attempt to commit a crime in Nevada, the State must show,
among other things, that the accused committed an act with the intent to commit that crime.
17
Under the natural and probable consequences doctrine, however, an accused may be
convicted upon a far different showing, i.e., that the charged crime, although not intended,
was nonetheless foreseeable. As the Supreme Court of New Mexico observed in rejecting the
doctrine for similar reasons, the doctrine thus allows a defendant to be convicted for crimes
the defendant may have been able to foresee but never intended.
18

__________

12
Id. at 1427 n.3, 971 P.2d at 820 n.3; see also People v. Prettyman, 926 P.2d 1013, 1018 n.3 (Cal. 1996).
Notably, the jury in the instant case was not instructed in accordance with the model instruction set forth in
Mitchell.

13
116 Nev. 770, 6 P.3d 1013 (2000).

14
Id. at 782, 6 P.3d at 1021 (quoting State v. Cushing, Et Al., 61 Nev. 132, 148, 120 P.2d 208, 216 (1941)).

15
Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within the Constraints of
Intent, 31 Loy. L.A. L. Rev. 1351, 1361 & n.33 (1998) (citing LaFave & Scott, supra note 7, at 590; Joshua
Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old
Problem, 37 Hastings L.J. 91, 97-98 (1985); Sanford H. Kadish, Complicity, Cause and Blame: A Study in the
Interpretation of Doctrine, 73 Cal. L. Rev. 323, 351-52 (1985)).

16
LaFave & Scott, supra note 7, at 590.

17
NRS 193.330(1).

18
State v. Carrasco, 946 P.2d 1075, 1079-80 (N.M. 1997).
This court has repeatedly emphasized that, under Nevada law, [t]here is no such
criminal offense as an attempt to achieve an unintended result. '
19
We have also reasoned
that [a]n attempt, by nature, is a failure to accomplish what one intended to do.
20
Because
the natural and probable consequences doctrine permits a defendant to be convicted of a
specific intent crime where he or she did not possess the statutory intent required for the
offense, we hereby disavow and abandon the doctrine. It is not only inconsistent with more
fundamental principles of our system of criminal law,
21
but is also inconsistent with those
Nevada statutes that require proof of a specific intent to commit the crime alleged.
We observe as well that the doctrine may potentially undermine certain legislative
sentencing determinations. By assigning a larger statutory sentence to attempted murder than
to battery, the legislature arguably has determined that certain acts accompanied by the intent
to kill are more serious than acts involving the willful use of force without such intent.
22
Application of the doctrine, however, could negate such legislative determinations.
[Headnote 1]
Accordingly, we reaffirm Tanksley and hold that in order for a person to be held
accountable for the specific intent crime of another under an aiding or abetting theory of
principal liability, the aider or abettor must have knowingly aided the other person with the
intent that the other person commit the charged crime. To the extent that Garner and Mitchell
conflict with this holding and endorse the natural and probable consequences doctrine, they
are hereby disapproved and overruled.
The jury instructions regarding intent to aid or abet attempted murder
Instruction No. 11 defined the elements of attempted murder as follows:
The elements of ATTEMPTED MURDER which the State must prove beyond a
reasonable doubt in this case are that on or about the 18th day of November, 1998, the
defendant did:
__________

19
Keys, 104 Nev. at 740, 766 P.2d at 273 (quoting Ramos v. State, 95 Nev. 251, 253, 592 P.2d 950, 951
(1979) (quoting People v. Viser, 343 N.E.2d 903, 910 (Ill. 1975))).

20
Id.

21
LaFave & Scott, supra note 7, at 590.

22
Compare NRS 200.481, with NRS 193.165, NRS 193.330, and NRS 200.030.
1) in Washoe County, State of Nevada;
2) willfully, unlawfully, with premeditation, deliberation, and malice aforethought;
3) directly attempt to kill AMIT RANADEY;
4) or aid, abet, counsel or encourage another person or persons to attempt to do so.
[Headnote 2]
Thus, as noted above, the State alleged that Sharma either directly committed
attempted murder, or that he aided or abetted an attempted murder. Each theory required the
State to prove separate elements. With respect to the first theory, the State was required to
show that Sharma acted with the deliberate intention unlawfully to kill another person, and
that the act tended, but failed, to kill that person.
23
Under the second theory, the State was
required to show that Sharma, with the intent to kill, aided and abetted another person in the
commission of an act that tended, but failed to kill the victim.
24
Because the State proceeded
on these alternate theories, the jury should have been clearly instructed on both.
25

[Headnote 3]
Instruction No. 11, however, inadequately and incorrectly instructed the jury with
respect to the second theory. It failed to inform the jury that to convict Sharma of aiding and
abetting an attempted murder, Sharma must have aided and abetted the attempt with the
specific intent to kill. The State concedes this point,
26
but argues that Instruction Nos. 15, 18,
and 19 cured the defect. We disagree.
Instruction No. 15 provided:
If you believe that at the time of the shooting in this case that the defendant intended to
kill any person, or to aid and abet one of his co-defendants to kill any person, it is of no
legal consequence that he or one of his co-defendants mistakenly injured a different
person. His intent to kill transfers to the person actually harmed.
__________

23
Keys, 104 Nev. at 740, 766 P.2d at 273.

24
Id.; see also Tanksley, 113 Nev. at 849-50, 944 P.2d at 243.

25
Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990).

26
Specifically, in its supplemental brief, the State concedes that the instruction as presented, does not inform
the jury respecting the precise mens rea or intent it must find to convict [Sharma] of attempted murder on a
theory of accomplice (aiding and abetting) liability. This instruction, without more, would warrant a finding of
plain reversible error, because it would allow for a conviction based on mere aiding and abetting, or aiding and
abetting a battery when [Sharma] lacked the intent to kill [Ranadey] when [he] acted.
This is a transferred intent instruction; its purpose was to address evidence that Ranadey may
not have been the intended victim. It did not cure the failure of Instruction No. 11 to properly
define the elements of aiding or abetting attempted murder.
Instruction No. 19 provided:
Every person concerned in the commission of a felony, whether he directly commits the
act constituting the offense, or aids or abets in its commission, and whether present or
absent; and every person who, directly or indirectly counsels, encourages, hires,
commands, induces or otherwise procures another to commit a felony is a principal, and
shall be proceeded against and punished as such.
This instruction also did not cure the defect in Instruction No. 11. It simply explained the law
set forth in NRS 195.020 providing that an accomplice is as culpable as the person who
actually perpetrates the offense. The instruction contains no language addressing intent.
Instruction No. 18, on the other hand, did specifically address the mental state of an
accomplice. It provided in part that [e]very person who . . . willfully participates in the
commission of a crime may be found to be guilty of that offense. It also instructed that the
jury must find the defendant voluntarily participated in [the crime] with the intent to violate
the law. Again, however, this instruction inadequately defined the requisite mens rea. Under
this instruction, the jury could have convicted Sharma of attempted murder based on a finding
that he acted voluntarily and with the intent to act unlawfully, but not necessarily with the
specific intent to kill. Therefore, we conclude that the other instructions did not cure the
defect in Instruction No. 11.
[Headnote 4]
We further conclude that this error was not harmless beyond a reasonable doubt.
27
Sharma spent substantial portions of his case disputing that he harbored the specific intent to
kill at the time of the shooting. He repeatedly testified that the group went to the desert so that
Barela and Ranadey could engage in a fistfight. He also emphasized that he did not think that
anyone intended to kill Ranadey. Further, the subject of Sharma's intent occupied a large
portion of both parties' closing arguments. Because Sharma presented sufficient evidence for
the jury to conclude that he did not act with the specific intent to kill Ranadey, and because
the instructions did not clearly explain that the jury had to find that he aided or abetted with
the specific intent to kill,
__________

27
Collman v. State, 116 Nev. 687, 722-23, 7 P.3d 426, 449 (2000) (in assessing harmless error, the court
must ask: [i]s it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error?' (quoting Neder v. United States, 527 U.S. 1, 18 (1999))).
he aided or abetted with the specific intent to kill, we conclude that the error was not
harmless.
28

The jury instructions regarding the actual commission of an attempt
Our order of June 14, 2001, also directed the parties to address whether Instruction
No. 11, when read together with the other instructions, properly informed the jury that it must
find that an attempted murder was actually committed. The State argues that together with
Instruction No. 20, the instruction properly informed the jury. Instruction No. 20 provided:
An act done with the intent to commit a crime, and tending but failing to accomplish it, is an
attempt to commit that crime.
Although the State's position is arguable, in light of our conclusion that the jury was
incorrectly instructed on the mens rea required for aiding and abetting attempted murder, it is
unnecessary to reach this issue. We note, however, that a single instruction properly defining
all the essential elements of the crime charged might have been far less confusing and
problematic. Although all jury instructions should be tailored to the particular facts of each
case, we offer the following as an example.
In this case, the defendant is accused of attempted murder under two theories of
liability. In order to find the defendant guilty of attempted murder, the State must prove
beyond a reasonable doubt that:
(1) with the deliberate intention to unlawfully kill the victim, the defendant committed
an act which tended, but failed to kill the victim; or
(2) with the deliberate intention to unlawfully kill the victim, the defendant aided,
abetted, counseled, or encouraged another person to kill the victim and that other
person committed an act that tended, but failed to kill the victim.
Implied malice
[Headnote 5]
Sharma contends that Instruction No. 16 improperly permitted the jury to convict him
on a finding of implied malice. The instruction provided:
If a person, without legal justification or excuse, intentionally uses a deadly weapon
upon the person of another at a vital part, under circumstances showing no considerable
provocation,
__________

28
Wegner v. State, 116 Nev. 1149, 1156, 14 P.3d 25, 30 (2000) (holding that [w]here a defendant has
contested the omitted element and there is sufficient evidence to support a contrary finding, the error is not
harmless) (citing Neder, 527 U.S. at 19).
provocation, then intent to kill may be implied as an inference from the act itself.
Although the instruction contains language that is not particularly relevant to an
attempted murder prosecution, we are not persuaded that it was so misleading as to permit the
jury to convict upon a finding of implied malice. NRS 200.020(1) defines express malice as
that deliberate intention unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof. (Emphasis added.) Additionally,
NRS 193.200 provides that intent is manifested by the circumstances connected with the
perpetration of the offense. These provisions implicitly acknowledge that intent can rarely be
proven by direct evidence of a defendant's state of mind, but instead is inferred by the jury
from the individualized, external circumstances of the crime, which are capable of proof at
trial.
29
In Dearman v. State, this court held that one such circumstance may well be the use
of a deadly weapon: [i]ntent to kill . . . may be ascertained or deduced from the facts and
circumstances of the killing, such as use of a weapon calculated to produce death, the manner
of use, and the attendant circumstances.
30
On balance, therefore, we view the challenged
instruction as a correct statement of the law directing the jury that a specific intent to kill may
be inferred from an external circumstance, i.e., the intentional use of a deadly weapon upon
the person of another at a vital part. Accordingly, we reject appellant's contention that the
instruction constitutes reversible error.
CONCLUSION
The jury was erroneously instructed on the elements of aiding and abetting an
attempted murder. We therefore reverse the judgment of conviction and remand this matter
for further proceedings consistent with this opinion.
31

__________

29
See, e.g., People v. Beeman, 674 P.2d 1318, 1325 (Cal. 1984) (Direct evidence of the mental state of the
accused is rarely available except through his or her testimony.).

30
93 Nev. 364, 367, 566 P.2d 407, 409 (1977); see also Cooper v. State, 94 Nev. 744, 745, 587 P.2d 1318,
1319 (1978) (in a prosecution for attempted murder, a jury was free to draw reasonable inferences of specific
intent from the facts proved at trial, including the appellant's overt act of twice turning and firing gunshots in the
direction of the victim, who was pursuing the appellant).

31
We have reviewed Sharma's remaining claims of error and conclude that they are without merit.
____________
118 Nev. 660, 660 (2002) Honeycutt v. State
TODD MICHAEL HONEYCUTT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35466
TODD MICHAEL HONEYCUTT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35468
October 31, 2002 56 P.3d 362
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
first-degree kidnapping, two counts of sexual assault, and one count of solicitation to commit
murder.
1
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
The supreme court, Shearing, J., held that: (1) sexual assault and kidnapping charges
were properly joined with solicitation charge, which arose from defendant's alleged attempt
following mistrial on the other charges to have victim killed; (2) proposed instruction on
reasonable mistaken belief of consent was properly refused; (3) testimony of defendant's
former girlfriend concerning an alleged sexual assault by defendant against her was
admissible to show intent; and (4) prosecutor engaged in misconduct on cross-examination of
defendant by beginning to choke defendant as demonstration of what allegedly happened to
victim, but misconduct was harmless.
Affirmed.
Mace J. Yampolsky, Las Vegas, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, and William D. Kephart, Deputy
District Attorney, Clark County, for Respondent.
1. Criminal Law.
Sexual assault and kidnapping charges were properly joined with charge of solicitation to commit murder that arose from
defendant's alleged attempt, after mistrial on the other charges, to have victim killed; evidence of the other charges would be
admissible at separate trial on solicitation charge to show motive, while evidence supporting solicitation charge would be admissible at
a trial on the other charges to show consciousness of guilt, and defendant's desire to testify on those other charges but to assert right
against self-incrimination as to solicitation charge did not amount to inconsistent defenses. U.S. Const. amend. 5; NRS 173.115(2),
200.366.
__________

1
Although there is only one judgment of conviction and one appeal in this case, two docket numbers were
assigned to the one appeal.
2. Criminal Law.
Decision on whether to sever charges is left to the discretion of the trial court, and defendant has the heavy burden of showing
that the court abused its discretion. NRS 173.115.
3. Criminal Law.
Failure to sever charges requires reversal only if the joinder has a substantial and injurious effect on the jury's verdict. NRS
173.115.
4. Criminal Law.
Test for reviewing denial of motion to sever charges 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. NRS 173.115.
5. Criminal Law.
To require severance of charges, the defendant must demonstrate that a joint trial would be manifestly prejudicial. NRS 173.115.
To require severance of charges, simultaneous trial of the offenses must render the trial fundamentally unfair and, hence, result
in a violation of due process. U.S. Const. amend. 14; NRS 173.115.
7. Criminal Law.
Burden rests on defendant, in seeking severance of charges based on desire to testify to one charge but to assert right against
self-incrimination on the other, to present enough information regarding nature of testimony he wishes to give on the one count and his
reasons for not wishing to testify on the other to satisfy court that his claim of prejudice is genuine, and to enable it intelligently to
weigh considerations of economy and expedition in judicial administration against defendant's interest in having free choice with
respect to testifying. U.S. Const. amend. 5; NRS 173.115.
8. Criminal Law.
To establish that joinder of charges was prejudicial requires more than a mere showing that severance might have made acquittal
more likely. NRS 173.115.
9. Criminal Law.
Determination of whether to admit evidence is within the sound discretion of the district court, and that determination will not
be disturbed unless manifestly wrong.
10. Criminal Law.
Criminal defendant is entitled to jury instructions on the theory of his case.
11. Criminal Law.
If the defense theory is supported by at least some evidence that, if reasonably believed, would support an alternate jury verdict,
the failure to instruct on that theory constitutes reversible error.
12. Rape.
Proposed instruction on defense of reasonable mistaken belief of consent must be given when requested in sexual assault case as
long as some evidence supports its consideration. NRS 194.010(4), 200.366.
13. Rape.
Statutory sexual seduction is a strict liability offense in which knowledge of age is not an element of the crime. NRS 200.368.
14. Rape.
Sexual assault is a general intent crime. NRS 200.366.
15. Criminal Law.
Even when a defendant is entitled to an instruction on defendant's theory of the case, proposed instruction must correctly state
the law.
16. Rape.
Proposed instruction on reasonable mistaken belief of consent was properly refused in sexual assault prosecution, where there
was evidence that victim's consent was achieved through force, and proposed instruction contained no language indicating that a
belief based on ambiguous conduct by victim that was product of force was not a reasonable good-faith belief. NRS 200.366.
17. Criminal Law.
Testimony of defendant's former girlfriend concerning an alleged sexual assault by defendant against her was admissible, in
sexual assault prosecution involving a different victim, to show intent to commit charged offense. NRS 48.035(1), 48.045(2), 200.366.
18. Criminal Law.
Prosecutor's actions in sexual assault prosecution arising from incident in which defendant allegedly choked victim, in placing
hands around defendant's neck during cross-examination and beginning to choke him after defendant had testified on direct
examination that charged incident could not have occurred as described by victim and had given an in-court demonstration with a
neutral party, constituted misconduct. NRS 200.366.
19. Criminal Law.
Misconduct that occurred on cross-examination when prosecutor placed hands around defendant's neck and began choking him,
as demonstration of what allegedly happened to victim, was harmless in sexual assault prosecution; defendant consented to the
demonstration, and he reacted in a way that reflected well on him rather than in a way that would prejudice him. NRS 200.366.
20. Witnesses.
State is entitled to test the credibility of the defendant.
21. Criminal Law.
A prosecutor may demonstrate to a jury through inferences from the record that a defense witness's testimony is untrue.
OPINION
A jury convicted Todd Michael Honeycutt of one count of kidnapping, two counts of
sexual assault, and one count of solicitation to commit murder. Honeycutt appeals these
convictions, claiming numerous instances of error that both individually and cumulatively
denied his right to a fair trial. We find that Honeycutt was not denied his right to a fair trial.
Accordingly, we affirm the judgment of conviction.
FACTS
On May 15, 1998, the victim and her friend, Janine Fischer, were on vacation at the
Luxor Hotel in Las Vegas. That evening, both women met Honeycutt at the Hard Rock Caf
bar, shared several drinks and began talking. After Fischer left, the victim stayed with
Honeycutt in the bar. The victim testified that Honeycutt tried to kiss her, but she pushed him
away, stating that she did not like to kiss in public. Shortly thereafter, the victim told
Honeycutt that she wanted to leave, and he offered to take her to her hotel. She agreed to go
with him and entered his van. While the van was parked, Honeycutt began kissing the
victim's lips and breasts.
The victim testified that she resisted Honeycutt and told him she wanted to go back to
the hotel. Honeycutt threw her down between the passenger seat and the driver's seat. He lay
on top of her and pushed his hand across her throat. She said: He choked me until I thought
my eyes were going to pop out, and my face got extremely hot and red. She testified that he
began to pull her pants off while holding her down. She told him to wait so she could get a
condom from her pocket. She struggled with him and tried to get up, but Honeycutt pulled her
down by the legs and neck.
The victim stated that she began to cry and noticed that Honeycutt had his pants down
and his penis exposed. He forced her to perform fellatio on him. She tried to bite him, and he
slapped her, saying you're going to get it now. Honeycutt threw her over the back seat and
penetrated her anally. The next thing she remembered was Honeycutt moving off her and
back to the driver's seat. She pulled her pants back on and moved back to the front seat, and
Honeycutt drove her to her hotel. When asked why she stayed in the van with him, she stated,
I was afraid that I couldn't run. I couldn't move, and I was afraid he was going to run me
over.
Honeycutt's testimony differed. He testified that he asked the victim if he could kiss
her and she agreed. He stated that when they got in the van, they continued kissing, and he
undid her shirt. He stated that the victim was very responsive, and he asked her if she wanted
to get into the back seat with him. She replied yes. Honeycutt testified that the victim undid
his pants and performed fellatio on him. She asked if he had any condoms and then looked in
her pockets to see if she had one. When Honeycutt tried to penetrate her vaginally, she told
him to stop and instead penetrate her anally. He further testified that the victim said nothing
when they were having sexual intercourse. Afterwards, Honeycutt and the victim climbed
into the front seat. Honeycutt stated that he saw about $200.00 in her purse and took it, but he
denied taking the money when she asked. He returned her to the Luxor Hotel, and the victim
called Honeycutt "an asshole" and told him to "drop dead.
Hotel, and the victim called Honeycutt an asshole and told him to drop dead.
Sean Ferrell, a bystander, testified that at about 5:45 a.m., the victim approached him
out of nowhere in front of the Luxor Hotel and asked him to remember a license plate
number. She told him she had been sexually assaulted and fell against him like a rag doll.
She was shaking and began crying. He noticed no tears or rips in her clothing. Betty Jo Davis,
a security officer at the Luxor Hotel, testified that the victim came to the security office that
morning. Davis testified that when she arrived in the office, the victim was sitting in the room
with her knees drawn up, crying hysterically and unable to speak. She stated that the victim
told her that Honeycutt had sexually assaulted her through anal intercourse and that she was
bleeding.
Richard Antal and John Maholick, security officers at the Luxor Hotel, corroborated
Davis's account. They stated that the victim gave a voluntary statement about the assault that
was videotaped and played at trial. They both agreed that the victim was crying and difficult
to understand throughout most of the interview. They also testified that they noticed no
bruises or marks on the victim.
The State and the defense introduced contradictory medical testimony regarding
bruising on the victim's neck and rectal area. Linda Ebbert, the State's witness, testified that
she examined the victim at the hospital with a standard sexual assault kit and used Toludine
Blue Dye to test her rectal and vaginal areas for bruising. She pointed out some visible
lacerations, abrasions, and redness in the victim's rectal area. She further testified that tears
can occur, but are not common, in consensual anal intercourse. She also testified that the
victim told her that her neck was sore, but Ebbert noticed no bruising. The defense witness,
Dr. Mohamed Eftaiha, testified that Ebbert's findings were not conclusive evidence of
nonconsensual anal intercourse. In fact, he concluded that the absence of bruises on the
buttocks and neck indicated to him that the victim had possibly consented.
Honeycutt was initially tried on two counts of sexual assault and one count of
kidnapping. Honeycutt testified against the advice of counsel, raising the defense of consent.
That trial resulted in a mistrial. The district court then scheduled a second trial on the charges.
The district court conducted a Petrocelli
2
hearing prior to the first trial to determine
whether evidence should be admitted concerning Honeycutt's prior sexual assault conviction.
At that hearing, Honeycutt's former girlfriend testified that in 1997, Honeycutt had sexually
assaulted her. She stated that he covered her nose and mouth and assaulted her vaginally
and anally.
__________

2
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
her nose and mouth and assaulted her vaginally and anally. She stated that he was high on
speed at the time, and that he hit her on the head when she screamed. Honeycutt entered an
Alford
3
plea to that charge, contending that the sexual intercourse was consensual. The
district court ruled that the former girlfriend's testimony was admissible.
Between the first and second trials, the State learned that the victim had received
letters from Honeycutt threatening her and telling her not to testify, and that Honeycutt wrote
a letter to a friend stating that he wanted to scare the victim into not testifying.
Prior to the second trial, David Paule, an inmate incarcerated with Honeycutt,
informed Detective Larry Hanna that Honeycutt had approached him and offered him
$3,000.00 to hire someone to murder the victim in the sexual assault case. Paule gave Hanna
a piece of paper that Honeycutt had given him that contained the victim's name and address.
Hanna told Paule that in exchange for eliciting information from Honeycutt regarding the
solicitation, he would try to get Paule's charge of being an ex-felon in possession of a firearm
taken away.
Based on this information, the police sent Paule back to speak with Honeycutt twice
with a tape recorder, but the tapes malfunctioned each time and failed to record the
conversations. Both times Paule stated that Honeycutt talked more evasively about wanting
the victim killed and never specifically stated it again. The third time, when a recording was
successfully made, Honeycutt made no admissions to Paule's repeated questions about his
wanting to solicit the victim's murder. Paule also arranged for Honeycutt to speak to an
undercover officer, Mark Preusch, about killing the victim. At that meeting, Honeycutt stated
nothing, but Preusch testified that Honeycutt held up a piece of paper that said he wanted the
victim to disappear.
Upon learning of these incidents, the State obtained an indictment charging Honeycutt
with solicitation to commit murder and filed a motion to join that charge with the sexual
assault and kidnapping charges at the second trial. Honeycutt filed a motion to sever the
counts, arguing that the various charges involved inconsistent defenses. Furthermore, he
argued, joinder for trial violated the Fifth Amendment
4
by forcing him to testify to the
solicitation charge because he had already testified to the sexual assault charges. Finally,
Honeycutt contended that the solicitation to commit murder charge was too prejudicial to be
joined with the original charges. The district court denied the motion, concluding that the
counts were sufficiently part of the same course of conduct and did not unfairly prejudice
Honeycutt, and thus could be properly joined.
__________

3

4
the counts were sufficiently part of the same course of conduct and did not unfairly prejudice
Honeycutt, and thus could be properly joined.
Honeycutt filed a motion to suppress his statements made to Paule and Preusch
because they were elicited without proper Miranda
5
warnings. Honeycutt also filed motions
to exclude the Luxor security tape and renewed his motion to exclude testimony regarding his
prior conviction. The district court denied all motions, stating that Miranda warnings were
not required, and although the prior bad act evidence was prejudicial, its probative value
outweighed the prejudicial effect.
At the second trial, substantially the same testimony was elicited as had been at the
first trial regarding the sexual assault incident. Honeycutt again testified against the advice of
counsel, but attempted to assert his Fifth Amendment right not to testify as to the solicitation
charge. The district court denied this request, indicating that Honeycutt could assert his Fifth
Amendment right not to testify in the second trial, even though he had testified in the first
trial, but he could not assert that right as to one charge and not the other.
Honeycutt also introduced the testimony of Sean Dixon, another inmate. Dixon
testified that he was present when Honeycutt told Paule that he wanted a lady scared, but
Paule kept asking if Honeycutt wanted her killed. He testified that Honeycutt never said he
wanted the victim killed. Dixon further testified that Paule tried three times to ask him to
convince Honeycutt to have the woman killed.
The jury returned verdicts of guilty on all counts. The district court sentenced
Honeycutt to serve concurrent terms of life with the possibility of parole on the kidnapping
count and one sexual assault count. The court also sentenced him to a consecutive term of life
with the possibility of parole on the second sexual assault count, and a consecutive term of
180 months on the solicitation count. Honeycutt filed a timely notice of appeal.
DISCUSSION
Honeycutt argues that numerous errors, both individually and cumulatively, violated
his right to a fair trial. He alleges that the district court erred in joining the sexual assault and
solicitation charges, in denying an instruction on reasonable mistaken belief of consent, in
admitting certain evidence, and in condoning numerous instances of prosecutorial
misconduct.
6
Because we conclude that the district court did not err, we affirm the
__________

5

6
Honeycutt alleged other assignments of error including: (1) eliciting Honeycutt's statements by a prison
inmate without Miranda warnings and/or as a result of entrapment; (2) the State's failure to disclose exculpatory
evidence; (3) biased and improper evidentiary rulings; (4) improperly threaten-
conclude that the district court did not err, we affirm the judgment of conviction.
Joinder and severance
Honeycutt alleges that the district court erred in denying his motion to sever the
solicitation to commit murder charge from the sexual assault and kidnapping charges. He
claims that he wanted to testify on the sexual assault and kidnapping charges, but not on the
solicitation charge. The district court made clear that Honeycutt could assert his right to
remain silent as to all of the charges or to testify as to all of the charges, but could not testify
as to some, but not the others. Therefore, Honeycutt chose to testify as to all of the charges
and now asserts that his Fifth Amendment rights were violated.
. . . .
2. Based on two or more acts or transactions connected together or constituting parts
of a common scheme or plan.
[Headnote 1]
Clearly, the charge of solicitation to murder the victim/principal witness in a sexual
assault and kidnapping case is factually connected to the sexual assault and kidnapping. The
charges were properly joined under NRS 173.115(2).
[Headnotes 2-6]
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.
7
Failure to sever requires
reversal only if the joinder has a substantial and injurious effect on the jury's verdict.
8
The 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.
9
To require severance, the defendant must demonstrate that a joint trial would be "manifestly
prejudicial.
__________
ing to strike a defense witness's testimony; and (5) giving an improper instruction on voluntary intoxication. We
conclude that none of these assignments of error has merit.

7
Middleton v. State, 114 Nev. 1089, 1108, 968 P.2d 296, 309 (1998) (citing Amen v. State, 106 Nev. 749,
756, 801 P.2d 1354, 1359 (1990)).

8
Id.

9
United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976).
trial would be manifestly prejudicial.
10
The simultaneous trial of the offenses must render
the trial fundamentally unfair, and hence, result in a violation of due process.
11
In this case,
in a trial of the solicitation to commit murder charge, the sexual assault and kidnapping
would be admissible to establish motive, and in a trial of the sexual assault and kidnapping
charges, the solicitation to commit murder would be admissible to show consciousness of
guilt.
12
Cross-admissibility of the evidence in the two separate charges is one of the key
factors in determining whether joinder is appropriate. As this court said in Middleton v. State,
[i]f . . . evidence of one charge would be cross-admissible in evidence at a separate trial on
another charge, then both charges may be tried together and need not be severed.'
13
The
district court did not err in not severing Honeycutt's charges for trial.
[Headnotes 7, 8]
Honeycutt claims his Fifth Amendment rights were violated because he was not
allowed to testify on the sexual assault and kidnapping charges while simultaneously
asserting his Fifth Amendment right to remain silent on the solicitation charge. The United
States Court of Appeals for the Seventh Circuit has stated: [S]everance is not required
every time a defendant wishes to testify to one charge but to remain silent on another. If that
were the law, a court would be divested of all control over the matter of severance and the
choice would be entrusted to the defendant.'
14
The burden rests on the defendant to present
enough information regarding the nature of the testimony he wishes to give on the one count
and his reasons for not wishing to testify on the other to satisfy the court that his claim of
prejudice is genuine, and to enable it intelligently to weigh the considerations of economy and
expedition in judicial administration against the defendant's interest in having a free choice
with respect to testifying.
15
Honeycutt made no such detailed showing. To establish that
joinder was prejudicial requires more than a mere showing that severance might have made
acquittal more likely.'
16

__________

10
United States v. Bronco, 597 F.2d 1300, 1302 (9th Cir. 1979).

11
Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991).

12
Abram v. State, 95 Nev. 352, 356-57, 594 P.2d 1143, 1145-46 (1979) (threats against witness relevant to
consciousness of guilt).

13
114 Nev. 1089, 1108, 968 P.2d 296, 309 (1998) (quoting Mitchell v. State, 105 Nev. 735, 738, 782 P.2d
1340, 1342 (1989)).

14
U.S. v. Dixon, 184 F.3d 643, 646 (7th Cir. 1999) (quoting U.S. v. Alexander, 135 F.3d 470, 477 (7th Cir.
1998)).

15
Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968).

16
Middleton, 114 Nev. at 1108, 968 P.2d at 309 (quoting United States v. Wilson, 715 F.2d 1164, 1171 (7th
Cir. 1983)); United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975).
[Headnote 9]
Honeycutt argued that severance should be granted because he wished to present
inconsistent defenses, but his defenses were not inconsistent. Wanting to testify as to one
offense and not as to another is not an inconsistent defense; it merely reflects a different tactic
on each charge. The district court clearly indicated that Honeycutt could choose to assert his
Fifth Amendment right not to testify in the second trial, even though he had testified in the
first trial.
17
And there is no violation of Honeycutt's rights by making him elect to testify as
to all of the charges or to none at all.
18
Criminal defendants routinely face a choice between
complete silence and presenting a defense. This has never been thought an invasion of the
privilege against compelled self-incrimination.
19

Honeycutt fails to demonstrate any fundamental unfairness or a violation of his rights
in the joinder of the counts of sexual assault, kidnapping, and solicitation to commit murder.
The district court did not abuse its discretion in denying Honeycutt's motion to sever the
counts.
Instruction regarding mistaken belief in consent
[Headnotes 10, 11]
At trial, Honeycutt proposed a jury instruction which stated, in essence, that a
reasonable and good faith belief that there was voluntary consent is a defense to a charge of
sexual assault. A criminal defendant is entitled to jury instructions on the theory of his case.
20
If the defense theory is supported by at least some evidence which, if reasonably believed,
would support an alternate jury verdict, the failure to instruct on that theory constitutes
reversible error.
21

__________

17
The dissent argues that by testifying at his first trial, Honeycutt waived his Fifth Amendment right to
remain silent. Despite the fact that Honeycutt testified at his first trial, the district court made clear that
Honeycutt could choose not to testify at his second trial. The district court made clear that Honeycutt would be
treated at the second trial as though he had never testified, thus, in effect reinstating his Fifth Amendment rights.
The determination of whether to admit evidence is within the sound discretion of the district court, and that
determination will not be disturbed unless manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503,
508 (1985). The district court thus assured that the joinder of the charges would result in no fundamental
unfairness. It cannot be a manifest abuse of discretion to refuse to admit evidence otherwise admissible in order
to assure fundamental fairness.

18
Holmes v. Gray, 526 F.2d 622, 626 (7th Cir. 1975).

19
Id.

20
Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989).

21
Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986).
[Headnotes 12-14]
This court has previously indicated that Nevada law supports a defense of reasonable
mistaken belief of consent in sexual assault cases.
22
We conclude that based on the wording
of NRS 200.366 and our prior case law defining the proof required for sexual assault, Nevada
does recognize this defense. NRS 200.366 defines sexual assault as the penetration of another
against the will of the victim or under conditions in which the perpetrator knows or should
know that the victim is mentally or physically incapable of resisting. In McNair v. State, we
concluded that the legal inquiry into the issue of lack of consent consists of two questions: (1)
whether the circumstances surrounding the incident indicate that the victim reasonably
demonstrated lack of consent; and (2) whether, from the perpetrator's point of view, it was
reasonable to conclude that the victim had consented.
23
Thus, because a perpetrator's
knowledge of lack of consent is an element of sexual assault, we conclude that a proposed
instruction on reasonable mistaken belief of consent must be given when requested as long as
some evidence supports its consideration.
24

Honeycutt's counsel proposed the following instruction, citing instruction 10.65 from
the California Jury Instructions for Criminal Cases (CALJIC) as the sole legal authority:
In the crime of sexual assault, general criminal intent must exist at the time of the
commission of the sexual assault. There is no general criminal intent if the defendant
had a reasonable and good faith belief that [the victim] voluntarily consented to engage
in fellatio and anal intercourse. Therefore, a reasonable and good faith belief that there
was a voluntary consent is a defense to such a charge.
If after a consideration of all of the evidence you have a reasonable doubt that the
defendant had general criminal intent at the time of the act of fellatio and anal
intercourse, you must find him not guilty of such crime.
__________

22
See Owens v. State, 96 Nev. 880, 884 n.4, 620 P.2d 1236, 1239 n.4 (1980); see also Hardaway v. State,
112 Nev. 1208, 1210-11, 926 P.2d 288, 289-90 (1996).

23
108 Nev. 53, 56-57, 825 P.2d 571, 574 (1992).

24
This is in contrast to our decision in Jenkins v. State that mistaken belief as to age is not a defense to
statutory sexual seduction. 110 Nev. 865, 870-71, 877 P.2d 1063, 1066-67 (1994). Jenkins is not binding on our
decision here since that crime was a strict liability offense in which knowledge of age is not an element of the
crime. Id. Sexual assault is a general intent crime. Winnerford H. v. State, 112 Nev. 520, 526, 915 P.2d 291, 294
(1996). Thus, if a mistake is reasonable, it may be a defense to a charge of sexual assault. NRS 194.010(4).
However, counsel did not include the entire correct instruction based on the evidence in this
case. Counsel's proposed instruction omitted the following language:
However, a belief that is based upon ambiguous conduct by an alleged victim that is
the product of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another is not a reasonable good faith belief.
25

The comment to CALJIC 10.65 states:
In People v. Williams (1992) 4 Cal.4th 354 [14 Cal.Rptr.2d 441, 841 P.2d 961], it was
held that this instruction should not be given absent substantial evidence of equivocal
conduct that would have led a defendant to reasonably and in good faith believe consent
existed where it did not. Further the instruction should not be given when it is
undisputed that the defendant's claim is based upon the victim's behavior after the
defendant had exercised or threatened force, violence, duress, menace or fear of
immediate and unlawful bodily injury on the person or another. Where the evidence is
conflicting on that issue, the court must give this instruction, if as indicated there is
substantial evidence of equivocal conduct, despite the alleged temporal context in
which that equivocal conduct occurred. In such situation, the second bracketed
paragraph [quoted above] should then be utilized.
26

The evidence of consent is conflicting in this case, in that the victim testified that the
defendant used force and the defendant testified that, not only did the victim consent, but she
initiated some of the actions.
[Headnotes 15, 16]
Assuming that Honeycutt was entitled to an instruction on mistaken belief of consent,
the proposed instruction must correctly state the law.
27
Honeycutt's proposed instruction was
not technically deficient in form, as the dissent alleges, but an incorrect statement of the
law when there is evidence that the consent was achieved through threats, force and
violence. Therefore, the district court did not err in refusing to give the instruction.
__________

25
1 California Jury Instructions, Criminal 10.65, at 828 (6th ed. 1996).

26
Id. at 830.

27
Barron v. State, 105 Nev. 767, 776, 783 P.2d 444, 448 (1989); cf. Brooks v. State, 103 Nev. 611, 613, 747
P.2d 893, 895 (1987).
Prior sexual assault
[Headnote 17]
Honeycutt moved to exclude the testimony of a prior sexual assault victim. The
district court held a Petrocelli
28
hearing to determine the admissibility of the evidence. At
that hearing, Honeycutt's former girlfriend testified that in 1997, Honeycutt had sexually
assaulted her. She stated that he covered her nose and mouth and assaulted her vaginally and
anally, and hit her on the head when she screamed. Honeycutt entered an Alford
29
plea to a
charge of coercion, contending that the sexual intercourse was consensual. The district court
concluded that if Honeycutt argued consent as a defense, the evidence would be admissible as
probative of intent in light of the similarity of the crimes.
NRS 48.045(2) provides that evidence of other crimes is admissible, not to prove
character, but for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. In Williams v. State,
30
this court
stated:
The crucial question in determining if a sexual assault has occurred is whether the act
is committed without the consent of the victim, and the intent of the accused is relevant
to the issue of consent or lack thereof. In the instant case, evidence of Williams' sexual
misconduct with other persons was admitted as being relevant to prove his intent to
have intercourse with the victim without her consent. This evidence was introduced
after Williams admitted committing the act, but claimed to have done so with the
victim's consent. By acknowledging the commission of the act but asserting his
innocent intent by claiming consent as a defense, Williams himself placed in issue a
necessary element of the offense and it was, therefore, proper for the prosecution to
present the challenged evidence, which was relevant on the issue of intent, in order to
rebut Williams' testimony on a point material to the establishment of his guilt.
The decision to admit or exclude evidence lies in the sound discretion of the district
court, and such a decision will not be overturned absent manifest error.
31
In cases of joined
charges, the district court may admit the evidence if it satisfies one of the requirements of
NRS 48.045(2) as to one of the charges as long as the overall prejudicial effect is outweighed
by the probative value.
__________

28

29

30
95 Nev. 830, 833, 603 P.2d 694, 697 (1979) (citations omitted).

31
Petrocelli, 101 Nev. at 52, 692 P.2d at 508; Tillema v. State, 112 Nev. 266, 269-70, 914 P.2d 605, 607
(1996).
value.
32
The district court made the appropriate determinations for admissibility and
properly instructed the jury that this evidence was to be considered for purposes of intent to
commit sexual assault and not propensity to commit the crime. The district court did not
abuse its discretion in admitting the evidence.
[Headnote 18]
We agree with Honeycutt that there was an instance of prosecutorial misconduct;
namely, the prosecutor choking Honeycutt on the stand as a demonstration of what happened
to the victim. The action was clearly improper. Honeycutt testified on direct examination that
the sexual assault could not have occurred as the victim had described it and gave an in-court
demonstration with a neutral party to corroborate his story. On cross-examination, the
prosecutor asked if he could do his own in-court demonstration. Upon receiving permission,
he approached Honeycutt, placed his arm across Honeycutt's throat and began pushing hard.
Honeycutt's eyes began watering after a few seconds and he began to choke. Defense counsel
immediately objected and requested a mistrial. The district court sustained the objection but
denied the motion for a mistrial.
[Headnote 19]
We can see absolutely no reason why a prosecutor would take such an action. The
decision to physically assault a defendant while on the stand goes well beyond the accepted
bounds of permissible advocacy. However, we will not reverse the convictions on this ground
because Honeycutt consented to the demonstration, and there is no indication that the action
prejudiced Honeycutt in any way. On the contrary, it would appear that it would have
prejudiced the State rather than Honeycutt, and Honeycutt reacted in a way which reflected
well on him, rather than in a way which would prejudice him. This is in marked contrast to
the situation described in Hollaway v. State,
33
where a stun belt was activated during closing
arguments in a murder trial. In that case, the implication to the jury was that the State
regarded Hollaway as extremely dangerous. Here, because of Honeycutt's reaction, there was
no implication that Honeycutt was anything other than a gentleman, and he suffered no
prejudice. Because of Honeycutt's conduct, the prosecutorial misconduct in conducting the
demonstration was harmless, and the district court appropriately denied Honeycutt's motion
for a mistrial.
__________

32
NRS 48.035(1).

33
116 Nev. 732, 742, 6 P.3d 987, 994 (2000).
[Headnote 20]
Honeycutt argues that some of the prosecutor's cross-examination of him was
irrelevant, unduly salacious, and disrespectful. Aside from the fact no objection was made to
most of the prosecutor's questions, considering the nature of the charges and the divergent
accounts of the circumstances by the victim and Honeycutt, the detailed cross-examination
does not demonstrate misconduct. Honeycutt alleges that much of the cross-examination was
sarcastic, thereby denigrating him, but that does not appear from the record. Although the
cross-examination of Honeycutt was extensive and detailed, the State is entitled to test the
credibility of the defendant. Honeycutt correctly cites United States v. Rodriguez-Estrada
34
for the proposition that it is the prosecutor's obligation to desist from the use of pejorative
language and inflammatory rhetoric. However, Honeycutt fails to point out any such
pejorative language or inflammatory rhetoric during the cross-examination.
[Headnote 21]
Honeycutt argues that numerous instances of prosecutorial misconduct in closing
argument deprived him of a fair trial. He argues that the prosecutor vouched for the State's
witnesses, while calling Honeycutt a liar, among other derogatory terms. This court has stated
that it is improper argument for counsel to characterize a witness as a liar.
35
However, a
prosecutor may demonstrate to a jury through inferences from the record that a defense
witness's testimony is untrue.
36
A review of the prosecutors' closing arguments shows that all
references to the defendant and witnesses were not name-calling or improper vouching for the
credibility of witnesses, but rather the drawing of inferences from evidence at the trial.
CONCLUSION
We conclude that Honeycutt received a fair trial and affirm the judgment of
conviction for one count of first-degree kidnapping, two counts of sexual assault, and one
count of solicitation to commit murder.
Agosti, J., concurs.
The district court committed reversible error when it refused to sever the trial of the
sexual assault and kidnapping charges from the solicitation of murder charge that occurred
six months later.
__________

34
877 F.2d 153, 159 (1st Cir. 1989).

35
Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990).

36
Id.
Because of this error, the refusal to give Honeycutt's consent instruction, and the prosecutorial
misconduct that occurred during trial, I conclude that reversal is mandated.
Severance
Under NRS 173.115(2), a district court can join charges that involve acts close in time
and relate to a defendant's common scheme, plan or motive, or otherwise are tied to each
other. But any prejudice the joinder would create should always be considered, and joinder of
charges should be denied if it would be prejudicial to the defendant.
1
Failure to sever when
clear prejudice is shown requires reversal of any conviction obtained.
2

The crimes of sexual assault and kidnapping are completely different from the
solicitation of murder charge that occurred six months later. They are not part of a common
plan or scheme, the percipient witnesses are different, and they are connected only by one
single threadthe victim is the same. We have held that two incidents involving social
drinks at a particular bar followed by alleged sexual assaults could not be joined because
forty-five days separated the incidents.
3
Based on this, I conclude that severance of the
solicitation of murder charge against Honeycutt was mandated because this charge was not
closely related to and did not involve a common course or scheme as the sexual assault and
kidnapping charges.
But the greater problem created by the joinder of the sexual assault and kidnapping
charges with the solicitation of murder charge was that Honeycutt was automatically forced to
surrender his right to remain silent. Honeycutt had already gone to trial on the sexual assault
and kidnapping charges, the jury could not reach a verdict, and a mistrial was declared. At
trial, he had testified on his own behalf, thereby forever waiving his right to remain silent on
these charges.
4
The sexual assault and kidnapping charges were set for retrial. Joining the
solicitation of murder charge with the sexual assault and kidnapping charges to which
Honeycutt had already waived his right to remain silent, created the impossible situation
where Honeycutt had waived his right to remain silent to some of the charges but had not to
others. The logical solution was to sever the charges for trial, but the district court rejected
Honeycutt's request to sever.
At retrial, Honeycutt took the stand and testified that the sexual acts were consensual,
but then tried to remain silent and not testify about the solicitation charges.
__________

1
See NRS 174.165(1).

2
See Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964).

3
Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989).

4
Harrison v. United States, 392 U.S. 219, 222 (1968) (noting that when a defendant waives his right to
remain silent at one proceeding, he has waived it for all subsequent proceedings).
testify about the solicitation charges. The district court directed Honeycutt to testify to the
facts of the solicitation charge. As the district court stated:
Mr. Honeycutt, you've waived any rights you have as to answering or not answering by
taking the stand and testifying on your behalf. You are obligated under the law to
answer the questions truthfully that have been presented to you. This is not a separate
trial. This is one trial. Both issues are before the Court, so you have an obligation to
answer those. If you choose to not answer those, then the Court is then obligated to
strike your testimony, sir.
What the district court did not grasp was that Honeycutt's Fifth Amendment right to
remain silent about the sexual assault charges was forever waived when he took the stand in
the first trial, and his right remained waived in the second trial whether he testified or not.
5
The prosecution could have called him to the stand as an adverse witness to testify about the
sexual assaults; or if Honeycutt refused to testify, the prosecutor could have had his prior
testimony at the first trial read into the record.
6
The majority endorses, without the citation
of any authority, this unique procedure of restoring an accused's privilege against
self-incrimination after it has been previously waived.
The majority cites United States v. Dixon,
7
where the Seventh Circuit Court of
Appeals stated that a severance is not required every time a defendant wants to testify to one
charge and not to others. I heartily agree with this general proposition, but the unique facts of
this case must be considered. In Dixon, all charges were being brought to trial for the first
timethe defendant had not already waived his Fifth Amendment right as to some of the
charges.
8
The unique situation in this case makes the general proposition stated in Dixon
inapplicable.
We have held that any substantial detriment to the defendant brought about by the
joinder of charges requires severance of the charges, including the denial of the ability to
introduce evidence critical to the defendant's defense.
9
The majority declares that no
unfairness or detriment to Honeycutt has been demonstrated. I respectfully disagree and our
prior case law does also. Compelling a defendant to surrender his Fifth Amendment right
against self-incrimination seems like a pretty big detriment to me.
Even assuming that Honeycutt did not waive his right against self-incrimination at the
first trial as the district court believed, I conclude that joinder of the charges was
prejudicial to Honeycutt.
__________

5
Edmonds v. United States, 273 F.2d 108, 112-13 (D.C. Cir. 1959).

6
Id.

7
184 F.3d 643, 646 (7th Cir. 1999).

8
Id. at 645.

9
Buff v. State, 114 Nev. 1237, 1245, 970 P.2d 564, 569 (1998).
conclude that joinder of the charges was prejudicial to Honeycutt. In order to meet the
charges of sexual assault and kidnapping, it was imperative that Honeycutt testify that the
sexual acts were consensual. He had done so in the previous trial that resulted in a mistrial.
The majority opines that there were other ways for Honeycutt to present a consent defense,
but this is foolishness.
10
Clearly the primary way to show a consensual-sex defense is to
have the accused testify to the consensual act. Further, the defendant should not be forced to
use secondary, less persuasive evidence in meeting one charge in order to preserve his right to
remain silent on the other charges.
11

By failing to sever the charges, Honeycutt was forced to surrender his right against
self-incrimination as to some charges in order to present his defense to the other serious
charges. No defendant should be so compelled when the situation could be avoided by a
severance of the charges for trial.
The failure to give Honeycutt's consent instruction
It is well established that a criminal defendant is entitled to an adequate instruction on
the defense theory of the case, no matter how weak or incredible the evidence supporting the
theory may appear to be.
12
Recognizing this, the majority states that Honeycutt's proposed
instruction on reasonable mistaken belief of consent must be given as long as there is
evidence to support this theory. However, the majority concludes that the district court did
not err in refusing Honeycutt's proposed instruction because it was an incomplete statement
of the law which, according to the majority, equates to an incorrect statement of the law. I
believe that the majority's conclusion, which basically requires a perfect instruction, is
inconsistent with the underlying policy entitling a defendant to an instruction on the defense
theory of the case.
We have required that the defendant's proposed instruction on the defense theory of
the case must correctly state the law.
13
However, we have not required a perfect instruction.
Such a requirement is inconsistent with our policy that a defendant is entitled to an instruction
on his theory of the case even if the evidence supporting his theory is weak or slight. If the
proposed instruction is poorly drafted,
__________

10
See Cross, 335 F.2d at 989 (Prejudice has consistently been held to occur when . . . [joinder] embarrasses
or confounds an accused in making his defense.).

11
See United States v. Scivola, 766 F.2d 37, 43 (1st Cir. 1985) (stating that a defendant may deserve a
severance of counts where the defendant makes a convincing showing that he has both important testimony to
give concerning one count and strong need to refrain from testifying on the other' (quoting Baker v. United
States, 401 F.2d 958, 977 (D.C. Cir. 1968))).

12
Brooks v. State, 103 Nev. 611, 613, 747 P.2d 893, 895 (1987).

13
See Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989).
instruction is poorly drafted, a district court has an affirmative obligation to cooperate with
the defendant to correct the proposed instruction or to incorporate the substance of such an
instruction in one drafted by the court.
14
Indeed, the Court of Appeals of Mississippi has
stated:
[T]he trial court cannot simply reject the poorly-drafted instruction, thus depriving the
defendant of his defense, but the court has the duty to make reasonable modifications
of the requested instruction or, at the very least, to point out to [the defendant] wherein
it may have been deficient and allow reasonable opportunity for correction.
15

Here, Honeycutt's proposed instruction placed the district court on notice regarding
the issue of reasonable mistaken belief of consent.
16
In addition, Honeycutt provided the
district court with the legal authority in support of giving the instruction. The majority notes
that Honeycutt omitted the bracketed portion of the proposed instruction, which was based on
instruction 10.65 from the California Jury Instructions for Criminal Cases (CALJIC). In
support of its conclusion that Honeycutt's proposed instruction was incomplete, and therefore
an incorrect statement of the law, the majority cites to the comment to CALJIC 10.65.
However, the comment does not require that the bracketed part be included when there is
conflicting evidence, but instead suggests that it should be utilized in situations where there is
conflicting evidence on the issue of consent. Because the bracketed part of CALJIC 10.65 is
not required, I conclude that Honeycutt's proposed instruction was not an incomplete
statement of the law and more significantly, I conclude that Honeycutt's omission does not
equate to an incorrect statement of the law.
Even assuming that Honeycutt's proposed instruction was technically deficient in
form, it was substantially correct. Honeycutt should be provided the opportunity to make
any corrections to his proposed instruction, and not simply rejected based on an omitted
portion, which is not required.
__________

14
See Echavarria v. State, 108 Nev. 734, 748, 839 P.2d 589, 598-99 (1992) (concluding that the district
court did not err when it refused the defendant's proposed instruction but offered another instruction which
incorporated the substance of the defendant's proposed deadly-weapon-enhancement instruction); see also U.S.
v. Newcomb, 6 F.3d 1129, 1133 (6th Cir. 1993) (noting that the district court is responsible for making the
necessary alterations to the defendant's proposed instruction if it is technically deficient and that the legal error
could not serve to eliminate the defendant's existing right to have the jury instructed on his theory of the case);
People v. Nunez, 841 P.2d 261, 266 (Colo. 1992) (en banc) (same).

15
Miller v. State, 733 So. 2d 846, 849 (Miss. Ct. App. 1998) (quoting Anderson v. State, 571 So. 2d 961, 964
(Miss. 1990)).

16
Cf. Barnes v. Delta Lines, Inc., 99 Nev. 688, 690 n.1, 669 P.2d 709, 710 n.1 (1983) (concluding that the
requirements of NRCP 51 were met when the appellants provided the trial judge with a citation to relevant legal
authority in support of giving their proposed instruction, which placed the judge on notice regarding the issues of
law involved).
should be provided the opportunity to make any corrections to his proposed instruction, and
not simply rejected based on an omitted portion, which is not required. Accordingly, I
conclude that the district court's refusal to give Honeycutt's proposed instruction was
erroneous, and thus reversal is mandated.
The instances of prosecutorial misconduct were pervasive and substantial. They
ranged from a demonstration that resulted in the prosecutor choking Honeycutt, to the
prosecutor vouching for a witness and commenting on which witnesses were telling the truth.
First, Honeycutt contended that the sexual-assault incident could not have happened
the way the victim described, and an in-court demonstration was conducted with a neutral
party. When the prosecutor began his cross-examination, he asked if he could do his own
court demonstration. Upon receiving permission, he approached Honeycutt, placed his arms
across Honeycutt's throat and pushed hard. Honeycutt's eyes began watering, and he began
choking and coughing. Defense counsel objected, and the district court ordered the
demonstration to stop. A subsequent motion for a mistrial was denied.
An accused who takes the stand runs many risks. One of them should not be that the
prosecutor would physically assault him or her. Assaulting a defendant during trial is so
prejudicial that it should be reversible error.
17
In this case, the physical assault had two
negative impacts on Honeycutt. First, the demonstration was by no means reliable in
reenacting what happened, and the effects on Honeycutt could easily have been more a result
of the prosecutor's aggression than an accurate depiction of what occurred. Second, it clearly
showed the personal animus and bias the prosecutor had toward Honeycutt. We have often
stated that a prosecutor should not show his personal animus toward a defendant before a
jury.
18
The majority opines that Honeycutt consented to the assault, but what choice did
Honeycutt have when the district court gave the prosecutor permission to proceed with the
demonstration, and the prosecutor then used extensive force in conducting the demonstration.
In a recent case, Hollaway v. State,
19
the defendant Hollaway wore a stun belt that
accidentally went off during closing arguments in a murder trial.
__________

17
See Crow v. State, 984 S.W.2d 260, 263 (Tex. Crim. App. 1998) (Baird, J., dissenting).

18
See Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985) (concluding that the prosecutor
telling the defendant he deserved to die in the presence of the jury was egregiously improper), modified on other
grounds by Howard v. State, 106 Nev. 713, 719, 800 P.2d 175, 178 (1990).

19
116 Nev. 732, 742, 6 P.3d 987, 994 (2000).
ments in a murder trial. Hollaway was sent writhing to the floor.
20
This court called the
incident an arbitrary and prejudicial factor and reversed the case, in part, because of this
incident.
21
Here, the intentional assault on Honeycutt was no less arbitrary and prejudicial.
While the concerns of underscoring an accused's potential violence is not present in this case
as it was in Hollaway, we do have the additional factors of an unreliable demonstration and
an intentional assault against an accused by the State's representative. This incident
introduced an arbitrary and prejudicial factor into the trial that made the trial result unreliable.
Next, in closing argument, the prosecutor stated that Honeycutt and one of his
witnesses were the kind of people who need heavy security. He also stated that Honeycutt's
witness was a liar, implied that the State's witnesses were more honest, vouched for the
victim's credibility, and stated that Honeycutt was guilty. The prosecutor also argued facts
that were not in evidence when he stated the reasons why Honeycutt approached David Paule
to solicit the murder of the sexual assault victim.
It is improper for a prosecutor to vouch for the credibility of a witness.
22
It is also
improper to brand a defendant as a liar, or accuse his witness of lying.
23
Further, it is
improper to refer to the defendant in a derogatory manner,
24
and references should not be
made to events or documents that were not in evidence.
25

While objections to most of the prosecutor's improper comments were not made, we
can consider multiple incidents of substantial error under the plain error doctrine.
26
In light
of the conflicting evidence regarding consent,
__________

20
Id.

21
Id.

22
See Lisle v. State, 113 Nev. 540, 553, 937 P.2d 473, 481 (1997) (vouching for the credibility of a witness
is impermissible because it invades the jury's function of assessing credibility); Yates v. State, 103 Nev. 200,
203, 734 P.2d 1252, 1254 (1987) (Any expression of opinion on the guilt of an accused is a violation of
prosecutorial ethics.).

23
See Ross v. State, 106 Nev. 924, 927-28, 803 P.2d 1104, 1106 (1990) (holding that a prosecutorial
statement that a defense witness is a liar is not a proper argument); Witherow v. State, 104 Nev. 721, 724, 765
P.2d 1153, 1155 (1988) (stating that it is improper argument to characterize a witness as a liar).

24
See McGuire v. State, 100 Nev. 153, 157-58, 677 P.2d 1060, 1063 (1984) (Disparaging comments have
absolutely no place in a courtroom, and clearly constitute misconduct.).

25
See Rippo v. State, 113 Nev. 1239, 1254-55, 946 P.2d 1017, 1027 (1997) (stating that a prosecutor's
comment to the effect that interviews and things happened outside the courtroom were improper references to
evidence not presented at trial); Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (noting that a
prosecutor may not argue facts or inferences not supported by the evidence).

26
Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118 (2002).
conflicting evidence regarding consent, I conclude that the multiple incidents of prosecutorial
misconduct are sufficient to amount to reversible plain error.
In summary, I conclude that each of the above instances of errorseverance, failure
to give Honeycutt's consent instruction, and prosecutorial misconductconstitute reversible
error. In any event, I conclude that the cumulative error mandates this court to reverse and
remand for a new trial.
Therefore, I respectfully dissent.
____________
118 Nev. 681, 681 (2002) Dzul v. State
FELIPE DZUL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37880
October 31, 2002 56 P.3d 875
Appeal from a judgment of conviction entered pursuant to a guilty plea on one count
of attempted lewdness with a child under the age of fourteen years. Eighth Judicial District
Court, Clark County; Nancy M. Saitta, Judge.
The supreme court, Becker, J., held that: (1) while the right against self-incrimination
attaches at a court-ordered presentence psychosexual evaluation, a defendant is not entitled to
Miranda warnings prior to the evaluation; and (2) adverse consequence that may follow from
a sex offender's denial of responsibility for his crime of conviction, namely, a greater risk of
receiving an unfavorable psychosexual evaluation and being denied probation, does not
amount to compulsion in violation of Fifth Amendment privilege against self-incrimination.
Affirmed.
[Rehearing denied December 17, 2002]
Marcus D. Cooper, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County, for Appellant.
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
While the right against self-incrimination clearly attaches at a court-ordered presentence psychosexual evaluation of a defendant
convicted of sexual offense, defendant is not entitled to Miranda warnings prior to the evaluation. U.S. Const. amend. 5; NRS
176.139, 176A.110.
118 Nev. 681, 682 (2002) Dzul v. State
2. Criminal Law.
State supreme court may address plain error and constitutional error sua sponte.
3. Criminal Law.
A defendant retains his Fifth Amendment right against self-incrimination in the sentencing process. U.S. Const. amend. 5.
4. Criminal Law; Sentencing and Punishment.
A state may not impose substantial penalties on a person who decides to invoke his right against self-incrimination. U.S. Const.
amend. 5.
A sentencing court may not draw any adverse inference from a defendant's silence during sentencing.
6. Criminal Law.
A person claiming the protection of the Fifth Amendment right against self-incrimination generally must affirmatively invoke it.
7. Criminal Law.
There is an exception to the general rule requiring affirmative invocation of Fifth Amendment privilege against
self-incrimination where the government prevents an individual from asserting that privilege by threatening to penalize him should he
invoke it. U.S. Const. amend. 5.
8. Criminal Law.
State cannot constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege
against self-incrimination. U.S. Const. amend. 5.
9. Criminal Law.
Fifth Amendment does not insulate a defendant from all difficult choices that are presented during the course of criminal
proceedings, or even from all choices that burden the exercise or encourage waiver of the Fifth Amendment's right against
self-incrimination. U.S. Const. amend. 5.
10. Criminal Law.
Adverse consequence that may follow from a sex offender's denial of responsibility for his crime of conviction, namely, a greater
risk of receiving an unfavorable psychosexual evaluation and being denied probation, does not amount to compulsion in violation of
Fifth Amendment privilege against self-incrimination; statutory scheme does not penalize a defendant who maintains his innocence,
but offers a benefit for taking responsibility for the offense. U.S. Const. amend. 5; NRS 176.139, 176A.110.
OPINION
Appellant Felipe Dzul pleaded guilty, pursuant to North Carolina v. Alford,
1
to one
count of attempted lewdness with a child under the age of fourteen years for grabbing and
squeezing the breast area of a nine-year-old girl.
__________

1
400 U.S. 25 (1970).
118 Nev. 681, 683 (2002) Dzul v. State
the breast area of a nine-year-old girl. The district court accepted Dzul's guilty plea and
thereafter ordered him to undergo a psychosexual evaluation pursuant to NRS 176.139. Dzul
maintained his innocence throughout the psychosexual evaluation, asserting that he was
hugging and tickling the child and never intended to sexually gratify himself. After receiving
the Division of Parole and Probation's presentence investigation report, which included the
reports of two psychological professionals who interviewed Dzul, the district court sentenced
Dzul to four to ten years in prison.
On appeal, Dzul contends that he was entitled to Miranda
2
warnings prior to his
psychosexual evaluation. Dzul further contends that his Fifth Amendment right against
self-incrimination was violated because he was denied probation for maintaining his
innocence throughout the psychosexual evaluation. Dzul points out that NRS 176A.110
conditions the grant of probation on a favorable psychosexual evaluation and asserts that a
favorable psychosexual evaluation virtually always requires an admission of guilt by the
defendant.
3
Dzul argues that this process violates his right against self-incrimination. We
disagree with Dzul's contentions and, for the reasons set forth below, we affirm the judgment
of conviction.
FACTS
In December 2000, police responded to a report of child molestation at a Las Vegas
apartment complex. The mother of nine-year-old Jane Doe
4
reported to police that her
daughter went to return keys to Dzul's apartment and that Dzul invited the child inside and
then grabbed and squeezed her breasts tightly. According to Jane Doe's mother, the distraught
child ran from Dzul's apartment and immediately told her mother of the incident, including
Dzul's warning not to tell her parents.
Based on those allegations and a records check, which revealed that Dzul was a
registered sex offender with a previous conviction in 1980 for lewdness with a child, police
contacted and arrested Dzul for lewdness with a child under the age of fourteen years. Dzul
admitted playing with and tickling Jane Doe, but he insisted that he was not seeking sexual
gratification and was simply hugging the child. Dzul also admitted that he was intoxicated at
the time of the incident but otherwise maintained his innocence, asserting that any touching
of Jane Doe's breasts was inadvertent and unintentional.
__________

2

3
Dzul also raises several other issues, including whether the district court's refusal to grant him probation
amounts to cruel and unusual punishment. Based on the record and the briefs filed herein, we conclude that
Dzul's remaining contentions on appeal lack merit.

4
The victim's real name has been changed to protect her identity.
118 Nev. 681, 684 (2002) Dzul v. State
asserting that any touching of Jane Doe's breasts was inadvertent and unintentional.
After accepting Dzul's Alford guilty plea to one count of attempted lewdness with a
child under the age of fourteen years, the district court referred the matter to the Division of
Parole and Probation (P&P) for a presentence investigation report (PSI) and ordered Dzul to
undergo a psychosexual examination pursuant to NRS 176.135 and NRS 176.139.
As part of the psychosexual evaluation, Dzul interviewed with two psychological
professionals to determine whether he represented a menace to the health, safety, or morals of
others. Dzul maintained his innocence throughout the interviews. Dr. Dodge Slagle, D.O.,
concluded that Dzul did not represent a high risk to reoffend and opined that Dzul would not
be a menace to the safety, welfare, or morals of others if granted probation as long as he
abstained from consuming alcohol. However, licensed social worker John Pacalt opined that
Dzul's denial of responsibility for the offense was a factor that increased his risk to reoffend,
that Dzul represented a moderate to high risk to reoffend, and that Dzul was therefore a poor
candidate for probation.
5
Based upon the reports and his prior conviction for lewdness with a
child under the age of fourteen years, the district court refused to grant Dzul probation.
6
The
district court thereafter sentenced Dzul to ten years in Nevada State Prison with parole
eligibility after four years.
DISCUSSION
I. Miranda warnings prior to the psychosexual evaluation
Dzul contends that the district court erred in considering the psychosexual evaluations
because he was not Mirandized before the clinical interview portion of the evaluations in
violation of his Fifth Amendment right against self-incrimination and Sixth Amendment right
to counsel. Dzul asserts that those constitutional rights extend through sentencing, and he
urges this court to vacate his sentence and remand this case for re-sentencing after another
psychosexual evaluation.
The Fifth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment,
7
provides that "[n]o person .
__________

5
The record reflects that denial of responsibility is a common negative factor used in evaluating the risk of
reoffending.

6
The record indicates that the district court listened to Dzul's objections to Pacalt's report and then stated that
even if it were to disregard the Pacalt report, it would still find Dzul was a high risk for reoffending. It is unclear
from the record how much credence the district court eventually gave to the Pacalt report.

7
Malloy v. Hogan, 378 U.S. 1, 6-11 (1964).
118 Nev. 681, 685 (2002) Dzul v. State
vides that [n]o person . . . shall be compelled in any criminal case to be a witness against
himself.
8
In Miranda v. Arizona,
9
the United States Supreme Court acknowledged that
the Fifth Amendment privilege is available outside of criminal court proceedings and serves
to protect persons in all settings in which their freedom of action is curtailed in any
significant way from being compelled to incriminate themselves.
10
Further, in Mitchell v.
United States,
11
the High Court concluded that the Fifth Amendment privilege extends to
sentencing proceedings.
Additionally, the Sixth Amendment right to counsel provides every criminal
defendant with the right to have representation during each critical stage of adversarial
proceedings.
12
The United States Supreme Court has concluded that sentencing is such a
critical stage for purposes of the Sixth Amendment right to counsel.
13

Dzul cites Estelle v. Smith
14
in support of his position. In Estelle, the United States
Supreme Court addressed whether the admission of a psychiatrist's testimony about
statements made by a defendant violated the defendant's Fifth Amendment privilege against
compelled self-incrimination.
15
The Supreme Court held that a state's attempt to establish a
defendant's future dangerousness at the penalty phase of a capital trial by relying on the
statements made by him during a pretrial psychiatric evaluation violated his Fifth
Amendment right against self-incrimination. The High Court concluded the defendant's
statements were inadmissible because he was not advised before the psychiatric examination
that he had a right to remain silent or that any statement he made could be used against him at
a sentencing proceeding.
16
The Supreme Court further held that a defendant's Sixth
Amendment right to counsel attaches when he undergoes a pretrial psychiatric interview
because such an interview is a critical stage of the proceedings.
17
Finally, the Supreme
Court noted that the defendant did not voluntarily consent to the interview
__________

8

9
384 U.S. 436 (1966).

10
Id. at 467.

11
526 U.S. 314 (1999).

12
United States v. Wade, 388 U.S. 218, 226-27 (1967); see also U.S. Const. amend. VI; Gideon v.
Wainwright, 372 U.S. 335, 342-45 (1963) (indicating the Sixth Amendment right to counsel is applicable to the
states through the Fourteenth Amendment).

13
Mempa v. Rhay, 389 U.S. 128, 134 (1967).

14
451 U.S. 454 (1981).

15
Id. at 461.

16
Id. at 468-69.

17
Id. at 470.
118 Nev. 681, 686 (2002) Dzul v. State
the defendant did not voluntarily consent to the interview and was denied the assistance of his
attorneys in making the significant decision of whether to submit to the examination and to
what extent the psychiatrist's findings would be used as a result.
18

Dzul also relies on Brown v. State.
19
In Brown, this court concluded that the
appellant was entitled to a new sentencing hearing because the sentencing court abused its
discretion under Estelle by basing the appellant's sentence on information obtained from his
court-ordered psychological examination, which was performed to determine his competency
to stand trial.
20
Specifically, this court held that the sentencing judge improperly relied on
findings in the psychological report, on the appellant's unwarned statements to the
psychiatrist, as well as on the psychiatrist's conclusions that the appellant was defensive,
unwilling to acknowledge his psychological problems, immature, egocentric, moody, and
insecure, lacked self-confidence, likely would act out sexually, and was not falsely convicted
as he maintained he was.
21

We conclude that neither Estelle nor Brown are controlling in this case. Unlike the
pretrial psychiatric evaluations ordered in Estelle and Brown, Dzul was interviewed after he
entered his plea. Further, he was informed in advance that the psychosexual evaluation was
for the purpose of determining his sentence. Moreover, Dzul had the assistance of counsel
throughout the proceedings, never invoked his right against self-incrimination, and does not
dispute that he was Mirandized when he first spoke with police during their investigation in
this case. Nothing in the record indicates that Dzul objected or refused to submit to the
psychosexual evaluation when he was interviewed. To the contrary, Dzul signed an
acknowledgment of psychosexual evaluation stating that the psychosexual evaluation shall
be used for recommendations regarding sentencing and/or treatment. The acknowledgment
form also contained an area that Dzul could have signed to indicate his refusal to consent to
the evaluation.
Further, the holding in Estelle was narrowly applied to the facts of that case, as
evidenced by the Supreme Court's statements that [v]olunteered statements . . . are not
barred by the Fifth Amendment
22
and we do not hold that the same Fifth Amendment
concerns are necessarily presented by all types of interviews and examinations that might be
ordered and relied upon to inform a sentencing determination.
23
Although this court has not
yet had the opportunity to address this issue,
__________

18
Id. at 470-71.

19
113 Nev. 275, 934 P.2d 235 (1997).

20
Id. at 288-90, 934 P.2d at 243-45.

21
Id. at 288, 934 P.2d at 243-44.

22
451 U.S. at 469.

23
Id. at 469 n.13.
118 Nev. 681, 687 (2002) Dzul v. State
not yet had the opportunity to address this issue, other jurisdictions have determined that
Miranda warnings are not required prior to routine presentence interviews.
24

[Headnote 1]
In particular, the Tenth Circuit Court of Appeals in United States v. Rogers reasoned
that routine presentence interviews do not constitute the type of inherently coercive
environment and interrogation by the government for which Miranda warnings were
designed.
25
The Rogers court further noted that it is a fair assumption that defendants will
be advised by counsel prior to a presentence interview and there is no rule which excludes
counsel's presence at the interview.
26
The court went on to explain that at that stage of the
proceedings defendants are conversant with their Fifth Amendment rights.
27
Most
defendants receive Miranda warnings prior to being charged, and thereafter knowledgeably
exercise their right to remain silent.
28
For the same reasons, we conclude that while the right
against self-incrimination clearly attaches at a court-ordered presentence psychosexual
evaluation, a defendant is not entitled to Miranda warnings prior to the evaluation.
Accordingly, we conclude that Dzul's constitutional rights were not violated by the lack of
Miranda warnings prior to his interviews with Dr. Slagle and Pacalt. Thus, he is not entitled
to a new sentencing hearing based on this contention.
II. Fifth Amendment implications of conditioning the grant of probation on a favorable
psychosexual evaluation
Citing no authority, Dzul contends that his Fifth Amendment right against
self-incrimination was violated when the district court refused to grant him probation because
he received an unfavorable psychosexual evaluation based on his refusal to admit guilt for the
offense of conviction.
29
Dzul argues that his denial of guilt was a substantial negative factor
considered in Dr. Slagle's and Pacalt's assessments of his risk to reoffend, and whether he is a
menace to the health, safety or morals of others. Dzul asserts that he is, in effect, being
punished for maintaining his innocence.
__________

24
See, e.g., U.S. v. Cortes, 922 F.2d 123, 126 (2d Cir. 1990); U.S. v. Rogers, 921 F.2d 975, 979-82 (10th Cir.
1990); U.S. v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990); Baumann v. United States, 692 F.2d 565, 577 (9th
Cir. 1982).

25
921 F.2d at 979-80.

26
Id. at 980.

27
Id.

28
Id.

29
Despite the lack of authority, we choose to address the issue because it has been raised in numerous
appeals pending before the court.
118 Nev. 681, 688 (2002) Dzul v. State
NRS 176.139 required Dzul to undergo a presentence psychosexual evaluation as a
prerequisite to eligibility for probation.
30
Additionally, the version of NRS 176A.110 in
effect in this case prohibited the district court from placing a defendant on probation unless
the person who conducted the psychosexual evaluation certified that the defendant was not a
menace to the health, safety, or morals of others.
31
Although Dr. Slagle concluded that Dzul
was not a menace to the health, safety, and morals of others and recommended probation, the
doctor did express some concern over Dzul's denial of responsibility for his actions when
intoxicated. Pacalt opined that Dzul's denial of responsibility increased his risk to reoffend.
Pacalt's evaluation indicated Dzul's denial was a major factor in Pacalt's finding that Dzul
represented a moderate to high risk to reoffend, and that Dzul was therefore a poor candidate
for probation. Finally, the record reflects that failure to participate in the clinical interview
portion of the evaluation or a refusal to undergo any evaluation results either in an
unfavorable recommendation or no recommendation at all. In either case, the sentencing
statutes would prohibit the granting of probation.
[Headnote 2]
Dzul argues that this process violated his Fifth Amendment right against
self-incrimination because it penalized him for maintaining his innocence. While he did not
specifically object on constitutional grounds at sentencing, Dzul did complain about
unfairness, and this court may address plain error and constitutional error sua sponte.
32

We have not had the opportunity to evaluate the constitutionality of conditioning
probation on a favorable psychosexual evaluation where admission of guilt is a significant
factor in receiving a favorable report. Thus, this is an issue of first impression in Nevada.
[Headnote 3]
The Fifth Amendment has long been interpreted to mean that a defendant may refuse
to answer official questions put to him in any . . . proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings.
__________

30
1999 Nev. Stat., ch. 310, 4, at 1286-87; see also NRS 176.139(1) (2001).

31
1997 Nev. Stat., ch. 524, 7, at 2504. NRS 176A.110 was amended in 2001 such that probation is not
available unless the person conducting the evaluation certifies that the defendant does not represent a high risk
to reoffend. 2001 Nev. Stat., ch. 345, 3, at 1638. Our decision in this case is based on the version of NRS
176A.110 in effect prior to the 2001 amendment; however the amendment would have no bearing on our
decision.

32
Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).
118 Nev. 681, 689 (2002) Dzul v. State
the answers might incriminate him in future criminal proceedings.
33
A defendant therefore
retains his Fifth Amendment rights in the sentencing process.
34

[Headnotes 4, 5]
A state may not impose substantial penalties on a person who decides to invoke his
right against self-incrimination.
35
Thus, we have held that [i]mposition of a harsher
sentence based upon the defendant's exercise of his constitutional rights is an abuse of
discretion.
36
A sentencing court may not draw any adverse inference from a defendant's
silence during sentencing.
37

[Headnote 6]
Dzul never asserted his Fifth Amendment rights during the clinical interviews nor did
he refuse to participate in the psychosexual evaluations. Thus, this case is distinguishable
from Bushnell v. State and Mitchell because the sentencing judge did not draw any inference
from the defendant's invocation of the Fifth Amendment. A person claiming the protection of
the Fifth Amendment generally must affirmatively invoke it.
38

[Headnote 7]
There is an exception to the general rule requiring affirmative invocation of the
privilege, however, where the government prevents an individual from asserting his Fifth
Amendment privilege by threatening to penalize him should he invoke it.
39
This foreclosure
of access to the Fifth Amendment is termed a classic penalty situation.
40
Dzul contends
that conditioning probation upon a favorable psychosexual evaluation creates a classic
penalty situation because defendants who invoke their Fifth Amendment rights in the clinical
interviews cannot receive a favorable evaluation. They are then punished by sentences of
mandatory imprisonment. Dzul also argues that a defendant who enters an Alford plea, or
maintains his innocence through trial, must admit guilt during the clinical interviews to have
a chance of receiving a favorable evaluation and a possibility of probation.
__________

33
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); see also U.S. Const. amend. V.

34
See generally Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (a defendant does not lose his constitutional
right against self-incrimination by reason of his conviction of a crime); United States v. Jones, 640 F.2d 284,
287 (10th Cir. 1981) (Fifth Amendment offers protection in the sentencing process).

35
Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).

36
Bushnell v. State, 97 Nev. 591, 593, 637 P.2d 529, 531 (1981).

37
Mitchell, 526 U.S. at 328-30.

38
United States v. Monia, 317 U.S. 424, 427 (1943).

39
See Murphy, 465 U.S. at 434.

40
Id. at 435.
118 Nev. 681, 690 (2002) Dzul v. State
a favorable evaluation and a possibility of probation. He contends this also punishes a
defendant for asserting his Fifth Amendment rights.
[Headnote 8]
In Minnesota v. Murphy, a penalty case involving a defendant's admissions made
during a sex offender treatment program required as a condition of probation, the United
States Supreme Court addressed the classic penalty situation exception to the general rule that
the Fifth Amendment is not self-executing.
41
In Murphy, when the defendant's probation
officer questioned him about admissions he had made during the course of treatment
regarding an uncharged rape and murder, the defendant confessed to those crimes.
42
After
being indicted in a separate criminal case based on those admissions, the defendant sought to
suppress his confession on the ground that the statements were compelled because his
probation would have been revoked had he refused to answer.
43
While holding that the
defendant's confession was not compelled because there was no suggestion that his
probation was conditional on his waiving his Fifth Amendment privilege,
44
the Supreme
Court nonetheless stated:
There is . . . a substantial basis in our cases for concluding that if the State, either
expressly or by implication, asserts that invocation of the privilege would lead to
revocation of probation, it would have created the classic penalty situation . . . and the
probationer's answers would be deemed compelled and inadmissible in a criminal
prosecution.
45

Thus, the State cannot constitutionally carry out a threat to revoke probation for the
legitimate exercise of the Fifth Amendment privilege.
46

Following Murphy, some jurisdictions have found Fifth Amendment violations where
sex offenders were required in treatment programs to disclose past misconduct or be subject
to revocation of probation.
47
Other courts, however, have denied similar claims where
treatment programs were a condition of parole eligibility.
__________

41
See id. at 422-23, 434.

42
Id. at 423-24.

43
See id. at 425.

44
Id. at 437.

45
Id. at 435.

46
Id. at 438.

47
See, e.g., Mace v. Amestoy, 765 F. Supp. 847, 850-51 (D. Vt. 1991) (holding that probation revocation for
failure to complete sex offender program by making full disclosure regarding crimes other than those for which
he had been convicted violated probationer's Fifth Amendment right against self-incrimination and that
probationer could not be forced to incriminate himself without grant of immunity); State v. Kaquatosh, 600
N.W.2d 153,
118 Nev. 681, 691 (2002) Dzul v. State
claims where treatment programs were a condition of parole eligibility.
48

For example, the Eighth Circuit Court of Appeals held in Doe v. Sauer that an
inmate's reduced likelihood of parole for refusing to participate in a sex offender program did
not constitute a penalty sufficient to compel incriminating speech in violation of the Fifth
Amendment. Rather, the court categorized the reduced likelihood of parole as the denial of a
benefit.
49
In Doe, an incarcerated sex offender brought a 42 U.S.C. 1983 action alleging
that a sex offender treatment program violated his Fifth Amendment right against
self-incrimination because it forced him to admit uncharged offenses, as well as the alleged
behavior that led to his convictions, in order for the parole board to grant him parole and
because his refusal to make the required admissions forced him to serve a longer prison
sentence than he otherwise would.
50
The Doe court concluded that while the sex offender
program imposed some burden upon the inmate's Fifth Amendment rights, the burden was
mitigated by the fact that parole is a benefit that involves relief from a penalty that has already
been imposed, i.e., the full period of incarceration to which the defendant was sentenced and
acceptance of responsibility relates to rehabilitation, a primary consideration for granting
the benefit of parole.
__________
158 (Minn. Ct. App. 1999) (holding that probationer's Fifth Amendment right against self-incrimination was
violated by revocation of probation for failing to complete sex offender program where his failure was due to his
refusal to admit his crime of conviction); State v. Fuller, 915 P.2d 809, 813-16 (Mont. 1996) (holding that
probationer was placed in classic penalty situation when he was required to participate in a sex offender program
that required participants to disclose their offense history as a condition of probation); State v. Imlay, 813 P.2d
979, 985 (Mont. 1991) (holding that defendant's probation could not be revoked upon failure to complete sex
therapy where basis for his failure to complete program was his refusal to admit guilt for crime of conviction).
Cf. Warren v. Richland County Circuit Court, 223 F.3d 454, 459 (7th Cir. 2000) (holding that revocation of
probation for refusal to admit guilt during sex offender treatment did not violate due process or breach plea
agreement), cert. denied, 531 U.S. 1168 (2001); Asherman v. Meachum, 957 F.2d 978, 982-83 (2d Cir. 1992)
(holding that revocation of defendant's supervised home release status for his refusal to answer questions about
his crime at scheduled psychiatric evaluation did not violate his Fifth Amendment rights).

48
Doe v. Sauer, 186 F.3d 903, 906 (8th Cir. 1999) (inmate's privilege against self-incrimination was not
violated by denial of parole for prisoner's refusal to participate in rehabilitation by admitting guilt); Russell v.
Eaves, 722 F. Supp. 558, 560-61 (E.D. Mo. 1989) (sex offender program that required inmates to accept
responsibility for their crimes in order to be eligible for parole did not violate the Fifth Amendment right against
self-incrimination).

49
186 F.3d at 906.

50
Id. at 905.
118 Nev. 681, 692 (2002) Dzul v. State
bility relates to rehabilitation, a primary consideration for granting the benefit of parole.
51

We find the benefit/penalty analysis persuasive in considering Dzul's arguments. Dzul
was subject to a mandatory sentence. Probation is a benefit provided by the Legislature in
certain sex offense cases only if defendants demonstrate they are not a menace to the health,
safety, or morals of others. Moreover, as in Doe, Dzul's statements to the psychological
professionals conducting the psychosexual evaluation were voluntary as he had a choice to
admit or deny responsibility for his crime of conviction or participate in the evaluation.
Finally, denial of probation does not follow automatically from Dzul's refusal to admit
responsibility, as it is possible to receive a favorable evaluation while maintaining innocence
as evidenced by Dr. Slagle's evaluation. Thus, we conclude that Dzul's circumstances,
namely, the reduced likelihood of being granted probation for refusing to admit guilt during
the psychosexual evaluation, do not present the classic penalty situation that renders the
Fifth Amendment self-executing.
In rejecting Dzul's contentions, we have also considered federal cases addressing
defendants' Fifth Amendment rights in the context of acceptance-of-responsibility reductions
under the federal sentencing guidelines. Although these cases are distinguishable, the legal
theory underlying them is instructive. Specifically, several courts have distinguished between
a denied benefit (an act of leniency) and a penalty (a harsher sentence) and have concluded
that denial of a sentencing reduction based on a defendant's refusal to accept responsibility for
his actions does not constitute a penalty nor a sentence enhancement and thus does not violate
the Fifth Amendment.
52
These decisions rely on a line of United States Supreme Court cases
upholding plea bargains and rejecting claims that offers of lower sentences in exchange for
guilty pleas impermissibly compel defendants to incriminate themselves
53
as well as on the
long-standing practice of sentencing more leniently those defendants who evidence contrition.
54

__________

51
See id. at 906.

52
See, e.g., U.S. v. Knight, 96 F.3d 307, 310 (8th Cir. 1996); U.S. v. Clemons, 999 F.2d 154, 160-61 (6th Cir.
1993); U.S. v. Frazier, 971 F.2d 1076, 1087 (4th Cir. 1992); U.S. v. Rogers, 921 F.2d 975, 982-83 (10th Cir.
1990); U.S. v. Skillman, 922 F.2d 1370, 1378-79 & n.11 (9th Cir. 1990). But see U.S. v. Frierson, 945 F.2d 650,
659-60 (3d Cir. 1991) ([A]n increase in sentence or a denied reduction in sentence is a penalty in the context of
Fifth Amendment jurisprudence.).

53
Frazier, 971 F.2d at 1083-84 (citing Alabama v. Smith, 490 U.S. 794 (1989); Corbitt v. New Jersey, 439
U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978); Chaffin v. Stynchcombe, 412 U.S. 17 (1973);
Alford, 400 U.S. 25; Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397 U.S. 742
(1970)).

54
Id. at 1086.
118 Nev. 681, 693 (2002) Dzul v. State
In particular, the Supreme Court in Corbitt v. New Jersey rejected a claim that the
offer of a lower sentence in exchange for a guilty plea impermissibly compelled a defendant
to incriminate himself, stating:
The cases in this Court . . . have clearly established that not every burden on the
exercise of a constitutional right, and not every pressure or encouragement to waive
such a right, is invalid. Specifically, there is no per se rule against encouraging guilty
pleas. We have squarely held that a State may encourage a guilty plea by offering
substantial benefits in return for the plea. The plea may obtain for the defendant the
possibility or certainty . . . [not only of] a lesser penalty than the sentence that could be
imposed after a trial and a verdict of guilty . . ., but also a lesser penalty than that
required to be imposed after a guilty verdict by a jury.
55

[Headnote 9]
By analogy, we conclude that probation is a form of leniency and that Dzul was not
penalized in this case for refusing to admit guilt to the underlying offense during his
psychosexual evaluations. Instead, he was not given a benefit that may be extended to
defendants who accept responsibility for their wrongs. Probation has been regarded
traditionally as a form of leniency.
56
Moreover, [t]he Fifth Amendment does not insulate a
defendant from all difficult choices' that are presented during the course of criminal
proceedings, or even from all choices that burden the exercise or encourage waiver of the
Fifth Amendment's right against self-incrimination.
57
Further, presenting a defendant with
the choice between admitting responsibility with a greater chance of receiving a favorable
psychosexual evaluation or denying responsibility with a greater risk of receiving an
unfavorable evaluation is consistent with the historical practice and understanding that a
sentence imposed upon a defendant may be shorter if rehabilitation looks more certain and
that confession and contrition are the first steps along the road to rehabilitation.
58
Rehabilitation is a key factor in extending leniency to convicted offenders.
We recognize that some federal courts do not distinguish between an act of leniency
and a penalty. These courts conclude that denial of a sentencing reduction based upon a
defendant's refusal to accept responsibility for his actions constitutes an impermissible
penalty in violation of the Fifth Amendment right against self-incrimination.
__________

55
439 U.S. at 218-20 (citations and footnotes omitted).

56
See Frierson, 945 F.2d at 658.

57
Frazier, 971 F.2d at 1080.

58
See U.S. v. McQuay, 7 F.3d 800, 802-03 (8th Cir. 1993); see also Frazier, 971 F.2d at 1084-85.
118 Nev. 681, 694 (2002) Dzul v. State
impermissible penalty in violation of the Fifth Amendment right against self-incrimination.
59
However, even these cases are distinguishable from the instant case. The decisions in United
States v. Frierson, United States v. Oliveras, and United States v. Perez-Franco were based
on the sentencing judges' denial of sentencing reductions because the defendants refused to
make inculpatory statements concerning other crimes or relevant conduct for which they
were not yet charged.
60
The circuit courts ultimately held that denial of a reduction in
sentence could not be based on the defendant's refusal to admit responsibility for conduct that
is not included in the conviction.
61
Furthermore, a subsequent decision of at least one of
those courts has clarified that a sentencing judge may compel testimony with respect to the
offense comprising the conviction for purposes of acceptance-of-responsibility reductions.
62
Dzul was only evaluated upon his denial of guilt for the convicted offense. Thus, Dzul's
circumstances are distinguishable from those of Frierson, Oliveras, and Perez-Franco.
Finally, the Supreme Court recently reaffirmed a state's ability to deny benefits to
inmates who refuse to participate in sex offender treatment programs.
63
In McKune v. Lile,
an incarcerated sex offender was ordered to participate in a sex offender treatment program
which required him to complete and sign an Admission of Responsibility form, discussing
and accepting responsibility for the crime for which he had been sentenced, and to complete a
sexual history form detailing all prior sexual activities, including uncharged criminal
offenses.
64
If an inmate refused to participate in the program, his privileges would be
reduced, including his visitation rights, earnings, work opportunities, ability to send money to
family,
__________

59
See, e.g., Frierson, 945 F.2d at 659-60; U.S. v. Oliveras, 905 F.2d 623, 628, 632 (2d Cir. 1990); U.S. v.
Perez-Franco, 873 F.2d 455, 462-64 (1st Cir. 1989).

60
Frierson, 945 F.2d at 652-53; Oliveras, 905 F.2d at 625; Perez-Franco, 873 F.2d at 457-58.

61
Frierson, 945 F.2d at 659; Oliveras, 905 F.2d at 628, 632; Perez-Franco, 873 F.2d at 463-64.

62
See, e.g., U.S. v. Reyes, 9 F.3d 275, 279-80 (2d Cir. 1993) (sentencing court may not compel testimony in
respect to any offense other than the offense to which the defendant plea bargained for purposes of
acceptance-of-responsibility sentencing reduction); see also U.S. v. Hicks, 978 F.2d 722, 726 (D.C. Cir. 1992)
(recognizing that the November 1, 1992, amendment to 3E1.1 of the federal sentencing guidelines seems to
resolve the confusion by requiring that a defendant accept responsibility only for the offense of conviction);
United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986) (holding that a court cannot condition leniency upon
a defendant's refusal to admit to a crime not charged).

63
McKune v. Lile, 536 U.S. 24 (2002) (plurality opinion).

64
Id. at 30 (plurality opinion).
118 Nev. 681, 695 (2002) Dzul v. State
money to family, canteen expenditures, and his access to a personal television.
65
The inmate
refused to participate in the program and brought an action for injunctive relief under 42
U.S.C. 1983 on the ground that the required disclosures of his criminal history violated his
Fifth Amendment right against compelled self-incrimination.
66
A plurality of the Court held
that the adverse consequences faced by inmates for refusing to admit responsibility for the
crime of conviction and other past offenses were not so severe as to amount to compelled
self-incrimination in violation of the Fifth Amendment.
67

Although it did not utilize a benefit/penalty analysis, the plurality distinguished its
prior line of penalty cases, stating that the penalty cases involved free citizens given the
choice between invoking the Fifth Amendment and sustaining their economic livelihood and
that lawful conviction and incarceration necessarily place limitations on the exercise of a
defendant's privilege against self-incrimination.
68
The plurality underscored the importance
of sex offender treatment programs by recognizing that sex offenders are a serious threat in
our country, particularly to our youth.
69
The plurality also acknowledged that psychological
professionals agree that clinical rehabilitation programs reduce recidivism, that an important
part of these rehabilitation programs is that participants must confront their pasts and accept
responsibility for their deviant behavior, and that denial of responsibility is generally regarded
as an impediment to successful rehabilitation.
70
The plurality concluded that a sex offender
treatment program,
which is acknowledged to bear a rational relation to a legitimate penological objective,
does not violate the privilege against self-incrimination if the adverse consequences an
inmate faces for not participating are related to the program objectives and do not
constitute atypical and significant hardships in relation to the ordinary incidents of
prison life.
71

Justice O'Connor's concurring opinion did not reject the benefit/penalty analysis, but instead
distinguished the penalty cases and concluded that alteration of the inmate's prison
conditions as a result of his failure to participate in the sex offender treatment program was
not a penalty sufficiently serious as to constitute compulsion for purposes of the Fifth
Amendment privilege against self-incrimination.
__________

65
Id. at 30-31 (plurality opinion).

66

67
See id. at 48 (plurality opinion).

68

69
See id. at 32 (plurality opinion).

70

71
118 Nev. 681, 696 (2002) Dzul v. State
compulsion for purposes of the Fifth Amendment privilege against self-incrimination.
72

[Headnote 10]
Similarly, we recognize the importance of psychosexual evaluations in determining
whether a convicted sex offender represents a menace to the health, safety, or morals of
others and that denial of responsibility is generally regarded as an impediment to successful
rehabilitation that impacts a sex offender's risk to reoffend. Thus, the statutory scheme for
granting probation to convicted sex offenders adopted by our Legislature bears a rational
relation to Nevada's interest in protecting its citizens, most often children, from recidivist sex
offenders. The adverse consequence that may follow from a sex offender's denial of
responsibility for his crime of conviction, namely, a greater risk of receiving an unfavorable
psychosexual evaluation and being denied probation, does not amount to unconstitutional
compulsion.
Finally, we acknowledge that Justice Stevens' dissenting opinion in McKune,
maintaining the benefit/penalty analysis, distinguished between a penalty and a benefit and
concluded that the inmate's loss of tangible privileges constituted a penalty that compelled the
forfeiture of his Fifth Amendment right against self-incrimination.
73
The dissenting opinion
expressed concern with the mandatory nature of the sex offender treatment program and the
punishment that followed automatically from an inmate's refusal to participate.
74
This is not
the situation in the present case. Although Dzul had to participate in the psychosexual
evaluation to be considered for probation, he was not required to admit uncharged acts.
Moreover, while his denial of responsibility for his crime of conviction increased the risk of
an unfavorable psychosexual evaluation, it did not automatically foreclose his opportunity for
probation as evidenced by Dr. Slagle's report. Thus, even using the dissent's rationale in
McKune, we conclude Nevada's statutory scheme to be a benefit not a penalty.
Based on the foregoing analysis, we conclude that Dzul's circumstances do not present
the classic penalty situation. Defendants face many choices in the course of criminal
proceedings, and the pressure to speak in the hope of improving a defendant's chance of being
granted probation does not make an interview compelled.
75
We conclude that presenting
Dzul with the choice between admitting responsibility for the offense to which he pleaded
guilty and increasing the likelihood of receiving a favorable psychosexual evaluation,
__________

72
See id. at 48-51 (O'Connor, J., concurring in judgment).

73
See id. at 62-65 (Stevens, J., dissenting).

74
See id. at 59-62 (Stevens, J., dissenting).

75
See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 287-88 (1998) (death row inmate's pressure to
speak at voluntary clemency interview in the hope of improving his chance of being granted clemency did not
make the interview compelled).
118 Nev. 681, 697 (2002) Dzul v. State
choice between admitting responsibility for the offense to which he pleaded guilty and
increasing the likelihood of receiving a favorable psychosexual evaluation, or denying
responsibility for the offense to which he pleaded guilty and reducing the likelihood of a
favorable psychosexual evaluation does not violate his Fifth Amendment right against
self-incrimination.
NRS 176A.110 provided the district court with the discretion to grant Dzul probation,
a benefit that would relieve Dzul from a prison sentence, only if Dzul did not represent a
menace to the health, safety, or morals of others. Dzul had the choice to participate in the
psychosexual evaluation and to maintain his innocence despite the consequences that could
follow from that choice. The acknowledgement form signed by Dzul states that the
psychosexual evaluation shall be used for sentencing and/or treatment recommendations and
contains an area where Dzul could have signed to indicate his refusal to consent to the
evaluation. Dzul was not penalized for maintaining his innocence. Accordingly, we conclude
that Dzul's Fifth Amendment right against self-incrimination was not violated, and we
therefore affirm the judgment of conviction.
Maupin, C. J., Young, Shearing, Agosti and Leavitt, JJ., concur.
The Fifth Amendment privilege against self-incrimination applies to a defendant
throughout trial, both during the guilt and the sentencing phases.
1
In this case, Dzul was well
aware of his Fifth Amendment right against self-incrimination, but chose to waive it by
continuing to assert his innocence. Therefore, while instructive, the cases of Estelle v. Smith
2
and McKune v. Lile
3
are not on point because they addressed the issue of asserting the
privilege against self-incrimination and the adverse consequences that flowed from the
exercise of that privilege.
Rather, Brown v. State
4
is on point. In Brown, the district court judge used a
psychological report administered at Lakes Crossing in sentencing Brown, even though
Brown had not been warned that any statements he provided to the health care professional,
who wrote the report, could be used against him. At sentencing, the judge demanded that
Brown admit his guilt but he refused to do so. We held that the district court violated
[Brown's] Fifth Amendment rights by considering his lack of remorse' when he still had a
constitutional right to maintain his innocence and by threatening a harsher sentence if
[Brown] refused to admit his guilt.
__________

1
Estelle v. Smith, 451 U.S. 454, 462 (1981).

2
Id.

3
536 U.S. 24 (2002) (plurality opinion).

4
113 Nev. 275, 934 P.2d 235 (1997).
118 Nev. 681, 698 (2002) Dzul v. State
still had a constitutional right to maintain his innocence and by threatening a harsher sentence
if [Brown] refused to admit his guilt.
5
We, therefore, concluded that requiring [Brown] to
either express remorse or receive a harsher sentence violated [Brown's] Fifth Amendment
rights and constituted an abuse of discretion.
6
I conclude that our holding in Brown governs
this case.
Here, Dzul's claim that he received a harsher sentence for maintaining his innocence is
not as clear as in the Brown case, but the record sufficiently demonstrates that he received a
greater penalty because he maintained his innocence. In particular, Dzul maintained his
innocence in the sexual psychological interviews, and John Pacalt used it against Dzul in his
psychosexual report. The district court considered the psychologists' opinions, and in part,
denied Dzul's probation based on Pacalt's report, where he opined that Dzul's denial of
responsibility for the offense was a fact that increased Dzul's risk to reoffend. Therefore, I
conclude that this case should be remanded for a new sentencing hearing because the district
court abused its discretion by considering the fact that Dzul refused to admit guilt when it
imposed Dzul's sentence.
The majority's analysis characterizes the choice between probation and prison time as
a benefit or a penalty. I think it is better to jettison the benefit/penalty analysis because it
seems to be used to sidestep some important constitutional holdings. The choice at sentencing
is between two penalties, one is a sentence of probation, where a defendant serves no prison
time, and the other is a sentence of prison time. Both are penalties, with one harsher than the
other, as Justice Stevens observed in his dissent in McKune: The plurality's glib attempt to
characterize these consequences as a loss of potential benefits rather than a penalty is wholly
unpersuasive.
7

On a similar note, the majority's use of McKune in the present case is unpersuasive. In
McKune, an incarcerated sex offender was given the choice to either participate in a sex
offender treatment program, which required him to sign an Admission of Responsibility
form, or refuse to participate and thereby receive a reduction in incentive level and a
corresponding transfer from a medium-security to a maximum-security part of the prison.
8
Here, Dzul was given the choice to either admit his guilt and possibly receive a sentence of
probation, or maintain his innocence and receive a sentence of prison time.
__________

5
Id. at 291, 934 P.2d at 245.

6
Id.

7
McKune, 536 U.S. at 64 (Stevens, J., dissenting).

8
118 Nev. 681, 699 (2002) Dzul v. State
In the event we are presented with a factual situation as confronted in Estelle and
McKune, where a defendant does assert his constitutional rights and that fact is used against
him in a psychosexual evaluation, I would prefer to adopt the analysis of Justice Stevens
rather than the Rehnquist Court plurality analysis used by the majority in this case. And in
doing so, we should bear in mind our decision in Brown and also in McKenna v. State,
9
where this court reversed a murder conviction because the prosecutor presented the testimony
of a psychiatrist who had examined McKenna pursuant to a court order to determine his
competence to stand trial.
Because I conclude that our holding in Brown governs this case and that Dzul should
receive a new sentencing hearing, I respectfully dissent.
____________
118 Nev. 699, 699 (2002) A.F. Constr. Co. v. Virgin River Casino
A.F. CONSTRUCTION COMPANY, a Nevada Corporation, Appellant, v. VIRGIN RIVER
CASINO CORPORATION, a Nevada Corporation; O'BRIEN KIERNAN
INVESTMENT COMPANY, a California Corporation; PROTECTIVE LIFE
INSURANCE COMPANY, a Tennessee Corporation; THE CLIFF REDEKOP
RETIREMENT PLAN; CLIFFORD P.D. REDEKOP FAMILY LIMITED
PARTNERSHIP; FIRST CREDIT BANK, a California Corporation; RICHARD ROY
KELLEY, an Individual; PMJ ENTERPRISES, INC., a Nevada Corporation; BANK
OF HAWAII, a Hawaii Corporation; SAM HON, an Individual; OLD REPUBLIC
TITLE COMPANY OF NEVADA, a Nevada Corporation; and NEVADA TITLE
COMPANY, a Nevada Corporation, Respondents.
No. 37585
November 6, 2002 56 P.3d 887
Appeal from a district court order granting partial summary judgment certified as final
under NRCP 54(b). Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
After contractor asserted mechanic's lien and obtained a default foreclosure judgment
against property owner, deed of trust beneficiary filed a complaint to quiet title and to protect
interest in same property with respect to its deed. Subsequently, contractor filed complaint for
declaratory judgment and injunctive relief.
__________

9
98 Nev. 38, 39, 639 P.2d 557, 558 (1982).
The district court granted partial summary judgment to beneficiary. Contractor appealed. The
supreme court held that: (1) mechanic's lien statute did not require that a deed of trust
beneficiary be a party to an action to enforce a mechanic's lien, and (2) beneficiary's due
process rights were not violated by failure to be included in enforcement action.
Lavelle & Associates, Las Vegas, for Appellant.
Gerrard & Cox, Las Vegas, for Respondents Virgin River Casino Corporation,
O'Brien Kiernan Investment Company, Protective Life Insurance Company, Cliff Redekop
Retirement Plan, and Clifford P.D. Redekop Family Limited Partnership.
An appeal from an order granting summary judgment is reviewed de novo.
2. 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 summary judgment as a
matter of law.
Mechanics' lien statute does not require that a deed of trust beneficiary be a party to an action to enforce a mechanics' lien. NRS
108.222, 108.226, 108.227, 108.236.
The construction of a statute is a question of law that appellate courts review de novo.
5. Statutes.
In construing statutes, courts seek to give effect to the legislature's intent, and in so doing, courts first look to the plain language
of the statute.
6. Statutes.
If statutory language is ambiguous or fails to address an issue, courts construe the statute according to that which reason and
public policy would indicate the legislature intended.
7. Constitutional Law; Mechanics' Liens.
Deed of trust beneficiary's due process rights were not violated by contractor's failure to join beneficiary in action to enforce
contractor's mechanics' lien, despite contention that beneficiary would be precluded from raising issues presented in enforcement
action, where priority of other claims against property could be established in proceedings subsequent to enforcement action, and
beneficiary was not a party or in privity with party in enforcement action. U.S. Const. amend. 14; NRS 108.222, 108.225(1)(a),
108.233, 108.239.
OPINION
Per Curiam:
In this appeal, we consider whether a deed of trust beneficiary is a necessary party in a
mechanic's lien enforcement proceeding. The district court granted partial summary judgment
in favor of respondent Virgin River Casino Corporation (Virgin River) in a subsequent
consolidated action to quiet title and for declaratory and injunctive relief.
1
In its order, the
district court concluded that Virgin River, a deed of trust beneficiary, was a necessary party
and that failure to name Virgin River in the mechanic's lien enforcement proceeding left its
interest unaffected by the foreclosure judgment of appellant A.F. Construction Company, Inc.
(AFC). We hold that a deed of trust beneficiary is not a necessary party in a mechanic's lien
enforcement action, and therefore we reverse the district court's order granting partial
summary judgment and remand for further proceedings.
FACTS
On August 30, 1994, AFC, a general contractor, entered into a contract with Nevstar
Gaming and Entertainment Corporation (Nevstar) to construct the Mesquite Star Hotel and
Casino located on Nevstar's property in Mesquite, Nevada (the Mesquite property). That
same day, AFC commenced construction, which continued until August 21, 1998, when AFC
stopped work on the project. Although Nevstar had made partial payments to AFC, Nevstar
still owed AFC $853,452 for services and materials when AFC stopped construction.
Consequently, on August 27, 1998, AFC recorded a mechanic's lien, which was amended on
September 4, 1998, against the Mesquite property and served Nevstar with notice of the lien.
__________

1
The district court granted respondents O'Brien Kiernan Investment Company, Protective Life Insurance
Company, Cliff Redekop Retirement Plan, and Clifford P.D. Redekop Family Limited Partnership partial
summary judgment because they were named in Virgin River's motions. At some time, these respondents were
conveyed portions of the property at issue. Appellant A.F. Construction Company, Inc., argues that these
respondents should not be a part of the present litigation because appellant's foreclosure judgment was amended
to exclude their portions of the property from its mechanic's lien foreclosure judgment. In response, Virgin River
argues that even though appellant asserts that the amended default judgment leaves these respondents' interests
unaffected by the foreclosure judgment, this fact is not readily apparent from the face of the judgment. Because
the record on appeal is unclear regarding this issue, we leave it for the district court to resolve on remand.
Regarding the remaining respondents listed in the caption, the district court did not specifically name them in
its order granting partial summary judgment, and the parties do not address the remaining respondents in their
briefs on appeal.
During construction, on January 27, 1998, Nevstar obtained a $5,000,000 loan from
First Credit Bank, executing a deed of trust in favor of First Credit Bank as beneficiary
against the Mesquite property. On June 18, 1998, First Credit Bank advanced Nevstar an
additional $450,000, which was also secured by the previously executed deed of trust. First
Credit Bank assigned its beneficial interest in the deed of trust to Virgin River on April 17,
2000.
On February 12, 1999, AFC filed a complaint in district court to enforce its
mechanic's lien against the Mesquite property. The complaint named Nevstar as the only
party defendant. Because Nevstar failed to answer AFC's complaint, on March 20, 2000, the
district court entered a default foreclosure judgment against Nevstar.
On May 16, 2000, Virgin River received a notice of sale from AFC indicating that
AFC would conduct a sheriff's sale of the Mesquite property. As a result of the notice, Virgin
River filed a complaint to quiet title of the Mesquite property and to protect its interest with
respect to its deed of trust. Thereafter, AFC filed a complaint for declaratory judgment and
injunctive relief against Virgin River. These two cases were later consolidated into a single
action.
On November 1, 2000, Virgin River filed a motion for summary judgment in the
action filed by AFC. In addition, on November 3, 2000, Virgin River filed a motion for
summary judgment in the quiet title action it had filed against AFC. After conducting a
hearing on Virgin River's motions, the district court granted Virgin River partial summary
judgment. The district court ordered that the only claim that remained to be adjudicated in the
consolidated cases was the claim for quantum meruit asserted by AFC as a counterclaim. In
granting Virgin River partial summary judgment, the district court found that Virgin River,
the deed of trust beneficiary, was a necessary party, and thus, AFC had an obligation to
include Virgin River as a party in AFC's complaint to enforce its mechanic's lien. The district
court based its decision on our holding in Pickett v. Comanche Construction, Inc.
2
In doing
so, the district court concluded that because AFC failed to name Virgin River, a necessary
party, in its mechanic's lien enforcement action, Virgin River was not bound by AFC's
foreclosure judgment.
DISCUSSION
[Headnotes 1, 2]
An appeal from an order granting summary judgment is reviewed de novo.
3
After
viewing all evidence and taking every reasonable inference in the light most favorable to
the nonmoving party,
__________

2
108 Nev. 422, 836 P.2d 42 (1992).

3
Rile v. OPP IX L.P., 112 Nev. 826, 830, 919 P.2d 1071, 1074 (1996).
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 summary judgment as a matter of law.
4

Here, the parties do not argue the existence of a genuine issue of material fact.
Instead, the parties argue whether the district court properly held that a deed of trust
beneficiary is a necessary party in an action to enforce a mechanic's lien upon real property.
[Headnote 3]
AFC contends that the mechanic's lien statute only requires that the record owner be
named and served as a party in the claimant's action to enforce the lien, and therefore, it was
not required to join Virgin River, a deed of trust beneficiary, in the enforcement action. AFC
also asserts that there is nothing in the mechanic's lien statutes requiring that the priority of all
claims against the property be determined in the enforcement action, but instead, AFC
suggests that priority can be determined in a separate action. On the other hand, Virgin River
argues that its right to contest matters that are at issue in the mechanic's lien enforcement
action, such as the amount of the lien, can only be asserted in the enforcement action.
Therefore, Virgin River argues that it would be denied due process if it were not joined in the
enforcement action.
[Headnotes 4-6]
Essentially, the parties raise an issue of statutory construction. The construction of a
statute is a question of law that this court reviews de novo.
5
In construing statutes, this court
seeks to give effect to the legislature's intent, and in so doing, this court first looks to the plain
language of the statute.
6
However, 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.
7

When a person performs services or supplies materials to be used for improvement of
real property, the person has a lien upon the premises and improvements in the amount agreed
upon in the contract or the fair market value of the services or materials.
8
The lien claimant
is required to record its lien within ninety days after completion of the improvement,
__________

4
Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993); see also NRCP 56(c).

5

6
Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513-14 (2000).

7
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, 116 Nev. at 1168, 14 P.3d at 514.

8
See NRS 108.222.
lien claimant is required to record its lien within ninety days after completion of the
improvement, or after the last day of supplying materials or performance on the project.
9
After the lien claimant records its mechanic's lien, NRS 108.227 requires that the lien
claimant serve a copy of the claim upon the record owner of the property within 30 days
after recording the notice of lien.
10

Even though the lien claimant complies with the above requirements, a lien does not
bind the improvement or property for a longer period than 6 months after such lien has been
recorded, unless: (a) Proceedings are commenced in a proper court within that time to enforce
the same.
11
Other than the requirement that the record owner be named as a party, the
mechanic's lien statutes are silent as to which parties the lien claimant must join as defendants
in the enforcement action. However, the statutes suggest that the validity and priority of all
statutory liens should be decided in the enforcement action.
12
Recognizing this lack of clear
direction, we held in Pickett v. Comanche Construction, Inc., that an owner of an interest in
real property subject to a mechanic's lien when a [mechanic's lien enforcement] proceeding is
commenced is a necessary party, and [f]ailure to name a necessary party leaves that
property owner's interest unaffected by the foreclosure.
13
More specifically, we determined
that subdivision homeowners were necessary parties, and that the construction company's
failure to name them in its mechanic's lien enforcement proceeding against the developer left
the homeowners' interest unaffected by the foreclosure.
14
We decline, however, to extend
our holding in Pickett to deed of trust beneficiaries. Therefore, we conclude that Virgin River,
a deed of trust beneficiary, was not a necessary party to the mechanic's lien enforcement
proceeding, and further that AFC was not required to join Virgin River in that proceeding.
__________

9
See NRS 108.226.

10
Subsection 3 of NRS 108.227 defines record owner:
As used in this section, record owner means any person who holds an interest in real property or
any improvement thereon evidenced by a conveyance or other instrument which transfers that interest to
him and is recorded in the office of the county recorder of the county in which the real property is
located, but does not include:
(a) A mortgagee;
(b) A trustee under, or a beneficiary of, a deed of trust; or
(c) The owner or holder of a lien encumbering real property or any improvement thereon.

11
NRS 108.233(1)(a).

12
See NRS 108.236.

13
108 Nev. at 430, 836 P.2d at 47.

14
Id. at 429-30, 836 P.2d at 46-47.
We note that the mechanic's lien statutory scheme contemplates a straightforward
enforcement proceeding, wherein the lien claimant simply must establish the validity and
amount of the mechanic's lien. Requiring the lien claimant to join a deed of trust beneficiary
would defeat the purpose behind the mechanic's lien enforcement proceeding.
[Headnote 7]
Regarding priority of interests, NRS 108.225(1)(a) provides that mechanic's liens are
preferred to [a]ny lien, mortgage or other encumbrance which may have attached after the
time when the building, improvement or structure was commenced, work done, or materials
were commenced to be furnished. The mechanic's lien statutes are silent, however, as to
whether priority of all liens and encumbrances must be decided within the enforcement
proceeding contemplated in NRS 108.233 and NRS 108.239. Other than the required
determination of asserted mechanic's liens pursuant to NRS 108.236, we hold that priority of
other claims against the property may be established in a subsequent proceeding and need not
be established in the enforcement proceeding. Accordingly, holders of other recorded
interests in the property will not be deprived of due process because they can bring a
subsequent action to determine priority and contest matters of the foreclosure.
15

CONCLUSION
A deed of trust beneficiary is not a necessary party to a mechanic's lien enforcement
action. Therefore, AFC was not required to join Virgin River in AFC's enforcement action. In
addition, we hold that priority of a trust deed need not be determined in the mechanic's lien
enforcement action. Thus, we conclude that Virgin River will not be deprived of due process
by not being joined in the enforcement action because Virgin River can bring a subsequent
action, following the enforcement proceeding, to challenge the priority and amount of the
mechanic's lien.
Accordingly, we conclude that the district court erred in granting partial summary
judgment against AFC, and therefore we reverse the district court's order and remand this
case for further proceedings consistent with this opinion.
16

__________

15
Virgin River argues generally that it may be precluded in a subsequent action from raising issues presented
in the enforcement action; however, this argument lacks merit because Virgin River was not a party or in privity
with a party in the enforcement action. See Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 834-35, 963
P.2d 465, 473 (1998).

16
The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.
____________
118 Nev. 706, 706 (2002) Pegasus v. Reno Newspapers, Inc.
DAVID PEGASUS and BEVERLY PEGASUS, Individuals, dba SALSA DAVE'S,
Appellants, v. RENO NEWSPAPERS, INC., dba RENO GAZETTE-JOURNAL,
Respondent.
No. 37291
November 7, 2002 57 P.3d 82
Appeal from a district court order granting summary judgment in a defamation suit.
Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Owners of restaurant brought defamation action against newspaper publisher based on
published review of restaurant containing alleged factual inaccuracies. The district court
granted summary judgment for publisher. Owners appealed. The supreme court, Becker, J.,
held that: (1) comment contained in restaurant review is not automatically protected opinion;
(2) review commenting upon restaurant's food constituted nonactionable opinion; (3) in
determining what constitutes a public figure in defamation action, it is preferable to look to
nature and extent of individual's participation in particular controversy giving rise to alleged
defamation, and absent clear evidence of general fame and notoriety in community and
pervasive involvement in affairs of society, individual should not be deemed public
personality for all aspects of his or her life; (4) restaurant constituted limited-purpose public
figure, thereby requiring owners to prove actual malice against publisher; and (5) evidence
was insufficient to support finding of actual malice.
Affirmed.
[Rehearing denied January 30, 2003]
[En banc reconsideration denied February 20, 2003]
Law Office of Mark Wray, Reno, for Appellants.
Burton Bartlett & Glogovac, Reno, for Respondent.
Supreme court's review of an order granting summary judgment is de novo.
2. Judgment.
Genuine issue of material fact is one where evidence is such that reasonable jury could return verdict for opponent of summary
judgment. NRCP 56.
3. Judgment.
On a motion for summary judgment, the non-moving party's documentation must be admissible evidence, as he or she is not
entitled to build a case on the gossamer threads of whimsy,
build a case on the gossamer threads of whimsy, speculation, and conjecture. NRCP 56.
4. Appeal and Error; Judgment.
On a motion for summary judgment, non-moving party's statements must be accepted as true, all reasonable inferences that can
be drawn from the evidence must be admitted, and neither the trial court nor supreme court may decide issues of credibility based upon
the evidence submitted in the motion or the opposition. NRCP 56.
Comments contained in a restaurant review are not automatically protected opinion simply because comments are contained in a
review, however such comments should not be taken out of context, but rather, review as a whole, and its essential nature as an
expression of opinion, should be considered in weighing any allegation of defamatory import. Expressions of opinion may suggest that
speaker knows certain facts to be true or may imply that facts exist which will be sufficient to render the message defamatory if false.
Defamation is a publication of a false statement of fact.
Statements of opinion cannot be defamatory because there is no such thing as a false idea.
A review, by its very nature, constitutes the opinion of the reviewer.
Generally, only assertions of fact, not opinion, can be defamatory.
A statement is not defamatory if it is absolutely true, or substantially true.
A statement is defamatory if it would tend to lower the subject in the estimation of the community, excite derogatory opinions
about the subject, and hold the subject up to contempt.
Doctrine of substantial truth provides that minor inaccuracies do not amount to falsity for purposes of defamation claim unless
the inaccuracies would have a different effect on the mind of the reader from that which the pleaded truth would have produced.
Specifically, the court must determine whether the gist of the story, or the portion of the story that carries the sting of the article, is true.
In determining whether a statement is actionable for purposes of defamation suit, court must ask whether a reasonable person
would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact. If such published
statements could be construed as defamatory statements of fact, and therefore actionable, jury should resolve matter.
Newspaper journalist's comment in written restaurant review that restaurant's food came out of some sort of package, when
taken in context with tenor of entire review, constituted expression of opinion, and thus was not actionable for defamation. Reasonable
person reading review would have understood that journalist's opinion about freshness of ingredients was based on her consumption of
food and conveyed journalist's opinion that food was pre-packaged, rather than an implied statement that she
had observed food coming from a package.
nalist's opinion that food was pre-packaged, rather than an implied statement that she had observed food coming from a package.
Newspaper journalist's comment in restaurant review that existence of can of beans in restaurant confirmed journalist's opinion
that food was pre-packaged was substantially true, thereby constituting expression of opinion when taken in context of entire review,
and thus, statement was not actionable, in restaurant's defamation action against newspaper publisher; owners admitted that canned
beans were kept on premises, and reasonable person would have understood statement to be expression of journalist's belief that
canned beans had been used in preparation of food, rather than statement of fact.
Restaurant constituted limited-purpose public figure for limited purpose of food review, and thus, restaurant had burden of
proving that newspaper publisher acted with actual malice when it printed journalist's restaurant review, in defamation action against
publisher, where restaurant voluntarily entered public spectrum by providing public accommodation and seeking public patrons.
General elements of a defamation claim require a plaintiff to prove a false and defamatory statement by defendant concerning
plaintiff, an unprivileged publication to a third person, fault amounting to at least negligence, and actual or presumed damages.
For purposes of defamation action, general public figures are those individuals who achieve such pervasive fame or notoriety
that they become a public figure for all purposes and in all contexts.
For purposes of defamation action, a limited-purpose public figure is a person who voluntarily injects himself or is thrust into
a particular public controversy or public concern, and thereby becomes a public figure for a limited range of issues.
For purposes of defamation action, test for determining whether someone is a limited public figure includes examining
whether a person's role in a matter of public concern is voluntary and prominent.
In determining whether plaintiff in defamation action is public figure required to show actual malice of defendant, it is
preferable to look to nature and extent of plaintiff's participation in particular controversy giving rise to the defamation, and plaintiff
should not be deemed public personality for all aspects of his or her life in absence of clear evidence of general fame or notoriety in
community and pervasive involvement in affairs of society.
Private figure must prove actual malice when the subject matter of the speech is an issue of public concern.
Evidence was insufficient to support finding that newspaper publisher entertained serious doubt as to truth of journalist's
observations or honesty of journalist's opinion as expressed in journalist's published review of restaurant sufficient to constitute actual
malice by publisher in restaurant owner's defamation action; publisher had no reason to believe that journalist would lie in her review,
and fact that previous review gave restaurant a positive rating did not establish that publisher should have known
that journalist's review was anything other than honest difference of opinion.
restaurant a positive rating did not establish that publisher should have known that journalist's review was anything other than honest
difference of opinion.
Question of actual malice in defamation claim goes to the jury only if there is sufficient evidence for the jury, by clear and
convincing evidence, to reasonably infer that the publication was made with actual malice.
Actual malice in defamation claim is proven when a statement is published with knowledge that it was false or with reckless
disregard for its veracity.
Reckless disregard for the truth in defamation case may be found when the defendant entertained serious doubts as to the truth
of the statement, but published it anyway.
Test for actual malice in defamation action is a subjective one, relying as it does on what the defendant believed and intended to
convey, and not what a reasonable person would have understood the message to be.
Evidence of negligence, motive, and intent may cumulatively establish necessary recklessness to prove actual malice in
defamation action.
Rule for distinguishing an opinion from an assertion of fact, for purposes of defamation action, is whether a reasonable person
would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact.
Failure to investigate alone, or to read other previously printed material, is not grounds for a finding of actual malice in
defamation action.
OPINION
Appellants, David and Beverly Pegasus, owned and operated Salsa Dave's, a
Mexican-American eatery in Sparks, Nevada. Stacy Ferrante, a freelance journalist, wrote a
negative review of Salsa Dave's, which was published in the Reno Gazette-Journal (RGJ).
The review contained allegedly false factual allegations. The Pegasuses filed a complaint
against the RGJ, asserting that Ferrante's review constituted defamation.
Following depositions, the RGJ moved for summary judgment. The district court
granted the RGJ's motion, concluding that the review contained only a statement of opinion
and was not actionable. In addition, the district court found that Salsa Dave's was a public
figure for the limited purpose of a food review. Thus, the district court concluded that the
Pegasuses had the burden of proving actual malice
district court concluded that the Pegasuses had the burden of proving actual malice and that
no facts existed to suggest actual malice on the part of the RGJ.
For the reasons set forth below, we conclude that the allegedly false statements were
expressions of opinion. We further conclude that restaurant owners, operating a place of
public accommodation, have injected themselves into the public arena for purposes of a food
review. They are therefore limited-purpose public figures and, when defamation is alleged,
must overcome the heightened actual malice standard of the First Amendment. We affirm the
order of the district court.
FACTS
In September 1998 and April 1999, the RGJ published favorable restaurant reviews of
Salsa Dave's. Thereafter, Ted Thomaidis, editor for the RGJ food section, wrote reviews or
articles generally criticizing the use of canned beans or packaged ingredients in many
Mexican-American restaurants. Thomaidis gave tips on identifying an authentic Mexican
restaurant.
Subsequent to Thomaidis' articles, the RGJ published a third food review of Salsa
Dave's. Stacey Ferrante authored the third review. Thomaidis was Ferrante's direct supervisor.
The Ferrante review criticized the freshness of Salsa Dave's food and indicated that Ferrante
saw a can of processed pinto beans in the kitchen while paying for her meal.
The Pegasuses wrote a letter to the RGJ in response to the review, requesting a
retraction and publication of their letter. Included with the letter, they enclosed copies of
invoices demonstrating that they purchased dry rather than canned pinto beans. The cover
letter sought a conspicuous, appropriate correction in a timely manner. Jim Sloan, assistant
managing editor of the RGJ, sent a letter to the Pegasuses indicating that, after careful
consideration, the RGJ would not print a correction but would print the Pegasuses' letter to
the editor. The letter to the editor was subsequently published.
On November 30, 1999, the Pegasuses filed a complaint against the RGJ, asserting
that Ferrante's review contained the following defamatory statements:
1. I scooped out guacamole with my fork and dug in. One taste told me what I had
feared: this pale green stuff was definitely not the real deal.
2. At this point my spouse pointed out what I was beginning to realize: All this came
out of some sort of package.
3. The cost cutting measure applied to the ornamentation had spilled into the kitchen.
The can of name-brand beans we spy while paying our check confirms this.
The Pegasuses asserted that these are defamatory false factual statements and not protected
opinion.
In its answer, the RGJ denied the Pegasuses' claims and asserted that the statements
made by Ferrante were true and included matters of opinion that were privileged or were fair
comment on matters of public interest. Further, the RGJ asserted that the Pegasuses were
public figures for purposes of the food review and therefore subject to an actual malice
standard.
During discovery, testimony was presented concerning the use of packaged
ingredients in Salsa Dave's food. Beverly Pegasus stated that, at the time the Ferrante review
was written, the Pegasuses had one can of beans on the premises. Beverly also asserted that
canned beans were only available for emergency use.
David Pegasus stated that he used some pre-packaged foods, including frozen avocado
pulp, during periods when avocado was out of season, and that he kept several cans of
commercially prepared pinto beans on the premises, but that the beans were not visible from
the cashier booth. David asserted that it was not possible that Ferrante had canned beans in
her lunch because he only kept the beans on the premises for emergency purposes;
specifically, if he ran out late in the evening as a result of high dinner traffic. He also stated
that he purchased four or five cans of beans for such purposes and that the can(s) were kept
on a bottom shelf not visible from the customer service area. Finally, David stated that he
might have been using frozen avocado pulp in his guacamole when Ferrante visited his
restaurant.
Ferrante stated that she saw a can of canned beans in the kitchen through a louvered
door while she was paying for her food. Ferrante stated that her husband, who had lunched
with her, saw the can of beans first and then pointed it out to her.
Thomaidis stated that he verified with Ferrante every statement in her review,
particularly regarding her witnessing the can of beans on Salsa Dave's premises, and that he
had no reason to doubt Ferrante's statement. He indicated he knew Ferrante and believed her
to be an honest individual with no reason to fabricate a negative review of Salsa Dave's. He
believed, based upon his past association with Ferrante, that her review was an honest
expression of her opinion regarding Salsa Dave's food.
The Pegasuses presented no evidence that Ferrante, Thomaidis or anyone associated
or employed with the RGJ had bad feelings or a prior dispute with the Pegasuses or Salsa
Dave's.
Relevant procedural history
Following depositions, the RGJ filed a motion for summary judgment. The RGJ
asserted that the review regarding Salsa Dave's restaurant was only partially critical. The RGJ
asserted that only two statements served as the basis for the lawsuit:
(1) All of this came out of some sort of package; and (2) The cost cutting measure applied
to the ornamentation had spilled into the kitchen. The can of name-brand beans we spy while
paying our check confirms this.
In its defense, the RGJ first asserted that the review, when taken as a whole, was an
expression of Ferrante's opinion that the food tasted like it was pre-cooked or packaged. The
RGJ argued that the statements, taken in context, were akin to hyperbole that could not have
reasonably been interpreted by the reader as a statement of fact. As such, the RGJ asserted the
review was absolutely protected speech under the First Amendment.
In addition, the RGJ contended that even if the statements could be considered as
expressions of fact, the Pegasuses had failed to establish a prima facie case of defamation
because they could not prove that the RGJ had acted with actual malice, or that the allegedly
defamatory statements made by the RGJ were false. The RGJ asserted that Salsa Dave's was a
public figure for the limited purpose of a food review and that, therefore, an actual malice
standard applied.
In their opposition, the Pegasuses stipulated that only these two statements were at
issue. However, they asserted the statements were facts, not opinion. They also contested that
they were public figures and that an actual malice standard applied to their claims. Finally,
they argued that even if actual malice applies, they set forth sufficient facts to support a prima
facie case of actual malice.
Relying on Nevada Independent Broadcasting v. Allen,
1
the Pegasuses claimed that
they had sufficient evidence that the RGJ had acted with reckless disregard, including: (1) it
published Ferrante's statement without attempting to verify the presence of canned beans with
the Pegasuses; (2) Ferrante did not actually observe canned beans or other packaged
ingredients being used in the preparation of her food; (3) Ferrante could not state for certain
what brand of canned beans she saw on the premises; (4) Thomaidis asked Ferrante if she was
sure beyond a reasonable doubt that she had seen the canned beans; (5) Ferrante did not make
a second visit to Salsa Dave's as was Thomaidis' habit when he wrote a negative review; (6)
Ferrante spent only an hour at Salsa Dave's; and (7) Salsa Dave's had received a positive
review in the RGJ a month before Ferrante's visit.
In its reply, the RGJ contended that Salsa Dave's was a public figure for the limited
purpose of a food review because it actively advertised and sought commercial patronage.
The RGJ asserted that the facts set forth in the opposition did not,
__________

1
99 Nev. 404, 415, 664 P.2d 337, 344-45 (1983) (Evidence of negligence, motive, and intent may be used,
cumulatively, to establish the necessary recklessness. It is clear that in most instances one factor alone will not
establish actual malice by convincing clarity. (citation omitted)).
that the facts set forth in the opposition did not, as a matter of law, support a finding of actual
malice and, therefore, summary judgment was appropriate.
The district court granted summary judgment in favor of the RGJ. The district court
concluded that the statements were not factual assertions when made in the context of a
restaurant review and constituted protected opinion. The district court also concluded that
Salsa Dave's was a public figure for the limited purpose of a food review and that the
Pegasuses therefore had the burden of proving that the RGJ acted with actual malice. The
district court then determined that there were no facts demonstrating by clear and convincing
evidence that the RGJ acted with actual malice.
DISCUSSION
This appeal presents two issues of first impression in Nevada. First, whether all
comments published in a food review are constitutionally protected statements of opinion.
Second, what constitutes a public figure for purposes of a defamation action?
I. Standard of review
[Headnotes 1, 2]
This court's review of an order granting summary judgment is de novo.
2
Summary
judgment is appropriate when the pleadings, depositions, answers to interrogatories,
admissions, and affidavits on file show that there exists no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
3
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.
4

[Headnotes 3, 4]
When a motion for summary judgment is made and supported as required by NRCP
56, the non-moving party may not rest upon general allegations and conclusions, but must, by
affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine factual
issue.
5
The non-moving party's documentation must be admissible evidence, as he or she
is not entitled to build a case on the gossamer threads of whimsy, speculation and
conjecture.
__________

2
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

3
NRCP 56; see also Great American Ins. v. General Builders, 113 Nev. 346, 350-51, 934 P.2d 257, 260
(1997).

4

5
NRCP 56(e); see also Bird v. Casa Royale West, 97 Nev. 67, 70, 624 P.2d 17, 19 (1981).
conjecture.'
6
However, all of the non-movant's statements must be accepted as true, all
reasonable inferences that can be drawn from the evidence must be admitted, and neither the
trial court nor this court may decide issues of credibility based upon the evidence submitted
in the motion or the opposition.
7

II. Restaurant reviews
[Headnotes 5-8]
Defamation is a publication of a false statement of fact.
8
Statements of opinion
cannot be defamatory because there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of judges and juries but
on the competition of other ideas.
9
This court has held that statements of opinion as
opposed to statements of fact are not actionable.
10
A review, by its very nature, constitutes
the opinion of the reviewer.
11
Thus, the RGJ argues that even if an incorrect statement of
fact is contained in a restaurant review, because it is a review and, as a whole, expresses an
opinion, a misstatement of fact in the review cannot be actionable. We disagree.
[Headnote 9]
We have previously stated that whether a statement is conditionally privileged is a
question of law for the court
12
and should be reviewed de novo.
13
It is true that the term
review conveys to the reader that the statement is an expression of opinion and generally,
only assertions of fact, not opinion, can be defamatory.
14
However, expressions of opinion
may suggest that the speaker knows certain facts to be true or may imply that facts exist
which will be sufficient to render the message defamatory if false.
15
We see no reason why
this same rule should not apply to statements in restaurant reviews. We agree, however, with
the RGJ that statements made in a restaurant review should not be taken out of context.
__________

6
Posadas, 109 Nev. at 452, 851 P.2d at 442 (quoting Collins v. Union Fed. Savings & Loan, 99 Nev. 284,
302, 662 P.2d 610, 621 (1983)).

7
Great American Ins., 113 Nev. at 351, 934 P.2d at 260.

8
Posadas, 109 Nev. at 453, 851 P.2d at 442.

9
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).

10
Nevada Ind. Broadcasting, 99 Nev. at 410, 664 P.2d at 341.

11
Greer v. Columbus Monthly Pub. Corp., 448 N.E.2d 157, 161 (Ohio Ct. App. 1982).

12
Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 62, 657 P.2d 101, 105 (1983).

13
See SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993) (Questions of law
are reviewed de novo.).

14
K-Mart Corporation v. Washington, 109 Nev. 1180, 1192, 866 P.2d 274, 282 (1993).

15
Id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22 (1990)).
that statements made in a restaurant review should not be taken out of context. Rather, the
review as a whole, and its essential nature as an expression of opinion, should be considered
in weighing any allegation of defamatory import.
[Headnotes 10-12]
This court has held that a statement is not defamatory if it is an exaggeration or
generalization that could be interpreted by a reasonable person as mere rhetorical
hyperbole.
16
Nor is a statement defamatory if it is absolutely true, or substantially true.
17
A
statement is, however, defamatory if it would tend to lower the subject in the estimation of
the community, excite derogatory opinions about the subject, and hold the subject up to
contempt.
18

[Headnote 13]
In determining whether a statement is actionable for the purposes of a defamation suit,
the court must ask whether a reasonable person would be likely to understand the remark as
an expression of the source's opinion or as a statement of existing fact.
19
If the published
statements could be construed as defamatory statements of fact, and therefore actionable, then
the jury should resolve the matter.
20
However, this court has also stated that comments must
be considered in context.
21

__________

16
Wellman v. Fox, 108 Nev. 83, 88, 825 P.2d 208, 211 (1992).

17
See Mark v. Seattle Times, 635 P.2d 1081, 1092 (Wash. 1981). The doctrine of substantial truth provides
that minor inaccuracies do not amount to falsity unless the inaccuracies would have a different effect on the
mind of the reader from that which the pleaded truth would have produced. Specifically, the court must
determine whether the gist of the story, or the portion of the story that carries the sting of the article, is true.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991) (internal quotes and citation omitted).

18
K-Mart Corporation, 109 Nev. at 1191, 866 P.2d at 281-82.

19
Nevada Ind. Broadcasting, 99 Nev. at 410, 664 P.2d at 342. Additionally, a federal district court, applying
Nevada law, enunciated three factors for determining whether an alleged defamatory statement includes a factual
assertion: (1) whether the general tenor of the entire work negates the impression that the defendant was
asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that
impression; and (3) whether the statement in question is susceptible to being proved true or false. Flowers v.
Carville, 112 F. Supp. 2d 1202, 1211 (D. Nev. 2000).

20
Posadas, 109 Nev. at 453 n.2, 851 P.2d at 442 n.2 (citing Milkovich, 497 U.S. at 21-22).

21
Nevada Ind. Broadcasting, 99 Nev. at 412, 664 P.2d at 343 (quoting Cianci v. New Times Publishing Co.,
639 F.2d 54, 67 (2d Cir. 1980)).
[Headnote 14]
Here, the packaged goods and canned bean statements were a small portion of a
lengthy review. The full text of the review is as follows:
Located on the corner of Pyramid and McCarran and sharing a strip mall with a huge
Raley's, Salsa Dave's neon sign is clearly visible from the street. I had seen it driving by
a few times and my curiosity finally got the better of me. Upon my arrival, the owner,
Dave Pegasus, greets me.
Welcome to Salsa Dave's. I'm Dave, and there is the salsa, he says, indicating the
salsa bar at the center of the room. I bet you say that to all the girls.
We are seated at the corner table by the window where we have a great view of the
elaborate design. Where many Mexican restaurants fall into the category of Spartan
decoration, this is the exception. A lovely painting by Dave's wife Beverly covers the
wall I am sitting next to. Ornate hand painted vases adorn shelves. A female customer
at the next table asks about the vases, apparently being a collector who knows their
worth. To my eavesdropping delight, Dave tells her about his relative who does
business in Mexico and traded them for the price of a few inexpensive appliances.
With all this attention paid to the dcor, and the owner's obvious love of Mexico, I am
looking forward to the food. My spouse orders the Cancun burrito with beef ($5.95) and
I select the taco salad ($5.95). A basket of chips, warm and thin and crisp, arrives at our
table. I take a trip to the salsa bar to sample the wares. There are four kinds, ranging
from mild to hot, including a salsa verde made with tomatillos. Juggling them back to
the table in little cups, I start to forget which is which. Unfortunately, the three red
salsas are almost identical in color and texture. It would have been great if some were
chunkier than others. Although the verde was classified as medium, I experienced it as
hotter than the hot salsa, but that may have been due to its more distinct flavor.
Then the most puzzling thing happens. When our food arrives, it does not live up to
the colorful mural I have my back against.
My husband's white burrito arrives overrun with olives, which he silently begins to
herd to the side. They bump into the diminutive portion cups of sour cream and
guacamole, which are leveled off sharply at the top.
The taco salad comes in a tostada shell, and the salsa salad dressing wins points. I
scooped out the guacamole with my fork and dug in. One taste told me what I had
feared: This pale green stuff was definitely not the real deal.
At this point my spouse pointed out what I was beginning to realize: All of this came
out of some sort of package.
Recalling now the charming story of where those vases came from, I glanced at them.
The cost cutting measure applied to the ornamentation had spilled into the kitchen. The
can of name-brand beans we spy while paying our check confirms this. I'll say this for
the benefit of all concerned; I'll pay a bit more if you live up to the potential of your
vision.
We conclude that the district court did not err in finding the statement that the food
came from a package, taken in context together with the tenor of the entire work, is an
expression of opinion. A reasonable person reading the review would understand that
Ferrante's opinion about the freshness of the ingredients was based on her consumption of the
food. It conveyed Ferrante's opinion that the food was pre-packed rather than an implied
statement that she had observed the food coming from a package. Therefore, we conclude that
the statement, [a]ll of this came out of some sort of package, is not actionable.
[Headnote 15]
The statement regarding canned beans presents a closer issue. Ferrante does not state
that canned beans are used in the preparation of Salsa Dave's food, merely that the existence
of the can of beans confirms her earlier opinion that the food is prepackaged. However, it
arguably also suggests that Ferrante knows, rather than opines, that Salsa Dave's generally
uses canned beans in the preparation of its food. While Salsa Dave's disputes that Ferrante
could actually see a can of beans, they do keep canned beans on the premises. Therefore, the
statement is substantially true.
The district court considered this, together with the entirety of the article, in finding
that the statement was purely opinion. We agree. When read in the context of the entire
review, a reasonable person would understand the statement to be an expression of Ferrante's
belief that canned beans had been used in the preparation of the food, rather than a statement
of fact. The only statement of fact that might have defamatory import is that there are canned
beans on the premises, which implies canned beans are used in some fashion in the
preparation of the food. Since, even if factual, this is a true statement, and the rest of the
article is a statement of opinion, we conclude that the district court did not err in finding the
statements to be non-actionable.
It is these factors that distinguish this case from our holdings in Lubin v. Kunin
22
and
Wynn v. Smith.
23
Neither Lubin nor Wynn involved alleged defamatory statements in the
context of a review. The contested statements in those cases were capable of defamatory
import far more egregious in nature than the presence of canned beans in a restaurant kitchen.
Lubin involved accusations of child abuse while Wynn involved allegations that an individual
was a front for organized crime. Moreover, both cases involve the character of individuals,
not a comment on the quality of the goods or services of a commercial establishment. Finally,
the true facts in those cases were substantially different from the defamatory inferences
created by misleading or confusing text. Here, even assuming Ferrante did not see the can of
beans, the true facts that canned beans are kept in the kitchen are essentially identical with the
allegedly false statement that Ferrante saw a can of beans in the kitchen. Accordingly, the
district court did not err in granting summary judgment as a matter of law.
III. Defamationpublic v. private figures
[Headnotes 16, 17]
The general elements of a defamation claim require a plaintiff to prove: (1) a false
and defamatory statement by [a] defendant concerning the plaintiff; (2) an unprivileged
publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or
presumed damages.
24

With the adoption of the First Amendment's free speech provisions to the United
States Constitution, the United States Supreme Court was forced to determine how the First
Amendment interacted with the common law of defamation. Initially, the High Court
suggested that the First Amendment did not protect against false statements and was not
implicated in a defamation action.
25
However, in the landmark case of New York Times
Company v. Sullivan,
26
the Supreme Court concluded that the negligence standard was too
broad when applied to defendants who were commenting about the actions of a public
official. To promote free criticism of public officials, and avoid any chilling effect from the
threat of a defamation action, the High Court concluded that a defendant could not be held
liable for damages in a defamation action involving a public official plaintiff unless "actual
malice" is alleged and proven by clear and convincing evidence.
__________

22
117 Nev. 107, 17 P.3d 422 (2001).

23
117 Nev. 6, 16 P.3d 424 (2001).

24
Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459, 462 (1993).

25
Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10 (1961); Times Film Corp. v. Chicago, 365 U.S. 43, 48
(1961); Roth v. United States, 354 U.S. 476, 486-87 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952);
Pennekamp v. Florida, 328 U.S. 331, 348-49 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942); Near v. Minnesota, 283 U.S. 697, 715 (1931).

26
376 U.S. 254 (1964).
defendant could not be held liable for damages in a defamation action involving a public
official plaintiff unless actual malice is alleged and proven by clear and convincing
evidence.
27
Actual malice has been defined as knowledge that it [the statement] was false
or with reckless disregard of whether it was false or not.
28
Reckless disregard means that
the publisher of the statement acted with a high degree of awareness of . . . [the] probable
falsity' of the statement or had serious doubts as to the publication's truth.
29

After New York Times, the Supreme Court extended heightened First Amendment
protection to individuals who were not public officials, but who were involved in issues of
public concern. These persons were designated as public figures by the High Court.
30
The
Supreme Court further addressed the issue of public figures in Rosenbloom v. Metromedia.
31
In a plurality opinion, the Rosenbloom Court suggested that public figure status applies to any
individual involved in a matter of general or public interest.
32
Three years later, the Court
retreated from the broad definition of a public figure espoused in Rosenbloom.
[Headnote 18]
In Gertz v. Robert Welch, Inc.,
33
the United States Supreme Court clarified the
definition of a public figure. The Gertz Court reiterated that the New York Times standard
applies only to public officials and public figure plaintiffs, not to private plaintiffs, and that
states may define for themselves the appropriate standard of liability when a publisher or
broadcaster makes a defamatory statement that injures a private individual.
34
The Gertz
Court created two categories of public figures. General public figures are those individuals
who achieve such pervasive fame or notoriety that [they] become[ ] a public figure for all
purposes and in all contexts.
35
Limited public figures are individuals who have only
achieved fame or notoriety based on their role in a particular public issue.
36

__________

27
Id. at 279-80.

28
Id. at 280.

29
St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (quoting Garrison v. Louisiana, 379 U.S. 64, 74
(1964)).

30
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (noting that a head coach of a state university was a
public figure for purposes of reporting on game fixing).

31
403 U.S. 29 (1971).

32

33
418 U.S. 323, 342-43 (1974).

34
Id. at 343-47.

35
Id. at 351.

36
Id. at 351-52.
[Headnotes 19-21]
A limited-purpose public figure is a person who voluntarily injects himself or is thrust
into a particular public controversy or public concern, and thereby becomes a public figure
for a limited range of issues.
37
The test for determining whether someone is a limited public
figure includes examining whether a person's role in a matter of public concern is voluntary
and prominent.
38
Specifically, the Gertz Court stated:
We would not lightly assume that a citizen's participation in community and
professional affairs rendered him a public figure for all purposes. Absent clear evidence
of general fame and notoriety in the community, and pervasive involvement in the
affairs of society, an individual should not be deemed a public personality for all
aspects of his life. It is preferable to reduce the public-figure question to a more
meaningful context by looking to the nature and extent of an individual's participation
in the particular controversy giving rise to the defamation.
39

We adopt the Gertz test for determining whether a person is a general-purpose or a
limited-purpose public figure. Based on the language contained in Rosenbloom and Gertz,
state courts have considered whether a restaurant is a public figure for the limited purpose of
reporting on the quality or condition of the restaurant's services. For example, in
Journal-Gazette Co. v. Bandido's, Inc.,
40
a Mexican-American restaurant brought a
defamation suit against a local newspaper after it published a story entitled Health board
shuts doors of Bandido'sInspectors find rats, roaches at local eatery.
41
The Indiana
Supreme Court, pursuant to Gertz, adopted the actual malice standard and concluded that
Bandido's was a limited-purpose public figure:
Restaurants and other establishments that actively advertise and seek commercial
patronage have been routinely held to be public figures, at least for the limited purpose
of consumer reporting on their goods and services. Hence, while Bandido's may not
necessarily have been a public figure before the health department closed the restaurant,
we find that it certainly became a public figure for the limited purpose of issues
concerning the health department's report and the circumstances giving rise to the
closing of the restaurant.
__________

37
Id. at 351.

38
Id. at 351-52; see also Curtis Publishing, 388 U.S. at 154-55 (plurality opinion); id. at 164 (Warren, C. J.,
concurring in result).

39
Gertz, 418 U.S. at 352; see also Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (concluding that
a general-purpose public figure is strictly construed as someone who is a household name in the community like
a movie celebrity or an athlete).

40
712 N.E.2d 446 (Ind. 1999).

41
Id. at 449-50.
that it certainly became a public figure for the limited purpose of issues concerning the
health department's report and the circumstances giving rise to the closing of the
restaurant.
42

[Headnote 22]
Several other jurisdictions have adopted the same rationale in regard to restaurants
and restaurant reviews.
43
These courts have indicated that because a restaurant is a place of
public accommodation that seeks public patrons, it is a public figure for the limited purpose
of a food review or reporting on its goods and services. We agree with our sister states'
rationale that a place of public accommodation has voluntarily injected itself into the public
concern for the limited purpose of reporting on its goods and services. Here, Salsa Dave's is a
limited-purpose public figure because it has voluntarily entered the public spectrum by
providing public accommodation and seeking public patrons. Thus, it is a limited public
figure for the purpose of a food review. Therefore, we conclude that Salsa Dave's had the
burden of proving that the RGJ acted with actual malice when it printed the Ferrante review
in order to sustain an action for defamation against the RGJ.
IV. Actual malice
[Headnotes 23-29]
Having concluded that Salsa Dave's is a limited public figure, we turn to the district
court's finding that Salsa Dave's failed to present evidence of actual malice. The question of
actual malice goes to the jury only if there is sufficient evidence for the jury, by clear and
convincing evidence, to reasonably infer that the publication was made with actual malice.
__________

42
Id. at 454 (citations omitted).

43
See, e.g., Greer, 448 N.E.2d at 162; Steak Bit of Westbury, Inc. v. Newsday, Inc., 334 N.Y.S.2d 325, 330
(Sup. Ct. 1972); Twenty-Five E. 40th St. Rest. Corp. v. Forbes, Inc., 322 N.Y.S.2d 408, 409 (App. Div. 1971).
These cases affirmatively establish that a private figure must prove actual malice when the subject matter of the
speech is an issue of public concern. See also Rodney A. Smolla, Law of Defamation 3.11 (1989); see
generally El Meson Espanol v. NYM Corporation, 389 F. Supp. 357, 358 (S.D.N.Y. 1974) (concluding that a
restaurant which serves food to the general public is engaged in an enterprise of public interest); Mashburn v.
Collin, 355 So. 2d 879, 889-90 (La. 1977) (concluding that a restaurant review was an expression of opinion and
was privileged unless published with knowing or reckless falsity); Havalunch, Inc. v. Mazza, 294 S.E.2d 70,
74-75 (W. Va. 1981) (concluding that a humorous restaurant review was protected by the doctrine of fair
comment); John C. Williams, Annotation, Liability for Defamation for Criticizing Restaurant's Food, 96
A.L.R.3d 609 (1980 & Supp. 2001).
publication was made with actual malice.
44
As noted above, actual malice is proven when a
statement is published with knowledge that it was false or with reckless disregard for its
veracity.
45
Reckless disregard for the truth may be found when the defendant entertained
serious doubts as to the truth of the statement, but published it anyway.
46
This test is a
subjective one, relying as it does on what the defendant believed and intended to convey,
and not what a reasonable person would have understood the message to be.
47
Recklessness
or actual malice may be established through cumulative evidence of negligence, motive, and
intent.
48

In the present case, the Pegasuses assert that they had cumulative evidence
demonstrating actual malice. We disagree. The Pegasuses' evidence at most suggests a lack of
concern on the part of the RGJ over the effect the review might have on Salsa Dave's. The
issue is what the RGJ believed and intended to convey at the time it published the review.
49
Here, there is no indication that the RGJ published the Ferrante review with the knowledge
that it was false or that it entertained serious doubts about the veracity of the statements
contained in Ferrante's review.
50

Even assuming there is sufficient evidence to argue that Ferrante's statement regarding
the can of beans was false, there is no evidence that Thomaidis, or anyone else at the RGJ,
had any reason to believe Ferrante would lie in her review. Thomaidis indicated that he asked
Ferrante about the beans only because he wanted to be sure she personally saw the beans and
was not relying upon what someone else may have told her, not because he doubted her
veracity. Moreover, the fact that a different reviewer gave Salsa Dave's a positive rating does
not establish that the RGJ should have known that Ferrante's review was anything other than
an honest difference of opinion.
__________

44
Nevada Ind. Broadcasting, 99 Nev. at 414, 664 P.2d at 344.

45
See New York Times, 376 U.S. at 279-80; Posadas, 109 Nev. at 454, 851 P.2d at 443 (citing Nevada Ind.
Broadcasting, 99 Nev. at 414, 664 P.2d at 344).

46
Posadas, 109 Nev. at 454, 851 P.2d at 443.

47
Id. This rule is distinguished from the rule regarding assertions of fact versus assertions of opinion. See
Nevada Ind. Broadcasting, 99 Nev. at 410, 664 P.2d at 341-42. Generally, only assertions of fact, not opinion,
can be defamatory. Specifically, the rule for distinguishing an opinion from an assertion of fact is whether a
reasonable person would be likely to understand the remark as an expression of the source's opinion or as a
statement of existing fact. Id. at 410, 664 P.2d at 342.

48
Posadas, 109 Nev. at 454, 851 P.2d at 443 (citing Nevada Ind. Broadcasting, 99 Nev. at 415, 664 P.2d at
344).

49
Id.; see also 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems 5.5.1 (3d ed.
2002).

50
See Posadas, 109 Nev. at 454, 851 P.2d at 443.
an honest difference of opinion. Thus, the Pegasuses provided no evidence suggesting that the
RGJ acted with actual malice or reckless disregard for the truth at the time it published the
review of Salsa Dave's.
51

The Pegasuses rely heavily on the fact that Thomaidis' previous articles had
demonstrated a dislike for canned or prepackaged ingredients in Mexican-American
restaurants and that the use of such items meant the food was not authentic Mexican cuisine.
The Pegasuses also argue that Thomaidis should have conducted an investigation and insisted
on a second visit to the restaurant before publishing a negative review. None of these things
establish actual malice.
Thomaidis' opinions about authentic Mexican food do not demonstrate that he had any
dispute with Salsa Dave's prior to the review. There is no evidence that he had animosity
towards Salsa Dave's and targeted it over any other Mexican-American restaurant. At most,
the evidence demonstrates Thomaidis was interested in reviewing restaurants that served
Mexican food and determining if they were authentic using his criteria.
[Headnote 30]
The same is true of the allegations that Thomaidis should have done more
investigation. Indeed, failure to investigate alone, or to read other previously printed material
is not grounds for a finding of actual malice.
52
Given the clear and convincing standard, the
record demonstrates there is insufficient evidence to support a finding that Thomaidis or
anyone else at the RGJ entertained a serious doubt as to the truth of Ferrante's observations or
the honesty of her opinion. The district court did not err in concluding that the Pegasuses'
evidence, viewed in the light most favorable to the Pegasuses, was insufficient as a matter of
law to support a claim for defamation.
CONCLUSION
We conclude that comment in a restaurant review is not automatically protected
opinion simply because it is contained in a review. However, such comments must be viewed
in the context of the review as a whole and not as an individual statement. When a reasonable
person, reading a restaurant review, would recognize that the comments contained therein are
the opinions of the writer and not blanket statements of fact, the comments are privileged.
Moreover, for the purpose of a review, restaurants are limited-purpose public figures.
__________

51
See Greer, 448 N.E.2d at 162-63.

52
Gertz, 418 U.S. at 332; New York Times, 376 U.S. at 287.
Accordingly, the order of the district court granting summary judgment is affirmed.
I agree with the majority opinion when it states the law defining a limited public
figure and the general legal discussion of what constitutes a fact or an opinion. I disagree,
however, in the majority's application of these principles to the facts of this case. For this
reason, I concur in part and dissent in part.
Ms. Ferrante, a Reno Gazette-Journal reporter, asserted her strong opinion that Salsa
Dave's Mexican food was definitely not the real deal and that one entre tasted as if it
came out of some sort of package. These opinions are legally fair enough. However, the
reporter went further and stated that she saw a can of name brand beans in the kitchen. This is
not an opinion, but a cold hard fact that gives credibility to the harsh opinions stated.
Salsa Dave's denied that they used canned beans that day and emphatically stated that
there was no can of beans in sight in the kitchen. The fact that Pegasus admitted to having
cans of beans in a cupboard on the premises for emergencies does not change the fact that the
reporter said she saw the can, and that Salsa Dave's adamantly denied that fact.
This creates a factual issue that should be left to a jury, and I would remand this case
so that factual determinations can be made concerning the can of beans allegedly seen in the
kitchen. If it were shown that the reporter was lying, a sufficient basis for malice or a reckless
disregard for the truth would be shown when coupled with such facts as the Reno
Gazette-Journal not having visited the restaurant a second time before writing the negative
review, as was its usual practice.
____________
118 Nev. 724, 724 (2002) Matter of Parental Rights as to C.J.M.
In the Matter of the Parental Rights as to C.J.M., J.F.M., and E.G.P.
FRANCISCO M., Appellant, v. THE STATE OF NEVADA, DIVISION OF CHILD AND
FAMILY SERVICES, DEPARTMENT OF HUMAN RESOURCES, Respondent.
No. 38352
December 3, 2002 58 P.3d 188
Appeal from a district court order granting a petition to terminate parental rights.
Eighth Judicial District Court, Clark County; Gerald W. Hardcastle, Judge, Family Court
Division.
The supreme court held that: (1) substantial evidence supported conclusion that
children's best interests were served by termination of father's parental rights, (2) father could
not overcome presumption that he abandoned his children after evidence was introduced that
he failed to contact or support his children for more than a year, (3) DCFS was not obligated
to provide father with case plan that would provide an opportunity for him to retain his
parental rights, (4) substantial evidence supported reliance on father's felony conviction and
lack of interest in children to establish parental unfitness, and (5) the district court clearly
articulated reasons over and above incarceration for terminating father's parental rights.
Affirmed.
Vincent Ochoa, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Kathryn Bliss Holt, Deputy Attorney
1. Infants.
The supreme court closely scrutinizes whether the district court properly preserved or terminated the parental rights at issue.
Before parental rights are terminated, due process requires clear and convincing evidence supporting such a decision. U.S.
Const. amend. 14.
3. Infants.
On appeal, the supreme court will not reverse a court's decision to terminate parental rights provided there is substantial
evidence supporting the termination order.
4. Infants.
The supreme court will not attempt to substitute its judgment for that of the trial court in area of heightened sensitivity
surrounding a procedure to terminate parental rights, since the trial court is in position to observe the demeanor of the parties and
weigh their credibility.
5. Infants.
Substantial evidence supported conclusion that children's best interests were served by termination of father's parental rights;
father had no significant relationship with children, father was father of only two of three children, which created possibility that
children might be separated, and children had been integrated into foster home where parents were willing and able to permanently
adopt all children. NRS 128.105, 128.108.
6. Infants.
Although the primary consideration in the decision to terminate parental rights is the best interests of the child, the district court
must also find at least one of the statutorily enumerated factors for parental fault, which include abandonment of the child and
unfitness of the parent. NRS 128.105.
7. Infants.
Father could not overcome presumption that he abandoned his children after evidence was introduced that he failed to contact or
support his children for more than a year;
his children for more than a year; father did not make any effort to contact children until he was notified, while incarcerated, of efforts
to terminate his parental rights, he relied completely on his wife, whom he was aware had drug addiction problem, to care for children
without contacting her to inquire about children's well being, and he failed to notify Division of Child and Family Services (DCFS)
that he had completed any training or counseling that would address his history of domestic violence until he was informed of efforts to
terminate his parental rights. NRS 128.012, 128.105(2).
8. Infants.
If evidence is introduced at trial that a parent has failed to support or contact his children for six months, the burden of proof
shifts to the parent to prove that he did not abandon his children. NRS 128.012.
9. Infants.
A parent's opposition to termination of his parental rights may indicate that he has not evinced the intent to abandon his
children. However, the trial court is not obligated to accord greater weight to the parent's belated protestations than to the parent's
failure to provide support and communicate with the child.
10. Infants.
Division of Child and Family Services (DCFS) was not obligated to provide father with case plan that would provide an
opportunity for him to retain his parental rights; father was notified of the proceedings to terminate parental rights and was advised of
procedures necessary to retain his rights, father was aware that case plan had been provided for his wife, and he relied on her to
complete provisions of case plan in order to retain her parental rights, and father's failure to show any meaningful or substantial interest
in children for over a year was greater cause for lack of a reunification plan than any conduct by DCFS. NRS 128.107(1).
11. Constitutional Law; Infants.
Division of Child and Family Services (DCFS) is not obligated to provide case plan for parent where parent has demonstrated
little interest in child before petition to terminate parental rights. Due process is served and DCFS's statutory obligation fulfilled by
informing parent of the procedures necessary to establish or retain parental rights. U.S. Const. amend. 14; NRS 128.107(1).
12. Infants.
Substantial evidence supported reliance on father's felony conviction and lack of interest in children to establish parental
unfitness, for purposes of termination of parental rights proceeding; father had been arrested for domestic battery upon his wife on five
separate occasions, his wife reported that he beat the children, his most recent conviction was based on guilty plea for second-degree
kidnapping of his wife, and record indicated lack of significant relationship with children. NRS 128.018, 128.106(6).
13. Infants.
Father's parental rights were not terminated merely because he was incarcerated, as district court clearly articulated reasons over
and above incarceration for terminating father's parental rights.
14. Infants.
Although incarceration alone cannot justify termination of parental rights, incarceration should be considered along with other
factors in determining parental fitness and in making a determination on what course of action would serve the children's best interests.
OPINION
Per Curiam:
This case involves the termination of parental rights of Francisco M., who is
incarcerated for the kidnapping of his wife. He contends that his rights were terminated solely
based on his incarceration and that the Division of Child and Family Services failed to prove
parental fault.
FACTS
E.G.P. was born on May 25, 1995, to Angela and Jose A. However, appellant
Francisco M. testified that he was E.G.P.'s acting father. Angela and Francisco also had two
children together. C.J.M. was born on June 9, 1997, and J.F.M. was born on May 12, 1999.
On five separate occasions, Francisco was arrested for domestic battery upon Angela.
1
Angela reported that Francisco also beat the children, especially E.G.P.
Francisco's most recent arrest occurred on December 31, 1999, for obstructing a
police officer, battery/domestic violence, and first-degree kidnapping for the abduction of his
wife from a house where drug use was rampant. Francisco was allowed to plead guilty to
second-degree kidnapping and was convicted on February 28, 2001. He was sentenced to two
to five years' incarceration. An investigation revealed that at the time of his arrest, he
admitted to the arresting officer that he ingested two lines of cocaine that evening. In his
opening brief on appeal, Francisco states that Angela's attitude in abandoning her children
was what caused [Francisco] to act inappropriately by kidnap[p]ing' and bringing her back
to take care of the children.
C.J.M. and J.F.M., the two younger children, lived with their paternal aunt and uncle
following Francisco's arrest. The aunt and uncle refused to take custody of E.G.P. On January
3, 2000, Angela voluntarily left E.G.P. in the custody of the Division of Child and Family
Services (DCFS). Angela admitted that she was not able to care for E.G.P. due to her drug
use. Further, Angela admitted that she lived with people who used cocaine, and she did not
want E.G.P. to live in such an environment. The aunt and uncle eventually chose to transfer
custody of the two younger children to DCFS on February 14, 2000, because they could not
care for them.
A petition for abuse/neglect was filed with the juvenile division of the district court on
January 19, 2000, against Angela and Francisco. Francisco contested the petition, but the
court found that Angela's drug use and Francisco's domestic violence adversely affected
their ability to parent the children.
__________

1
Francisco claimed that Angela called the police for no reason on all of the prior occasions when he was
arrested for domestic violence.
that Angela's drug use and Francisco's domestic violence adversely affected their ability to
parent the children.
As a result of the family court's recommendation, the district court conducted a report
and dispositional hearing on March 8, 2000. All three children were in the custody of DCFS.
The Child Protective Services (CPS) specialist report indicated that Francisco admitted to
cocaine usage and that he needed drug treatment as well as counseling to address domestic
violence and self-esteem issues. Francisco attended the hearing and was introduced to Ingrid
Ponce, the DCFS social worker. Francisco informed Ponce that he did not want to lose his
children, but knew he would be going away. Ponce testified that Francisco's plan was for
Angela to work on a program to regain custody of the children. Ponce described her role in
the case and provided Francisco with her name and telephone number. Ponce contacted the
prison where Francisco was incarcerated a few months later to let the prison social worker
know how to contact her and also to ascertain whether Francisco had made any progress
regarding his drug treatment and counseling. At that time, Francisco had not completed any
programs in prison to address his domestic violence, drug use, and self-esteem issues.
On April 5, 2000, DCFS developed a case plan with Angela. The case plan was based
on recommendations in the Children's Resource Bureau Report, which provided an
independent psychosocial assessment of the family. However, due to his incarceration,
Francisco could not be interviewed for that assessment. The report contained no
recommendations to reunite the children with Francisco.
On October 24, 2000, a foster care review hearing was conducted in the family
division of the district court. Angela had not complied with her case plan, and Francisco had
made no contact with DCFS or the children. The permanency plan was to terminate
Francisco's parental rights, to find paternal relative placement for C.J.M. and J.F.M., and to
reunify E.G.P. with Angela. A concurrent plan for termination of parental rights and adoption
of all three children was being considered. At this hearing, the court found that continuation
of reasonable efforts to reunify the entire family was inconsistent with the permanent
placement plan and that DCFS was not required to make reasonable efforts to reunify the
family as mandated by NRS 432B.393(1).
2
The court adopted the initial permanency plan
presented by DCFS that placed C.J.M. and J.F.M. with paternal relatives and reunified E.G.P.
__________

2
The district court relied on NRS 432B.393(3)(b), which provides that reasonable efforts to reunify are not
required if the parent, during the previous six months, had the ability to contact or communicate with the child
and made no more than token efforts to do so.
E.G.P. with Angela on October 24, 2000.
3
Ponce then referred the matter by filing a
termination petition the last week of December 2000.
On January 23, 2001, a juvenile review was conducted in family court. The court
affirmed its finding that DCFS was not required to make reasonable efforts to reunite the
family. The permanency plan and concurrent termination plan remained the same.
On January 30, 2001, Angela relinquished her parental rights to all of the children.
The petition to terminate Francisco's parental rights was filed on March 5, 2001. The petition
alleged the parental fault of abandonment and unfitness against both Francisco and the
biological father of E.G.P. Francisco was personally served with notice of the petition on
March 23, 2001. Francisco then contacted DCFS regarding the termination of his parental
rights despite his failure to demonstrate any effort to contact the children or DCFS since the
dispositional hearing on March 8, 2000.
Both Ponce and Penny Kelly, another DCFS social worker, testified that Francisco
had been instructed to contact DCFS upon completion of any courses such as parenting, anger
management, and drug/alcohol assessments,
4
but that there had been no such contact before
the proceedings to terminate his parental rights. However, once Francisco was notified of the
proceedings to terminate his parental rights, he sent DCFS documentation showing that he
had been assessed for various classes, attended sixteen AA classes, and had begun an anger
management program. Kelly testified that she found documentation that Francisco had been
assessed, but she found nothing in Francisco's file that showed actual completion of any of
the courses.
The most recent juvenile court review, prior to the termination of parental rights
hearing, was conducted in family court on April 24, 2001. At that time, the children had been
in DCFS's custody for a month because of problems in the previous foster home.
Nevertheless, DCFS informed the court that a potential adoptive home had been identified for
all three children.
A hearing on this matter was conducted on June 28, 2001, before Judge Gerald W.
Hardcastle in the Family Court Division of the Eighth Judicial District Court. DCFS
contended that Francisco's parental fault consisted of abandonment and unfitness.
__________

3
The record reveals that the plan was not actually filed until March 6, 2001.

4
Francisco found it important to note that [n]one of [Ponce's] suggestions included contacting his children.
Francisco also notes that DCFS never asked him to maintain contact with the children, nor advised him that he
had permission to contact his own children. Francisco does not, however, provide any reason as to why he
would have believed he was prohibited from contacting his children, or why he did not contact his children
through a social worker without having to be told to do so.
Francisco's parental fault consisted of abandonment and unfitness. DCFS argued that
Francisco provided neither a residence nor an income for the children. Further, DCFS
claimed that the consequences of Francisco's actions are not only his incarceration, but also
his inability to provide the nurturing and support that the children need. Prior to being placed
in protective custody, Francisco had been arrested five times for domestic battery against
Angela and an officer affidavit filed by Family Youth Services reported that Francisco had
physically harmed the children as well. Also, DCFS alleged that Francisco had not shown that
he could maintain sobriety, provide a stable home, or remain free from criminal activity upon
release from prison. In addition, Francisco had not maintained a relationship with the children
or kept in contact with DCFS during his incarceration.
DCFS offered evidence at trial that the children have needs that will require
exceptional parenting skills. Kelly testified that E.G.P. and C.J.M., upon being assessed,
showed that they had learned to solve problems with violence and that all of the children
would need intensive care for several years. In addition, evidence was presented that the
children have an extremely close bond to each other and separation would be detrimental.
The children had been temporarily placed at the potential adoptive home. The mother in that
home testified regarding the bond between her family and the children, and also regarding the
plans she and her husband had to care for the children as adoptive parents.
Ponce testified that her duties included recommending whether a termination
proceeding is advised based on the parent's progress and reunification. When asked if she
could make a recommendation regarding Francisco, Ponce testified that she could not,
because she was not familiar with Francisco or his behavior around the children. Kelly
testified that her job was to try to act in the children's best interests, but she never attempted
to contact Francisco or E.G.P.'s biological father. Rebecca Foster, the Court Appointed
Special Advocate, also testified that she had never attempted to contact Francisco and had not
seen any interaction between him and the children.
Francisco testified that he had financially provided for the children when the family
lived together. Francisco claimed that he did not know where the children were but only knew
that they were in a foster home. He confirmed that he expressed his desire not to lose his
parental rights and testified that Ponce sent him photographs of the children upon his request.
Also, he testified that he had attended anger management classes, as requested by Ponce,
attended math and reading classes, and obtained employment while in prison. Francisco
further testified that Ponce had not contacted him from the date of the initial hearing in March
2000 until he was notified of the proceedings to terminate his parental rights.
parental rights. He testified that he expected to be released on December 30, 2001, and that he
had employment arranged with his brother-in-law as a landscaper. However, Francisco also
testified that he could not be certain of being released on that date. According to Francisco,
before being sent to prison, he had physical custody of the children, and Angela was not
living at home with them.
At the end of the hearing, the court inquired as to whether DCFS was prepared to
argue that incarceration for five years should result in the termination of parental rights.
DCFS denied that incarceration alone should mandate that Francisco's parental rights be
terminated. However, the court pressed on, asking why DCFS was afraid to say that
incarceration for two to five years constitutes grounds for termination. The court then stated:
Because, frankly, he's done everything he can do. He can't do any more. Now, the fact
that he has not contacted his children, fine. I am not certain that it constitutes
abandonment because that's not what he intended to do. He's . . . he's stuck in a very
artificial situation.
The court stated that Ponce's failure to provide Francisco with a case plan was marginally
justifiable and that she probably still should have provided him with a plan. The court then
stated:
[T]he reality is, there [are] some fathers we stick with and some we don't. When it is
arbitrary, we don't know what the standard is. Then it becomes very difficult when [you
are] a judge sitting here to try to make a decision to terminate somebody's rights when
you don't know what the standard is.
However, the court took the matter under advisement, and upon reviewing the
juvenile file, which was not reviewed prior to trial but was placed into evidence during trial
without objection, the court found parental fault on the part of Francisco based on
abandonment and unfitness by clear and convincing evidence.
In its decision, the court stated that from December 31, 1999, until Francisco was
advised of the effort to terminate his parental rights in January 2001, he provided no support
for the children and did not communicate with them. The court further stated:
While there are many types of contact and communication a person in prison cannot
obviously exercise, there is much that can be done. Letters can be written and gifts can
be sent. Imprisonment does not result in total loss of contact between parents and
children. Here, not only was there no contact of any kind, there was no effort to contact
the children. Further, it is difficult to understand why [Angela's] efforts have any
relationship to [Francisco's] parental obligation to maintain a relationship with his
children.
relationship to [Francisco's] parental obligation to maintain a relationship with his
children.
The court found that much of Francisco's efforts in prison were directed at his desire
for parole, and that abandonment was proved. The court's finding of unfitness was based in
part on Francisco's imprisonment for a violent felony conviction, but also on his
disregarding attitude toward the children while in prison. Additionally, the court noted that
Francisco had provided no indication that he had a significant relationship with the children
before his incarceration. The issue presented is whether [the court] can reasonably see
[Francisco] raising these children. The answer is obvious.
The court found that the children's best interests would be served by terminating
Francisco's parental rights because there were committed foster parents available to adopt all
of the children. Otherwise, E.G.P. might be separated from the other siblings because
Francisco is not E.G.P.'s natural father.
DISCUSSION
[Headnotes 1-3]
[T]his court closely scrutinizes whether the district court properly preserved or
terminated the parental rights at issue.
5
Before parental rights are terminated, due process
requires clear and convincing evidence supporting such a decision.
6
On appeal, we will not
reverse a court's decision to terminate parental rights provided there is substantial evidence
supporting the termination order.
7

[Headnote 4]
Furthermore, we have acknowledged the seriousness and . . . terrible finality of a
decree terminating parental rights. Undoubtedly such remedy should be applied with
caution.
8
However, we will not attempt to substitute our judgment for that of the trial court
in an area of heightened sensitivity, since the trial court was in a position to observe the
demeanor of the parties and weigh their credibility.
9

NRS 128.105 provides that [t]he primary consideration in any proceeding to
terminate parental rights must be whether the best interests of the child will be served by the
termination.
10

__________

5
Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000).

6
Id.

7
Id.

8
Carson v. Lowe, 76 Nev. 446, 451, 357 P.2d 591, 594 (1960).

9
Id. at 451-52, 357 P.2d at 594.

10
See also Matter of N.J., 116 Nev. at 795, 8 P.3d at 129.
Francisco claims that DCFS presented no evidence as to the issue of the children's best
interests in this case. We disagree and conclude that the record evinces substantial evidence
in support of the district court's conclusion that the children's best interests are served by
termination.
[Headnote 5]
The evidence introduced in this case showed that Francisco had no significant
relationship with the children. In fact, it was Francisco who presented no countervailing
evidence on the issue. The Court Appointed Special Advocate testified that the children rarely
mentioned their father, and only recalled a fight between their parents and that their father
was now with the police. In addition, Francisco is the father of only two of the three children
involved in these proceedings, creating the possibility that the children might be separated.
There was evidence at trial that the children have become dependent upon each other. In
determining whether termination of Francisco's parental rights was in the children's best
interests, the district court properly considered the possibility that the children might be
separated if Francisco retained his parental rights.
Moreover, NRS 128.108 provides that if children in the custody of a public agency
reside in a foster home and proceedings have been instituted with the goal of adoption by the
foster parent, the district court shall consider whether the children have become fully
integrated into the family. Here, the children have been integrated into a foster home where
the parents are willing and able to permanently treat all three children as members of their
own family. Termination of Francisco's parental rights would allow the three children to
remain together and live in a home where they have become integrated into the family.
Therefore, substantial evidence in the record supports the district court's conclusion that the
children's best interests will be served by the termination of Francisco's parental rights.
[Headnote 6]
Although the primary consideration in the decision to terminate parental rights is the
best interests of the child, the district court must [also] find at least one of the enumerated
factors for parental fault.
11
Among the factors enumerated in NRS 128.105(2) are
abandonment of the child and unfitness of the parent.
[Headnote 7]
A child is considered abandoned when a parent evinces a settled purpose . . . to
forego all parental custody and relinquish all claims to the child.
12
A parent is presumed to
have abandoned a child if that parent provides no support or communication with the child
for six months.
__________

11
Id. at 801, 8 P.3d at 133.

12
NRS 128.012(1).
child if that parent provides no support or communication with the child for six months.
13
Here, from the time Francisco was arrested on December 31, 1999, until he was notified of
the effort to terminate his parental rights in March 2001, Francisco made no effort to contact
his children.
14
Francisco relied completely on his wife, whom he was aware had a drug
addiction problem, to care for the children without contacting her to inquire about the
children's well being.
Francisco failed to notify DCFS that he had completed any training or counseling that
would address his history of domestic violence. However, upon being notified of the
proceedings to terminate his parental rights, Francisco expressed interest in retaining those
rights. Upon request, Francisco provided documentation that he had completed some
domestic violence course work in prison, and had been assessed for other courses. Francisco
now claims that he has done everything that was asked of him, and that DCFS failed to
provide him with a case plan in order to retain his parental rights. He also claims that DCFS
failed to inform him that he could contact his children and did not provide him with the
children's contact information.
[Headnotes 8, 9]
If evidence is introduced at trial that a parent has failed to support or contact his
children for six months, the burden of proof shifts to the parent to prove that he did not
abandon his children.
15
While Francisco made some effort toward retaining his parental
rights after being notified of the termination proceedings, he did not overcome the
presumption that he abandoned his children. A parent's opposition to termination of his
parental rights may indicate that he has not evinced the intent to abandon his children.
16
However, the trial court is not obligated to accord greater weight to the parent's belated
protestations than to the parent's failure to provide support and communicate with the child.
17
Therefore, we conclude that the district court did not err in determining that Francisco had
abandoned his children.
[Headnote 10]
Francisco also contends that termination of his parental rights was improper because
he was not provided a case plan that would provide an opportunity for him to retain his
parental rights.
__________

13
NRS 128.012(2).

14
Francisco testified that he attempted to call DCFS collect, but the operator did not answer. However, DCFS
noted that it accepts collect phone calls, and the issue was dropped.

15
Matter of N.J., 116 Nev. at 803, 8 P.3d at 134.

16
Greeson v. Barnes, 111 Nev. 1198, 1204, 900 P.2d 943, 947 (1995), superseded by statute as stated in
Matter of N.J., 116 Nev. 790, 8 P.3d 126.

17
Id.
provide an opportunity for him to retain his parental rights. NRS 128.107(1) only provides
that the court must consider the services provided to facilitate a reunion with the child[ren]
if the children are not in the physical custody of the parent.
18

[Headnote 11]
This court previously considered whether DCFS was obligated to provide a
reunification case plan in Matter of Parental Rights as to Deck.
19
There, we held that DCFS
was not obligated to provide a case plan when the father had demonstrated little interest in the
child.
20
Due process is served and DCFS's statutory obligation fulfilled by informing the
father of the procedures necessary to establish or retain parental rights.
21
Here, Francisco
was notified of the proceedings to terminate parental rights and was advised of the procedures
necessary to retain his rights.
Francisco was aware that a case plan had been provided for his wife, and he relied on
her to complete the provisions of the case plan in order to retain her parental rights. The
district court stated that DCFS should have provided Francisco with a case plan, but its
failure to do so was marginally justifiable. As the district court noted, it is difficult to
understand why [his wife's] efforts have any relationship to [Francisco's] parental obligation
to maintain a relationship with his children. Although Francisco had expressed interest in the
children before his incarceration, we agree with the district court that his failure to show any
meaningful or substantial interest in the children for over a year was a greater cause for the
lack of a reunification plan than any conduct by DCFS, and so under Deck, DCFS was not
obligated to provide a case plan.
[Headnote 12]
In addition, NRS 128.018 defines a parent as unfit if he, by reason of his fault or
habit or conduct toward the child or other persons, fails to provide such child with proper
care, guidance and support. NRS 128.106(6) provides for specific considerations in
determining unfitness of a parent, including [c]onviction of the parent for commission of a
felony, if the facts of the crime are of such a nature as to indicate the unfitness of the parent.
In the present case, Francisco had been arrested for domestic battery upon his wife on five
separate occasions. His wife reported that Francisco also beat the children, especially E.G.P.
Francisco was most recently arrested for obstructing a police officer, batteryJdomestic
violence,
__________

18
See Matter of Parental Rights as to Deck, 113 Nev. 124, 133-34, 930 P.2d 760, 765-66 (1997).

19
Id.

20
Id. at 133-34, 930 P.2d at 766.

21
Id.
battery/domestic violence, and first-degree kidnapping, all against the children's mother.
Francisco also admitted to using cocaine at the time of the arrest. However, Francisco was
allowed to plead guilty to second-degree kidnapping and was sentenced to two to five years'
incarceration. The court found the allegations of abuse and neglect to be proved, and the
children were placed into the custody of DCFS.
In its decision to terminate Francisco's parental rights, the court acknowledged the
failure to prove the underlying facts of his felony conviction since Francisco pleaded guilty.
However, the court ultimately determined that the conviction, combined with Francisco's
indifferent attitude towards the children, proved Francisco was unfit. The court also noted the
lack of a significant relationship with the children. We conclude that there is substantial
evidence supporting the district court's reliance on Francisco's felony conviction and lack of
interest in the children to establish unfitness.
[Headnotes 13, 14]
Francisco also claims that his parental rights were terminated because he was
incarcerated. We disagree. Though this court recently held in Matter of Parental Rights as to
Q.L.R.
22
that incarceration alone cannot justify termination of parental rights, we did not go
so far as to suggest that incarceration should act as a bar to such terminations. Instead,
incarceration should be considered along with other factors in determining parental fitness
and in making a determination on what course of action would serve the children's best
interests. Here, the district court clearly articulated reasons over and above incarceration for
terminating Francisco's parental rights. Accordingly, we affirm the judgment of the district
court.
__________

22
118 Nev. 602, 54 P.3d 56 (2002).
____________
118 Nev. 737, 737 (2002) Matter of Parental Rights as to K.D.L.
In the Matter of the Parental Rights as to K.D.L. and S.P.K.
RICHARD J. K., aka RICHARD JAY K., Appellant, v. THE STATE OF NEVADA,
DIVISION OF CHILD AND FAMILY SERVICES, DEPARTMENT OF HUMAN
RESOURCES, Respondent.
No. 38816
December 3, 2002 58 P.3d 181
Appeal from a district court order granting a petition to terminate parental rights.
Eighth Judicial District Court, Clark County; Gerald W. Hardcastle, Judge, Family Court
Division.
The supreme court held that: (1) clear and convincing evidence demonstrated that
children's best interests would be served by termination of father's parental rights, (2) clear
and convincing evidence supported finding of father's parental unfitness, and (3) clear and
convincing evidence supported finding of failure of parental adjustment.
Affirmed.
Tony Terry, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Kathryn Bliss Holt, Deputy Attorney
Clark County Legal Services Program, Inc., and Steve Hiltz, Las Vegas, for Real
Parties in Interest K.D.L. and S.P.K.
1. Infants.
Termination of parental rights is an exercise of awesome power.
2. Infants.
To terminate a parent's rights, a petitioner must prove, by clear and convincing evidence, that termination is in the child's best
interests and that there is parental fault. NRS 128.105.
3. Infants.
Supreme court will uphold terminations of parental rights based on substantial evidence.
4. Infants.
Although the best interests of the child and parental fault are distinct considerations, determining the best interests of the child
necessarily includes considerations of parental fault, and both standards must be proven by clear and convincing evidence when
determining whether to terminate parental rights.
5. Infants.
In addition to considering the child's best interests, when terminating parental rights, the district court must also find at least one
of the enumerated factors of parental fault: (1) abandonment of the child; (2) neglect of the child; (3) unfitness of the parent; (4) failure
of parental adjustment; (5) risk of injury to the child if returned to, or left remaining in,
ing in, the home of the parent; or (6) only token efforts by the parent. NRS 128.105(2)(a)-(f).
6. Infants.
Clear and convincing evidence demonstrated that children's best interests would be served by termination of father's parental
rights; children had resided outside father's home for nineteen consecutive months, father had more than one felony conviction for
domestic violence, record contained substantial evidence of father's inability to manage his anger, no strong or stable bond existed
between children and their father, and children had formed well-integrated family bond with foster family who wished to adopt both
children. NRS 128.109(2), 432B.553(2).
7. Infants.
Taken together, statute stating that when child has been taken outside his home and resided in a placement home for fourteen
out of twenty consecutive months, the child's best interest is presumed to be served by termination of parental rights and statute
providing for permanent placement plan express the general public policy to seek permanent placement for children rather than have
them remain in foster care. NRS 128.109(2), 432B.553(2).
8. Infants.
Clear and convincing evidence supported finding of father's parental unfitness, thus supporting decision to terminate father's
parental rights; father was serving prison sentences for two acts of domestic violence against close family members, record was replete
with evidence suggesting that father failed to learn to control his violent temper during period of his incarceration, father's own
testimony indicated that he failed to accept any responsibility for his crimes, and violent nature of his crimes indicated that he was
unable to provide for children's physical, mental, and emotional health and development. NRS 128.105, 128.106(6).
9. Infants.
It is the nature of the crime for which a parent is convicted that is the relevant factor when determining the best interests of the
child, for purposes of court's consideration of parent's felony conviction as evidence of unfitness of parent. NRS 128.106.
10. Infants.
Clear and convincing evidence of failure of parental adjustment supported termination of father's parental rights; father
committed second act of domestic violence within twelve months of his initial offense, thus failing to address requirements in Division
of Child and Family Services (DCFS) reunification plan, father failed to change violent behavior and there was no indication he would
correct this behavior within a reasonable period of time, and the nature of his offenses and the potential danger he presented to
children, not just the lengthy period of his incarceration, supported finding of failure of parental adjustment. NRS 128.0126,
128.109(1)(b).
OPINION
Per Curiam:
Appellant Richard contends that the district court erred in terminating his parental
rights because there was no clear and convincing evidence that termination would serve his
children's best interests or that there was parental fault.
vincing evidence that termination would serve his children's best interests or that there was
parental fault. We disagree. The record includes substantial evidence that termination is in the
children's best interests, and Richard failed to overcome the statutory presumption that his
children's best interests would be served by termination. Additionally, unlike our recent cases,
Matter of Parental Rights as to Q.L.R.
1
and Matter of Parental Rights as to J.L.N.,
2
the
district court did not rely solely upon Richard's incarceration in determining parental fault.
We therefore affirm the judgment of the district court terminating Richard's parental rights.
FACTS
K.D.L. was born to Mary and Richard on October 14, 1996. S.P.K. was born to Mary
and Richard on January 1, 1998. Mary and Richard were never married; however, there is no
dispute that Richard is the father of both children.
On August 28, 1998, Las Vegas Metropolitan Police Department (LVMPD) officers
were dispatched to the University Medical Center in reference to a domestic violence call.
Hospital personnel had contacted the police due to injuries sustained by Mary, who had
multiple contusions and bruises all over her body, including a two-inch gash on the top of her
head. Mary, who arrived at the emergency room with her then eight-month-old child, S.P.K.,
reported to medical personnel that she had been beaten six days prior by her boyfriend of five
years, Richard. Mary stated that K.D.L., nearly two years old at the time, had witnessed the
attack.
Despite being diagnosed with a bi-lateral jaw fracture requiring surgery, Mary
declined to press charges and stated she would return to the parties' shared home. Mary also
indicated that the parties' child, K.D.L., was with Richard at that time. Based on Mary's intent
to return to the parties' home, the severity of Mary's injuries, the fact that K.D.L. allegedly
witnessed the attack on Mary, and the potential for harm to the children if Richard attacked
Mary again, LVMPD decided to take the children into protective custody.
A subsequent investigation by the Nevada Division of Child and Family Services
(DCFS) revealed that in addition to the issues involving domestic violence, both Mary and
Richard admitted to substance abuse and Richard tested positive for cocaine and marijuana.
In addition, Richard also had previous misdemeanor convictions for offenses related to
substance abuse and domestic violence dating back to 1994. Richard also had prior arrests for
willfully aiming a firearm and driving under the influence. DCFS reported that two-year-old
K.D.L. had started imitating Richard's battering behaviors
__________

1
118 Nev. 602, 54 P.3d 56 (2002).

2
118 Nev. 621, 55 P.3d 955 (2002).
reported that two-year-old K.D.L. had started imitating Richard's battering behaviors and that
Richard had appeared at Child Haven to visit his children smelling of alcohol and acting in a
confrontational manner towards Child Haven staff members. Charges of abuse and neglect
were sustained against Mary and Richard, and the children were made wards of the State. A
case plan for reunification was developed.
The case plan required Richard to: (1) attend weekly anger management therapy
sessions, (2) take and continue to take psychotropic medication, (3) attend parenting classes,
(4) submit to random urinalysis, and (5) obtain a drug and alcohol assessment from a Bureau
of Alcohol and Drug Abuse (BADA) certified counselor and follow any recommendations
made by that counselor.
On May 2, 1999, approximately six months later, Richard was again arrested. He was
charged with resisting a peace officer, unlawful use/possession of drug paraphernalia,
possession of a controlled substance, and carrying a concealed weapon. The record does not
reflect the disposition on these charges.
On May 7, 1999, in its periodic review to the district court, DCFS indicated that, as
required by the case plan, Richard had followed through with assessment and treatment by a
psychiatrist, was taking medication as prescribed by the psychiatrist on a regular basis, had
completed all but one parenting class through DCFS, and was attending counseling with
Mary. The case specialist reported that Richard and Mary had made significant progress in
the counseling process. Richard had not, however, submitted proof of assessment from a
BADA certified drug and alcohol program as required by the case plan. The May 1999 arrests
were not discussed.
DCFS reported that the children had been placed in foster care and had received
physical, emotional, and educational evaluations. The report indicated that S.P.K. was too
young to evaluate for educational delays, but K.D.L. evinced a combination of expressive and
receptive language/speech delays, as well as fine and gross motor skill delays. The report
stated that both children had responded favorably to the care and direction provided by the
foster parents in conjunction with services provided by Early Childhood Services. At the time
of the report, case specialist Terry Lowery indicated that reunification of the family was a
goal of the case plan.
A Court Appointed Special Advocate (CASA), Pamela McGaha, submitted her
evaluation of K.D.L. and S.P.K. on May 7, 1999, as well. McGaha expressed concern that
Richard had difficulty adhering to the visitation rules mandated by DCFS. She also expressed
concern about Richard's apparent lack of control.
Following review of the submitted evaluations, however, the district court, based on the
partial completion of the case plan, ordered the children returned to the care of Mary and
Richard.
3

On July 28, 1999, Richard pleaded guilty to battery with substantial bodily harm
arising out of the August 1998 incident involving Mary. Richard's sentence for this offense
was suspended and he was placed on probation.
4
However, at some point between June 1999
and September 1999, Richard committed an act of battery/domestic violence against his
mother, thus violating the terms of his probation agreement.
5
Because of the new arrest, and
Mary's inability to adequately care for K.D.L. and S.P.K., the children were again placed in
foster care.
On September 30, 1999, as a result of the second arrest for domestic violence,
Richard's probation was revoked by the district court. On December 14, 1999, Richard
pleaded guilty to battery with a deadly weapon arising out of the incident involving his
mother. Richard was sentenced to a maximum of one hundred twenty months with minimum
parole eligibility in forty-eight months. The court ordered the sentence to run concurrently
with the battery with substantial bodily harm conviction stemming from the August 1998
crimes against Mary. As of the time of the termination proceedings, Richard's projected
discharge date was April 2006. The earliest projected date at which Richard could petition for
parole was March 2004.
On November 4, 1999, DCFS provided the court with a report for permanency review.
On November 9, 1999, the district court concluded that reasonable efforts had been made to
return K.D.L. and S.P.K. to the parental home, but that returning the children to the parental
home would be contrary to their welfare. The district court further concluded that: (1) K.D.L.
and S.P.K. should remain wards of the State, (2) Mary should be given primary physical
custody of the children, (3) Richard should satisfy his child support arrearages, and (4) Mary
should work closely with Child Find and DCFS in complying with all case plan
recommendations. At DCFS's request, a no contact order was issued on November 22, 1999,
prohibiting Richard from having contact with his children based upon the trauma the children
would sustain from contact visits while Richard was imprisoned.
__________

3
The district judge who returned the children to Mary and Richard was not the same district judge who
presided over the termination proceedings.

4
The district court sentenced Richard to a minimum of twenty-four months to a maximum of eighty months,
suspended, with probation not to exceed five years.

5
Richard was also arrested for a second act of battery/domestic violence against Mary on August 18, 1999.
However, this charge was later withdrawn by the district attorney's office.
On March 14, 2000, K.D.L. and S.P.K. were again removed from Mary's care based
on reports that she was engaged in drug trafficking. Given both parents' failure to adjust,
DCFS began taking steps to terminate Mary's and Richard's parental rights. Additional
hearings were held on a variety of motions regarding child support and visitation. Meanwhile,
DCFS continued to try to work with Mary.
On April 27, 2001, DCFS filed a petition to terminate Mary's and Richard's parental
rights. On September 10 and 13, 2001, the district court heard testimony and reviewed
evidence regarding the petition. Mary did not appear to contest the termination of her parental
rights. Richard appeared with counsel in the custody of prison authorities and testified in
opposition to the petition to terminate his parental rights.
Richard testified that he did not know that the children had been removed from Mary's
care after he was sent to prison. He believed Mary was supporting herself from income she
received from his rental properties. However, he did indicate that he never contacted anyone
to check on the status of his children for approximately seven months and just assumed that
Mary was taking care of them. Richard also stated that he was willing to commit his financial
resources to the care and upbringing of his children until the date of his release.
In addition, Richard testified that he had no disciplinary actions while incarcerated.
Richard also testified that he attended every class the prison offered in anger management,
domestic violence, Alcoholics Anonymous, Narcotics Anonymous, and health-related issues.
Richard stated that he took these classes in an effort to better himself and to become a better
parent. Richard testified that he had sent over 200 letters and cards to his children, which had
been returned to him on DCFS's orders. As to the care of his children, Richard argued that he
became angry with Mary because she did not properly supervise the children and they were
hurt on numerous occasions as a result of her failure to properly watch them. Richard testified
that he always made sure that the children had the best food and health care and that he only
lost it when it became apparent to him that Mary was abusive towards the children.
Richard also contended that he was wrongfully convicted of the charges of battery
with substantial bodily harm and battery with a deadly weapon and that he only pleaded guilty
out of convenience and a desire to get things done quickly so he could be reunited with his
children. As a result of the length of his prison sentence, he now realized he would not soon
be reunited, so he was in the process of challenging his pleas. Finally, evidence was
introduced indicating that Richard had been arraigned on federal weapons and attempted
arson charges stemming from activities taking place in 1996.
taking place in 1996. Richard indicated that he would be going to trial at a future date on
these charges.
On October 3, 2001, the district court issued a written order terminating the parental
rights of Mary and Richard. In terminating Richard's parental rights, the district court
concluded that parental unfitness and failure of parental adjustment were proven by clear and
convincing evidence. The district court found Richard unfit pursuant to NRS 128.106(6),
based upon his convictions for domestic violence and the possibility that his children might
become victims of his violent outbursts. Specifically, the district court noted that Richard's
violent outbursts were not limited to Mary but were also taken against his mother. The district
court found that there was a significant risk that Richard's professed love of his children
would not protect them from harm during one of his violent outbreaks. The district court also
found that Richard had not rebutted the presumption of NRS 128.109(1)(b),
6
regarding
failure of parental adjustment. The district court considered the length of Richard's
incarceration and the need for extensive supervision even once he was released in applying
the presumption. However, the key factor in the district court's finding of failure of parental
adjustment was Richard's conduct when not incarcerated and the nature of his crimes. The
More importantly, however, while in society and even after the children were initially
removed, [Richard] did not change his violent behavior. It is not enough to comply with
a case plan if the lessons the case plan seeks to address are not learned. [Richard] made
efforts under the initial case plan but did not learn the lessons of nonviolence. The
[DCFS] made reasonable efforts but [Richard's] violence continued.
Regarding the best interests of the children, the district court concluded that Richard,
while objecting to the termination of his parental rights, had failed to overcome the
presumption in favor of termination of his parental rights as enunciated in NRS 128.109(2).
7
The district court noted that, at the earliest, Richard would not be eligible for parole for
another seventeen months and there would be a lengthy period of counseling and
readjustment before any thought to reunification could be given.
__________

6
NRS 128.109(1)(b) states:
If the parent or parents fail to comply substantially with the terms and conditions of a plan to reunite
the family within 6 months after the date on which the child was placed or the plan was commenced,
whichever occurs later, that failure to comply is evidence of failure of parental adjustment as set forth in
paragraph (d) of subsection 2 of NRS 128.105.

7
If a child has been placed outside of his home pursuant to chapter 432B of NRS and has resided
outside of his home pursuant to that placement for 14 months of any 20 consecutive months, the best
would not be eligible for parole for another seventeen months and there would be a lengthy
period of counseling and readjustment before any thought to reunification could be given.
K.D.L. and S.P.K. were toddlers when their father went to prison, and they had not developed
significant bonds with him prior to his incarceration. Moreover, the district court found that
K.D.L. and S.P.K. had been in foster care for three years,
8
had resided with their current
foster family since 2000, the foster family wished to adopt them together, K.D.L. and S.P.K.
were well integrated into the foster family, and they would greatly benefit from permanent
placement with the foster family.
DISCUSSION
[Headnotes 1-3]
9
We have
previously characterized the severance of the parent-child relationship as tantamount to
imposition of a civil death penalty.'
10
To terminate a parent's rights, a petitioner must
prove, by clear and convincing evidence, that termination is in the child's best interests and
that there is parental fault.
11
We will uphold terminations based on substantial evidence.
12

[Headnotes 4, 5]
In determining whether to terminate parental rights, this court has stated that in
conformance with NRS 128.105, we adopt a best interests/parental fault standard.
13
Although the best interests of the child and parental fault are distinct considerations,
determining the best interests of the child necessarily includes considerations of parental
fault, and both standards must be proven by clear and convincing evidence.
14
Thus, in
addition to considering the child's best interests, the district court must also find at least one
of the enumerated factors of parental fault:
__________
interests of the child must be presumed to be served by the termination of parental rights.

8
At the time of Richard's incarceration in August 1999, K.D.L. was nearly three years old and S.P.K. was
eighteen months old. At the time of the district court's decision, K.D.L. was five years old and S.P.K. was three
years old.

9
Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000) (quoting Smith v. Smith,
102 Nev. 263, 266, 720 P.2d 1219, 1220 (1986), overruled on other grounds by Matter of N.J., 116 Nev. 790, 8
P.3d 126).

10
Id. (quoting Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989)).

11
Id. at 801, 8 P.3d at 133; see NRS 128.105.

12
Matter of N.J., 116 Nev. at 795, 8 P.3d at 129 (quoting Kobinski v. State, 103 Nev. 293, 296, 738 P.2d
895, 897 (1987)).

13
Id. at 800, 8 P.3d at 132.

14
Id. at 801, 8 P.3d at 133.
find at least one of the enumerated factors of parental fault: (1) abandonment of the child; (2)
neglect of the child; (3) unfitness of the parent; (4) failure of parental adjustment; (5) risk of
injury to the child if returned to, or left remaining in, the home of the parent; or (6) only token
efforts by the parent.
15

Best interests
[Headnotes 6, 7]
NRS 128.109(2) states that, when a child has been placed outside his home pursuant
to NRS chapter 432B, and has resided outside of his home pursuant to that placement for 14
months of any 20 consecutive months, the best interests of the child must be presumed to be
served by the termination of parental rights. Taken together, NRS 128.109(2) and NRS
432B.553(2) express the general public policy to seek permanent placement for children
rather than have them remain in foster care.
16

In the present case, K.D.L. and S.P.K. were made wards of the State and placed in
foster care in November 1998. They were returned to their parents' custody on May 21, 1999.
Richard was incarcerated in August 1999 based upon his second conviction for domestic
violence and for violation of his probation agreement's terms. He has been in custody since
that date. K.D.L. and S.P.K. were again removed from their mother's custody and returned to
foster care on March 14, 2000. Thus, in their third placement outside their parents' home,
K.D.L. and S.P.K. had resided for nineteen consecutive months in foster care.
We conclude that the district court did not err in finding that clear and convincing
evidence demonstrated that K.D.L.'s and S.P.K.'s best interests would be served by
termination of Richard's parental rights. First, Richard failed to overcome the presumption
enunciated in NRS 128.109(2). Second, as noted above, Richard's felony convictions for
domestic violence, coupled with the pending federal charges, operate to his detriment. The
record contains substantial evidence of Richard's inability to manage his anger, including his
belligerence toward the district court during the termination hearing, his violent assaults
against close family members, and his continued denial of the physical harm he caused.
Lastly, K.D.L. was three years old and S.P.K. only eighteen months old when Richard
was incarcerated in November 1999. No strong or stable bond exists between these children
and their father.
17
However, the district court properly concluded, under NRS 128.108, that
the children had formed a well-integrated family bond with a foster family who wished to
adopt both children.
__________

15
Id.; see also NRS 128.105(2)(a)-(f).

16
Matter of J.L.N., 118 Nev. at 625, 55 P.3d at 958.

17
See Matter of Parental Rights as to C.J.M., 118 Nev. 724, 736, 58 P.3d 188, 194-96 (2002). This case
involved the termination of an incarcerated
family bond with a foster family who wished to adopt both children. We conclude the district
court did not err in concluding that clear and convincing evidence existed to demonstrate
K.D.L.'s and S.P.K.'s best interests would be served by the termination of Richard's parental
rights.
Parental fault
As noted above, NRS 128.105 sets forth the grounds for terminating parental rights,
including considerations the district court may make regarding parental conduct. In the
present case, the district court concluded that parental unfitness and failure of parental
adjustment were proven by clear and convincing evidence.
18
We agree.
Parental unfitness
[Headnotes 8, 9]
NRS 128.106(6) states that the court may consider, as evidence of unfitness of a
parent, the [c]onviction of the parent for commission of a felony, if the facts of the crime are
of such a nature as to indicate the unfitness of the parent to provide adequate care and control
to the extent necessary for the child's physical, mental or emotional health and development.
Moreover, it is the nature of the crime for which a parent is convicted that is the relevant
factor when determining the best interests of the child.
19

In the present case, Richard is currently serving sentences of imprisonment for two
acts of domestic violence against close family members. The initial act of domestic violence
against the children's mother involved substantial bodily harm and resulted in the children's
removal from the parental home. Despite the institution of a case plan that specifically
addressed Richard's anger management issues, Richard committed a second act of domestic
violence with the use of a deadly weapon less than a year later against his own mother.
__________
father's parental rights based upon abandonment and unfitness. In affirming the termination of the father's
parental rights, this court noted that the district court's finding of unfitness was based in part on the father's
conviction for a violent felony, as well as the father's lack of a significant relationship with his children before
his incarceration.

18
In its order, the district court also concluded that clear and convincing evidence existed to show Richard
had made only token efforts to reconcile with his children. Because NRS 128.105(2)(a)-(f) requires
demonstration of only one factor, and because we conclude that the district court did not err with respect to its
findings of parental unfitness and failure of parental adjustment, we do not address this particular issue.

19
Matter of Q.L.R., 118 Nev. at 608 n.12, 54 P.3d at 59 n.12 (concluding that the district court erred in
finding that the duration of a parent's incarceration would support the termination of parental rights standing
alone and noting that, in this case, the parent's criminal conduct was not directed at the child, nor did it impact
his physical, mental or emotional growth and development); see also Matter of J.L.N., 118 Nev. at 628, 55 P.3d
at 960.
lence with the use of a deadly weapon less than a year later against his own mother. Further,
the record is replete with evidence suggesting that Richard has failed to learn to control his
violent temper during the period of his incarceration. For example, during the hearing to
terminate his parental rights, Richard maintained an aggressive posture towards both the court
and his own counsel. Additionally, Richard's own testimony indicates that he has failed to
accept any responsibility for his crimes; he chose, for example, to blame K.D.L. for the
second act of domestic violence against his mother.
Therefore, we conclude that clear and convincing evidence supports the district court's
finding of parental unfitness. The violent nature of Richard's crimes indicates that he is
unable to provide for K.D.L.'s and S.P.K.'s physical, mental, and emotional health and
development.
20
However, even if the district court erred in its finding of unfitness, we note
that clear and convincing evidence was presented below to demonstrate that returning the
children to Richard's care presented a serious risk of physical, mental, or emotional injury to
the children pursuant to NRS 128.105(2)(e).
Failure of parental adjustment
[Headnote 10]
The district court concluded that clear and convincing evidence of a failure of parental
adjustment existed since Richard would not be eligible for release until, at the earliest, March
2004, and his pre-incarceration conduct indicated a failure of adjustment. Although the
district court discussed Richard's inability to comply with a case plan in a reasonable time
period under NRS 128.109(1)(b), it did not rely solely on the fact of Richard's incarceration in
applying the presumption. Rather, the district court concluded that a failure of parental
adjustment occurred where, in the intervening period between Richard's initial arrest for
domestic violence and the children's removal from the parental home, Richard had failed to
change his violent behavior and there was no indication he would correct his behavior within
a reasonable period of time.
21
The district court found that the State had made reasonable
efforts to return K.D.L. and S.P.K. to their parental home.
__________

20
Cf. Matter of J.L.N., 118 Nev. at 628, 55 P.3d at 960-61 (reversing the termination of an incarcerated
mother's parental rights, and noting that the mother's convictions did not involve conduct related to the abuse or
neglect of her children).

21
See NRS 128.0126 ( Failure of parental adjustment' occurs when a parent or parents are unable or
unwilling within a reasonable time to correct substantially the circumstances, conduct or conditions which led to
the placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by
the state or a private person or agency to return the child to his home.).
reasonable efforts to return K.D.L. and S.P.K. to their parental home. We agree.
Regarding the presumption for finding a failure of parental adjustment, this court has
stated:
[W]e have previously stated that [t]he parent . . . must be shown to be at fault in some
manner . . . [and] cannot be judged unsuitable by reason of failure to comply with
requirements and plans that are . . . impossible . . . to abide by.
Moreover, we have recognized that failure of parental adjustment as a basis for
termination is fraught with difficulties and must be applied with caution.' The main
concern in cases where parental adjustment is at issue is to provide some permanency
for a child.
22

Moreover, we have concluded that, when a district court considers a failure of adjustment and
the presumptions enunciated in NRS 128.109(1)(b), incarceration of the parent, standing
alone, is insufficient grounds to terminate parental rights.
23

In the present case, Richard's willingness to provide support for his children during
the period of his incarceration and his desire to maintain contact with his children do not
obviate the danger he presents to them by way of his violent criminal history. Despite
adequate opportunity and the reasonable efforts of the DCFS, Richard committed a second act
of violence within twelve months of his initial offense, thus wholly failing to address the
requirements enunciated in the DCFS case plan. The period of Richard's incarceration was
not the sole factor supporting the district court's decision. Rather, it is the nature of his
offenses and the potential danger he presents to his children that is relevant.
24
Therefore, we
conclude that the district court did not err in concluding that Richard demonstrated a failure
of parental adjustment.
Accordingly, we affirm the judgment of the district court terminating Richard's
parental rights.
__________

22
Matter of J.L.N., 118 Nev. at 627, 55 P.3d at 959 (footnotes omitted) (quoting Champagne v. Welfare
Division, 100 Nev. 640, 652, 691 P.2d 849, 857 (1994), overruled on other grounds by Matter of N.J., 116 Nev.
790, 8 P.3d 126, and quoting Matter of Parental Rights of Montgomery, 112 Nev. 719, 729, 917 P.2d 949, 956
(1996) (quoting Champagne, 100 Nev. at 652, 691 P.2d at 857), superseded by statute on other grounds as
recognized by Matter of N.J., 116 Nev. 790, 8 P.3d 126).

23
See id. at 627-28, 55 P.3d at 959-60.

24
Id. at 628, 55 P.3d at 960.
____________
118 Nev. 749, 749 (2002) Garvin v. Dist. Ct.
JOHN GARVIN, an Individual; JUDY STURGIS, an Individual; GARY PYLE, an
Individual; JAMES SLADE, an Individual; and PATRICIA A. MCKAY-TIMM, an
Individual, Petitioners, v. THE NINTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF DOUGLAS, and THE
HONORABLE DAVID R. GAMBLE, District Judge, Respondents, and NEVADA
NORTHWEST, LLC, a Limited Liability Company; DOUGLAS COUNTY, a
Political Subdivision of the State of Nevada; DOUGLAS COUNTY BOARD OF
COMMISSIONERS; and BARBARA REED, in Her Capacity as the Douglas County
Clerk, Real Parties in Interest.
No. 40144
December 17, 2002 59 P.3d 1180
Original petition for a writ of mandamus or prohibition, which challenges the district
court's writ of mandate directing the Douglas County Clerk to ensure that any question
resulting from petitioners' sustainable growth initiative not appear on the 2002 Douglas
County general election ballot, or any election ballot thereafter.
Landowner brought action for writ of mandamus to prohibit residents' sustainable
growth initiative measure from being placed on voting ballot. The district court enjoined the
initiative. Residents petitioned for writ of mandamus, and the supreme court stayed the
district court order. After the initiative was passed, the supreme court held that: (1) initiative's
use as to zoning measures is not unconstitutional; overruling Forman v. Eagle Thrifty Drugs
& Markets, 89 Nev. 533, 516 P.2d 1234 (1973); and (2) sustainable growth measure was
legislation, rather than an administrative act, and thus could not be enjoined from placement
on the ballot.
Petition granted.
[Rehearing denied February 21, 2003]
Brooke Shaw Zumpft, Minden; Patricia D. Cafferata, Reno, for Petitioners.
Scott W. Doyle, District Attorney, Douglas County, for Real Parties in Interest
Douglas County, Douglas County Board of County Commissioners, and Douglas County
Clerk.
Scarpello, Huss & Oshinski and Ryan J. Earl, Carson City, for Real Party in Interest
Nevada Northwest.
1. Zoning and Planning.
Writ petition regarding placement of limited growth initiative on voting ballot was not moot, even though election was over, as
initiative's threshold validity was capable of repetition while evading review. Const. art. 19, 2, 4.
2. Constitutional Law; Statutes.
State constitution reserves to the people the power to propose, by initiative petition, statutes and amendments to statutes and the
constitution, and to enact or reject them at the polls, and further reserves the initiative and referendum powers to the registered voters
of each county and municipality as to all local, special and municipal legislation of every kind in and for the county or municipality.
Const. art. 19, 2, 4.
3. Statutes.
Initiative and referendum powers constitutionally reserved to the people, although broad, are limited to legislation and do not
extend to administrative matters. Const. art. 19, 2, 4.
4. Statutes.
Referendum is the electorate's power to approve or disapprove already-enacted legislation, while initiative is the electorate's
power to directly enact legislation by popular vote. Const. art. 19, 2, 4.
5. Constitutional Law; Zoning and Planning.
Initiative's use as to zoning is not unconstitutional, despite property owners' due process rights to notice and an opportunity to be
heard, as state constitution reserved to the people the right to propose, through initiative, statutes and amendments as to all local,
special, and municipal legislation of every kind; overruling Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 516 P.2d 1234
(1973). Const. art. 1, 8; Const. art. 19, 2, 4.
6. Statutes.
Nevada's initiative and referendum powers are limited by the Constitution to legislation. Const. art. 19, 2, 4.
7. Injunction; Zoning and Planning.
Sustainable growth initiative measure was legislation, rather than an administrative act, and thus, it could not be enjoined from
placement on ballot; county's master plan had anticipated a future limitation on growth, but did not establish one, and initiative
attempted to change master plan by establishing a general building cap on residential units to regulate growth. Const. art. 1, 8; Const.
art. 19, 2, 4; NRS 278.150.
8. Statutes.
Although an initiative or referendum is subject to pre-election challenge to its threshold validity, when a proposed initiative or
referendum meets all threshold procedural requirements, pre-election review of substantive challenges is not generally permitted.
Const. art. 19, 2, 4.
OPINION
Per Curiam:
[Headnote 1]
This case involves a sustainable growth initiative measure, which the Douglas County
Board of County Commissioners approved for placement on the November 2002 ballot.
approved for placement on the November 2002 ballot. The initiative proposed a limit on the
number of new dwelling units that could be built annually in the Carson Valley area of
Douglas County. The district court enjoined the initiative's placement on the ballot, based
primarily on its conclusion that any initiative concerning a zoning matter is prohibited by
Forman v. Eagle Thrifty Drugs & Markets.
1
We stayed the district court's order, and the
measure was placed on the ballot as Douglas County Question Number 4; it passed.
2

[Headnotes 2, 3]
We have revisited Forman, and we conclude that a substantial portion of its
foundation is no longer sound. Nevada's Constitution reserves to the people the power to
propose, by initiative petition, statutes and amendments to statutes and the constitution, and
to enact or reject them at the polls, and further reserves the initiative and referendum powers
to the registered voters of each county and municipality as to all local, special and municipal
legislation of every kind in and for the county or municipality.
3
We reaffirm Forman's
holding that the initiative and referendum powers reserved to the people, although broad, are
limited to legislation and do not extend to administrative matters; however, we overrule
Forman to the extent it holds that: (1) the initiative power does not extend to the zoning
processes of counties and cities, or other matters legislatively delegated to local governments;
(2) due process requirements of notice and hearing apply to general zoning legislation by
initiative; and (3) all changes to established zoning policies are administrative in nature.
Finally, we conclude that the sustainable growth initiative is legislative in nature and was
properly submitted to Douglas County voters on November 5, 2002.
BACKGROUND
Douglas County created a Planning Commission in compliance with NRS 278.030,
and the Planning Commission prepared and adopted a comprehensive long-term master plan
for the county's physical development in compliance with NRS 278.150. In April 1996, the
Douglas County Board of County Commissioners amended and adopted the master plan by
resolution. The master plan contains a growth management element, whose purpose is to
establish policies and systems to manage orderly community growth.
__________

1
89 Nev. 533, 516 P.2d 1234 (1973).

2
We note that although the election has ended, this writ petition is not moot because the initiative's threshold
validity falls within an exception to the mootness doctrine for matters that are capable of repetition, yet evading
review. See Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996).

3
Nev. Const. art. 19, 2, 4.
establish policies and systems to manage orderly community growth. This section anticipates,
but does not establish, a building permit allocation system:
In addition to directing growth to the places where it is most appropriate and most
consistent with the Land Use Element, the County should control the rate at which
growth occurs. Uncontrolled growth rates make it difficult for the County to keep up
with expanded needs for roads, water, sewer, and other facilities. Unpredictable growth
also makes it difficult for the County to plan for the best use of its limited groundwater
resources. In order to protect both the County's financial and natural resources, the
County should adopt a building permit allocation system covering residential uses. The
allocation system will allow for a predictable growth rate, which provides for an
averaging of peaks and valleys of growth over time. This provides for an orderly basis
to plan and fund infrastructure and protect the groundwater resource. The residential
permit allocation system should be tied to both the capital improvements program and
to hydrological studies. Therefore, a building permit allocation system should be
designed to maintain an average rate over time.
This section further states that the permit allocation system should not be implemented until
after the County adopts a capital improvements plan and growth rates indicate a need for an
allocation system, and that growth rates should be set in conjunction with the budget process.
In addition, this section lists issues to be addressed in the Development Code, which would
codify the allocation system.
THE INITIATIVE
Petitioners are five individual Douglas County residents who circulated an initiative
petition proposing as follows:
The People of the County of Douglas, State of Nevada, do enact as follows:
SUSTAINABLE GROWTH INITIATIVE: No more than 280 new dwelling units shall
be built annually in Douglas County, exclusive of the area regulated by the Tahoe
Regional Planning Agency (TRPA), except in a disaster emergency declared by the
Board of County Commissioners.
The initiative petition was submitted to Barbara Reed, Douglas County Clerk-Treasurer and
elections officer, on June 10, 2002, and certified as legally sufficient by her on June 27, 2002.
Although the Board of County Commissioners declined to adopt the building cap, the Board
approved the initiative's placement on the 2002 general election ballot as Douglas County
Question Number 4.
the 2002 general election ballot as Douglas County Question Number 4.
On July 24, 2002, Nevada Northwest LLC filed in the Ninth Judicial District Court a
petition for a writ of mandamus or, in the alternative, complaint for declaratory and injunctive
relief to keep the initiative off the ballot. Nevada Northwest owns real property in Douglas
County, for which it received from the Douglas County Commissioners, in December 2001,
specific plan approval for a development with 376 new dwellings.
The matter proceeded to a bench trial on August 14, 2002. The district court
concluded that the initiative is administrative, not legislative, and enjoined its placement on
the ballot. The court's decision rested primarily on Forman's holding that, when a zoning
policy has been established and the process for making zoning changes has been committed
to local planning commissions and governing boards, as is the case in Nevada, zoning
changes are administrative and not referable.
4
The court also concluded that the sustainable
growth initiative is administrative rather than legislative in nature under the test stated in
Forman and recently restated in Glover v. Concerned Citizens for Fuji Park.
5
In its decision,
however, the district court expressed concern that Forman's analysis resembles legislative
preemption analysis, and questioned its validity in the context of the state constitution's
reservation of the initiative and referendum power to the people. We agree that Forman's
reasoning needs reconsideration.
DISCUSSION
[Headnote 4]
Forman involved two different zoning proposals and the process of referendum as
well as initiative. Referendum is the electorate's power to approve or disapprove
already-enacted legislation, while initiative is the electorate's power to directly enact
legislation by popular vote. In 1967, Eagle Thrifty Drugs sought a zoning change for a three
and one-half acre parcel it owned in a Reno residential neighborhood so that it could build a
supermarket. The city planning commission denied Eagle's application, but on appeal the
Reno City Council granted the application in Ordinance No. 1880.
6

William Forman and others then instituted a class action against Eagle and the City.
The district court found that the City Council acted improperly by enacting the ordinance, and
in August 1970 granted Forman's motion for summary judgment on the cause of action
seeking to restrain construction of a supermarket on the rezoned parcel.
__________

4
89 Nev. at 537-38, 516 P.2d at 1237.

5
118 Nev. 488, 50 P.3d 546 (2002).

6
89 Nev. at 534-35, 516 P.2d at 1235.
rezoned parcel. Before the summary judgment was formally entered in October 1970,
however, Reno residents approved Ordinance No. 1880 in a referendum election. Reno
residents also adopted by initiative a Reno zoning law amendment that prohibited industrial
or commercial property use within 300 feet of property used for elementary or junior high
school purposes. Since the Eagle property rezoned by Ordinance No. 1880 was located within
300 feet of an elementary school, the two measures clearly conflicted.
7

After the election, the district court reopened the class action on Eagle's motion, and
vacated and set aside its October 1970 summary judgment. All other causes of action, which
are not identified in the opinion, had been dismissed, and the court granted summary
judgment in Eagle's favor on the sole remaining cause of action, which sought to restrain the
supermarket's construction. Forman was given leave to file a supplemental complaint
attacking the referendum ordinance. After trial, the district court entered final judgment in
Eagle's favor and affirmed the zoning change.
8
The court found that the zoning change
permitting a supermarket, which was enacted by Ordinance No. 1880 and approved by
referendum, was not inconsistent with the City's comprehensive planning objectives, would
not materially affect the land use district's residential character and was not an arbitrary or
unreasonable exercise of the police power.
9

On appeal, the class action plaintiffs argued: (1) that City Ordinance No. 1880, which
rezoned the Eagle parcel, was void and its subsequent approval by referendum was a nullity;
and (2) that the initiative measure, which prohibited commercial use of property within 300
feet of certain schools, was inconsistent with the referendum measure and the initiative
should prevail since it passed by more votes.
10
Forman held that neither the referred
measure nor the initiative proposal were proper subjects to be presented to the voters pursuant
to the initiative and referendum provisions of the Nevada Constitution.
11

In reaching its decision, the Forman court first discussed the nature of the initiative
and referendum power reserved to the people, and noted that these powers are very broad.
The court further observed that the power extends only to legislation, and that administrative
acts are excepted. The court then quoted a Texas case that presented an oft-used test for
determining whether a municipal ordinance is legislative or administrative:
__________

7
Id. at 535, 516 P.2d at 1235.

8
Id.

9
Id. at 539, 516 P.2d at 1238.

10
Id. at 536, 516 P.2d at 1236.

11
Id. at 536-37, 516 P.2d at 1236.
12

The Forman court noted that although the legislative-administrative dichotomy is often
vague, that vagueness gives courts leeway in balancing two competing interests: protecting
government from unwarranted harassment and protecting benefits to be won through direct
legislation.
13

Unfortunately, after establishing this analytical framework, the Forman court did not
apply it to the referendum or initiative at issue. Had it done so, it might well have decided
that the amendment enacted by initiative, which established a new, permanent city-wide land
use policy creating an industrial/commercial buffer zone around elementary and junior high
schools, was legislative, whereas the ordinance approved by referendum, which simply
rezoned a single three and one-half acre parcel owned by one entity, was administrative.
Instead, the court decided that zoning is not subject to the initiative and referendum process.
The Forman court agreed that the state's initial decision to adopt zoning laws to
regulate building construction and land use is a legislative matter subject to referendum. But
the court ruled that once the policy has been established, and the planning commission and
city council have been given the authority to make changes and grant exceptions, all such
action is administrative and not referable.
14
(Thus, Reno residents could not validly approve
Ordinance No. 1880, which rezoned a parcel of land, by referendum.) The Forman court then
stated that Reno residents also could not adopt an amendment to the zoning law by initiative
ballot, for similar and additional reasons.
15

Without discussing whether local land use is a matter of statewide concern, the
Forman court decided that the Legislature's delegation of land use and zoning matters to local
governments rendered these matters completely off-limits to direct citizen action.
16
The
court then added that local governing bodies must comply with constitutional due process
requirements when changing land use classifications, and specifically must follow statutory
notice and hearing requirements.
__________

12
Id. at 537, 516 P.2d at 1236 (quoting Denman v. Quin, 116 S.W.2d 783, 786 (Tex. Civ. App. 1938)).

13
Id.

14
Id. at 537-38, 516 P.2d at 1237.

15
Id. at 538, 516 P.2d at 1237.

16
Id.
notice and hearing requirements.
17
These statutory notice and hearing requirements do not
expressly apply to the referendum and initiative processes, and the court did not consider
whether the different processes governing referenda and initiatives might separately satisfy
due process concerns or even whether any valid due process concerns existed in the first
place. The court also did not consider the interplay between the Nevada Constitution's
reservation of the initiative and referendum power to the people, and the Legislature's
statutory delegation of the state's zoning power to local governments. The court simply
adopted constitutional dictum from a 1929 California case, Hurst v. City of Burlingame,
18
which states that statutory notice and hearing requirements must be met to satisfy due process
whenever proposed zoning laws may affect property rights.
19

Building on this theme, the Forman court then adopted the holding from a 1954 Utah
case, Dewey v. Doxey-Layton Realty Co.,
20
which states that when residents try to initiate
zoning without following the statutory notice and hearing procedures, they are, in effect,
attacking the state statute under which they claim zoning power, and until the state's zoning
legislation is repealed or amended by the legislature or by the people through referendum or
initiative, statutory procedures must be followed.
21

Finally, the Forman court affirmed the district court's judgment that the Reno City
Council acted properly in enacting Ordinance No. 1880.
22

Forman's ruling that zoning is not subject to the initiative and referendum process
lacks a stable foundation. This fundamental instability is revealed by an examination of the
California and Utah authorities upon which the ruling rests.
The California authority
In 1911, California amended its constitution to reserve the power of initiative and
referendum to county and city electors, and to authorize the Legislature to establish
procedures facilitating the electorate's exercise of its right. The California Legislature
subsequently enacted statutes providing for the circulation of petitions, calling elections and
other procedures required to enact initiative and referendum measures.
23

__________

17
Id. at 538-39, 516 P.2d at 1237.

18
277 P. 308 (Cal. 1929).

19
89 Nev. at 539, 516 P.2d at 1237.

20
277 P.2d 805 (Utah 1954).

21
89 Nev. at 539, 516 P.2d at 1237-38.

22
Id. at 539, 516 P.2d at 1238.

23
See discussion in Associated Home Builders v. City of Livermore, 557 P.2d 473, 476-78 (Cal. 1976).
In 1927, the California Supreme Court first applied the 1911 amendment to zoning
matters in Dwyer v. City Council of Berkeley,
24
and directed the Berkeley City Council to
submit a zoning ordinance it had enacted to referendum. The Dwyer court reasoned that since
the city council had the authority to enact legislative zoning ordinances, the people also had
the power to enact or pass upon zoning ordinances by initiative or referendum.
25
The court
rejected an argument that the referendum denied affected persons the right, granted by
municipal ordinance, to appear before the city council and be heard. The court explained that
all persons interested in the measure had to the moment of its adoption [by the city
council] an opportunity to appear and oppose or advocate the passage of the proposed
ordinance. So far as the adoption of the ordinance was concerned, no right was denied
them. By the petition for a referendum the matter has been removed from the forum of
the council to the forum of the electorate. The proponents and opponents are given all
the privileges and rights to express themselves in an open election that a democracy or
republican form of government can afford to its citizens . . . . It is clear that the
constitutional right reserved by the people to submit legislative questions to a direct
vote cannot be abridged by any procedural requirements . . . .
26

Two years later, in Hurst v. City of Burlingame,
27
the California Supreme Court
invalidated a zoning ordinance adopted by city electors under their constitutional initiative
power. An affected property owner, contending that he had been denied the right to a public
hearing established by the state's Zoning Act of 1917, had successfully sued to enjoin
enforcement of the ordinance.
28
On appeal, the Hurst court began with the proposition that
an ordinance proposed by electors must constitute legislation that the legislative body has the
power to enact, and decided that since the City's board of trustees could not lawfully enact a
zoning ordinance without complying with the state law's notice and hearing requirements, the
voters could not adopt such an ordinance by initiative.
29

To reach this result, the Hurst court presumed a conflict between the state's initiative
procedural law and its zoning law, and resolved it by deeming the zoning act,
__________

24
253 P. 932 (Cal. 1927).

25
Id. at 934-36.

26
Id. at 936.

27
277 P. 308 (Cal. 1929).

28
Id. at 309-10.

29
Id. at 311.
and resolved it by deeming the zoning act, which was a special statute dealing with a
particular subject, as controlling over the initiative procedural law, which was general in
scope.
30
The court distinguished Dwyer in part on the ground that it upheld a referendum,
and thus persons had already been given notice and a hearing when the ordinance was
originally enacted, and ignored Dwyer's observation that the right to initiate legislation exists
if the right of referendum can be invoked.
31
And, although the court held that the
Burlingame initiative was invalid for noncompliance with the state zoning law, the court
added as dictum a comment that later overshadowed its statutory holding:
When the [state zoning] statute requires notice and hearing as to the possible effect of a
zoning law upon property rights[,] the action of the legislative body becomes quasi
judicial in character, and the statutory notice and hearing then becomes necessary in
order to satisfy the requirements of due process and may not be dispensed with.
32

In 1974, a year after Forman was decided, the California Supreme Court decided San
Diego Building Contractors Ass'n v. City Council of San Diego,
33
and expressly disapproved
Hurst's constitutional dictum. In deciding that a San Diego City Charter provision that
required the planning commission to provide for notice and hearing did not impinge on the
electorate's right to initiate zoning legislation, the court rejected an argument that affected
property owners had a constitutional due process right to notice and hearing before any
zoning law could be enacted. The court explained that the entire due process argument was
founded on an erroneous premise, since our nation's legal system permits the enactment of
statutes of general application without affording each potentially affected person notice and
hearing; due process requires notice and hearing only in quasi-judicial or adjudicatory
settings, and not with respect to the adoption of general legislation.
34
The court further
rejected an argument that Hurst and later cases relying upon Hurst establish the constitutional
principle that notice and hearing are required before zoning legislation may be enacted.
__________

30
Id.

31
Id. at 311-12. We again note that the distinction arises from the different procedures employed for
referenda and initiatives. Referenda give the voters an opportunity to approve or veto legislation already
enacted, whereas initiative petitions give the voters an opportunity to directly enact legislation. In Forman, both
procedures were employedcity voters approved the zoning change already enacted by the City Council and
directly enacted legislation restricting commercial and industrial land use near schools.

32
Id. at 311.

33
529 P.2d 570, 576-77 (Cal. 1974).

34
Id. at 573-76.
enacted. The court explained that Hurst rested exclusively on statutory interpretation, not on
constitutional principles, and that later cases misconstruing Hurst's notice and hearing
language did so in pure dictum.
35
The court concluded that San Diego's electors could
validly enact the zoning ordinance at issue, which established a uniform maximum height for
buildings erected along the city's coast in the future, through the initiative process.
36

Two years later, in Associated Home Builders v. City of Livermore,
37
the California
Supreme Court expressly overruled Hurst's holding that the state zoning act's notice and
hearing requirements applied to zoning ordinances enacted by initiative. The court began its
analysis by observing:
At first glance it becomes apparent that something must be wrong with the reasoning
in Hurst. Starting from a premise of equalitythat the voters possess only the same
legislative authority as does the city councilHurst arrived at the conclusion that only
the council and not the voters had the authority to enact zoning measures. Thus in the
name of equality Hurst decrees inequality. The errors which lead to this non-sequitur
appear after further analysis.
38

The court then explained how Hurst went wrong.
First, Hurst erroneously contrived a conflict between state zoning statutes and
initiative statutes, when none existed, since the Legislature plainly drafted the notice and
hearing requirements with a view toward ordinances adopted by city council vote and never
intended that they apply to the enactment of zoning initiatives.
39
Second, Hurst erroneously
treated the case as involving a conflict between two statutes of equal statusone governing
zoning and one governing initiative proceduresand overlooked a crucial distinction: the
right of initiative is guaranteed by the state's constitution, and the initiative statute simply
spells out procedures for its exercise. Thus, interpreting the state zoning law's hearing and
notice requirements to bar initiative land use ordinances would be of doubtful
constitutionality, while all such doubt would dissolve by interpreting the zoning law to limit
the notice and hearing requirements to ordinances enacted by city councils. In addition, the
zoning law's status as a special statute would not support Hurst, since special legislation is
still subject to constitutional limitations.
40
Third, Hurst erred in distinguishing Dwyer on the
ground that Dwyer involved a referendum on a zoning ordinance,
__________

35
Id. at 576-77.

36
Id. at 571, 578.

37
557 P.2d 473 (Cal. 1976).

38
Id. at 479.

39
Id.

40
Id. at 479-80.
the ground that Dwyer involved a referendum on a zoning ordinance, since Dwyer itself
pointed out that if the right of referendum can be invoked, the corollary right to initiate
legislation must be conceded to exist.'
41
Resting upon the well-established precepts that
apparently conflicting statutes should be reconciled if possible, that a statute should be
construed to eliminate doubts about its constitutionality, and that the initiative power should
be broadly construed with all doubts resolved in its favor, the court concluded that Hurst was
incorrectly decided and overruled it.
42

The Utah authority
In 1954, the Utah Supreme Court decided Dewey v. Doxey-Layton Realty Co.,
43
and
relied heavily on Hurst in deciding that Salt Lake City voters could not initiate a residential
rezoning ordinance even if it was legislative instead of administrative. The court began its
analysis by acknowledging that the state's constitution reserved to voters the power to initiate
legislation and to require that legislation be submitted to them by referendum for approval or
rejection, then observed that the line drawn between administrative and legislative functions
was not the only limitation on this power.
44
The court illustrated its point by citing cases,
from several other states, holding that the powers of initiative and referendum did not extend
to matters such as appropriations, tax assessments and utility rate regulations.
45

The Dewey court then considered whether the initiative and referendum powers
extend to zoning matters. The court initially observed that many cases apply the provisions of
a referendum act to zoning ordinances, but the court knew of no judicial authority that
accepted zoning by initiative.
46
The court cited Hurst as authority [i]n point on this matter
and holding that the constitutionally reserved power of initiative does not apply to a zoning
ordinance,
47
and presented the Hurst court's reasoning in a long quote, which included the
constitutional dictum and the holding that California's Zoning Act controlled over its
initiative law.
48

__________

41
Id. at 480 (quoting Dwyer v. City Council, 253 P. 932, 934 (Cal. 1927)).

42
Id.

43
277 P.2d 805 (Utah 1954).

44
Id. at 806-07.

45
Id. at 807-08.

46
Id. at 808.

47
Id. The court also cited Saks & Co. v. City of Beverly Hills, 237 P.2d 32 (Cal. Ct. App. 1951), but Saks
simply applied Hurst's holding. The Saks court, stating that it was bound by the Hurst decision, ruled that a
zoning ordinance adopted by city electors without complying with the state zoning act's notice and hearing
provisions was void. 237 P.2d at 37.

48
277 P.2d at 808.
The Dewey court rejected the initiative proponents' argument that the Hurst case was
not controlling because the California court did not spell out the constitutional question
involved and because the constitution's reservation of the initiative and referendum power to
the people is supreme as to laws enacted by the state's various lawmaking bodies.
49
The
court agreed, but decided that it could not give the principle the application contended for.
50
Instead, the court expanded on Hurst's rationale.
According to Dewey, the Utah Legislature acted within its power and delegated to
local legislative bodies the power to zone, so that the need for a comprehensive plan might be
met, and provided means for the protection of private property through notice and public
hearings.
51
Dewey concluded:
Thus, when appellants seek to initiate rezoning within the city without complying with
the zoning statute, they are, in effect, attacking collaterally the very statute under which
they claim their power to zone. . . .
Appellants agree that the legislative body of the city has broad discretionary powers
with regard to zoning of the city and that such body could not zone without complying
with the procedural due process afforded by the statute. For the same reason, the
electors of the city cannot by-pass those provisions of the statute as long as the zoning
statute remains in force. The state legislature has here acted within its powers and
unless that general law is affected by repeal or amendment by the legislature, or by
referendum or initiative by the people of the state, the statute guides the zoning process
of the cities and directs the means by which it is to be accomplished.
52

The Utah Supreme Court has not overruled Dewey, but it has limited it to zoning by
initiative. Ten years after Dewey, in Bird v. Sorenson,
53
the court did not even mention
Dewey when it ruled that a city council's ordinance rezoning property from residential to
commercial use was administrative, rather than legislative, and was therefore not subject to
referendum. The Bird court concluded:
If each change in a zoning classification were to be submitted to a vote of the city
electors, any master plan would be rendered inoperative. Such changes are
administrative acts implementing the comprehensive plan and adjusting it to current
conditions.
__________

49
Id. at 808-09.

50
Id. at 809.

51
Id.

52
Id. (citations omitted).

53
394 P.2d 808 (Utah 1964).
implementing the comprehensive plan and adjusting it to current conditions.
54

In 1982, in Wilson v. Manning,
55
the Utah court reaffirmed its holding in Bird, and
clarified its approach to zoning by initiative or referendum. The court acknowledged that its
prior case law characterized the enactment of zoning laws and ordinances as legislative
functions, and stated that the original enactment of a zoning ordinance would generally be
subject to referendum.
56
The court noted that Dewey was not to the contrary, because an
ordinance subjected to referendum has presumably been enacted in compliance with statutory
notice and hearing requirements, whereas those requirements preclude voters from initiating
zoning measures.
57
The court then stated that ordinances implementing the basic zoning
enactment, such as by exceptions and variances, would generally be considered
administrative acts not subject to referendum.
58
Although the Wilson court deemed the
10-acre rezoning ordinance before it administrative, and therefore not subject to referendum,
it held out the possibility that major rezoning could be subject to referendum. The court stated
that some amendments could constitute such material variances from the governmental unit's
basic zoning law that it would make new law rather than merely implement and adjust the
comprehensive plan.
59
The Utah Legislature subsequently enacted statutes governing zoning
referendum filing standards and procedures.
60
Zoning initiatives are still not allowed in
Utah.
Reformulating Nevada's approach
[Headnote 5]
Forman's conclusion that the initiative's use in zoning is unconstitutional, because
property owners have a Fourteenth Amendment due process right to notice and a hearing in
matters affecting property rights and the initiative process does not afford affected persons
notice and a hearing, is fundamentally flawedas the California Supreme Court observed in
San Diego Building Contractors Ass'n.
__________

54
Id.

55
657 P.2d 251 (Utah 1982).

56
Id. at 253.

57
Id. at 253 n.2.

58
Id. at 253.

59
Id. at 254.

60
See Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994) (discussing the legislation, clarifying
the distinction between administrative and legislative matters, and interpreting the statutory provision that
excepts individual property zoning decisions from the referendum process).
Contractors Ass'n.
61
On this point, the California court quoted Justice Oliver Wendell
Holmes, who wrote the following for a unanimous United States Supreme Court in
Bi-Metallic Co. v. Colorado:
62

Where a rule of conduct applies to more than a few people, it is impracticable that
everyone should have a direct voice in its adoption. The Constitution does not require
all public acts to be done in town meeting or an assembly of the whole. General statutes
within the state power are passed that affect the person or property of individuals,
sometimes to the point of ruin, without giving them a chance to be heard. Their rights
are protected in the only way that they can be in a complex society, by their power,
immediate or remote, over those who make the rule.
Citing several notable United States Supreme Court cases regarding due process, the
California court pointed out that they clearly establish that the due process requirements of
notice and hearing apply only to governmental actions of an adjudicatory nature.
63

Forman's conclusion that voters cannot bypass statutory notice and hearing
requirements and enact zoning measures through the constitutional initiative process is also
fundamentally flawed. Nevada's Constitution reserves to the people the power to propose, by
initiative petition, statutes and amendments to statutes and the constitution, and to enact or
reject them at the polls, and further reserves the initiative and referendum powers to the
registered voters of each county and municipality as to all local, special and municipal
legislation of every kind in and for the county or municipality.
64
By its plain terms, this
reservation of power is limited to legislation, but it necessarily includes zoning legislation.
Hurst, Dewey and Forman reason essentially as follows: the local initiative and
referendum power can be no greater than the local legislative body's power; state zoning laws
limit the local legislative body's power procedurally;
__________

61
529 P.2d at 573.

62
Id. (quoting Bi-Metallic Co. v. Colorado, 239 U.S. 441, 445 (1915)).

63
Id. at 574 & n.4 (citing such cases as Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950), and
Morrissey v. Brewer, 408 U.S. 471 (1972)); see also Allison v. Washington County, 548 P.2d 188, 190-91 (Or.
Ct. App. 1976) (distinguishing between legislative and quasi-judicial matters; characterizing the former as action
affecting a large area consisting of many parcels of property in disparate ownership, such as an ordinance
imposing a 30-foot height restriction on future buildings in a coastal zone, and the latter as action applying a
general rule to a specific interest, such as a zoning change affecting a single piece of property, a variance, or a
conditional use permit; and recognizing that a substantial majority of cases hold there is no constitutional right
to notice or hearing in the legislative-action context).

64
Nev. Const. art. 19, 2, 4.
legislative body's power procedurally; since the local legislative body cannot pass zoning
laws without complying with statutory procedural restrictions, the people's power is similarly
limited; the initiative process is hopelessly inconsistent with statutory zoning requirements
because no public hearing is held before the planning commission or the local legislative
body; and because the initiative procedure does not encompass these steps, it cannot be used
to enact zoning legislation.
65
This reasoning does not give the constitutional provisions the
authority they deserve.
As the California Supreme Court recognized when it reconsidered Hurst's holding,
although the state legislature can specify the manner in which local legislative bodies enact
zoning ordinances, legislation that permits council action but effectively bars initiative action
would likely be unconstitutional.
66
In other words, if a county board of commissioners or
city council can enact zoning legislation, the county and city voters can do the same by
initiative. This interpretation truly gives the voters the same legislative authority as the local
governing body. It also recognizes that the initiative process offers protections generally
equivalent to statutory notice and hearing requirements. The filing and circulation of an
initiative petition, and the adversary nature of a political campaign, provide ample
opportunity for all viewpoints to be heard.
67
Other states that prohibit zoning by initiative or
referenda generally do so on the basis of Hurst or Dewey or both,
68
or by construing a
specific statutory grant of zoning authority as taking precedence over a general statutory, not
constitutional, grant of initiative and referenda power.
69
We decline to follow this line of
authority.
[Headnote 6]
Although we conclude that due process is not a concern and the electorate is not
bound by the statutory requirements that the local legislative bodies must follow, Nevada's
initiative and referendum powers are still limited by the Constitution to legislation.
Forman's general discussion of the distinction between legislative matters and
administrative matters is sound, though limited in scope.
__________

65
Craig N. Oren, Comment, The Initiative and Referendum's Use in Zoning, 64 Cal. L. Rev. 74, 100-101
(1976).

66
Associated Home Builders, 557 P.2d at 480.

67
Oren, supra note 65, at 104-05.

68
E.g., Transamerica Title Ins. Co. v. Tucson, 757 P.2d 1055 (Ariz. 1988); Gumprecht v. City of Coeur
D'Alene, 661 P.2d 1214 (Idaho 1983); Elliott v. City of Clawson, 175 N.W.2d 821, 823-24 (Mich. Ct. App.
1970); State v. Donohue, 368 S.W.2d 432 (Mo. 1963).

69
E.g., I'On, L.L.C. v. Town of Mt. Pleasant, 526 S.E.2d 716, 719-21 (S.C. 2000); see also Hancock v.
Rouse, 437 S.W.2d 1 (Tex. Civ. App. 1969) (interpreting municipal charter and holding that zoning requires
administrative expertise and is not subject to initiative).
scope. But to the extent that Forman can be read to suggest that once a county or city adopts a
zoning policy under a statutory grant of authority, all changes are administrative, its reasoning
is flawed. Virtually all local government actions are taken pursuant to statutory authority,
either directly or indirectly, so characterizing local zoning action as administrative based
solely on this factor renders the legislative-administrative distinction practically meaningless.
70
Zoning is not an end in itself, but rather a means of achieving various community
objectives, and as a community's goals and beliefs change, so too must its land use policies.
Zoning measures should be subjected to the same tests as other measures.
Consequently, based on the foregoing analysis, we overrule Forman to the extent that
it holds that: (1) the initiative power does not extend to the zoning processes of counties and
cities, or other matters legislatively delegated to local governments; (2) due process
requirements of notice and hearing apply to general zoning legislation by initiative; and (3) all
changes to established zoning policies are administrative in nature. We reaffirm Forman's
holding that the initiative and referendum powers reserved to the people are very broad, but
are limited to legislation. In addition, we reaffirm Forman's test for distinguishing between
legislative and administrative measures, and we reaffirm our recent clarifications of the
Forman test in Glover v. Concerned Citizens for Fuji Park
71
and Citizens for Train Trench
Vote v. Reno.
72

[Headnote 7]
Applying Forman's test here, we consider whether the sustainable growth initiative
measure changes the course of policy for the guidance of Douglas County's citizens or their
officers and agents, and is therefore legislative, or whether it simply executes established
policies, and is therefore administrative.
73
We conclude that the sustainable growth measure
is legislation. The Douglas County Master Plan anticipated a future limitation on growth, but
it did not establish one. The initiative's proponents evidently decided that the time was ripe,
__________

70
Town of Whitehall v. Preece, 956 P.2d 743, 749 (Mont. 1998).

71
118 Nev. 488, 50 P.3d 546. We reaffirm our conclusion that the initiative to preserve Fuji Park and the
Carson City Fairgrounds in perpetuity was administrative in nature because it did not establish a new course of
policy. We disapprove of the opinion to the extent that it follows Forman's holding that the initiative power does
not extend to the zoning processes of counties and cities, due process requirements of notice and hearing apply
to general zoning legislation by initiative, and all changes to established zoning policies are administrative in
nature.

72
118 Nev. 574, 53 P.3d 387 (2002). We reaffirm our conclusion that the initiative to prevent construction of
a train trench within the existing right-of-way through Reno was administrative in nature. We disapprove of the
opinion to the extent that it follows Forman's holding that the initiative power does not extend to matters
legislatively delegated to local governments.

73
decided that the time was ripe, and chose to change the Master Plan by establishing a general
building cap on residential units to regulate growth. This change is policy-driven, and is
legislative in character. Executing this new policy will be an administrative matter.
[Headnote 8]
Having decided that the sustainable growth initiative meets the threshold
constitutional requirement that it propose legislation, we decline to address the County's and
Nevada Northwest's other arguments regarding the measure's substantive validity in this
proceeding. We reiterate that, although an initiative or referendum is subject to pre-election
challenge to its threshold validity,
74
when a proposed initiative or referendum meets all
threshold procedural requirements, pre-election review of substantive challenges is not
generally permitted.
75
The County and Nevada Northwest are not left without a judicial
remedy, however, since the substantive validity of all legislation may be challenged after it is
enacted.
CONCLUSION
The sustainable growth initiative measure that was submitted to the Douglas County
electorate as Douglas County Question Number 4 is legislation under the Forman test, not an
administrative act. Thus, the district court should not have enjoined the measure's placement
on the ballot. Accordingly, we vacate our stay and we grant the petition; the clerk of this court
shall issue a writ of mandamus directing the district court to vacate its August 20, 2002 order
in its entirety.
76

__________

74
Glover, 118 Nev. at 497-98, 50 P.3d at 552-53.

75
Hessey v. Burden, 615 A.2d 562, 572-74 (D.C. 1992) (reviewing various state cases regarding pre-election
challenges to the validity of proposed initiatives); see James D. Gordon III & David B. Magleby, Pre-election
Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298 (1989); see also Las Vegas
Chamber of Commerce v. Del Papa, 106 Nev. 910, 802 P.2d 1280 (1990) (noting that this court had always
strictly limited its pre-election intervention to cases involving violations of state constitutional or statutory rules
governing the procedures for placing initiatives and referendums on the ballot, and declining to enjoin an
initiative that, if enacted, could later be held unconstitutional). But see Stumpf v. Lau, 108 Nev. 826, 839 P.2d
120 (1992) (holding that this court may enjoin a ballot question that, if enacted, would constitute a plain and
palpable violation of the United States Constitution and would be inoperative under any circumstances or
conditions).

76
When petitioners have 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. NRS 34.170; Round Hill Gen.
Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Although petitioners could have
appealed the district court's decision, and an appeal is ordinarily an adequate remedy, Guerin v. Guerin, 114
Nev. 127, 131, 953 P.2d 716, 719 (1998), severe time constraints rendered an appeal inadequate
Maupin, J., concurring:
I join in the result reached by the majority, with the following qualifications. First,
because of my disqualification in Citizens for Train Trench Vote v. Reno,
1
I am not in a
position to reaffirm that decision. Second, I stand by my separate opinion in Glover v.
Concerned Citizens for Fuji Park,
2
and thus do not reaffirm the majority decision in that
case.
I also want to separately comment upon the fact that we have not addressed the
substantive validity of the sustainable growth initiative, which the real parties in interest have
raised in their response to the instant petition. Because the petition was brought as a
pre-election challenge, we have only resolved the threshold question of whether the initiative
belonged on the ballot. Although the measure was approved by the voters of Douglas County
while the instant petition was pending before us, we have deferred ruling on the substantive
viability of the initiative until separate litigation is brought in response to its actual
enforcement.
____________
118 Nev. 767, 767 (2002) Eller Media Co. v. City of Reno
ELLER MEDIA COMPANY, a Delaware Corporation Qualified to Do Business in the State
of Nevada, Formerly DR PARTNERS, a Nevada General Partnership dba DONREY
OUTDOOR ADVERTISING COMPANY, Appellant, v. THE CITY OF RENO, a
Municipal Corporation; and CITIZENS FOR A SCENIC RENO, a Nevada Non-Profit
Corporation, Respondents.
No. 37369
December 17, 2002 59 P.3d 437
Appeal from a district court decision denying appellant's petition for a writ of
mandamus. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
Advertiser petitioned for writ of mandamus to compel City Clerk to remove from
general election ballot a proposed initiative petition seeking to prohibit City from issuing
permits for construction of new off-premise advertising billboards. The district court denied
petition. Advertiser appealed. The supreme court held that: (1) City Clerk substantially
complied with statute requiring Clerk to examine signatures on initiative petition by sampling
them randomly for verification when it delegated to county registrar of voters duty to verify
signatures on initiative petition,
__________
in this case. We deny Nevada Northwest and the County's motion to strike portions of the reply and reply
appendix.

1
118 Nev. 574, 53 P.3d 387 (2002).

2
118 Nev. 488, 50 P.3d 546 (2002).
county registrar of voters duty to verify signatures on initiative petition, and (2) initiative
petition was legislative in character and proper subject for initiative petition.
Affirmed.
McDonald Carano Wilson LLP and John Frankovich and Scott A. Gronek, Reno, for
Appellant.
Patricia A. Lynch, City Attorney, and Marilyn D. Craig, Deputy City Attorney, Reno,
for Respondent City of Reno.
Woodburn & Wedge and W. Chris Wicker, Reno, for Respondent Citizens for a Scenic
Reno.
City Clerk substantially complied with statute requiring clerk to examine signatures on initiative petition by sampling them
randomly for verification when it delegated to county registrar of voters duty to verify signatures on initiative petition seeking to
prohibit city from issuing permits for construction of new off-premise advertising billboards; statute contained no language requiring
clerk to examine personally signatures or prohibiting him from delegating that duty, and city and county had entered into interlocal
agreement, whereby county registrar agreed to be responsible for performance of all acts and functions necessary to conduct efficient
elections, and construing statute to forbid clerk to delegate duty conflicted with statute permitting interlocal contracts between public
agencies for the performance of governmental services. NRS 277.180, 295.210.
2. Statutes.
When the language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go
beyond it.
3. Statutes.
When more than one interpretation of a statute can reasonably be drawn from its language, it is ambiguous and the rule that a
court should give statutory language its ordinary meaning and not go beyond it has no application.
4. Statutes.
The entire subject matter of and the policy behind a statute may aid in its interpretation, and statutes should always be construed
so as to avoid absurd or unreasonable result.
Petition on general election ballot to prohibit city from issuing permits for construction of new off-premise advertising
billboards was legislative in character and proper subject for initiative petition; petition did not merely apply previously declared
policies or laws, even though city had previously regulated off-premise advertising, but rather, it articulated entirely new policy,
prohibiting construction of new off-premise billboards throughout city, and did not concern specific project, but enacted citywide
change in policy towards off-premise advertising.
Before Young, C. J., Rose and Agosti, JJ.
OPINION
Per Curiam:
Appellant Eller Media Company, f/k/a DR Partners d/b/a Donrey Outdoor Advertising
Company, petitioned for a writ of mandamus to compel the City Clerk for the respondent City
of Reno to remove from the November 2000 general election ballot an initiative petition
submitted by respondent Citizens for a Scenic Reno. The proposed initiative sought to
prohibit the City of Reno from issuing permits for the construction of new off-premise
advertising displays/billboards. The district court denied Eller Media's application for a writ
of mandamus, and subsequently, the initiative was passed during the 2000 general election.
On appeal, Eller Media argues that the district court erred because: (1) the City Clerk failed to
comply with the statutory provisions requiring him to conduct random sampling of initiative
petition signatures for verification; and (2) the subject of the proposed initiative was
administrative, and thus, an improper matter for an initiative petition. We conclude that Eller
Media's arguments are without merit, and therefore, the district court's order should be
affirmed.
FACTS
On March 29, 2000, Citizens for a Scenic Reno (Citizens) filed a Notice of Intent:
Initiative Petition Affidavit with the City Clerk for the City of Reno pursuant to NRS
295.205,
1
indicating their intent to submit the following initiative to the voters at the next
general election:
THE PEOPLE OF THE CITY OF RENO DO ENACT AS FOLLOWS: Initiative
Petition: The construction of new off-premise advertising displays/billboards is
prohibited, and the City of Reno may not issue permits for their construction.
Thereafter, Citizens circulated the initiative petition, collecting approximately 9,525
signatures, and submitted the completed initiative petition to the City Clerk's office. The City
Clerk forwarded the initiative petition to the Washoe County Registrar of Voters, indicating
that the City Clerk had performed a raw count of the signatures to verify that the initiative
petition contained the minimum required by NRS 295.205(2). The City Clerk requested that
the Registrar conduct random sampling for verification of the signatures on the initiative
petition.
__________

1
NRS 295.205 permits any five voters of a city to commence initiative proceedings by filing an affidavit with
the city clerk. The statute requires initiative petitions to be signed by a number of registered voters of the city
equal to 15 percent or more of the number of voters who voted at the last preceding city election. NRS
295.205(2).
requested that the Registrar conduct random sampling for verification of the signatures on the
initiative petition. After completing a random validation of the signatures, the Registrar sent a
certificate of sufficiency to the Mayor and City Council of Reno, stating that he found the
petition sufficient pursuant to NRS 295.210. Eller Media argues that the City Clerk's
obligation to verify the signatures by conducting a random sampling is a nondelegable duty.
Eller Media filed a complaint against the City of Reno and Citizens alleging that the
City Clerk's certification of the initiative petition was insufficient and further that the
initiative ordinance was not a proper subject for initiative. The complaint sought a writ of
mandamus compelling the City of Reno to remove the initiative from the ballot for the
November 2000 general election. Following a hearing on the matter, the district court
concluded that the City of Reno had substantially complied with the statutory certification
requirements for initiative petitions. Additionally, the district court concluded that the
initiative petition sought to establish new public policy within the city, and therefore, the
billboard ordinance was a proper subject for initiative. On appeal, Eller Media asserts that the
City Clerk improperly delegated to the Washoe County Registrar of Voters his duty to verify
the signatures on the initiative petition in contravention of NRS 295.210(2). At the time in
question,
2
NRS 295.210 stated, in pertinent part, that the city clerk must examine the
signatures by sampling them randomly for verification.
[Headnotes 1-4]
When the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it.
3
However, when more than one
interpretation of a statute can reasonably be drawn from its language, it is ambiguous and the
plain meaning rule has no application.
4
The entire subject matter of and the policy behind a
statute may aid in its interpretation, and statutes should always be construed so as to avoid
absurd or unreasonable results.
5

We conclude that the district court did not err when it found that the City Clerk had
substantially complied with NRS 295.210 because,
__________

2
The pertinent election statutes were revised in 2001. NRS 295.210(2) no longer exists in the form quoted
here. See 2001 Nev. Stat., ch. 581, 52, at 2968-69.

3

4
Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 879-80 (1987).

5
Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 459 (1972).
because, while NRS 295.210(2) requires the City Clerk to examine the signatures by
sampling them randomly for verification, it contains no language requiring the City Clerk to
personally examine the signatures or prohibiting him from delegating that duty to the County
Registrar of Voters. Eller Media's narrow interpretation of the statute is unreasonable.
Moreover, it conflicts with NRS 277.180, which permits interlocal contracts between public
agencies for the performance of governmental services. Here, the City of Reno and Washoe
County had entered into an interlocal agreement, whereby the County Registrar agreed to be
responsible for the performance of all acts and functions necessary to conduct efficient
elections. Additionally, NRS 293.127 requires that NRS Title 24, which includes NRS
295.210, be liberally construed to ensure that the real will of the electors is not defeated by
informality or failure to substantially comply with the provisions of the title.
Second, Eller Media asserts that the prohibition of off-premise billboards is not the
proper subject of an initiative petition because it is administrative in character. Citing our
decision in Forman v. Eagle Thrifty Drugs & Markets,
6
Eller Media argues that the initiative
was administrative in character because the City of Reno had already adopted a
comprehensive zoning plan, which includes regulations of off-premise advertising.
Additionally, Eller Media argues that the initiative was invalid because it attempted to initiate
rezoning in the City of Reno outside of the zoning statute requirements in NRS Chapter 278.
[Headnote 5]
While portions of our original holding in Forman may be read to support Eller
Media's contentions, we recently reexamined Forman in Garvin v. District Court.
7
In
Garvin, we overruled Forman to the extent it held that: (1) the initiative power does not
extend to the zoning processes of counties and cities, or other matters legislatively delegated
to local governments; (2) due process requirements of notice and hearing apply to general
zoning legislation by initiative; and (3) all changes to established zoning policies are
administrative in nature.
8
Despite the limitations placed on Forman, Garvin reaffirmed the
central test that Forman enunciated for determining whether an initiative is administrative or
legislative in character.
9
In Forman, we expressed this central test as follows:
__________

6
89 Nev. 533, 516 P.2d 1234 (1973), overruled in part by Garvin v. Dist. Ct., 118 Nev. 749, 59 P.3d 1180
(2002).

7
118 Nev. at 751, 59 P.3d at 1181.

8
See id.

9
See id. at 764-65, 59 P.3d at 1190.
10

Eller Media's reliance upon Forman is misplaced to the extent that it relies upon those
portions of Forman that go beyond the central test and that were overruled by this court in
Garvin.
Applying this test, as articulated in Forman and clarified in Garvin, we conclude that
the initiative prohibiting off-premises billboards was legislative in character. The billboard
petition did not merely apply previously declared policies or laws; rather, it articulated an
entirely new policyit prohibited construction of new off-premise billboards throughout the
City of Reno. Although the City of Reno had regulated off-premise advertising, prohibiting
such advertising was a complete change in policy.
11
Additionally, unlike the situations in
Citizens for Train Trench Vote v. Reno
12
and Glover v. Concerned Citizens for Fuji Park,
13
the billboard initiative does not concern a specific project, but enacts a city-wide change in
policy towards off-premise advertising. As a result, we conclude that the billboard petition
was legislative in character and a proper subject for an initiative petition.
Accordingly, we affirm the district court's order denying the appellant's petition for a
writ of mandamus.
__________

10
Forman, 89 Nev. at 537, 516 P.2d at 1236 (quoting Denman v. Quin, 116 S.W.2d 783, 786 (Tex. Civ.
App. 1938)).

11
See Reno Municipal Code 18.06.500 (2000).

12
118 Nev. 574, 53 P.3d 387 (2002), disapproved in part by Garvin, 118 Nev. 749, 59 P.3d 1180.

13
118 Nev. 488, 50 P.3d 546 (2002), disapproved in part by Garvin, 118 Nev. 749, 59 P.3d 1180.
____________
118 Nev. 773, 773 (2002) Leslie v. Warden
WILBERT EMORY LESLIE, Appellant, v. WARDEN, ELY STATE PRISON, E.K.
MCDANIEL, Respondent.
No. 36546
December 18, 2002 59 P.3d 440
Appeal from an order of the district court denying a post-conviction petition for a writ
of habeas corpus. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Following defendant's convictions for burglary, robbery with use of deadly weapon,
and first-degree murder with use of deadly weapon, and sentenced to death, and the supreme
court's affirmance on direct appeal, 114 Nev. 8, 952 P.2d 966 (1998), defendant filed timely
post-conviction petition for writ of habeas corpus. The district court appointed counsel to
represent defendant but declined to conduct evidentiary hearing before denying petition.
Defendant appealed. The supreme court, Rose, J., held that: (1) defense counsel's failure to
object to prosecutor's statement to jury, during penalty phase of defendant's murder trial,
which suggested that jurors themselves were victims, did not constitute deficient
performance; (2) counsel's failure to object to prosecutor's comment which assertedly usurped
jury's fact-finding function, even if deficient, did not result in prejudice to defendant; (3)
counsel's failure to object to prosecutor's statement, which assertedly suggested that death
sentence was presumptive sentence, did not constitute deficient performance; (4) counsel was
not deficient in failing to object to prosecutor's use of at random and without apparent
motive aggravating circumstance; (5) counsel was not deficient in failing to argue that at
random and without apparent motive aggravator was not supported by evidence; (6) at
random and without apparent motive aggravator was inappropriately applied, where sole
basis for use of aggravator was that defendant unnecessarily killed someone in connection
with robbery; and (7) absent use of prohibited at random and without apparent motive
aggravator during sentencing phase of defendant's murder trial, it was not clear that jury
would have imposed death penalty, and thus, new penalty hearing was required.
Sentence vacated and remanded.
Shearing, J., with whom Young, C. J., and Agosti, J., agreed, dissented.
Patti & Sgro and James A. Colin, Las Vegas, for Appellant.
Attorney, and Brian S. Rutledge and Lynn M.
Robinson, Chief Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Defense counsel's failure to object to prosecutor's statement to jury, during penalty phase of defendant's murder trial, suggesting
that jurors themselves were victims, did not constitute deficient performance, where prosecutor did not invite jury to feel how
convenience store clerk or patrons felt during crime. U.S. Const. amend. 6.
2. Criminal Law.
Defense counsel's failure to object to prosecutor's comment to jury that we now knew that witness's allegations of police
misconduct, in connection with investigation of murder with which defendant was charged, were incorrect, which assertedly usurped
jury's fact-finding function, even if deficient, did not result in prejudice to defendant, where witness repeatedly stated that she picked
defendant out of lineup of her own volition and not due to detectives' suggestion. U.S. Const. amend. 6.
3. Criminal Law.
Defense counsel's failure to object to prosecutor's statement, during closing argument of penalty phase following defendant's
murder conviction, which assertedly suggested that death sentence was presumptive sentence, did not constitute deficient performance,
despite possibility that jury could have been momentarily confused by statement, where statement could be read as proper comment on
process whereby aggravating and mitigating circumstances are weighed, and possible confusion was remedied by trial court's
instruction that jury's decision to impose death was ultimately discretionary. U.S. Const. amend. 6.
Jury may impose sentence of death only if: (1) jurors unanimously find at least one aggravating circumstance has been
established beyond reasonable doubt, and (2) jurors unanimously find that there are no mitigating circumstances sufficient to outweigh
aggravating circumstance or circumstances found; thus, instruction that jury may impose death sentence if mitigating circumstances do
not outweigh aggravating circumstances is proper in that it does not require defendant to establish mitigating circumstances, nor does
it require jury to impose death sentence.
5. Criminal Law.
Defense counsel was not deficient in failing to object to prosecutor's use of at random and without apparent motive
aggravating circumstance in penalty phase of defendant's murder trial, despite assertion that aggravator was facially vague and
ambiguous, where supreme court had already repeatedly rejected challenge, making the claim likely fruitless. U.S. Const. amend. 6.
6. Criminal Law.
Defense counsel was not deficient in failing to argue that at random and without apparent motive aggravator was not
supported by evidence in penalty phase of defendant's murder trial, where supreme court had consistently upheld that aggravator when,
as in defendant's case, killing was unnecessary to complete robbery, and defense counsel, knowing that supreme court was required to
independently review all aggravating circumstances, may have chosen to focus on issues more likely to yield results. U.S. Const.
amend. 6.
Claim that at random and without apparent motive aggravator was inappropriately applied when sole basis for it was that
defendant unnecessarily killed someone in connection with robbery was reviewable on post-conviction appeal, despite defendant's
failure to raise issue on direct appeal, where imposing waiver bar to claim would have amounted to fundamental miscarriage of justice.
NRS 34.810(1)(b).
At random and without apparent motive aggravator was inappropriately applied in penalty phase of defendant's murder trial
which resulted in death penalty, where sole basis for use of aggravator was that defendant unnecessarily killed someone in connection
with robbery, where such application ignored plain meaning of aggravator's key words, was contrary to aggravator statute's legislative
history, and separate aggravator applied to killings connected to robberies. NRS 200.033(9).
Supreme court had authority to reweigh aggravating and mitigating circumstances, in connection with defendant's death
sentence following murder conviction, after striking at random and without apparent motive aggravator, despite defendant's
argument that court's reweighing constituted impermissible fact-finding and violated his statutory right to be sentenced either by jury
or three-judge panel, where reweighing after invalidating aggravating circumstance was similar to other permissible duties such as
determining whether verdict was supported by evidence, and, in any event, court could review applicability of aggravator under
harmless error standard. Const. art. 6, 4; NRS 177.025.
Absent use of prohibited at random and without apparent motive aggravator during sentencing phase of defendant's murder
trial, it was not clear that jury would have imposed death penalty, and thus, new penalty hearing was required, where two of four
aggravators had been eliminated, remaining aggravators dealt with same aspect of crime, and defendant presented significant
mitigating evidence at trial.
11. Criminal Law.
Rejection of various issues raised by defendant on direct appeal precluded defendant from raising same claims in petition for
post-conviction relief.
OPINION
Appellant Wilbert Emory Leslie robbed a convenience store and fatally shot the
on-duty clerk. The district court convicted Leslie, pursuant to a jury verdict, of burglary,
robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly
weapon. The jury found four aggravating circumstances: (1) the murder was committed by a
person who knowingly created a great risk of death to more than one person, (2) the murder
was committed by a person engaged in or fleeing from a burglary, (3) the murder was
committed by a person engaged in or fleeing from a robbery,
a robbery, and (4) the murder was committed at random and without apparent motive. The
jury concluded that the aggravating circumstances outweighed the mitigating
circumstancethat Leslie had no significant criminal historyand imposed a sentence of
death.
In the opinion affirming Leslie's conviction and sentence, this court concluded that the
evidence did not support the jury's finding as to the first aggravator and struck it.
1
We then
concluded that sufficient evidence supported the remaining aggravators, reweighed the
aggravating and mitigating circumstances, and affirmed Leslie's death sentence.
2

Leslie filed a timely post-conviction petition for a writ of habeas corpus. The district
court appointed counsel to represent Leslie but declined to conduct an evidentiary hearing.
The district court denied Leslie's petition, and this appeal followed.
DISCUSSION
Ineffective assistance of counsel
[Headnote 1]
Leslie argues that trial and appellate counsel rendered constitutionally ineffective
assistance. Claims of ineffective assistance of counsel are evaluated under the two-part test
set forth in Strickland v. Washington.
3
Under Strickland, a petitioner must demonstrate that
counsel's performance fell below an objective standard of reasonableness and that counsel's
deficient performance prejudiced the defense.
4
To establish prejudice based on trial counsel's
deficient performance, a petitioner must show that but for counsel's errors there is a
reasonable probability that the verdict would have been different.
5
To establish prejudice
based on appellate counsel's deficient performance, a petitioner must show that the omitted
issues would have had a reasonable probability of success on appeal.
6

Leslie claims that trial counsel was ineffective for failing to object to three of the
prosecutor's allegedly improper statements.
7

__________

1
Leslie v. State, 114 Nev. 8, 21-22, 952 P.2d 966, 975-76 (1998).

2
Id. at 22-24, 952 P.2d at 976-77.

3
466 U.S. 668 (1984).

4
Id. at 687.

5
Id. at 694.

6
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).

7
We will not revisit Leslie's independent claims that the district court abused its discretion by not sua sponte
tempering the prosecutor's statements. We rejected these claims on direct appeal. Leslie, 114 Nev. at 18-19, 952
P.2d at 973-74. The doctrine of the law of the case precludes reconsideration. Hall v. State, 91 Nev. 314, 535
P.2d 797 (1975).
[Headnote 2]
During his guilt phase closing argument, the prosecutor stated, And on
cross-examination, [Rhesa Gamble] very freely discussed how detectives allegedly planted
information with her, how detectives allegedly told her that number two in the photographic
lineup was [Leslie] before she even saw it. We now know that's incorrect. (Emphasis added.)
Leslie contends that the prosecutor improperly asserted his personal opinion of Gamble's
credibility and usurped the jury's fact-finding function by using the word we.
Even if we assume that trial counsel was deficient in not challenging the prosecutor's
statement, we conclude that Leslie cannot demonstrate that the error prejudiced his defense.
The prosecutor's statement addressed a portion of Gamble's testimony in which she stated that
the detectives pointed to Leslie's picture before she had the opportunity to identify him in a
photographic lineup. Immediately thereafter, the prosecutor inquired whether she picked
Leslie out of the lineup of her own volition or because the detectives suggested that she do so.
Gamble repeatedly stated that she picked Leslie's photograph out of the lineup because she
recognized him. Also, Gamble later testified that the detectives did not attempt to influence
her with respect to the photographic lineup. Because Gamble made it clear that she identified
Leslie of her own volition and not because of the detectives' suggestion, Leslie's claim does
not raise a reasonable probability that the jury's verdict would have been different had trial
counsel objected to the prosecutor's statement. Therefore, the district court properly denied
relief on this ground.
The second allegedly improper statement occurred early in the State's penalty phase
opening statement. The prosecutor stated, Obviously, this is a case that will not be soon
erased in your minds. You are also, perhaps to a certain extent, victims. You will perhaps
never forget the video tape that you saw of this killing by the defendant. (Emphasis added.)
Leslie argues that the prosecutor improperly asked the jury to view themselves as victims of
Leslie's wrongdoing. We disagree. The prosecutor did not invite the jury to feel how the
convenience store clerk or patrons felt during the crime.
8
We conclude that trial counsel
reasonably declined to challenge the prosecutor's statement and the district court properly
denied relief on this claim.
__________

8
See Williams v. State, 113 Nev. 1008, 1020, 945 P.2d 438, 445 (1997), receded from on other grounds by
Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000); Doyle v. State, 104 Nev. 729, 734, 765 P.2d 1156, 1159-60
(1988); Williams v. State, 103 Nev. 106, 109, 734 P.2d 700, 702-03 (1987); Jacobs v. State, 101 Nev. 356, 359,
705 P.2d 130, 132 (1985).
The third alleged incident of prosecutorial misconduct occurred during the penalty
phase closing argument. When addressing the mitigating evidence, the prosecutor stated:
I suggest to you that Leslie does have a substantial criminal history.
But even if you disagree with our perspective, you have to ask yourself the important
question: Is this enough to mitigate the death penalty, mitigate these aggravating
circumstances? Is this enough to say that he doesn't deserve the ultimate punishment in
this case?
[Headnotes 3, 4]
Leslie contends that this statement misled the jury to believe that death was the
presumed sentence unless he produced sufficient mitigating evidence to overcome it and trial
counsel was ineffective for not objecting. We disagree. While it is possible that the jury could
have been momentarily confused by the prosecutor's statements, they were not blatantly
improper. NRS 200.030(4)(a) requires the jury to conclude that the mitigating circumstances
do not outweigh the aggravating circumstances before it may consider death as a possible
sentence. The prosecutor's statements can be read as proper comment on this weighing
process. Because the statements were not clearly improper, it was not objectively
unreasonable for trial counsel to decline to object. Moreover, the possible confusion was
remedied by the district court's instruction that the jury's decision to impose death is
ultimately discretionary.
9
Thus, we conclude that the district court properly denied relief on
this ground.
__________

9
The instruction required the jury to determine:
(a) Whether an aggravating circumstance or circumstances . . . exist; and
(b) Whether a mitigating circumstance or circumstances . . . exist; and
(c) Based upon these findings whether a defendant should be sentenced to life imprisonment or death.
The jury may impose a sentence of death only if (1) the jurors unanimously find at least one aggravating
circumstance has been established beyond a reasonable doubt and (2) the jurors unanimously find that
there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or
circumstances found.
(Emphasis added.) An instruction that the jury may impose a death sentence if mitigating circumstances do not
outweigh aggravating circumstances is proper: it does not require the defendant to establish mitigating
circumstances, nor does it require the jury to impose a death sentence. See Wesley v. State, 112 Nev. 503, 517,
916 P.2d 793, 803 (1996); Bennett v. State, 106 Nev. 135, 144-45, 787 P.2d 797, 803 (1990).
We have since provided a standard instruction on this issue for use in capital cases. See Geary v. State, 114
Nev. 100, 105, 952 P.2d 431, 433 (1998); see also Evans v. State, 117 Nev. 609, 635-36, 28 P.3d 498, 516-17
(2001). Leslie's trial preceded our opinion in Geary.
[Headnote 5]
Leslie next contends that his appellate counsel provided constitutionally ineffective
assistance by failing to challenge the constitutionality of NRS 200.033(9), which provides
that a murder is aggravated if it is committed at random and without apparent motive.
Leslie contends that the aggravator is unconstitutionally vague and ambiguous and
inappropriately applied to him.
After reviewing the record on appeal, we conclude that appellate counsel was not
ineffective for failing to challenge the at random and without apparent motive aggravator.
Leslie's argument that the aggravator is facially vague and ambiguous is not novel. In fact, we
have repeatedly rejected the claim.
10
It is not objectively unreasonable for appellate counsel
to abstain from raising a likely fruitless claim. Therefore, the district court properly denied
relief on this ground.
[Headnote 6]
We also conclude that appellate counsel was not deficient in declining to argue that
the at random and without apparent motive aggravator was not supported by the evidence.
We have consistently upheld death sentences based upon this aggravator when, as in this
case, the killing was unnecessary to complete the robbery.
11
Moreover, even in the absence
of a challenge, we were required by statute on direct appeal to perform an independent review
of the record to determine whether sufficient evidence supported the jury's finding as to each
aggravating circumstance.
12
Given our mandatory review of the finding, appellate counsel
may have reasonably chosen to focus on issues that were more likely to yield results. Thus,
appellate counsel was not ineffective for declining to challenge the aggravator's applicability
and the district court properly denied relief on this ground.
The at random and without apparent motive aggravator
[Headnote 7]
Nevertheless, we have elected to reconsider whether this aggravator is appropriately
applied when the sole basis for it is that the defendant unnecessarily killed someone in
connection with a robbery.
__________

10
See, e.g., Nika v. State, 113 Nev. 1424, 1435-36, 951 P.2d 1047, 1054-55 (1997); Greene v. State, 113
Nev. 157, 172-73, 931 P.2d 54, 63-64 (1997), receded from on other grounds by Byford, 116 Nev. 215, 994
P.2d 700.

11
See, e.g., Nika, 113 Nev. at 1436-38, 951 P.2d at 1055-56; Paine v. State, 110 Nev. 609, 615-16, 877 P.2d
1025, 1028-29 (1994); Lane v. State, 110 Nev. 1156, 1167, 881 P.2d 1358, 1366 (1994), vacated on other
grounds on rehearing, 114 Nev. 299, 956 P.2d 88 (1998); Paine v. State, 107 Nev. 998, 999-1000, 823 P.2d
281, 282 (1991); Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990).

12
NRS 177.055(2)(b).
defendant unnecessarily killed someone in connection with a robbery.
While this claim could have been raised before and is therefore subject to the waiver
provisions of NRS 34.810(1)(b), we conclude that our refusal to consider the issue would
result in a fundamental miscarriage of justice.
13
We have stated that a fundamental
miscarriage of justice can be demonstrated by a showing that the defendant is actually
innocent of the crime or is ineligible for the death penalty.
14
We conclude that it is also
demonstrated by the situation in this case. Because, as discussed below, we consider his claim
meritorious, Leslie is actually innocent of the at random and without apparent motive
aggravator. And because there is a reasonable probability that absent the aggravator the jury
would not have imposed death, we conclude that imposing the waiver bar to this claim would
amount to a fundamental miscarriage of justice.
[Headnote 8]
Starting with Bennett v. State,
15
this court interpreted NRS 200.033(9), the at
random and without apparent motive aggravator, to include unnecessary killings in
connection with a robbery. Because the killing was not motivated by the desire to complete
the robbery, we concluded that there was no apparent motive.
16
Since Bennett, we have
approved the aggravator's application to similar circumstances.
17
We now believe that
Bennett overstated the applicability of NRS 200.033(9) to robbery-related killings.
There are several reasons why 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. First, this type of application ignores the plain meaning
of the aggravator's key words.
18
Random means lacking a specific pattern, purpose or
objective.
19
Something is apparent when it is easily understood or obvious.
__________

13
See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001) (procedural bars can be overcome by
demonstrating that the court's failure to review an issue would result in a fundamental miscarriage of justice).

14
Id.

15
106 Nev. at 143, 787 P.2d at 802.

16
Id.

17
See, e.g., Nika, 113 Nev. at 1436-38, 951 P.2d at 1055-56; Paine, 110 Nev. at 616, 877 P.2d at 1028-29;
Lane, 110 Nev. at 1167, 881 P.2d at 1366; Paine, 107 Nev. at 999-1000, 823 P.2d at 282.

18
See Carson City District Attorney v. Ryder, 116 Nev. 502, 505, 998 P.2d 1186, 1188 (2000) (Words in a
statute will generally be given their plain meaning, and when a statute is clear on its face, courts may not go
beyond the statute's language to consider legislative intent.).

19
The American Heritage College Dictionary 1131 (3d ed. 2000).
when it is easily understood or obvious.
20
And motive is defined as an emotion that leads
one to act.
21
With these definitions in mind, it appears that the Legislature intended this
aggravator to apply to situations where a killer selects his victim without a specific purpose or
objective and his reasons for killing are not obvious or easily understood. An unnecessary
killing in connection with a robbery does not always fit in this category. 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.
Second, applying the at random and without apparent motive aggravator to killings
connected with robberies is not in line with the statute's legislative history. This aggravator
was initially included in the list that was to become NRS 200.033 but at some point was
deleted.
22
Later, during a meeting of the Senate Judiciary Committee, a prosecutor queried
whether the bill covered the San Francisco-type murder problem . . . that is, the motiveless,
thrill-killing murders.
23
The bill's sponsor replied that this type of murder would fall under
the at random and without apparent motive aggravator.
24
The committee then decided to
include the aggravator in the bill.
25
There is no indication that the Legislature intended the
aggravator to apply to unnecessary killings in the course of a robbery.
Third, another aggravator applies to killings connected with robberies. NRS
200.033(4) is implicated when the defendant killed while [he] was engaged . . . in the
commission of or an attempt to commit or flight after committing or attempting to commit,
any robbery. Regardless of whether the murder was necessary to complete the robbery, the
State may allege this aggravator any time the defendant killed in the course of or fleeing from
a robbery.
For these reasons, we conclude 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, and we depart from our prior interpretation of it. We conclude that
Bennett and its progeny strayed too far from the plain meaning of NRS 200.033(9), and
therefore, overrule that line of cases. In order to use this aggravator, the State must show
more than the defendant unnecessarily killed another in connection with a robbery.
__________

20
Id. at 65.

21

22
S.B. 220, 59th Leg. (Nev. 1977).

23
Hearing on S.B. 220 Before the Senate Judiciary Comm., 59th Leg., at 10 (Nev., March 31, 1977)
(statement of Larry R. Hicks, Washoe County District Attorney).

24
Id.

25
Id.
more than the defendant unnecessarily killed another in connection with a robbery. The
aggravator only applies to situations in which the defendant selected his victim without a
specific purpose or objective and his reasons for the killing are not obvious or easily
understood.
26

The facts of this case do not support the jury's finding that Leslie killed the clerk at
random and without apparent motive. On the contrary, a State witness testified that Leslie
cased the convenience store before robbing it and killed the clerk because he did not
immediately give Leslie the money. There is another discernible motive for Leslie's killing.
By killing the clerk, Leslie prevented the clerk from later describing him to the police and
identifying him at trial. While the facts certainly support the robbery and burglary
aggravators, they do not support the at random and without apparent motive aggravator.
Reweighing
[Headnote 9]
Leslie argues that this court may not reweigh the aggravating and mitigating
circumstances after striking an aggravator. Leslie argues that our reweighing constitutes
impermissible fact-finding and violates his statutory right to be sentenced either by a jury or
three-judge panel. Leslie concedes that this court may properly conduct harmless error
analysis, but that the errors in this case are not harmless so it should be remanded for a new
penalty hearing.
We have addressed challenges to our ability to reweigh before. In Canape v. State,
27
after invalidating one of the aggravating circumstances, we determined that reweighing is
appropriate under the Nevada Constitution. We first acknowledged that Article 6, Section 4
of the Nevada Constitution limits this court's appellate jurisdiction in criminal cases to
questions of law alone.
28
NRS 177.025 reiterates this limit on our jurisdiction. We next
recognized that many of our duties require us to make factual determinations.
29
For example,
this court is often called upon to determine whether the jury's verdict is supported by
sufficient evidence.
__________

26
See, e.g., Floyd v. State, 118 Nev. 156, 42 P.3d 249 (2002) (appellant walked to a supermarket and,
without any explanation, opened fire on the employees, killing four people); Greene v. State, 113 Nev. 157, 931
P.2d 54 (1997) (appellants wanted to see the size of the hole that an assault rifle could make in something,
happened upon two people camping, and repeatedly shot them), receded from on other grounds by Byford, 116
Nev. 215, 994 P.2d 700; Ford v. State, 102 Nev. 126, 717 P.2d 27 (1986) (appellant drove on a crowded city
sidewalk for approximately five blocks, killing seven people and injuring many more).

27
109 Nev. 864, 859 P.2d 1023 (1993).

28
Id. at 881-82 & n.15, 859 P.2d at 1034 & n.15.

29
Id. at 882, 859 P.2d at 1034-35.
determine whether the jury's verdict is supported by sufficient evidence. With respect to
capital cases, we are required to consider whether the sentence was imposed under the
influence of passion, prejudice or any arbitrary factor and whether the sentence is excessive,
considering the crime and the defendant.
30
We concluded that reweighing after invalidating
an aggravating circumstance is similar to these permissible duties. Therefore, we held that
reweighing is proper under the Nevada Constitution and statutes.
31
We are of the same
opinion today.
As Leslie concedes, this court also has the option to apply a harmless error analysis
when we strike an aggravator.
32
Both options ask the same essential question: Is it clear that
absent the erroneous aggravator(s) the jury would have imposed death?
33
In this case, we
conclude that it is not.
[Headnote 10]
As stated above, the State alleged four aggravating circumstances: (1) the murder was
committed by a person who knowingly created a great risk of death to more than one person,
(2) the murder was committed by a person engaged in or fleeing from a burglary, (3) the
murder was committed by a person engaged in or fleeing from a robbery, and (4) the murder
was committed at random and without apparent motive. The jury found all the alleged
aggravators, as well as one mitigating circumstancethat Leslie had no significant criminal
history. The jury also found that the mitigating circumstance did not outweigh the aggravating
circumstances and imposed a death sentence. We have now invalidated two of the four
aggravators. While the two remaining aggravators are certainly supported by substantial
evidence, they are based on essentially the same aspect of this felony murder. Leslie also
presented significant mitigating evidence. Leslie was nineteen at the time of the murder, the
jury found that he had no significant criminal history, and his family testified that this crime
was out of character because they knew him to be a good person. In light of these
circumstances, we cannot say that the jury would have imposed death in the absence of the
two erroneous aggravators. We therefore vacate Leslie's sentence of death and remand the
case for a new penalty hearing.
34

__________

30
NRS 177.055(2).

31
Canape, 109 Nev. at 882, 859 P.2d at 1035.

32
Id.; see also Bridges v. State, 116 Nev. 752, 765, 6 P.3d 1000, 1010 (2000); Chappell v. State, 114 Nev.
1403, 1410, 972 P.2d 838, 842 (1998); Witter v. State, 112 Nev. 908, 930, 921 P.2d 886, 900-01 (1996),
receded from on other grounds by Byford, 116 Nev. 215, 994 P.2d 700.

33
See Canape, 109 Nev. at 882, 859 P.2d at 1035.

34
See Lane v. State, 114 Nev. 299, 956 P.2d 88 (1998) (after invalidating three of the five aggravating
circumstances, this court remanded for a new penalty hearing).
Other claims barred by the doctrine of the law of the case
[Headnote 11]
Leslie raises several issues that were raised and rejected on direct appeal. In particular,
Leslie argues that the district court erred by allowing the State to call Gamble after it had
reached a plea agreement with her and by overruling trial counsel's objection to the
prosecutor's request that the jury send a message to the defendant and other would-be
criminals. Our determinations on direct appeal are the law of the case.
35
Therefore, the
district court properly denied relief on these grounds.
CONCLUSION
While we conclude that Leslie received constitutionally effective assistance of trial
and appellate counsel, we agree with him that the record does not support the jury's finding
with respect to the at random and without apparent motive aggravator. After considering
the remaining aggravating and mitigating circumstances, we cannot say that the jury would
have imposed death in the absence of the erroneous aggravators. We therefore vacate Leslie's
sentence of death and remand this case for a new penalty hearing.
Maupin, Leavitt and Becker, JJ., concur.
I join in the majority opinion. I write separately to discuss an issue I believe should be
addressed by the parties and the district court on remand.
As noted by the majority, this court has now eliminated half of the original
aggravators and thus remands this case for a new penalty hearing. As also noted by the
majority, the only remaining aggravators for death penalty eligibility are the felony
aggravators of burglary and robbery.
I take this opportunity to voice my concern as to whether death penalty eligibility
may, under the Federal and Nevada State Constitutions, rest exclusively upon proof of one of
the enumerated felony murder aggravators under NRS 200.033(4).
To meet constitutional muster, a capital sentencing scheme must genuinely narrow
the class of persons eligible for the death penalty and must reasonably justify the imposition
of a more severe sentence on the defendant compared to others found guilty of murder.
1
In
upholding the use of underlying felonies to aggravate felony murders,
__________

35
Hall, 91 Nev. 314, 535 P.2d 797.

1
Zant v. Stephens, 462 U.S. 862, 877 (1983).
vate felony murders,
2
this court has never addressed Lowenfield v. Phelps, a United States
Supreme Court case that has important implications for this issue.
3
Under Lowenfield, an
aggravating circumstance can be identical to an element of the capital murder itself as long as
the state statute defines capital murder narrowly enough to begin with.
4
However, when a
state broadly defines capital offenses, the narrowing must occur through the jury's finding of
aggravating circumstances at the penalty phase.
5
Nevada broadly defines capital offenses,
particularly felony murder. Thus, the required narrowing must occur through the jury's
finding of aggravating circumstances.
The question is, does the felony aggravator set forth in NRS 200.033(4) genuinely
narrow the death eligibility of felony murderers? First, compared to the felony basis for
felony murder, NRS 200.033(4) limits somewhat the felonies that serve to aggravate a
murder.
6
But the felonies it includes are those most likely to underlie felony murder in the
first place.
7
Second, the aggravator applies only if the defendant [k]illed or attempted to
kill the victim or [k]new or had reason to know that life would be taken or lethal force
used.
8
This is narrower than felony murder, which in Nevada requires only the intent to
commit the underlying felony. This notwithstanding, it is quite arguable that Nevada's felony
murder aggravator, standing alone as a basis for seeking the death penalty, fails to genuinely
narrow the death eligibility of felony murderers in Nevada.
9

__________

2
Petrocelli v. State, 101 Nev. 46, 53-54, 692 P.2d 503, 509 (1985), holding modified by Sonner v. State, 112
Nev. 1328, 930 P.2d 707 (1996); see also Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 (1996).

3
484 U.S. 231 (1988).

4
Id. at 246.

5
Id.

6
Compare NRS 200.033(4), with NRS 200.030(1)(b).

7
It does not include sexual assault, but that felony aggravates murder under NRS 200.033(13), which
provides that nonconsensual sexual penetration aggravates murder.

8
NRS 200.033(4)(a), (b); see also Enmund v. Florida, 458 U.S. 782, 797 (1982) (concluding that the Eighth
Amendment does not permit imposition of the death penalty on a defendant who aids and abets a felony in the
course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed); Tison v. Arizona, 481 U.S. 137, 158 (1987) (holding
that major participation in the felony committed, combined with reckless indifference to human life, is
sufficient to satisfy the Enmund culpability requirement).

9
The Supreme Courts of Tennessee and Wyoming have reached such a conclusion. See Engberg v. Meyer,
820 P.2d 70, 86-92 (Wyo. 1991); State v. Middlebrooks, 840 S.W.2d 317, 341-47 (Tenn. 1992), superseded by
statute as stated in State v. Stout, 46 S.W.3d 689 (Tenn. 2001). This court has summarily rejected Middlebrooks
without addressing Lowenfield, which
Because I am not prepared on this record to make such a conclusion, and because the
felony-murder narrowing issue has not been finally resolved under Lowenfield, the parties
should consider litigating it on remand.
Shearing, J., with whom Young, C. J., and Agosti, J., agree, dissenting:
I would affirm the judgment of the district court denying the post-conviction petition
for a writ of habeas corpus. We should not overrule extensive and well-established legal
precedent. For more than a decade, this court has consistently held that jurors may find that a
killing during a robbery was committed at random and without apparent motive if the robbery
could have been completed without killing the victim.
1
In deciding the direct appeal of this
case almost five years ago, we stated: Evidence indicated that Leslie had received the money
and could have left the store unfettered, but killed [the clerk] anyway. Therefore, we conclude
that evidence supported the jury's finding that the murder was random and without apparent
motive.
2
Nothing 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.
Furthermore, this issue is procedurally barred. Leslie has shown no cause for failing to
raise this claim in earlier proceedings, as required by NRS 34.810. There was no ineffective
assistance of counsel to provide such cause. Given the established case law to the contrary,
this court cannot conclude that Leslie's trial and appellate counsel acted deficiently when they
did not challenge the aggravating circumstance. Therefore, this court should not even reach
the merits of this issue.
To avoid the procedural bar, the majority expands the fundamental miscarriage of
justice standard to instances where this court agrees with a petitioner that an aggravator
should be invalidated. There is no authority for this expansion. 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.
__________
Middlebrooks discusses and distinguishes. See Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127
(1996).

1
See, e.g., Calambro v. State, 114 Nev. 106, 112, 952 P.2d 946, 949-50 (1998); Leslie v. State, 114 Nev. 8,
22, 952 P.2d 966, 976 (1998); Lane v. State, 110 Nev. 1156, 1167, 881 P.2d 1358, 1366 (1994), vacated on
rehearing on other grounds, 114 Nev. 299, 956 P.2d 88 (1998); Paine v. State, 110 Nev. 609, 615-16, 877 P.2d
1025, 1028-29 (1994); Paine v. State, 107 Nev. 998, 999-1000, 823 P.2d 281, 282 (1991); Bennett v. State, 106
Nev. 135, 143, 787 P.2d 797, 802 (1990).

2
Leslie, 114 Nev. at 22, 952 P.2d at 976.
innocent or ineligible for the death penalty.
3
Even if the random and without apparent
motive aggravator were invalid here, two valid aggravating circumstances still remain.
Consequently, Leslie fails to show that he would be ineligible for death. Therefore, no
fundamental miscarriage of justice exists which would permit this court to disregard
procedural bars required by statute.
None of Leslie's other claims warrants relief. I would affirm the order of the district
court.
____________
118 Nev. 787, 787 (2002) Johnson v. State
DONTE JOHNSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36991
December 18, 2002 59 P.3d 450
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of four
counts each of first-degree murder with the use of a deadly weapon, robbery with the use of a
deadly weapon, and first-degree kidnapping with the use of a deadly weapon, one count of
burglary with the use of a deadly weapon, and a sentence of death. Eighth Judicial District
Court, Clark County; Jeffrey D. Sobel, Judge.
The supreme court held that: (1) cohabitant had authority to consent to search of
home; (2) juror misconduct during penalty phase was not prejudicial; (3) imposition of death
penalty by three-judge panel of district court judges, after jury had deadlocked at penalty
phase, violated defendant's right to jury trial; and (4) the case would be remanded for new
sentencing hearing before new jury.
Affirmed in part, vacated in part, and remanded.
Philip J. Kohn, Special Public Defender, and Dayvid J. Figler and Lee Elizabeth
McMahon, Deputy Special Public Defenders, Clark County, for Appellant.
Attorney, Lynn M. Robinson, Chief Deputy District Attorney, and Clark A. Peterson, Deputy
District Attorney, Clark County, for Respondent.
JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
__________

3
See Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
Cohabitant had common authority over, and therefore validly consented to, warrantless search of master bedroom of home, in
which defendant sometimes slept and kept his personal belongings in the two to four weeks preceding the search; home was owned by
cohabitant's mother, cohabitant was the primary and only permanent resident, bedroom was not typically locked or kept private, and
defendant told police he did not live in the home. 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.
Warrantless searches and seizures in a home are presumptively unreasonable. Const. art. 1, 18; U.S. Const. amend. 4.
To contest a warrantless search of a home, one must have a reasonable expectation of privacy in the searched home. Const. art.
1, 18; U.S. Const. amend. 4.
The home does not necessarily have to be the contestant's own, for the contestant to assert a privacy interest; even overnight
guests can challenge a search. Const. art. 1, 18; U.S. Const. amend. 4.
Even if a person has standing to object to a warrantless search, the search is proper if that person's cohabitant consents to the
search and the cohabitant possessed common authority over or other sufficient relationship to the premises or effects sought to be
inspected. Const. art. 1, 18; U.S. Const. amend. 4.
7. Criminal Law.
Rifles which police recovered, but which defendant had not used to commit the murders, robberies, and kidnappings, constituted
relevant evidence in defendant's trial, where the rifles were similar to, and therefore may have been, the weapons that defendant's
accomplices had used to assist in defendant's crimes.
8. Criminal Law.
The appellate court will not overturn a district court's decision to admit or exclude evidence absent an abuse of discretion.
9. Criminal Law.
The appellate court will not overturn a district court's grant or denial of a motion for a new trial absent a palpable abuse of
discretion.
Misconduct of jurors during adjournments and deliberations in penalty phase of capital murder trial, with one juror failing to
follow her obligation not to speak to anyone regarding subjects connected to trial and another juror failing to follow her obligation not
to read, watch, or listen to any media report of trial, was not prejudicial; three aggravating circumstances were well-established at death
sentencing, jurors' knowledge of media reports of a holdout juror did not cause the jury to break its deadlock, and the death penalty
therefore was imposed instead by a three-judge panel of district court judges. NRS 175.401.
11. Criminal Law.
Juror misconduct does not warrant a new trial unless it prejudices the defendant.
12. Criminal Law.
In evaluating the harmfulness of juror misconduct, a court must consider the closeness of the issue of guilt, the quantity and
character of the misconduct, and the severity of the crime.
13. Criminal Law.
Allegations that, during adjournments and deliberations in penalty phase of capital murder trial, one juror failed to follow her
obligation not to speak to anyone regarding subjects connected to the trial, and another juror failed to follow her obligation not to read,
watch, or listen to any media report of the trial, warranted an evidentiary hearing to determine whether the juror misconduct was
prejudicial. NRS 175.401.
14. Criminal Law.
Assuming jurors committed misconduct during adjournments or deliberations in guilt phase of capital murder trial by allegedly
discussing the trial with outsiders or failing to ignore media reports, defendant was not prejudiced; the misconduct was de minimis,
and the issue of guilt was not close because State presented overwhelming evidence, including testimony of several witnesses that
defendant bragged about the killings, evidence that defendant possessed items taken from victim's home, and DNA evidence
connecting defendant to the crime. NRS 175.401.
15. Criminal Law.
Defendant was not entitled to evidentiary hearing on his motion for new trial, alleging that victim's family member was present
in jury lounge during jury deliberations at penalty phase of capital murder trial; there was no indication the family member contacted
any juror, and defendant had agreed during penalty phase not to pursue the issue when it was called to his attention.
16. Courts.
The new constitutional rule of criminal procedure announced by the United States Supreme Court in Ring v. Arizona, 536 U.S.
584 (2002), that a capital sentencing scheme that places the determination of aggravating circumstances in the hands of a judge
violates the Sixth Amendment right to a jury trial, applied retroactively to defendant's death sentence, where the sentence had not yet
become final because the Nevada Supreme Court had not yet ruled on defendant's direct appeal from the death sentence. U.S. Const.
amend. 6.
17. Jury; Sentencing and Punishment.
Statute providing that when a jury in a capital case could not reach a unanimous verdict on the sentence, a panel of three district
judges would conduct the required penalty hearing to determine the presence of aggravating and mitigating circumstances, and give
sentence accordingly, violated the Sixth Amendment right to a jury trial. U.S. Const. amend. 6; NRS 175.554(3), 175.556(1).
Error in allowing three-judge panel of district court judges to determine presence of aggravating and mitigating circumstances,
after jury had deadlocked at penalty phase of capital murder trial, was not harmless, even if the guilty verdicts necessarily entailed
jury's finding of the two aggravators found by three-judge panel, because jury's guilt-phase verdicts could not have entailed the
required consideration of mitigating evidence. U.S. Const. amend. 6; NRS 175.554(3), 175.556(1).
19. Criminal Law.
Defendant was not entitled to have the supreme court impose a sentence of life in prison without possibility of parole, where
supreme court vacated his death sentence, which, in violation of right to jury trial, had been imposed by three-judge panel of district
court judges after jury had deadlocked during penalty phase of capital murder trial.
deadlocked during penalty phase of capital murder trial. The supreme court could remand the case for new penalty phase hearing
before new jury. U.S. Const. amend. 6; NRS 175.556(1), 177.055(3).
Allowing three district court judges to sit on a panel, at penalty phase of capital murder trial, did not violate separation of
powers, because such judges were participating in the traditional judicial activity of sentencing a convicted criminal. Const. art. 3, 1;
NRS 175.556(1).
Fact that two of the three district court judges on the panel that imposed the death penalty were not from the judicial district in
which the capital murder was committed did not establish that the sentence failed to express the conscience of the community on the
ultimate question of life or death. NRS 175.556(1).
Nevada's scheme of three-judge sentencing panels in capital murder cases does not violate the Equal Protection Clause. U.S.
Const. amend. 14; NRS 175.556(1).
The defense was not entitled to argue last, at penalty phase of capital murder trial. NRS 175.141.
24. Criminal Law.
An instruction on reasonable doubt, based on the statutory definition of reasonable doubt, was constitutionally sufficient to
provide meaningful principles or standards to guide the jury in evaluating the evidence, where the jury was also instructed on the
presumption of innocence and the State's burden of proof. NRS 175.211(1).
25. Criminal Law.
Defendant failed to preserve appellate review of claim that trial court's fifty-nine off-the-record conferences violated his right to
meaningful appellate review, where defendant did not object in the trial court to the off-the-record conferences or try to make them part
of the record. SCR 250(5)(a).
OPINION
Per Curiam:
Appellant Donte Johnson was convicted of the execution-style murders of four men.
After the jury failed to reach a unanimous verdict in the penalty phase, a three-judge panel
imposed four death sentences.
Johnson claims that the district court erred in a number of ways, including denying his
motion to suppress evidence, admitting two rifles that were not used to shoot the victims, and
denying his motion for an evidentiary hearing and a new trial. We conclude that no relief is
warranted on any of these claims. Johnson also argues that the three-judge panel's finding of
aggravating circumstances and imposition of death violated his right to a jury trial. We agree.
We affirm Johnson's conviction but vacate his death sentences and remand for a new
penalty hearing before a new jury.
his death sentences and remand for a new penalty hearing before a new jury.
FACTS
Sometime during the late evening of August 13 or early morning of August 14, 1998,
four men were shot to death in a home located at 4825 Terra Linda in Las Vegas. No
eyewitnesses to the crimes testified, but the State's witnesses testified that Johnson admitted
that he, Sikia Smith, and Terrell Young were responsible. Smith and Young were tried
separately, were convicted of murder and other felonies, and received multiple sentences of
life without the possibility of parole. Johnson was convicted of murder and other felonies and
sentenced to death.
At Johnson's trial, Tod Armstrong testified for the State to the following. Many people
used his house (the Everman home) as a place to buy, sell, and use drugs. For
approximately two weeks prior to the killings, Johnson and Young spent a substantial amount
of time at the Everman home. They kept clothes in the master bedroom and often slept there.
Johnson and Young possessed four guns: a .38 caliber handgun, a revolver, a firearm that
looked like a sawed-off shotgun, and a .22 caliber rifle. The guns were usually kept in a
duffel bag. Several days before the killings, Matt Mowen went to the Everman house to buy
rock cocaine, at which time Johnson, Young, Armstrong, and several others were present.
Mowen told everyone that he had just returned from touring with a band and selling acid.
Later, Johnson asked where Mowen lived, and Ace Hart, Armstrong's friend, eventually took
Johnson to Mowen's house. A few days later, Mowen and three others were killed at Mowen's
residence.
Armstrong testified that Young and Johnson left the Everman home that night and
returned with the duffel bag containing the guns early the next morning, also with a
PlayStation and a video cassette recorder (VCR). Johnson advised Armstrong as follows:
that he, Young, and Smith went to Mowen's house for the purpose of robbing Mowen, but
Mowen and Tracey Gorringe did not have cash or drugs. Johnson ordered them to call some
friends and have them bring money. Thereafter, according to Johnson, Peter Talamantez and
Jeffery Biddle arrived. Apparently, Talamantez did not take Johnson's demands seriously and
would not cooperate with him. Johnson took Talamantez to a back room and shot him in the
head. Realizing that there were three witnesses, Johnson went back to the front room and shot
the three other victims in the back of the heads, execution style. The next day, Armstrong
overheard Johnson telling Ace Hart the same story. Several days later, Armstrong reported
what he knew to the police and gave them permission to search his home. Police officers
recovered a rifle, duffel bag, pager, VCR, PlayStation, and pair of black jeans.
pair of black jeans. Armstrong identified the items as ones belonging to Johnson.
LaShawnya Wright, Smith's girlfriend, also testified to Johnson's admissions that he,
Young, and Smith were responsible for the shootings. According to Wright, Johnson and
Young left her home on the night of the murders carrying a duffel bag that contained a rifle, a
handgun, duct tape, and gloves. She testified that the three men returned the next afternoon
with a VCR and a Nintendo. She also testified that Smith had a .38 caliber automatic
handgun, but later sold it. That same day, she, Smith, Johnson, and some others passed by a
newsstand, and Johnson said, We made the front page.' The front-page article described
the quadruple murder.
Charla Severs, Johnson's girlfriend at the time of the murders, corroborated Wright's
and Armstrong's testimony. Severs remembered the day that Mowen appeared at the Everman
house to buy drugs. After he left, Armstrong told Johnson and Young that Mowen had
approximately $10,000 and drugs and that they should rob him. Several days later, on the
night of the murders, Johnson, Smith, and Young took the duffel bag that contained the guns
and did not return for several hours. When he returned, Johnson woke Severs up with a kiss
and told her that he had killed someone that night. Johnson said that he went out to get some
money from some people and that one of them was talking mess. Johnson and that person
started arguing, and eventually Johnson kicked him and shot him in the back of his head. The
next day, Johnson told her to watch the news. The local news reported that there had been a
quadruple murder and showed a picture of Mowen. Severs recognized Mowen as a person
who had been to the house recently. Johnson told her that Mowen and another man did not
have any money and called two friends to bring over money. He told her that he killed all of
them.
Sergeant Robert Honea testified that, three days after the killings, he pulled over a
white Ford for speeding. As Sergeant Honea was speaking to the driver at the patrol vehicle,
he noticed the passenger had stepped out of the Ford and was holding a small handgun.
Sergeant Honea drew his weapon, and the driver and passenger fled. When he searched the
Ford, Sergeant Honea found a sawed-off rifle similar to the one described by Armstrong. At
trial, Sergeant Honea identified Johnson as the Ford's driver.
Dr. Robert Bucklin, a forensic pathologist, testified that the hands and feet of each
victim were bound with duct tape and each victim died from a single gunshot wound to the
back of the head.
Thomas Wahl, a Las Vegas Metropolitan Police Department criminalist and DNA
analyst, examined the black jeans that were found at the Everman home. Wahl discovered
eight human bloodstains on the right pant leg of the jeans. DNA testing revealed that the
blood belonged to Tracey Gorringe, one of the victims.
the blood belonged to Tracey Gorringe, one of the victims. Wahl found another stain in the
zipper area of the jeans. After testing, Wahl determined that the stain was a mix of female
nucleoid epithelial cells and semen. He concluded that Johnson was the source of the semen.
Although Johnson presented no witnesses, defense counsel aggressively
cross-examined each of the State's witnesses. For example, on cross-examination Armstrong
admitted that around the time of the killings he had been using rock cocaine extensively. He
also admitted that he asked Johnson to steal some rims from a car. While Armstrong denied
any involvement in the crimes, defense counsel attempted to show that Armstrong arranged
the robberies because he wanted more drugs. With respect to Wright, counsel demonstrated
that a district attorney contacted her while she was in custody and called her probation officer
on her behalf. Severs admitted that she had given five versions of the killings and lied at the
grand jury hearing and that she had used approximately five different aliases when she had
been arrested in the past.
The jury found Johnson guilty on all counts, but it could not reach a unanimous
decision on the proper sentence for the murders. Thus, a second penalty hearing was
conducted before a three-judge panel. For each of the murders, the panel found two
aggravating circumstances: Johnson committed the murders while engaged in robbery,
burglary, or first-degree kidnapping, and he killed or attempted to kill the person murdered or
knew or had reason to know that life would be taken or lethal force used; and Johnson had
been convicted of more than one count of first-degree murder in the immediate proceeding.
The panel also found two mitigating circumstances: Johnson's youth at the time of the
murders and his horrible childhood. The panel determined that the aggravating
circumstances outweighed the mitigating circumstances and imposed a sentence of death for
each of the murders.
DISCUSSION
The district court did not err in denying appellant's motion to suppress
[Headnote 1]
When police officers asked Armstrong if they could search his home, he consented
and gave the officers the only key. Johnson and several others were present. One officer asked
Johnson if he lived in the home, and he replied that he did not. Police seized several items
that they found in the master bedroom including a pair of bloodstained jeans, a rifle, and a
pair of shoes.
Johnson filed a pretrial motion to suppress the items found in the bedroom, arguing
that they were obtained as a result of an illegal search.
illegal search. Despite his earlier declaration, Johnson claimed that he resided in the master
bedroom of the home and that the police should have obtained a warrant to search it. The
State argued that the search was proper under three alternate theories: Johnson did not have a
reasonable expectation of privacy in the Everman home because he did not reside there;
Armstrong possessed common authority over the entire home and could consent to its search;
or police officers reasonably relied on Armstrong's apparent authority to consent to the
search. After an evidentiary hearing, the district court denied Johnson's motion, and the items
were admitted at trial. Johnson contends that the district court's ruling is erroneous.
[Headnote 2]
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.
1

[Headnotes 3-6]
Unreasonable searches and seizures are forbidden under the United States and Nevada
Constitutions.
2
And warrantless searches and seizures in a home are presumptively
unreasonable.
3
To contest a warrantless search of a home, however, one must have a
reasonable expectation of privacy in the searched home.
4
The home does not necessarily
have to be the contestant's own to assert a privacy interest; even overnight guests can
challenge a search.
5
Even if a person has standing to object to a warrantless search, the
search is proper if that person's cohabitant consents to the search and the cohabitant
possessed common authority over or other sufficient relationship to the premises or effects
sought to be inspected.
6

The district court denied Johnson's motion to suppress based on Armstrong's consent
to the search. In doing so, the court implicitly rejected the State's argument that Johnson did
not have a reasonable expectation of privacy. The court noted that Johnson had apparently
spent parts of at least two to four weeks immediately preceding the search, visiting and
sometimes sleeping at Everman. . . . Sometimes Johnson would sleep in the master bedroom,
sometimes on a couch. Ultimately, the court found Armstrong to be the primary and only
permanent resident of the Everman home and determined that his consent was sufficient to
justify the search.
__________

1
Peck v. State, 116 Nev. 840, 846, 7 P.3d 470, 474 (2000).

2
U.S. Const. amend. IV; Nev. Const. art. 1, 18.

3
Howe v. State, 112 Nev. 458, 463, 916 P.2d 153, 157 (1996).

4
State v. Taylor, 114 Nev. 1071, 1077, 968 P.2d 315, 320 (1998).

5
Minnesota v. Olson, 495 U.S. 91 (1990).

6
United States v. Matlock, 415 U.S. 164, 171 (1974).
Everman home and determined that his consent was sufficient to justify the search.
The record supports the district court's determination that Armstrong had common
authority over the master bedroom and his consent was sufficient. Armstrong's mother owned
the Everman home. Armstrong told the police officers that he was the sole resident but that he
allowed other people, including Johnson, to sleep over and leave personal belongings in the
home. Armstrong signed a consent to search form and gave the officers the only key. While
Johnson kept personal belongings in the master bedroom, Armstrong and others did as well.
The master bedroom was not typically locked or kept private; often visitors to the Everman
home would listen to music and converse in the room. Finally, when the officers arrived at
the home and asked Johnson if he lived there, he indicated that he did not. Thus, the district
court properly denied Johnson's motion to suppress the items seized from the Everman home.
The district court did not err in admitting two rifles that were not used to shoot the victims
[Headnote 7]
Police officers recovered a rifle from the master bedroom of the Everman house. As a
result of another incident involving Johnson, the State obtained an additional rifle. The
district court admitted the rifles as evidence. Johnson argues that they should not have been
admitted because they were prejudicial and had no probative value.
[Headnote 8]
This court will not overturn a district court's decision to admit or exclude evidence
absent an abuse of discretion.
7

Johnson cites the Seventh Circuit's opinion in United States v. Tai.
8
In Tai, the trial
court admitted two guns that were found at the defendant's place of business but were not
connected to his crimes at trial.
9
Although the prosecutor asserted that the defendant carried
the guns during his crime, no evidence supported the assertion.
10
The Seventh Circuit
concluded that the guns had no probative value except to show the defendant to be the kind
of person who would carry such weapons, thus making it more likely that he was the kind of
person who committed extortion.
11

__________

7
Collman v. State, 116 Nev. 687, 704, 7 P.3d 426, 437 (2000).

8
994 F.2d 1204 (7th Cir. 1993).

9
Id. at 1211.

10
Id.

11
Id.
Because the guns were not admissible for that purpose, the court concluded that they should
have been excluded.
12

Tai is not apposite to the facts of this case. Johnson and his cohorts were charged with
robbery, kidnapping, burglary, and murder, all with the use of a deadly weapon. The two
rifles admitted in this case matched descriptions of firearms that Johnson and his cohorts
possessed immediately before and after the crimes in question. Although the rifles were not
used by Johnson to kill the victims, the State contended that his codefendants used the rifles
to assist the robberies and kidnappings, and trial evidence supported this contention. The fact
that rifles similar to the ones allegedly used in the crimes were found in Johnson's possession
is highly relevant to identity. It makes it more likely that Johnson and his codefendants
committed those crimes. Thus, the district court did not abuse its discretion in admitting the
guns.
The district court did not abuse its discretion in denying appellant's motion for a new trial
After the district court discharged the jury for failing to reach a unanimous verdict in
the penalty phase, Johnson moved for an evidentiary hearing and a new trial based on three
grounds: alleged juror misconduct, the district attorney's changed position during trial with
regard to Johnson's connection to the Everman home, and the presence of a victim's family
member in the jury lounge. Johnson challenges the district court's denial of his motion.
[Headnote 9]
This court will not overturn a district court's grant or denial of a motion for a new trial
absent a palpable abuse of discretion.
13

Juror misconduct
[Headnote 10]
Immediately after Johnson's jury was discharged, two jurors indicated that they were
aware of media reports of a holdout on the jury. One had spoken to her husband about the
matter. Johnson contends that the jurors violated their duties under NRS 175.401
14
and that
the district court erred in declining to conduct an evidentiary hearing to determine whether
the misconduct was harmful.
__________

12
Id.

13
Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001).

14
NRS 175.401 requires the district court, each time the trial is adjourned, to admonish the jurors of their
duty not to:
1. Converse among themselves or with anyone else on any subject connected with the trial;
an evidentiary hearing to determine whether the misconduct was harmful.
[Headnotes 11, 12]
Clearly, one juror failed to follow her obligation not to speak to anyone regarding
subjects connected to the trial, and the other failed to follow her obligation not to read, watch,
or listen to any report of the trial. But juror misconduct does not warrant a new trial unless it
prejudices the defendant. In evaluating the harmfulness of juror misconduct, a court must
consider the closeness of the issue of guilt, the quantity and character of the misconduct, and
the severity of the crime.
15

[Headnotes 13, 14]
The district court should have held an evidentiary hearing to determine whether the
misconduct was prejudicial.
16
However, the record indicates that no prejudice resulted here.
First, even assuming the jurors committed similar misconduct during the guilt phase, as
Johnson argues is likely, the established misconduct was de minimis, and the issue of guilt
was not close. The State presented overwhelming evidence: several witnesses, including his
former girlfriend, testified that Johnson bragged about the killings; he possessed items taken
from the victim's home where the crimes occurred; and DNA evidence connected him to the
crime.
While some misconduct occurred during the penalty phase, again no prejudice is
discernible. First, the aggravators were well established. The State alleged three aggravating
circumstances: Johnson committed the murders while engaged in robbery, burglary, or
first-degree kidnapping, and he killed or attempted to kill the person murdered or knew or had
reason to know that life would be taken or lethal force used; he was convicted of more than
one offense of murder in the immediate proceeding; and he murdered three of the victims in
order to avoid or prevent a lawful arrest. The evidence for these aggravators was ample. The
jury had just convicted Johnson of four counts each of robbery, first-degree kidnapping,
and first-degree murder.
__________
2. Read, watch or listen to any report of or commentary on the trial or any person connected with the
trial by any medium of information, including without limitation newspapers, television and radio; or
3. If they have not been charged, form or express any opinion on any subject connected with the trial
until the cause is finally submitted to them.

15
Rowbottom v. State, 105 Nev. 472, 486, 779 P.2d 934, 942-43 (1989).

16
Cf. Isbell v. State, 97 Nev. 222, 226, 626 P.2d 1274, 1276-77 (1981) (Any private communication with a
juror in a criminal case on any subject connected with the trial is presumptively prejudicial. The burden is on the
respondent to show that these communications had no prejudicial effect on the jurors. A hearing before the trial
court is the proper procedure to determine whether a communication is or is not prejudicial. (citations
omitted)).
had just convicted Johnson of four counts each of robbery, first-degree kidnapping, and
first-degree murder. Johnson had admitted to killing the four victims himself, and Armstrong
testified that Johnson said that because he killed Talamantez, he had to kill the other three.
Second, the misconduct was not egregious. The jurors had knowledge of a report on the jury's
status, but there is no allegation that the report encouraged the jury to impose a particular
sentence. Finally, after the two jurors knew of the report, the jury remained deadlocked, and
Johnson received a second penalty hearing.
So while this case involves the most severe of crimes, the misconduct was not
prejudicial; the district court did not abuse its discretion in denying Johnson's motion for a
new trial.
The prosecution's changed argument
In opposing Johnson's pretrial motion to suppress, the State argued, among other
things, that Johnson did not have a reasonable expectation of privacy in the Everman
residence because he did not live there. In his closing argument, however, the prosecutor
referred to the Everman home as [Johnson's] residence, the place where [Johnson] stays,
and [Johnson's] home and to the master bedroom as [Johnson's] room. Johnson contends
that the prosecutor improperly changed his position at trial.
Johnson cites Thompson v. Calderon,
17
in which the Ninth Circuit held that, absent
significant newly discovered evidence, a prosecutor cannot assert fundamentally inconsistent
theories in order to convict two defendants at separate trials. To do so, the court held, is
unfair and violates the defendants' constitutional right to due process.
18

We conclude that Thompson has no application here. In responding to Johnson's
motion to suppress, the State asserted alternate theories as to why the search of the Everman
home was proper. First, the State argued that Johnson was not a resident of the Everman
home and therefore had no reasonable expectation of privacy in the home. The State also
argued that even if Johnson was a resident, Armstrong had common authority to consent to
the search. Finally, the State argued that even if Armstrong did not have common authority,
the police officers reasonably relied on his apparent authority to consent to the search. The
State maintained all three theories while Johnson's motion was pending. When the district
court rejected the argument that Johnson lacked a reasonable expectation of privacy, the State
abandoned its claim that Johnson did not have a privacy interest in the Everman home.
__________

17
120 F.3d 1045, 1057-59 (9th Cir. 1997), reversed on other grounds, 523U.S. 538 (1998).

18
Id. at 1058-59.
Because the State had not prevailed with the theory, abandoning it was not inconsistent or
unfair.
Victim's family member in jury lounge
[Headnote 15]
After the jury began its penalty-phase deliberations, a member of one victim's family
spent time in the courthouse jury lounge area. The district court brought this to the State's and
defense counsel's attention, and all parties agreed not to pursue the issue. Johnson, however,
later asserted this incident as a basis for a new trial, and he contends that the district court
erred in not holding an evidentiary hearing to ascertain whether there had been any prejudicial
contact with the jurors. Johnson cites Isbell v. State,
19
where this court affirmed the district
court's denial of a motion for a new trial following an evidentiary hearing on alleged juror
misconduct. Isbell is inapplicable, however, because there the jurors actually spoke to third
parties about the case; here, there is no indication that the family member contacted any juror.
Because the parties initially agreed not to pursue this issue and there is no indication that any
contact occurred, the district court acted within its discretion in denying Johnson's motion for
an evidentiary hearing on this ground.
The determination of the death sentence by the three-judge panel violated appellant's right to
a jury trial
The right to a jury trial under Ring v. Arizona
On June 24, 2002, after briefing in this case was concluded, the United States
Supreme Court issued an opinion in Ring v. Arizona holding that a capital sentencing scheme
that places the determination of aggravating circumstances in the hands of a judge violates the
Sixth Amendment right to a jury trial.
20
Here, a three-judge panel found aggravators and
sentenced Johnson to death after his jury failed to reach unanimity on a sentence. We
therefore permitted supplemental briefing regarding Ring's effect on this case. As explained
below, we conclude that the death sentences should be vacated and the case remanded.
At the end of the penalty phase, the jury deadlocked and could not reach a unanimous
decision on an appropriate sentence. The record contains special verdict forms signed by the
jury foreperson, but the district court dismissed the jury without formally receiving the verdict
forms or polling the jurors in any way. The verdict forms indicate a finding of all three
alleged aggravating circumstances for three of the murders,
__________

19
97 Nev. at 226, 626 P.2d at 1277.

20
536 U.S. 584 (2002); U.S. Const. amend. VI.
circumstances for three of the murders, a finding of two aggravating circumstances for the
remaining murder, and a finding of numerous mitigating circumstances for all four murders.
The aggravators were that: (1) Johnson committed the murders while engaged in robbery,
burglary, or first-degree kidnapping, and he killed or attempted to kill the person murdered or
knew or had reason to know that life would be taken or lethal force used; (2) he committed
the murders to avoid or prevent a lawful arrest (this was checked for only three of the
murders); and (3) he had been convicted of more than one murder in the immediate
proceeding. Four other verdict forms listed numerous mitigators, including that Johnson
committed the murders while under extreme mental or emotional disturbance, his youth at the
time of the murders, various hardships and negative influences he had experienced, and no
eyewitness to identity of shooter.
Johnson filed a motion opposing his sentencing by a three-judge panel, but the district
court denied it, and a three-judge panel conducted a second penalty phase. For all four
murders, the panel found two aggravating circumstances, the first and third ones above. As
mitigating circumstances the panel found Johnson's youth and his horrible childhood. The
panel determined that the aggravating circumstances outweighed the mitigating circumstances
and imposed a sentence of death for each murder.
In light of the Supreme Court's decision in Ring, the instant case presents this court
with the question: after a jury is unable to agree on a sentence in a capital case, does the
finding of aggravating circumstances and imposition of the death penalty by a three-judge
panel violate the Sixth Amendment? We conclude that it does. We also conclude that the
error here was not harmless beyond a reasonable doubt.
Analysis of Ring
In Ring, the Supreme Court considered Arizona's capital sentencing scheme, in which,
following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge,
sitting alone, determines the presence or absence of the aggravating factors required by
Arizona law for imposition of the death penalty.
21
In 1990, in Walton v. Arizona,
22
the
Court had held that the Arizona scheme was constitutional because the facts found by the
judge were sentencing considerations, not elements of capital murder.
23
Ten years later in
Apprendi v. New Jersey,
24
the Court held that the Sixth Amendment does not permit a
defendant to be 'expose[d]
__________

21
Ring, 536 U.S. at 588.

22
497 U.S. 639 (1990).

23
Ring, 536 U.S. at 588.

24
530 U.S. 466 (2000).
be expose[d] . . . to a penalty exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.'
25
The majority in Apprendi
nevertheless maintained that Walton remained good law.
26

The Supreme Court revisited this issue in Ring. Under Apprendi, [i]f a State makes
an increase in a defendant's authorized punishment contingent on the finding of a fact, that
factno matter how the State labels itmust be found by a jury beyond a reasonable doubt.
27
Unable to reconcile Walton with this tenet, the Court overruled Walton
to the extent that it allows a sentencing judge, sitting without a jury, to find an
aggravating circumstance necessary for imposition of the death penalty. Because
Arizona's enumerated aggravating factors operate as the functional equivalent of an
element of a greater offense, the Sixth Amendment requires that they be found by a
jury.
28

In a footnote, the Court expressly observed that Ring's claim was tightly delineated
and did not include a number of issues, for example, whether the treatment of mitigating
circumstances implicates the Sixth Amendment or whether the Sixth Amendment requires a
jury to decide ultimately whether to impose the death penalty.
29
In another footnote,
observing that it ordinarily leaves it to lower courts to pass on the harmlessness of error in
the first instance, the Court declined to reach Arizona's assertion that any error was
harmless because a pecuniary gain finding was implicit in the jury's guilty verdict.
30
The
latter footnote thus leaves open the possibility that the Sixth Amendment violation could be
harmless error and directly contradicts Johnson's assertion that Ring does not allow a
harmless error analysis.
Nevada law and application of Ring to this case
[Headnote 16]
The rule announced in Ring applies here. We recognize that because Ring dealt with
conflicting prior authority and expressly overruled precedent, it established a new rule of
criminal procedure.
__________

25
Ring, 536 U.S. at 588-89 (quoting Apprendi, 530 U.S. at 483).

26
Id. at 602.

27
Id.

28
Id. at 609 (citation omitted) (quoting Apprendi, 530 U.S. at 494 n.19).

29
Id. at 597 n.4.

30
Id. at 609 n.7. Only one valid aggravating circumstance was present in Ring: Ring committed the murder
expecting to gain something of pecuniary value. He and his accomplices killed and robbed the driver of an
armored car. Id. at 594-96.
overruled precedent, it established a new rule of criminal procedure. And Ring was decided
after Johnson's trial. Nevertheless, the rule applies in this case because Johnson's conviction
has not yet become final: we have yet to decide his appeal.
31
The Supreme Court has held
that failure to apply a newly declared constitutional rule to criminal cases pending on direct
review violates basic norms of constitutional adjudication.
32

[Headnote 17]
NRS 175.556(1) provides that when a jury in a capital case cannot reach a unanimous
verdict upon the sentence, a panel of three district judges shall conduct the required penalty
hearing to determine the presence of aggravating and mitigating circumstances, and give
sentence accordingly. We conclude that under Ring this provision violates the Sixth
Amendment right to a jury trial because it allows a panel of judges, without a jury, to find
aggravating circumstances necessary for imposition of the death penalty.
33
Moreover,
Nevada statutory law requires two distinct findings to render a defendant death-eligible: The
jury or the panel of judges may impose a sentence of death only if it finds at least one
aggravating circumstance and further finds that there are no mitigating circumstances
sufficient to outweigh the aggravating circumstance or circumstances found.
34
This second
finding regarding mitigating circumstances is necessary to authorize the death penalty in
Nevada, and we conclude that it is in part a factual determination, not merely discretionary
weighing. So even though Ring expressly abstained from ruling on any Sixth Amendment
claim with respect to mitigating circumstances,
__________

31
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) (stating that a conviction becomes final when judgment
has been entered, the availability of appeal has been exhausted, and a petition for certiorari to the Supreme Court
has been denied or the time for such a petition has expired).

32
Id. at 322; see also id. at 328.

33
In addition to cases where a jury fails to reach unanimity on a sentence, Nevada's statutes also provide for
three-judge panels to determine whether aggravators exist and whether to impose death when a defendant has
either pleaded guilty to first-degree murder or been found guilty of first-degree murder after a trial without a
jury. NRS 175.552(1)(b); NRS 175.558. This case does not involve the application of these statutory provisions,
and Ring does not address waiver of the right to a jury trial. Therefore, the constitutionality of three-judge panels
where a defendant validly waives the right to a jury trial is not at issue here.

34
NRS 175.554(3) (emphasis added); see also Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000)
(Under Nevada's capital sentencing scheme, two things are necessary before a defendant is eligible for death:
the jury must find unanimously and beyond a reasonable doubt that at least one enumerated aggravating
circumstance exists, and each juror must individually consider the mitigating evidence and determine that any
mitigating circumstances do not outweigh the aggravating.).
Amendment claim with respect to mitigating circumstances,
35
we conclude that Ring
requires a jury to make this finding as well: If a State makes an increase in a defendant's
authorized punishment contingent on the finding of a fact, that factno matter how the State
labels itmust be found by a jury beyond a reasonable doubt.
36

[Headnote 18]
We therefore must reject the State's argument that because the facts necessary for
imposing the death penalty were inherent in the jury's guilty verdicts, the sentencing
determination by the three-judge panel was harmless error.
37
Even if the guilty verdicts
necessarily entailed the jury's finding of the two aggravators found by the three-judge panel,
the guilt-phase verdicts did not and could not entail the required consideration of mitigating
evidence. That evidence and that consideration were not presented to the jury until the penalty
phase. And the facts from the first penalty hearing do not establish harmless error either. The
accuracy of the penalty-phase special verdict forms was not verified when the jury was
dismissed, but the forms indicate that the jurors found the two aggravating circumstances
found by the panel and a number of mitigating circumstances. But even assuming arguendo
that we could rely on these forms as proof of the jurors' findings, there is no verdict form or
other evidence showing that the jurors unanimously agreed that the mitigating circumstances
did not outweigh the aggravating circumstances, making Johnson eligible for death. We do
know that at least one juror in this case did not agree that death was the proper sentence.
Therefore, we cannot declare that the constitutional error that occurred was harmless beyond
a reasonable doubt.
[Headnote 19]
Johnson stresses that when a jury deadlocks in a capital penalty phase, Nevada
statutes provide for only one sentencing procedure and that one procedure is now
unconstitutional. He argues therefore that after vacating his death sentences, this court cannot
create another sentencing procedure ad hoc and must simply impose a sentence of life in
prison without possibility of parole under NRS 177.055(3)(c). This argument is meritless.
When this court vacates a death sentence and the original penalty hearing was before a jury,
NRS 177.055(3) provides two options: this court can either remand the case for a new penalty
hearing before a newly empaneled jury or impose a sentence of life in prison without
possibility of parole.
__________

35
Ring, 536 U.S. at 597 n.4.

36
Id. at 602.

37
See Chapman v. California, 386 U.S. 18, 24 (1967) ([B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.).
newly empaneled jury or impose a sentence of life in prison without possibility of parole. If
we choose the first option and remand for a new penalty hearing, we need not invent any ad
hoc proceduresthe normal procedures for a death penalty hearing before a jury apply.
We therefore vacate Johnson's death sentences and remand for a new penalty hearing
before a new jury.
Other challenges to Nevada's three-judge panels
Johnson has challenged the validity of Nevada's three-judge panels on a number of
other grounds. We conclude that none has merit.
Johnson contends that three-judge panels are not authorized by the Nevada
Constitution and interfere with each district judge's jurisdiction. We have rejected similar
arguments before and see no reason to reconsider our position.
38

[Headnote 20]
Johnson contends that the district judges on panels impermissibly act in a nonjudicial
capacity in violation of Nevada's separation of powers. Article 3, Section 1 of the Nevada
Constitution divides the government into three departmentsthe legislative, executive, and
judicialand provides that 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. A judge
does not impermissibly engage in a nonjudicial activity just because he or she is part of a
collegial body. The district judges on a panel are participating in a traditional judicial activity,
sentencing a convicted criminal; therefore, the separation of powers is not offended.
Johnson asserts that the system of three-judge panels is unconstitutional because it
does not permit voir dire and peremptory challenges for selecting and qualifying impartial
panel members. He also complains that the process of selecting the panel members is
secretive and produces panels prone to return death sentences. Again, we have rejected these
arguments before and will not reconsider them now.
39
Johnson did not challenge any
member of his panel and does not offer any evidence that any member was biased or acted
inappropriately during the sentencing process. Johnson is not entitled to any relief on this
basis.
__________

38
See Colwell v. State, 112 Nev. 807, 812-13, 919 P.2d 403, 407 (1996).

39
See id. at 813-14, 919 P.2d at 407; Paine v. State, 110 Nev. 609, 617-18, 877 P.2d 1025, 1030 (1994).
Although promulgated after Johnson was tried, SCR 254(4) now expressly provides for the random selection of
members of three-judge panels from all eligible district judges.
[Headnote 21]
Johnson also claims that three-judge panels are improper because two of the panel
judges are not from the judicial district in which the crime was committed and therefore
cannot impose a sentence that expresses the conscience of the community. Citing
Witherspoon v. Illinois,
40
Johnson claims that this deficiency violates the Eighth and
Fourteenth Amendments to the United States Constitution. In Witherspoon, the United States
Supreme Court addressed a very narrow issue: whether a court can properly exclude jurors
who indicated that they ha[ve] conscientious scruples against inflicting capital punishment.
41
The Supreme Court determined that a court cannot. A jury must express the conscience of
the community on the ultimate question of life or death.
42
Because a large portion of society
has doubts about the wisdom of the death penalty, the court concluded that a jury in which
that portion has been excluded cannot speak for the community.
43
Johnson contends that his
situation is similar to that in Witherspoon because two of the judges on his panel were not
from his county. Johnson asserts that they, like the limited Witherspoon jury, did not possess
the same values as people in his county. Witherspoon does not support this argument:
Johnson's definition of community is much narrower than Witherspoon's. Witherspoon
referred to the views and morals of the nation, not a specific county or city.
44
Johnson fails
to demonstrate that judges from different areas of this state are unable to speak for the
community under Witherspoon.
[Headnote 22]
Finally, amicus curiae, Nevada Attorneys for Criminal Justice, argues that Nevada's
scheme of three-judge sentencing panels is unconstitutional because it violates the Equal
Protection Clause. We believe that our foregoing decision that NRS 175.556(1) is
unconstitutional renders this argument moot. To the extent that the argument may not be
moot, we conclude that it is meritless.
Other alleged errors
[Headnote 23]
The district court denied Johnson's motion to argue last in the penalty phase. Despite
statutory provisions and case law to the contrary,
__________

40
391 U.S. 510 (1968).

41
Id. at 514.

42
Id. at 519.

43
Id. at 520.

44
Id. at 519-20 ([I]n a nation less than half of whose people believe in the death penalty, a jury composed
exclusively of such people cannot speak for the community. (footnote omitted)).
contrary, he argues that in capital penalty hearings the defense should present evidence in
mitigation first and should argue last. We reject this argument.
45

The district court denied Johnson's motion to bifurcate his penalty hearing. He claims
this was error. This court has never required distinct phases in capital penalty hearings, and
we conclude that the district court did not err.
46

[Headnote 24]
The district court instructed the jury on the definition of reasonable doubt pursuant to
NRS 175.211(1). Johnson contends that this definition is unconstitutional because it does not
provide meaningful principles or standards to guide the jury in evaluating the evidence. This
court has repeatedly upheld this definition of reasonable doubt where, as here, the jury was
also instructed on the presumption of innocence and the State's burden of proof.
47
We
decline to reconsider the issue.
[Headnote 25]
According to Johnson, the district court held fifty-nine conferences off the record. He
claims that this violated SCR 250(5)(a) and his right to meaningful appellate review.
Johnson's trial attorney did not object to these off-the-record conferences or try to make them
a part of the record. Thus, Johnson did not preserve the issue for appeal, and he fails to show
that any plain error occurred.
48

CONCLUSION
We affirm Johnson's conviction and his sentence other than his death sentences. We
vacate his death sentences and remand for a new penalty hearing before a new jury.
49

__________

45
See NRS 175.141; see also, e.g., Witter v. State, 112 Nev. 908, 922-23, 921 P.2d 886, 896 (1996), receded
from on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000).

46
See Gallego v. State, 117 Nev. 348, 369, 23 P.3d 227, 241 (2001).

47
See, e.g., Bollinger v. State, 111 Nev. 1110, 1114-15, 901 P.2d 671, 674 (1995); see also Ramirez v.
Hatcher, 136 F.3d 1209 (9th Cir. 1998) (concluding that a similar instruction left the jury with a constitutionally
accurate impression of the government's burden of proof).

48
See NRS 178.602; Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 482-83 (2000).

49
Although Johnson has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered his proper person documents. We conclude that the relief
requested is not warranted.
____________
118 Nev. 807, 807 (2002) Colwell v. State
LAWRENCE COLWELL, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38375
December 18, 2002 59 P.3d 463
Appeal from a district court order denying a post-conviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Following the affirmance of his death sentence for murder, 112 Nev. 807, 919 P.2d
403 (1996), petitioner sought writ of habeas corpus. The district court denied the petition
without holding an evidentiary hearing. Petitioner appealed. The supreme court held that: (1)
district court judge had subject-matter jurisdiction over the petition; (2) defendant's vague
allegations did not establish ineffective assistance of trial counsel; and (3) United States
Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), requiring jury rather than
judge to determine aggravating circumstances for death sentencing, did not apply
retroactively on collateral review.
Affirmed.
Christopher R. Oram, Las Vegas, for Appellant.
Attorney, and Lynn M. Robinson, Chief Deputy District Attorney, Clark County, for
Respondent.
1. Habeas Corpus.
Even assuming there was a statutory violation because the post-conviction petition for habeas corpus was not assigned to the
same district court judge who had granted petitioner's prior motion for stay of execution following his capital murder conviction and
pending his direct appeal, such a statutory violation would not deprive the district court judge of subject-matter jurisdiction to hear the
petition. NRS 34.820(3).
2. Appeal and Error; Courts.
Subject-matter jurisdiction is not waivable, and a trial court's lack of such jurisdiction can be raised for the first time on appeal.
3. Criminal Law.
A petitioner for post-conviction relief cannot rely on conclusory claims for relief but must make specific factual allegations that,
if true, would entitle him to relief.
4. Criminal Law.
The petitioner for post-conviction relief is not entitled to an evidentiary hearing if the record belies or repels the allegations.
5. Habeas Corpus.
It is proper to raise claims of ineffective assistance of trial or appellate counsel initially in a timely, first post-conviction petition
for a writ of habeas corpus. U.S. Const. amend. 6.
The law of a first appeal is the law of the case in all later appeals in which the facts are substantially the same. This doctrine
cannot be avoided by more detailed and precisely focused argument.
7. Criminal Law.
Defendant's vague allegations did not establish that his trial counsel were ineffective because they did not have him
psychologically evaluated and did not inform the trial court he suffered from prior serious mental instabilities, so that he could not
stand trial for capital murder; defendant alleged only that a psychiatrist called by State at his penalty hearing had evaluated him after he
was found guilty of a prior offense in another state and had concluded that he suffered from a severe personality disorder, and
defendant did not argue that the personality disorder rendered him incompetent to stand trial. U.S. Const. amend. 6; NRS 178.400(2).
8. Criminal Law.
To establish ineffective assistance of counsel, a defendant must show that an attorney's representation fell below an objective
standard of reasonableness and that the attorney's deficient performance prejudiced the defense. U.S. Const. amend. 6.
9. Criminal Law.
To establish prejudice, as element of ineffective assistance of counsel, the defendant must show that but for the attorney's
mistakes, there is a reasonable probability that the result of the proceeding would have been different. U.S. Const. amend. 6.
10. Criminal Law.
An attorney must make reasonable investigations or a reasonable decision that particular investigations are unnecessary. U.S.
Const. amend. 6.
11. Habeas Corpus.
Post-conviction court, when considering petition for writ of habeas corpus alleging ineffective assistance of trial counsel, could
not rely on affidavits obtained from petitioner's former counsel after he filed the petition, where the post-conviction court did not
decide to hold an evidentiary hearing. U.S. Const. amend. 6.
12. Habeas Corpus.
Petitioner waived a post-conviction habeas corpus claim that the trial court conducted an inadequate Faretta canvass before
allowing him to represent himself in the capital murder prosecution, to the extent the claim could have been presented to the trial court
or raised on direct appeal.
13. Criminal Law.
Defendant's conclusory allegations did not establish that his trial counsel were ineffective in failing to file appropriate pretrial
motions in the capital murder prosecution; defendant did not show that any of the motions would have been meritorious. U.S. Const.
amend. 6.
14. Habeas Corpus.
Petitioner waived post-conviction habeas corpus claim that three-judge sentencing panel did not make independent and
objective analysis of all relevant evidence to determine if mitigating circumstances existed, at penalty phase of capital murder trial;
petitioner did not state any cause for not raising the alleged error with the panel or on direct appeal, and petitioner was not prejudiced
by the alleged error, because no jury was involved and the sentencing judges were presumed to have understood and met their
responsibilities. NRS 175.558.
15. States.
States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.
16. Courts.
The state court is free to choose the degree of retroactivity or prospectivity which it believes is appropriate for the particular new
constitutional rule of criminal procedure under consideration, so long as the court gives federal constitutional rights at least as broad a
scope as the United States Supreme Court requires.
17. Courts.
The supreme court will not retroactively apply a new constitutional rule of criminal procedure, on collateral review of a finalized
case, unless it falls within either of two exceptions: (1) 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) it establishes a procedure
without which the likelihood of an accurate conviction is seriously diminished.
18. Courts.
When a decision merely interprets and clarifies an existing rule, the court's interpretation is merely a restatement of existing law
rather than a new rule, for purposes of determining whether to retroactively apply a new constitutional rule of criminal procedure
upon state collateral review of a finalized case.
19. Courts.
A decision is not a new rule of law, for purposes of determining whether to retroactively apply a new constitutional rule of
criminal procedure upon state collateral review of a finalized case, if it has simply applied a well-established constitutional principle to
govern a case which is closely analogous to those which have been previously considered in the prior case law.
20. Courts.
A rule is a new rule of law, for purposes of determining whether to retroactively apply a new constitutional rule of criminal
procedure upon state collateral review of a finalized case, when the decision announcing the rule overrules precedent, or disapproves a
practice the supreme court had arguably sanctioned in prior cases, or overturns a longstanding practice that lower courts had uniformly
approved.
21. Courts.
A new constitutional rule of criminal procedure, establishing a procedure without which the likelihood of an accurate conviction
is seriously diminished, will apply retroactively on state collateral review of a finalized decision, even if the rule is not of bedrock or
watershed significance.
22. Criminal Law.
A conviction becomes final when judgment has been entered, the availability of appeal has been exhausted, and a petition for
certiorari to the United States Supreme Court has been denied or the time for such a petition has expired.
23. Courts.
When a conviction is not final, the court must apply a new rule of federal constitutional law because the failure to apply a newly
declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.
24. Courts.
The United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), that a capital sentencing scheme that
places the determination of aggravating circumstances in the hands of a judge violates the Sixth Amendment right to a jury trial, was a
new rule for purposes of determining whether to retroactively apply a new constitutional rule of criminal procedure upon state
collateral review of a finalized case. Although Ring applied prior case law, which had established the principle that a jury must find
any fact other than a prior conviction that increases the maximum penalty for an offense, to closely analogous facts, it also expressly
overruled conflicting precedent. U.S. Const. amend. 6.
25. Courts.
The new constitutional rule of criminal procedure announced by the United States Supreme Court in Ring v. Arizona, 536 U.S.
584 (2002), that a capital sentencing scheme that places the determination of aggravating circumstances in the hands of a judge
violates the Sixth Amendment right to a jury trial, did not apply retroactively upon state collateral review of a finalized death penalty
imposed by a three-judge panel. Ring did not forbid either the criminalization of any conduct or the punishment in any way of any
class of defendants, and Ring did not establish a procedure without which the likelihood of an accurate conviction was seriously
diminished. U.S. Const. amend. 6; NRS 175.558.
26. Jury.
Assuming the new constitutional rule of criminal procedure announced by the United States Supreme Court in Ring v. Arizona,
536 U.S. 584 (2002), that a capital sentencing scheme that places the determination of aggravating circumstances in the hands of a
judge violates the Sixth Amendment right to a jury trial, could apply retroactively upon state collateral review of a finalized death
penalty imposed by a three-judge panel, the rule was inapplicable to a defendant who had entered a guilty plea and had validly waived
his right to jury trial at penalty phase. U.S. Const. amend. 6; NRS 175.558.
OPINION
Per Curiam:
This is an appeal from a district court order denying a post-conviction petition for a
writ of habeas corpus. Appellant Lawrence Colwell, Jr., faces a death sentence. He contends
for various reasons that the district court erred in denying his habeas petition without holding
an evidentiary hearing. We conclude that this contention lacks merit. He also contends that
his sentencing by a three-judge panel violated his Sixth Amendment right to a jury trial under
a recent United States Supreme Court decision, Ring v. Arizona.
1
We conclude that Ring
does not apply here. We therefore affirm the district court's order.
__________

1
536 U.S. 584 (2002).
FACTS
On March 10, 1994, appellant Lawrence Colwell and his girlfriend, Merillee Paul,
robbed and murdered a seventy-six-year-old man at the Tropicana Hotel in Las Vegas. Paul
went with the victim to his room on the pretext of having sex with him. She then let Colwell
into the room. He handcuffed and strangled the victim with a belt.
Colwell and Paul made their way to Oregon, where Paul turned herself in to
authorities. She eventually agreed to plead guilty to first-degree murder and testify against
Colwell; in exchange, the State recommended she receive a sentence of life with the
possibility of parole.
After Colwell was arrested and arraigned, the State informed the district court it
would not be seeking the death penalty. However, Colwell offered to plead guilty to all
charges if the State changed its position and sought the death penalty. The State agreed and
filed a notice of intent to seek death. Colwell also sought to represent himself. After
canvassing Colwell on the matter, the court allowed him to represent himself but appointed
standby counsel.
Colwell pleaded guilty to murder in the first degree, burglary, and robbery of a victim
65 years of age or older. He requested that the penalty hearing be conducted as soon as
possible. During a two-day penalty hearing before a three-judge panel, Colwell did not
conduct meaningful cross-examination of the State's witnesses and even attempted to elicit
damaging evidence not presented by the prosecution. He made no objections to the State's
evidence and refused to introduce any mitigating evidence. During closing argument, the
State argued the existence of seven aggravating factors and the nonexistence of any
mitigating evidence. Colwell asked that he be put to death. Before returning a sentence, the
panel gave Colwell another chance to introduce mitigating evidence; he declined. The panel
found four aggravating circumstances, found no mitigating circumstances, and sentenced
Colwell to death.
This court affirmed his conviction and sentence.
2

DISCUSSION
I. The district judge had jurisdiction to consider appellant's habeas petition
[Headnote 1]
In supplemental points and authorities, Colwell claims that District Judge Donald M.
Mosley lacked jurisdiction to consider Colwell's habeas petition. He cites NRS 34.820(3),
which provides:
__________

2
Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996).
vides: If the petitioner has previously filed a petition for relief or for a stay of the execution
in the same court, the petition must be assigned to the judge or justice who considered the
previous matter. The record indicates that on September 18, 1995, District Judge Gene T.
Porter granted Colwell's motion for a stay of execution following Colwell's conviction and
pending his direct appeal. Colwell therefore argues that NRS 34.820 required Judge Porter to
hear his instant petition.
[Headnote 2]
Colwell failed to raise this claim with the district court, and we need not address it
absent a showing of cause for the failure and prejudice.
3
On the other hand, subject-matter
jurisdiction is not waivable, and a court's lack of such jurisdiction can be raised for the first
time on appeal.
4
But even assuming that NRS 34.820(3) was violated here, Colwell has cited
no authority for concluding that such a violation deprives a district judge of subject-matter
jurisdiction, and we reject that proposition. We also conclude that he has not shown cause for
failing to raise this claim below or that he was prejudiced.
II. The district court did not err in denying appellant post-conviction habeas relief
[Headnotes 3-6]
A petitioner for post-conviction relief cannot rely on conclusory claims for relief but
must make specific factual allegations that if true would entitle him to relief.
5
The petitioner
is not entitled to an evidentiary hearing if the record belies or repels the allegations.
6
It is
proper to raise claims of ineffective assistance of trial or appellate counsel initially in a
timely, first post-conviction petition for a writ of habeas corpus.
7
Additionally, the law of a
first appeal is the law of the case in all later appeals in which the facts are substantially the
same; this doctrine cannot be avoided by more detailed and precisely focused argument.
8

__________

3
See McNelton v. State, 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999) (refusing to address claims that
were raised for first time on appeal from district court's denial of post-conviction petition for habeas corpus,
absent showing of good cause and prejudice for failing to include issues in initial petition).

4
Swan v. Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990).

5
Evans v. State, 117 Nev. 609, 621, 28 P.3d 498, 507 (2001).

6
Id.

7
Id. at 622, 28 P.3d at 507.

8
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
[Headnotes 7-10]
Colwell contends that his trial attorneys were ineffective (before he was allowed to
represent himself) because they did not have him psychologically evaluated and did not
inform the district court that he suffered from prior serious mental instabilities. To establish
ineffective assistance of counsel, a defendant must show that an attorney's representation fell
below an objective standard of reasonableness and that the attorney's deficient performance
prejudiced the defense.
9
To establish prejudice, the defendant must show that but for the
attorney's mistakes, there is a reasonable probability that the result of the proceeding would
have been different.
10
An attorney must make reasonable investigations or a reasonable
decision that particular investigations are unnecessary.
11

[Headnote 11]
In rejecting this claim, the district court relied on affidavits obtained from Colwell's
former attorneys after he filed his habeas petition. This was improper. Such expansion of the
record is allowed only if the court decides to conduct an evidentiary hearing.
12
We have not
considered these affidavits in deciding this issue. Colwell's claim fails because it remains
vague and lacks specific factual allegations that would entitle him to relief even if true.
Although he implies that he lacked competency to be tried or to represent himself, he refers
only to testimony by a psychiatrist called by the State at his penalty hearing. According to
Colwell,
13
this psychiatrist evaluated him after he was found guilty of kidnapping in Oregon
and concluded that he suffered from a severe personality disorder. He alleges no other facts
to support his claim. Colwell does not argue that the personality disorder rendered him
incompetent: incompetency to stand trial means that a person is not of sufficient mentality to
be able to understand the nature of the criminal charges against him, and because of that
insufficiency, is not able to aid and assist his counsel.
14
Colwell has not stated a claim that
would warrant relief.
__________

9
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

10
Id. at 694.

11
Id. at 691.

12
See Mann v. State, 118 Nev. 351, 354-55, 46 P.3d 1228, 1231 (2002).

13
Colwell's counsel, Christopher R. Oram, did not provide this court with a transcript of this testimony. We
caution counsel to comply with the relevant rules in providing the necessary record on appeal in future cases. See
NRAP 30(b)(3), (g)(2); see also NRAP 10(b); NRAP 28(e).

14
NRS 178.400(2); see also Dusky v. United States, 362 U.S. 402, 402 (1960); cf. Bridges v. State, 116 Nev.
752, 769, 6 P.3d 1000, 1012 (2000) (stating that a defendant with narcissistic personality disorder can be
competent and capable of self-representation).
[Headnote 12]
Colwell also challenges the adequacy of the district court's canvass under Faretta v.
California
15
in allowing him to represent himself because the court did not inquire into his
competency. To the extent that this is asserted as an independent claim of trial court error, it
is waived because it could have been presented to the trial court or raised on direct appeal.
16
However, the Faretta canvass of Colwell is relevant in that it repels his claim that his counsel
should have had him psychologically evaluated. The court indeed did not question Colwell
regarding his mental competency, and this was reasonable because nothing in the transcript of
the canvass suggests that he lacked competency. On the contrary, the record before us shows
that Colwell consistently spoke in a lucid, coherent, and appropriate manner.
[Headnote 13]
Colwell further faults his trial attorneys for not filing appropriate pretrial motions.
This claim remains conclusory; he does not show that any of the motions would have been
meritorious. So again he fails to provide specific allegations and argument that would warrant
relief. Moreover, he neglects to reconcile his present call for pretrial action by his attorneys
with his prior decision to forgo counsel and represent himself.
[Headnote 14]
Next, Colwell asserts that the three-judge panel that sentenced him did not make an
independent and objective analysis of all the relevant evidence to determine if mitigating
circumstances existed. He says that this was error under Hollaway v. State.
17
Colwell does
not state any cause for not raising this alleged error before with the panel or on direct appeal;
it is therefore waived.
18
Furthermore, Colwell fails to demonstrate prejudice: our concern in
Hollaway is not implicated here. In Hollaway, we concluded that under the circumstances of
this case, . . . the jury required further instruction regarding its responsibilities in assessing the
evidence during the penalty phase.
19
Here, no jury was involved, and we presume that the
sentencing judges understood and met their responsibilities.
20
Colwell has not shown that
their finding of no mitigating circumstances was unfounded.
__________

15
422 U.S. 806 (1975).

16
Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994), overruled in part on other grounds by Thomas v.
State, 115 Nev. 148, 979 P.2d 222 (1999).

17
116 Nev. 732, 6 P.3d 987 (2000).

18
Franklin, 110 Nev. 750, 877 P.2d 1058.

19
116 Nev. at 743, 6 P.3d at 995.

20
See Jones v. State, 107 Nev. 632, 636, 817 P.2d 1179, 1181 (1991) ([T]rial judges are presumed to know
the law and to apply it in making their decisions.).
Colwell also states no cause why we should consider his remaining grounds for
habeas relief, which were either already decided on direct appeal or could have been raised at
trial or on direct appeal. We therefore decline to address the following claims:
21
Colwell's
rights were violated under the Equal Protection Clause because his female codefendant
received only a prison sentence; Nevada's capital punishment system operates in an arbitrary
and capricious manner; the death penalty is cruel and unusual punishment; death by lethal
injection is cruel and unusual punishment; and his conviction and sentence are invalid under
the International Covenant on Civil and Political Rights.
III. Ring v. Arizona does not affect the validity of the three-judge panel's imposition of the
death penalty in this case
On June 24, 2002, after briefing in this case was concluded, the United States
Supreme Court issued an opinion in Ring v. Arizona holding that a capital sentencing scheme
which places the determination of aggravating circumstances in the hands of a judge violates
the Sixth Amendment right to a jury trial.
22
We therefore permitted supplemental briefing on
the question of Ring's effect on this case and directed the parties to address specifically
whether Ring applies retroactively. We conclude for two reasons that Ring does not apply
here.
At issue in Ring was Arizona's capital sentencing scheme, in which, following a jury
adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone,
determines the presence or absence of the aggravating factors required by Arizona law for
imposition of the death penalty.
23
The Supreme Court observed that its prior case law
dealing with noncapital crimes had established that the Sixth Amendment does not permit a
defendant to be expose[d] . . . to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict alone.'
24
If a State makes an
increase in a defendant's authorized punishment contingent on the finding of a fact, that
factno matter how the State labels itmust be found by a jury beyond a reasonable doubt.
25
Applying this principle to capital cases and overruling contrary precedent, the Court
concluded that it was impermissible for a sentencing judge,
__________

21
Hall, 91 Nev. at 315-16, 535 P.2d at 798-99; Franklin, 110 Nev. 750, 877 P.2d 1058.

22
536 U.S. 584.

23
Id. at 588.

24
Id. at 588-89 (quoting Apprendi v. New Jersey, 530 U.S. 466, 483 (2000)).

25
Id. at 602.
a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary
for imposition of the death penalty. Because Arizona's enumerated aggravating factors
operate as the functional equivalent of an element of a greater offense, the Sixth
Amendment requires that they be found by a jury.
26

Colwell contends that Ring compels us to overturn his death sentence, which was
determined by a three-judge panel. We disagree. We conclude both that Ring does not require
retroactive application and that it is distinguishable on its facts since Colwell waived his right
to a jury trial.
A. Ring does not apply retroactively
We decline to apply Ring retroactively on collateral review. In the following
discussion, we address recent United States Supreme Court case law on retroactivity, adopt a
new framework for retroactivity analysis in this state, and apply it to this case.
U.S. Supreme Court case law and retroactivity in Nevada
In regard to convictions like Colwell's which have become final before the
promulgation of a new constitutional rule, the Constitution neither prohibits nor requires
retrospective effect.
27
Beginning with Teague v. Lane in 1989, the Supreme Court
established a general requirement of nonretroactivity of new rules in federal collateral review.
28
This requirement replaced an earlier, more open-ended retroactivity analysis which the
Court had applied to each new constitutional rule, considering the purpose served by the new
rule, the extent of reliance by law-enforcement authorities on the old rule, and the effect on
the administration of justice of applying the new rule retroactively.
29

We have followed the Supreme Court's earlier analysis in our own case law.
30
The
parties cited both this case law and Teague in their supplemental briefs. This court has also
cited Teague, but we have not formally adopted its approach or even discussed the issue of
retroactivity in light of it and its progeny.
31
Such a discussion is in order.
__________

26
Id. at 609 (citation omitted) (overruling in part Walton v. Arizona, 497 U.S. 639 (1990)) (quoting
Apprendi, 530 U.S. at 494 n.19).

27
Linkletter v. Walker, 381 U.S. 618, 628-29 (1965).

28
489 U.S. 288, 299-310 (1989) (plurality opinion). A majority of the Court soon adopted Teague. See, e.g.,
Butler v. McKellar, 494 U.S. 407, 412 (1990).

29
See, e.g., Stovall v. Denno, 388 U.S. 293, 297 (1967).

30
See, e.g., Powell v. Sheriff, 85 Nev. 684, 688, 462 P.2d 756, 758 (1969).

31
See Murray v. State, 106 Nev. 907, 910, 803 P.2d 225, 227 (1990).
In Teague, the Supreme Court, instead of focusing on the purpose and impact of a
new constitutional rule, looked to the function of federal habeas review, which is to ensure
that state courts conscientiously follow federal constitutional standards. The Court
determined that this function is met by testing state convictions against the constitutional law
recognized at the time of trial and direct appellate review, since state courts can only be
expected to follow the law existing at the time of their decisions. Applying the law existing at
that time also promotes finality in criminal prosecutions. Therefore, once a conviction has
become final, federal habeas courts should generally not interfere with the state courts by
applying new rules retroactively. The Court recognized two exceptions to this general
requirement of nonretroactivity.
32

The first exception is a new rule placing certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe.
33
An example
of this would be the Supreme Court's holding that the Fourteenth Amendment prohibits states
from criminalizing marriages between persons of different races.
34
Such a rule is actually
substantive, not procedural.
35
This exception also covers rules prohibiting a certain
category of punishment for a class of defendants because of their status or offense.
36
An
example of this is the Supreme Court's recent holding that the Eighth Amendment prohibits
the execution of mentally retarded criminals.
37
The second exception is a new rule
establishing a procedure that implicate[s] the fundamental fairness of the trial
38
and
without which the likelihood of an accurate conviction is seriously diminished.
39
Such a
rule would be the right to counsel at trial.
40
If a rule falls within either of these exceptions, it
applies even on collateral review of final cases.
[Headnotes 15, 16]
Teague is not controlling on this court, other than in the minimum constitutional
protections established by its two exceptions.
__________

32
See Teague, 489 U.S. at 305-10.

33
Id. at 311 (internal quotation marks omitted).

34
See Mackey v. United States, 401 U.S. 667, 692 & n.7 (1971) (Harlan, J., concurring and dissenting)
(citing Loving v. Virginia, 388 U.S. 1 (1967) as an example of the first exception). Justice Harlan's basic view
was adopted in Teague.

35
See id. at 692.

36
Penry v. Lynaugh, 492 U.S. 302, 330 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002).

37
See id.; Atkins, 536 U.S. at 321.

38
Teague, 489 U.S. at 312.

39
Id. at 313.

40
See Mackey, 401 U.S. at 694 (Harlan, J., concurring and dissenting).
In other words, we may choose to provide broader retroactive application of new
constitutional rules of criminal procedure than Teague and its progeny require. The Supreme
Court has recognized that states may apply new constitutional standards in a broader range
of cases than is required by the Court's decision not to apply the standards retroactively.
41
As the Oregon Supreme Court has stated: 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.
42

The policy concerns behind Teague are partly germane to collateral review by this and
other state courts and partly not. We share the concern that the finality of convictions not be
unduly disturbed, but the need to prevent excessive interference by federal habeas courts has
no application to habeas review by state courts themselves. And even the effect on finality is
not as extreme when a state appellate court, as opposed to a federal court, decides to apply a
rule retroactively: first, the decision affects only cases within that state, and second, most
state collateral review occurs much sooner than federal collateral review. In addition, we are
concerned with encouraging the district courts of this state to strive for perspicacious,
reasonable application of constitutional principles in cases where no precedent appears to be
squarely on point.
Though we consider the approach to retroactivity set forth in Teague to be sound in
principle, the Supreme Court has applied it so strictly in practice that decisions defining a
constitutional safeguard rarely merit application on collateral review. First, the Court defines
a new rule quite expansively. In Teague, the Court originally stated that a case announces
a new rule when it breaks new ground or imposes a new obligation on the States or if the
result was not dictated by precedent.
43
But the Court now deems a decision new even when
it is controlled or governed by prior law
44
and is the most reasonable interpretation of
that law, unless no other interpretation was reasonable.
45
So most rules are considered
new and given only prospective effect,
__________

41
Johnson v. New Jersey, 384 U.S. 719, 733 (1966). This is a corollary of the elementary rule that States are
free to provide greater protections in their criminal justice system than the Federal Constitution requires.
California v. Ramos, 463 U.S. 992, 1013-14 (1983).

42
State v. Fair, 502 P.2d 1150, 1152 (Or. 1972); see also Cowell v. Leapley, 458 N.W.2d 514, 517-18 (S.D.
1990) (rejecting the Teague rule of retroactivity as unduly narrow for state collateral review).

43

44
Butler, 494 U.S. at 415.

45
Lambrix v. Singletary, 520 U.S. 518, 538 (1997).
most rules are considered new and given only prospective effect, absent an exception.
Second, the two exceptions are narrowly drawn. As noted, one applies when primary, private
individual conduct has been placed beyond criminal proscription.
46
The other is limited to
watershed rules of fundamental fairness.
47
A rule that qualifies under this exception must
not only improve accuracy, but also alter our understanding of the bedrock procedural
elements essential to the fairness of a proceeding.
48
It is unlikely that many such
components of basic due process have yet to emerge.
49

We appreciate that strictly constraining retroactivity serves the Supreme Court's
purpose of circumscribing federal habeas review of state court decisions, but as a state court
we choose not to bind quite so severely our own discretion in deciding retroactivity. We
therefore choose to adopt with some qualification the approach set forth in Teague. We adopt
the general framework of Teague, but reserve our prerogative to define and determine within
this framework whether a rule is new and whether it falls within the two exceptions to
nonretroactivity (as long as we give new federal constitutional rules at least as much
retroactive effect as Teague does).
[Headnotes 17-20]
Thus, consistent with the Teague framework, we will not apply a new constitutional
rule of criminal procedure to finalized cases unless it falls within either of two exceptions.
There is no bright-line rule for determining whether a rule is new, but there are basic
guidelines to follow. As this court has stated, When a decision merely interprets and clarifies
an existing rule . . . and does not announce an altogether new rule of law, the court's
interpretation is merely a restatement of existing law.
50
Similarly, a decision is not new if
it has simply applied a well-established constitutional principle to govern a case which is
closely analogous to those which have been previously considered in the prior case law.
51
We consider too sweeping the proposition, noted above, that a rule is new whenever any
other reasonable interpretation of prior law was possible. However, a rule is new, for
example, when the decision announcing it overrules precedent,
52
or disapprove[s] a practice
this Court had arguably sanctioned in prior cases, or overturn[s] a longstanding practice
that lower courts had uniformly approved.
__________

46

47
Sawyer v. Smith, 497 U.S. 227, 242 (1990).

48
Id. (internal quotation marks omitted).

49

50
Buffington v. State, 110 Nev. 124, 127, 868 P.2d 643, 645 (1994).

51
Penry, 492 U.S. at 314 (internal quotation marks omitted).

52
Hubbard v. State, 112 Nev. 946, 948 n.1, 920 P.2d 991, 993 n.1 (1996).
overturn[s] a longstanding practice that lower courts had uniformly approved.
53

[Headnote 21]
When a rule is new, it will still apply retroactively in 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. These are basically the exceptions defined by the Supreme Court. But we do not
limit the first exception to primary, private individual conduct, allowing the possibility that
other conduct may be constitutionally protected from criminalization and warrant retroactive
relief. And with the second exception, we do not distinguish a separate requirement of
bedrock or watershed significance: if accuracy is seriously diminished without the rule,
the rule is significant enough to warrant retroactive application.
We feel that this adaptation of the approach taken in Teague and its progeny provides
us with a fair and straightforward framework for determining retroactivity.
An overview of retroactivity analysis and its application to appellant's case
A court's determination of retroactivity in this state, therefore, requires the following
analysis. The first inquiry for the court is whether the constitutional rule of criminal
procedure under consideration is new. Retroactivity is an issue only when a rule is new. If a
rule is not new, then it applies even on collateral review of final cases.
[Headnotes 22, 23]
If the rule is indeed new, the second inquiry is whether the conviction of the person
seeking application of the rule has become final. A conviction becomes final when judgment
has been entered, the availability of appeal has been exhausted, and a petition for certiorari to
the Supreme Court has been denied or the time for such a petition has expired.
54
When a
conviction is not final, the court must apply a new rule of federal constitutional law: failure
to apply a newly declared constitutional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication.
55

__________

53
Griffith v. Kentucky, 479 U.S. 314, 325 (1987).

54
Id. at 321 n.6.

55
Id. at 322; see also id. at 328.
If the person's conviction has become final, a new rule generally does not apply
retroactively. So the third inquiry is whether either exception to nonretroactivity pertains. Did
the rule establish 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 did
it establish a procedure without which the likelihood of an accurate conviction is seriously
diminished? If the answer to either question is yes, then the rule applies.
[Headnote 24]
In Colwell's case, our first inquiry is whether the constitutional rule of criminal
procedure established in Ring is new. We determine that the rule is new. Ring applied prior
case lawwhich had established the principle that a jury must find any fact (other than a
prior conviction) that increases the maximum penalty for an offenseto closely analogous
facts. This would suggest that Ring did not announce a new rule, but Ring also had to address
another prior opinion which had held that this principle was inapposite to Arizona's capital
sentencing scheme. The Court concluded that this prior opinion was untenable and overruled
it.
56
Because Ring dealt with conflicting prior authority and expressly overruled precedent in
announcing its rule, we conclude that the rule is new.
Next, we must determine whether Colwell's conviction was final before Ring was
published earlier this year. It clearly was: after this court affirmed Colwell's conviction on
appeal, the Supreme Court denied certiorari in 1998.
57
Because the rule is new and Colwell's
conviction is final, the rule does not apply retroactively here unless either exception to
nonretroactivity pertains. We conclude that neither does.
[Headnote 25]
Ring did not forbid either the criminalization of any conduct or the punishment in any
way of any class of defendants, so only the second exception arguably applies. Ring
established that jurors, not judges, must make any factual findings necessary for imposition of
the death penalty. Is this a procedure without which the likelihood of an accurate
convictionor, in this case, sentenceis seriously diminished? We conclude that it is not.
The Supreme Court in Ring did not determine that factfinding by either juries or judges was
superior in capital cases. In response to Arizona's suggestion that judicial factfinding might
better protect against arbitrary imposition of the death penalty, the Court stated: The Sixth
Amendment jury trial right, however, does not turn on the relative rationality, fairness, or
efficiency of potential factfinders.
__________

56
See Ring, 536 U.S. at 609 (overruling in part Walton, 497 U.S. 639).

57
Colwell, 112 Nev. 807, 919 P.2d 403, cert. denied, 525 U.S. 844 (1998).
relative rationality, fairness, or efficiency of potential factfinders.
58
The Court did declare
that the superiority of judicial factfinding in capital cases is far from evident and noted that
most states have entrusted factfinding in capital cases to juries.
59
But we believe it is clear
that Ring is based simply on the Sixth Amendment right to a jury trial, not on a perceived
need to enhance accuracy in capital sentencings, and does not throw into doubt the accuracy
of death sentences handed down by three-judge panels in this state. We conclude therefore
that the likelihood of an accurate sentence was not seriously diminished simply because a
three-judge panel, rather than a jury, found the aggravating circumstances that supported
Colwell's death sentence.
We conclude that retroactive application of Ring on collateral review is not warranted.
B. Ring does not apply here because appellant waived his right to a jury trial
[Headnote 26]
Alternatively, we conclude that Ring is not applicable to Colwell's case because,
unlike Ring, Colwell pleaded guilty and waived his right to a jury trial.
The district court thoroughly canvassed Colwell at the time he entered his guilty plea.
The court specifically asked him if he understood that this matter will be submitted to a
three-judge panel to determine the appropriate sentence regarding the count of murder,
60
and he answered yes. The court further informed Colwell that by pleading guilty he was
giving up certain valuable rights. The court described these rights, beginning with a right to
a speedy and public trial by an impartial jury. The court asked Colwell if he understood
these rights and if he gave them up, and he answered yes to both questions.
In his supplemental brief on this issue, Colwell does not dispute that his guilty plea
was voluntary and knowing or that he waived his right to a jury trial. However, he claims that
he only waived his right to have a jury determine his guilt, not his right to have a jury
determine aggravating circumstances. The record clearly belies this claim. The record shows
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.
__________

58
Ring, 536 U.S. at 607.

59
Id. at 607-08 & n.6.

60
See NRS 175.558 (providing that when a defendant pleads guilty to first-degree murder and the State seeks
a death sentence, a panel of three district judges must conduct the required penalty hearing to determine the
presence of aggravating and mitigating circumstances, and give sentence accordingly).
Ring concerned a defendant who pleaded not guilty and went to trial; it does not
address waiver of the right to a jury trial. We do not read Ring as altering the legitimacy or
effect of a defendant's guilty plea. The Supreme Court has held that the valid entry of a guilty
plea in a state criminal court involves the waiver of several federal constitutional rights.
61
Among these is the right to trial by jury.
62
Colwell's guilty plea included an express waiver
of his right to a jury trial and was valid. We conclude that nothing in Ring undermines the
lawfulness of his resulting conviction and sentence.
63

CONCLUSION
We affirm the district court's order denying Colwell's post-conviction petition for a
writ of habeas corpus.
____________
118 Nev. 823, 823 (2002) Palmer v. State
SCOTT A. PALMER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36996
December 19, 2002 59 P.3d 1192
Appeal from a district court order denying a post-conviction petition for a writ of
habeas corpus. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Petitioner who pleaded guilty and was convicted of attempted sexual assault sought
writ of habeas corpus, alleging that his guilty plea was invalid. Without conducting an
evidentiary hearing, the district court denied the petition. Petitioner appealed. The supreme
court held that: (1) lifetime supervision is direct consequence of guilty plea to sexual offense
of which defendant must be aware, and (2) remand to district court was warranted for purpose
of determining whether defendant knew that he would be subject to lifetime supervision.
__________

61
Boykin v. Alabama, 395 U.S. 238, 243 (1969).

62
Id.

63
Cf. Abrego v. State, 118 Nev. 54, 60-61, 38 P.3d 868, 871-72 (2002) (concluding that a defendant
effectively waived his right under Apprendi to have the jury determine a sentence-enhancing fact).
We express no opinion on the effect Ring might have if applied in a case where a capital defendant pleaded
guilty but unsuccessfully sought to have a jury determine his sentence.
Respondent.
1. Criminal Law.
Lifetime supervision is direct consequence of guilty plea to sexual offense of which defendant pleading guilty must be aware,
because it is sufficiently onerous to constitute a form of punishment, it is imposed directly by district court, and it increases range of
punishment to which defendant is subject as a matter of law. NRS 176.0931(1), (2).
2. Criminal Law.
In context of requirement that defendant be aware of direct consequences arising from criminal conviction before defendant may
plead guilty, direct consequences have automatic and immediate effect on nature or length of defendant's punishment; collateral
consequences do not.
3. Criminal Law.
Defendant's awareness of collateral consequence arising from criminal conviction is not prerequisite to valid plea and,
consequently, may not be basis for vitiating it.
4. Mental Health.
Statute requiring lifetime supervision of offenders who have committed sexual offenses was intended to provide law
enforcement personnel with non-punitive tool to assist them in solving crimes. NRS 176.0931(1), (2).
5. Criminal Law.
In context of requirement that defendant be aware of direct consequences arising from criminal conviction before defendant may
plead guilty, parole is collateral consequence of guilty plea because it is served in lieu of actual prison time and is wholly beyond
jurisdiction of district judge to grant.
6. Criminal Law.
In reviewing claim of invalidity of guilty plea, remand to district court was warranted for purpose of determining whether
defendant knew, prior to pleading guilty to attempted sexual assault, that he would be subject to lifetime supervision. NRS
176.0931(1), (2).
7. Criminal Law.
Record of plea canvass in district court should reflect that defendant entering plea of guilty to sexual offense requiring lifetime
supervision has been specifically advised that lifetime supervision is consequence of plea. NRS 176.0931(1), (2).
8. Criminal Law.
Supreme court will not invalidate guilty plea to sexual offense on basis that record of plea canvass in district court failed to
reflect that defendant was specifically advised that lifetime supervision was consequence of plea if totality of circumstances revealed
by record otherwise demonstrates that defendant was aware of consequence prior to entry of plea and was so informed either by written
plea agreement, by counsel, or in some other manner. NRS 176.0931(1), (2).
OPINION
Per Curiam:
Appellant Scott A. Palmer argues in this appeal that the district court erred in denying
his post-conviction petition for a writ of habeas corpus. Palmer contends, among other things,
that his guilty plea was not knowingly entered because he was not informed that he would
receive a special sentence of lifetime supervision as a consequence of pleading guilty to
attempted sexual assault.
We conclude that lifetime supervision is a direct consequence of a guilty plea.
Therefore, when a defendant pleads guilty to an offense that is subject to the lifetime
supervision provisions, the totality of the circumstances in the record must demonstrate that
the defendant was aware of the consequence of lifetime supervision before entry of plea.
Because the record is silent with respect to whether Palmer was advised that he would be
subject to lifetime supervision, we reverse the order of the district court denying Palmer's
petition and remand this matter for an evidentiary hearing.
FACTS
The following facts were adduced from testimony presented at the preliminary
hearing. On March 6, 1998, K.B., a fifteen-year-old girl, went to a birthday party at her
friend's apartment in Reno, Nevada. At the party, K.B. consumed five to seven wine coolers.
The last thing she remembered, prior to passing out from the consumption of alcohol, was
dancing with her friends. When K.B. awoke in the morning, she was in bed wearing only her
underwear and bra. K.B.'s inner thigh and vagina ached. She told her friend: I think I slept
with [Palmer].
Palmer was twenty-four years old at the time of the party. In the past, he had made
numerous sexual advances towards K.B., which she rebuffed because she had a boyfriend. On
the night of the party, K.B.'s friend observed Palmer touching K.B.'s breast and vaginal area
while she was passed out. The friend told Palmer to stop touching K.B., and eventually after
several minutes, Palmer stopped. Later, in the middle of the night, the friend noticed that K.B.
was no longer in the bed where she had earlier passed out, but assumed that she was merely
using the bathroom. The next morning, the friend discovered that K.B. had not been using the
bathroom, but apparently had been sexually assaulted by Palmer.
Later on that same day, one of K.B.'s other friends, who had also been at the party,
told K.B.'s boyfriend about the alleged sexual assault.
ual assault. A fight ensued between Palmer and K.B.'s boyfriend. When the police responded,
they were informed about the alleged occurrences at the party the night before. Palmer was
interviewed by police while being treated at a nearby hospital for injuries sustained in the
fight. Although he admitted that he had sexual intercourse with K.B., he insisted that it was
consensual.
On April 14, 1998, Palmer was charged with two counts of sexual assault of a child
and two counts of statutory sexual seduction. On January 8, 1999, pursuant to plea
negotiations with the State, Palmer pleaded guilty to one count of attempted sexual assault.
The district court accepted the plea and subsequently sentenced Palmer to serve a prison term
of 24 to 62 months. Additionally, pursuant to NRS 176.0931, the district court imposed a
mandatory special sentence of lifetime supervision. Palmer appealed the judgment of
conviction, arguing that the State breached the plea agreement. This court rejected Palmer's
argument and dismissed the appeal.
1

On July 14, 2000, Palmer filed a proper person post-conviction petition for a writ of
habeas corpus, contending that his counsel was ineffective and that his guilty plea was
invalid. The State opposed the petition. The district court appointed counsel, and counsel
filed a supplemental petition. Without conducting an evidentiary hearing, the district court
denied the petition, finding Palmer's claims that his plea was not knowingly entered and that
his counsel was ineffective were belied by the record. The instant appeal followed.
DISCUSSION
[Headnotes 1-3]
This court has previously held that, prior to pleading guilty, a defendant must be
aware of the direct consequences arising from his criminal conviction.
2
Direct consequences
have an automatic and immediate effect on the nature or length of a defendant's punishment;
collateral consequences do not.
3
A defendant's awareness of a collateral consequence is not a
prerequisite to a valid plea and, consequently, may not be the basis for vitiating it.
4
In this
appeal, we are asked to determine whether lifetime supervision is a direct consequence of a
guilty plea. We conclude that it is a direct consequence of a guilty plea because it enlarges
or increases the punishment for the charged offense.
__________

1
Palmer v. State, Docket No. 34049 (Order Dismissing Appeal, June 13, 2000).

2
Little v. Warden, 117 Nev. 845, 849, 34 P.3d 540, 544 (2001); Bryant v. State, 102 Nev. 268, 271-72, 721
P.2d 364, 367 (1986).

3
Little, 117 Nev. at 849, 34 P.3d at 543.

4
Stocks v. Warden, 86 Nev. 758, 762-63, 476 P.2d 469, 471-72 (1970).
direct consequence of a guilty plea because it enlarges or increases the punishment for the
charged offense.
5

Lifetime supervision is a mandatory special sentence imposed upon all offenders who
have committed sexual offenses
6
after September 30, 1995.
7
Like parolees and
probationers, offenders subject to lifetime supervision are overseen by the Division of Parole
and Probation and are required to conform their behavior to certain conditions, which are
determined by the Board of Parole Commissioners after a hearing.
8

Before the expiration of a term of imprisonment, parole or probation, the sex offender
receives written notice of the particular conditions of his lifetime supervision, as well as an
explanation of those conditions from a parole and probation officer.
9
Failure to abide by the
conditions of lifetime supervision is a Category B felony punishable by a prison term of one
to six years and a fine of up to $5,000.00.
10

[Headnote 4]
The legislative history of Nevada's lifetime supervision law indicates that it was
intended to provide law enforcement personnel with a non-punitive tool to assist them in
solving crimes.
11
Statements of key legislative leaders indicate that the legislation was
intended to create a serious civil penalt[y] to oversee dangerous sexual predators, people
with a high degree of likelihood of recidivism.
12
In fact, the lifetime supervision
requirement was only one component of Senate Bill 192, which implemented
comprehensive changes in Nevada's criminal justice system,
__________

5
See Little, 117 Nev. at 849, 34 P.3d at 543-44; see also Bell v. United States, 521 F.2d 713, 715-16 (4th Cir.
1975).

6
A sexual offense is defined as a commission of or an attempt to commit one of the following crimes: sexual
assault, battery with the intent to commit sexual assault, use of a minor in producing pornography, unlawful
promotion of sexual performance of a minor, felony possession of visual presentation depicting sexual conduct
of a person under 16 years old, incest, felony solicitation of a minor to engage in sexual acts, lewdness with a
child under 14 years old, sexual penetration of a dead human body, and felony use of technology to lure
children. NRS 176.0931(5)(b)(1)-(2). Additionally, a sexual offense is defined to include first- or second-degree
murder, false imprisonment, burglary and invasion of the home in instances where the crime is found to be
sexually motivated. NRS 176.0931(5)(b)(3).

7
1995 Nev. Stat., ch. 256, 14, at 418; NRS 176.0931(1)-(2).

8
NRS 213.1243(2); NRS 213.1095(9); NRS 213.1096(3); NAC 213.290(3)-(4).

9
NRS 213.1243(2); NRS 213.1095(9); NRS 213.1096(3).

10
NRS 213.1243(3).

11
Hearing on S.B. 192 Before the Assembly Comm. on Judiciary, 68th Leg. (Nev., April 12, 1995).

12
Hearing on S.B. 192 Before the Assembly Comm. on Judiciary, 68th Leg., at 7 (Nev., March 13, 1995)
(statement of Senator Mark A. James, Chairman, Senate Comm. on Judiciary).
implemented comprehensive changes in Nevada's criminal justice system, including extensive
sentencing revisions and sex offender notification provisions. The lifetime supervision
provisions addressed the danger posed by repeat sexual offenders:
[A] person beginning as a juvenile sex offender will commit an average of 360 sex
offenses in a lifetime; the problem is a sickness and that is why the system has not been
successful in dealing with the offenders.
. . . .
[I]f there is a sexual offense the police first look to the known sex offenders and most
of the time the [perpetrator] is found within the group. By having lifetime supervision
there would be a better track of the offenders; to keep better and more appropriate
records.
13

A post-release supervision program, like lifetime supervision, is not unique to
Nevada. Other jurisdictions have enacted similar sentencing schemes, implementing a term of
supervised release beginning only after the offender expires the prison term or parole or
probationary period imposed for the criminal conviction.
14
Those jurisdictions have held,
with few exceptions, that post-release supervision is a ramification of a guilty plea of which a
defendant pleading guilty should be advised. Although the federal courts generally limit their
discussion to Federal Rule of Criminal Procedure 11,
15
state courts considering the issue
have held that post-release supervision is a direct consequence of a guilty plea.
16
In so
concluding, the courts have generally reasoned that post-release supervision increases the
maximum range of an offender's sentence,
__________

13
Hearing on S.B. 192 Before the Assembly Comm. on Judiciary, 68th Leg., at 11-12 (Nev., April 12, 1995)
(statements of Senator Mark A. James and Senator Raymond D. Rawson).

14
Although the post-release schemes in other jurisdictions are not identical in substance or form to Nevada's,
they are all similar in one key aspect: they begin only after the offender has served his term of incarceration or
probation. See, e.g., U.S. v. Mosley, 173 F.3d 1318 (11th Cir. 1999); Carter v. McCarthy, 806 F.2d 1373 (9th
Cir. 1986); U.S. v. Osment, 13 F.3d 1240 (8th Cir. 1994); U.S. v. Syal, 963 F.2d 900 (6th Cir. 1992); U.S. v.
Scott, 987 F.2d 261 (5th Cir. 1993); Moore v. United States, 592 F.2d 753 (4th Cir. 1979); U.S. v. Cleary, 46
F.3d 307 (3d Cir. 1995); U.S. v. Andrades, 169 F.3d 131 (2d Cir. 1999); In re Carabes, 193 Cal. Rptr. 65 (Ct.
App. 1983); Young v. People, 30 P.3d 202 (Colo. 2001); State v. Williams, 775 A.2d 727 (N.J. Super. Ct. App.
Div.), cert. denied, 785 A.2d 435 (N.J. 2001); People v. Goss, 733 N.Y.S.2d 310 (App. Div. 2001).

15
Federal Rule of Criminal Procedure 11 requires, among other things, an advisement with respect to any
special parole term. But see Carter, 806 F.2d at 1375 (concluding that mandatory parole is a direct consequence
of a guilty plea).

16
Carabes, 193 Cal. Rptr. at 67; Young, 30 P.3d at 205; Williams, 775 A.2d at 730; Goss, 733 N.Y.S.2d at
314.
sentence, thereby directly and immediately affecting the defendant's punishment.
17
We agree
with this conclusion.
Despite some indications that the Nevada Legislature intended lifetime supervision to
be a civil law enforcement tool, we conclude that, on balance, it is sufficiently punitive in
nature and effect as to render it a direct penal consequence of a guilty plea, a consequence of
which the defendant must be advised.
18
Lifetime supervision is a form of punishment
because the affirmative disabilities and restraints it places on the sex offender have a direct
and immediate effect on the range of punishment imposed. In certain instances, the conditions
imposed may limit an offender's right to travel, live or work in a particular place.
Additionally, those subject to lifetime supervision are often prohibited from engaging in a
variety of activities, including: (1) having a blood alcohol level over .10; (2) associating with
other ex-felons or registered sex offenders or with persons under 18 in a secluded
environment; (3) accepting a new job without approval from the Division of Parole and
Probation; (4) having a post office box; and (5) being in or near movie theaters, playgrounds,
or businesses catering primarily to children. Finally, some offenders are required to attend
counseling, abide by a curfew, take polygraph examinations, submit to medical tests for
controlled substances, or allow searches of their persons or property. In essence, lifetime
supervision involves actual monitoring of aspects of the offender's daily life to ensure that
conditions deemed necessary to protect the community are satisfied. An offender is subject to
the terms of lifetime supervision for a minimum of fifteen years.
19

[Headnote 5]
The State argues, however, that lifetime supervision is merely a form of parole and,
consequently, our prior holding that parole is a collateral consequence of a guilty plea
compels a conclusion that an advisement about lifetime supervision is not required.
__________

17
Carabes, 193 Cal. Rptr. at 67; Young, 30 P.3d at 205-07; Goss, 733 N.Y.S.2d at 314. Notably, many courts
have concluded that the failure to advise about post-release supervision does not always warrant reversal. In fact,
most jurisdictions hold that the lack of an advisement about post-release supervision is harmless in instances
where the term of the supervised release plus the actual term of imprisonment imposed was less than or equal to
the maximum prison term of which the defendant was advised. See, e.g., Andrades, 169 F.3d at 134 (relying on
precedent from the First, Fifth, Sixth, Ninth, and Tenth Circuit Courts of Appeals); U.S. v. Saenz, 969 F.2d 294,
297 (7th Cir. 1992); Bell, 521 F.2d at 715. Because it is beyond the scope of the issues presented, we do not
address whether a guilty plea is constitutionally infirm where the defendant was advised, prior to pleading guilty,
that he risked the imposition of a life prison term, but was not advised about lifetime supervision.

18
See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (setting forth numerous considerations
for examining whether a legislative enactment is punitive in nature).

19
NRS 176.0931(3); NRS 176.0931(5)(a).
is a collateral consequence of a guilty plea compels a conclusion that an advisement about
lifetime supervision is not required. We disagree. Lifetime supervision is different from
parole.
20
Generally, parole is a privilege or, as we have stated, a matter of legislative grace
21
that benefits one serving a term of imprisonment by allowing the prisoner to serve part of
the term outside the walls of the institution in a supervised but non-custodial environment.
22
Parole is a collateral consequence of a guilty plea because it is served in lieu of actual
prison time and is wholly beyond the jurisdiction of the district judge to grant.
23
Lifetime
supervision, on the other hand, must be imposed by the sentencing judge and served in
addition to any term of imprisonment, probation or parole as a matter of law. Moreover, a
violation of a condition of parole does not necessarily subject the parolee to an additional
term of imprisonment beyond that originally imposed by the trial court. Offenders who
violate lifetime supervision conditions, however, risk conviction of an additional felony and
the imposition of an additional prison term of one to six years.
24

Therefore, because of its punitive and enduring effect, we conclude that lifetime
supervision is a direct consequence of a guilty plea of which a defendant pleading guilty must
be aware. We emphasize, however, that our holding in this regard is neither inconsistent with,
nor a retreat from, this court's prior decisions defining various direct or collateral
consequences of guilty pleas. Lifetime supervision is a direct consequence because it is
sufficiently onerous to constitute a form punishment; it is imposed directly by the district
court; and it increases the range of punishment to which a defendant is subject as a matter of
law. We adhere to the view that consequences such as the loss of a job or professional
license,
25
sex offender registration,
26
deportation,
27
and ineligibility for parole
28
are all
collateral because they are not sufficiently punitive in nature and effect; they are not directly
imposed by the sentencing court; or they do not automatically increase a defendant's range of
punishment.
__________

20
U.S. v. Cleary, 46 F.3d 307 (3d Cir. 1995).

21
Anushevitz v. Warden, 86 Nev. 191, 194, 467 P.2d 115, 118 (1970); see also Mathis v. Warden, 86 Nev.
439, 471 P.2d 233 (1970).

22
Craig v. People, 986 P.2d 951, 958 n.3 (Colo. 1999) (quoting People v. Hunter, 738 P.2d 20, 22 (Colo. Ct.
App. 1986)).

23
See, e.g., Anushevitz, 86 Nev. at 194, 467 P.2d at 118.

24
See NRS 213.1243(3); see also U.S. v. Tuangmaneeratmun, 925 F.2d 797, 802 (5th Cir. 1991).

25
Nollette v. State, 118 Nev. 341, 46 P.3d 87 (2002).

26
Id.

27
Barajas v. State, 115 Nev. 440, 991 P.2d 474 (1999).

28
Anushevitz, 86 Nev. at 194, 467 P.2d at 118.
[Headnotes 6-8]
We further conclude that, henceforth, the record of a plea canvass in the district court
should reflect that a defendant entering a plea of guilty to a sexual offense enumerated in
NRS 176.0931 has been specifically advised that lifetime supervision is a consequence of the
plea. We note, however, that the failure of the record to reflect such an advisement is not
necessarily reversible error. This court will not invalidate a guilty plea on this basis if the
totality of the circumstances revealed by the record otherwise demonstrate that the defendant
was aware of the consequence prior to the entry of the plea, and was so informed either by the
written plea agreement, by counsel, or in some other manner.
29
The record before us is silent
with respect to whether Palmer knew, in pleading guilty to a sexual offense, that he would be
subject to lifetime supervision; an evidentiary hearing on this issue is therefore necessary.
30
Should the totality of the circumstances indicate that Palmer was unaware of the direct
consequence of lifetime supervision, the district court must allow him to withdraw his guilty
plea. Accordingly, we reverse the order of the district court and remand this matter for an
evidentiary hearing.
____________
118 Nev. 831, 831 (2002) Willmes v. Reno Mun. Ct.
ROBERT V. WILLMES, Appellant, v. RENO MUNICIPAL COURT, and THE
HONORABLE PAUL S. HICKMAN, Municipal Court Judge; and THE CITY OF RENO,
Respondents.
No. 38033
December 19, 2002 59 P.3d 1197
Appeal from the district court's order denying Robert V. Willmes's petition for a writ
of mandamus. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
After municipal court rejected a civil compromise between husband and his wife of a
misdemeanor domestic battery charge, husband petitioned for a writ of mandamus and moved
to disqualify city attorney's office from representing the municipal court in the mandamus
proceedings.
__________

29
Although we do not reach the issue in this case, as previously noted, the imposition of an underlying prison
term of life with or without the possibility of parole may render harmless a failure to advise a defendant of the
lifetime supervision consequence. See supra note 17.

30
We remand to the district court to determine whether Palmer knew, prior to pleading guilty, that he would
be subject to lifetime supervision. Although Palmer raised additional claims of ineffective assistance of counsel
in his petition, we conclude that the district court did not err in rejecting those claims. See Hargrove v. State,
100 Nev. 498, 686 P.2d 222 (1984); see also Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).
court in the mandamus proceedings. The district court denied petition and motion. Husband
appealed. The supreme court, Agosti, J., held that: (1) municipal court acted arbitrarily by
failing to exercise its discretion and weighing the merits of the compromise, thus warranting
mandamus; and (2) district court's denial of motion to disqualify was not abuse of discretion.
Law Offices of Richard W. Young, Reno, for Appellant.
Patricia A. Lynch, City Attorney, and Donald L. Christensen, Deputy City Attorney,
Reno, for Respondents.
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 control an arbitrary or capricious exercise of discretion.
2. Mandamus.
Supreme court reviews a district court's denial of a petition for a writ of mandamus under an abuse of discretion standard.
3. Criminal Law.
Municipal court acted arbitrarily when it failed to exercise its discretion by weighing the merits of proposed civil compromise of
a domestic violence charge between husband and wife before rejecting it on basis of its own self-imposed policy that no domestic
battery misdemeanor should ever be compromised, and thus, writ of mandamus was warranted; legislature did not create a
domestic-violence exception to the allowance of compromises for misdemeanor charges. NRS 178.564.
4. Criminal Law.
Decision to grant or deny a civil compromise is within the sound discretion of the court; however, an individualized exercise of
discretion is necessarily required, meaning that each case must be considered upon its own merits.
5. Constitutional Law; Courts.
Municipal court does not have the power to judicially legislate exceptions from civil compromise eligibility into existence. NRS
178.564.
6. Attorney and Client; District and Prosecuting Attorneys.
District court did not abuse its discretion when it denied husband's motion to disqualify the city attorney's office from
representing the municipal court in mandamus action, asserted by husband after municipal court rejected a civil compromise between
husband and wife on misdemeanor domestic battery charges, on conflict of interest grounds, in that office was simultaneously
prosecuting husband in municipal court for the domestic battery charge. The city attorney's office was not advising the municipal court
with regard to its role in adjudicating the underlying criminal action, rather, the city attorney's office was merely acting as counsel for
the municipal court on the collateral mandamus action, and the municipal court's role in such proceedings was nominal.
7. Appeal and Error; Attorney and Client.
A district court has broad discretion to determine whether disqualification of counsel is required, and accordingly, the supreme
court will not overturn a district court decision on disqualification absent an abuse of discretion.
OPINION
Robert V. Willmes petitioned the district court for a writ of mandamus after the Reno
Municipal Court rejected a civil compromise between Willmes and his wife of a
misdemeanor domestic battery charge. Willmes then filed a motion to disqualify the Reno
City Attorney's Office from prosecuting Willmes on the domestic battery charge, as well as
from representing the municipal court in the mandamus proceedings. The district court denied
both the motion and the petition for a writ of mandamus. On appeal, Willmes asserts that the
district court erred in denying his petition. Willmes asserts that the municipal court acted
arbitrarily and capriciously when it refused to approve the civil compromise. Willmes also
claims it was error to deny his motion to disqualify the Reno City Attorney's Office. Willmes
asserts that the City Attorney's Office had an impermissible conflict of interest. Willmes also
asserts that denying the motion was error and a violation of the separation of powers doctrine
under the Nevada Constitution.
We conclude that the municipal court acted arbitrarily when it failed to exercise its
discretion in rejecting the civil compromise, and therefore, we reverse the district court's
order denying Willmes's petition for a writ of mandamus. We instruct the district court to
grant the petition and issue a writ to the municipal court so that a determination may be made
as to whether a civil compromise is appropriate. Finally, we discern no error in the district
court's denial of Willmes's motion to disqualify the Reno City Attorney's Office.
On April 11, 2000, Jennifer Rose filed a citizen's complaint in Reno Municipal Court,
alleging that her husband, Robert V. Willmes, had committed domestic battery against her.
After commencing an action for divorce, Rose and Willmes appeared in the Reno Municipal
Court and presented their written stipulation to compromise the domestic battery charge in
accordance with NRS 178.564 and NRS 178.566.
1
The stipulation, part of their recently
executed divorce settlement agreement,
__________

1
NRS 178.564 states:
When a defendant is held to answer on a charge of a misdemeanor, for which the person injured by
the act constituting the offense has a remedy by a civil action, the offense may be compromised as
provided in NRS 178.566, except when it was committed:
1. By or upon an officer of justice, while in the execution of the duties of his office.
executed divorce settlement agreement, stated that Rose had received satisfaction for her
injuries and that she wished to have the criminal charges against Willmes dismissed. The
Reno City Attorney's Office opposed the court's acceptance of the compromise, and at the
conclusion of the hearing, the municipal judge stated:
And Mr. Young, I pretty much understand your arguments and I appreciate the work
that's gone into this.
You've noted that there are no prior offenses. That it was a relatively minor event.
That both parties have requested it. That there is statutory authority. That the victim is
present.
. . . .
But I think the argument is notcertainly not whether the Court can do this. Because
I believe that I could do that. With the stroke of a pen I could make this case go away.
But the question is is [sic] should I do that? And I think this is different from other
offenses which might be compromised by statute.
. . . .
But I think it's a matter of public policy, at least in this department, domestic battery
and the associated casesharassment and stalking and those casesshould not be
compromised by statute.
Accordingly, the municipal court declined to consider the compromise and refused to dismiss
the criminal complaint.
Willmes argues that the district court abused its discretion when it denied his petition
for a writ of mandamus because the municipal court failed to properly apply NRS 178.564.
According to Willmes, the municipal court ignored the plain language of the statute by
effectively creating and applying an additional exception not recognized by the Legislature.
The statute permits compromise of a misdemeanor charge unless the misdemeanor is
committed by or upon an officer of justice in the execution of his or her official duties,
__________
2. Riotously.
3. With intent to commit a felony.
NRS 178.566 states:
1. If the party injured appears before the court to which the depositions are required to be returned, at
any time before trial, and acknowledges in writing that he has received satisfaction for the injury, the
court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the
prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must
be set forth therein, and entered on the minutes.
2. The order shall be a bar to another prosecution for the same offense.
or her official duties, or unless the misdemeanor is committed riotously, or unless the
misdemeanor is committed with the intent to commit a felony. No statutory bar exists to the
compromise of a domestic battery charge.
[Headnotes 1, 2]
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 control an arbitrary or
capricious exercise of discretion.
2
This court reviews a district court's denial of a petition
for a writ of mandamus under an abuse of discretion standard.
3

[Headnotes 3, 4]
We conclude that the district court erred in denying Willmes's petition for a writ of
mandamus because the municipal court failed to exercise its discretion when it addressed the
proposed compromise between Willmes and Rose. The decision to grant or deny a civil
compromise is within the sound discretion of the court; however, an individualized exercise
of discretion is necessarily required. Each case must be considered upon its own merits.
Unlike some other states,
4
our Legislature has chosen not to exclude misdemeanor domestic
battery charges from civil compromise eligibility.
5
Accordingly, the municipal court must
weigh the merits of compromising a domestic battery misdemeanor as it would any other
eligible misdemeanor. Here, rather than weighing the specific merits of accepting the civil
compromise of the domestic battery charge against Willmes, the municipal court declared its
own self-imposed policy that no domestic battery misdemeanor should ever be compromised.
The municipal judge was statutorily obligated to consider the proposed compromise and then
exercise his discretion to act reasonably in accepting or rejecting the compromise. He
declined to do so. A writ is proper here to compel the performance of an act that the law
requires.
[Headnote 5]
The Legislature did not create an exception for domestic battery misdemeanors, and
the municipal court does not have the power to judicially legislate such an exception into
existence. The City Attorney has defended the action of the municipal judge, yet,
__________

2
Burgess v. Storey County, 116 Nev. 121, 124, 992 P.2d 856, 858 (2000); NRS 34.160.

3
Burgess, 116 Nev. at 124, 992 P.2d at 858.

4
See Alaska Stat. 12.45.120 (2002); Or. Rev. Stat. 135.703(1)(d) (2001).

5
See NRS 178.564.
we wonder if the City Attorney would similarly defend a municipal judge's policy that all
domestic battery misdemeanors should be compromised. This would be equally improper and
arbitrary.
Accordingly, we reverse the district court's order denying Willmes's petition for a writ
of mandamus, and we remand the case with instructions to the district court to grant the
petition and issue a writ directing the municipal court to make a proper determination, in the
exercise of sound discretion, as to whether a civil compromise is appropriate.
6

[Headnote 6]
Willmes also asserts that the district court should have disqualified the Reno City
Attorney's Office because the Reno City Attorney's Office is prosecuting him in municipal
court for the domestic battery charge, while simultaneously representing the municipal court
in the mandamus action asserted by Willmes. Willmes asserts that the dual role of the Reno
City Attorney's Office has resulted in a conflict of interest and violation of the separation of
powers doctrine.
7

[Headnote 7]
A district court has broad discretion to determine whether disqualification of counsel
is required, and accordingly, this court will not overturn a district court decision on
disqualification absent an abuse of discretion.
8
In Brown v. District Court, we held that:
To prevail on a motion to disqualify opposing counsel, the moving party must first
establish at least a reasonable possibility that some specifically identifiable
impropriety did in fact occur, and then must also establish that the likelihood of
public suspicion or obloquy outweighs the social interests which will be served by a
lawyer's continued participation in a particular case.
9

The district court did not abuse its discretion when it denied Willmes's motion to disqualify
the Reno City Attorney's Office. While Willmes attempts to liken this case to Whitehead v.
Commission on Judicial Discipline,
__________

6
Since we have concluded that the district court should have granted Willmes's petition for a writ of
mandamus based upon the municipal court's failure to exercise its discretion, it is unnecessary to reach Willmes's
equal protection argument.

7
See Nev. Const. art. 3, 1 (providing for the division of the state government into three separate
departments).

8
Robbins v. Gillock, 109 Nev. 1015, 1018, 862 P.2d 1195, 1197 (1993).

9
116 Nev. 1200, 1205, 14 P.3d 1266, 1270 (2000) (quoting Shelton v. Hess, 599 F. Supp. 905, 909 (S.D.
Tex. 1984)).
Commission on Judicial Discipline,
10
the risk of impropriety that existed in Whitehead is not
present in this case. Unlike in Whitehead, the Reno City Attorney's Office is not advising the
municipal court with regard to its role in adjudicating the underlying criminal action. Rather,
the Reno City Attorney's Office is acting as counsel for the respondents on the collateral
mandamus action. Given the municipal court's nominal role in the mandamus proceedings,
there is no identifiable danger of impropriety. Nor is there a usurpation of a judicial function
such as would provoke an argument that separation of powers has been violated. The district
court properly denied Willmes's motion to disqualify the Reno City Attorney's Office.
We conclude that the municipal judge acted arbitrarily in rejecting the proposed
compromise and failed to perform his official duties when he declined to weigh the merits of
the proposed civil compromise and thereafter to exercise reasonable discretion in accepting or
rejecting the compromise. Therefore, we reverse the district court's order denying Willmes's
petition for a writ of mandamus, and we remand the case to the district court with instructions
to grant the petition and issue a writ instructing the municipal court to determine whether a
civil compromise is appropriate. Upon issuance of the writ to the municipal court, this case
must be assigned to a different judge. Since there is no impermissible conflict of interest or
separation of powers violation, the district court properly denied Willmes's motion to
disqualify the Reno City Attorney's Office.
Young, C. J., and Rose, J., concur.
____________
118 Nev. 837, 837 (2002) Malecon Tobacco v. State, Dep't of Taxation
MALECON TOBACCO, LLC, a Nevada Limited Liability Company; SOWLE &
ASSOCIATES, a Nevada Corporation; D & S ENTERPRISES, INC., a Nevada
Corporation; CHURCHILL'S TOBACCO, INC., a Nevada Corporation, Acting for
Themselves and Others Similarly Situated, Appellants, v. THE STATE OF NEVADA
Ex Rel. DEPARTMENT OF TAXATION, Respondent.
No. 38101
December 19, 2002 59 P.3d 474
Appeal from a district court order granting a motion to dismiss. First Judicial District
Court, Carson City; William A. Maddox, Judge.
__________

10
110 Nev. 874, 878 P.2d 913 (1994).
Taxpayers brought class action lawsuit contesting assessment of certain taxes. The
district court dismissed complaint for lack of subject matter jurisdiction. Taxpayers appealed.
The supreme court held that taxpayers were required to exhaust their administrative remedies.
Affirmed.
John S. Bartlett, Carson City, for Appellants.
Frankie Sue Del Papa, Attorney General, Norman J. Azevedo, Chief Deputy Attorney
General, and Joshua J. Hicks, Deputy Attorney General, Carson City, for Respondent.
Ordinarily, before availing oneself of district court relief from an agency decision, one must first exhaust available
administrative remedies.
2. Administrative Law and Procedure; Constitutional Law.
Supreme court has discretion not to require exhaustion of administrative remedies when the issues relate solely to the
interpretation or constitutionality of a statute.
Exhaustion is not required when a resort to administrative remedies would be futile.
4. Taxation.
In contesting assessment of certain taxes, taxpayers were not entitled to seek judicial remedies before exhausting their
administrative remedies, even though taxpayers sought declaration of statutes' validity; taxpayers challenged constitutionality of
statutes as applied rather than facially, and resolution of taxpayers' constitutional challenges hinged upon factual determinations. NRS
370.440, 370.450.
OPINION
Per Curiam:
This is an appeal from a district court order dismissing appellants' (Taxpayers)
complaint for lack of subject matter jurisdiction. We conclude that the Taxpayers' arguments
are meritless and, accordingly, we affirm the district court's order.
The Taxpayers brought a class action lawsuit in the district court contesting the
assessment of certain taxes. The district court granted the Department of Taxation's motion to
dismiss the Taxpayers' complaint based on a lack of subject matter jurisdiction.
1
The district
court decided that two administrative remedies exist: (1) seeking a refund for illegally
collected taxes, or (2) seeking an advisory opinion from the Department regarding the
constitutionality of the statutes upon which the taxes are based.
__________

1
See Girola v. Roussille, 81 Nev. 661, 663, 408 P.2d 918, 919 (1965).
constitutionality of the statutes upon which the taxes are based. The district court determined
that the Taxpayers should have exhausted those remedies before seeking relief in the district
court.
2

Several statutory procedures exist for the recovery of wrongly collected taxes. NRS
360.291(1)(g)
3
and NRS 360.2935
4
entitle a taxpayer to recover a refund for an
overpayment of taxes. The Department of Taxation, pursuant to NRS 233B.120, has adopted
regulations for the administrative filing and disposition of petitions made to it concerning its
governing statutes, regulations and decisions.
5

[Headnotes 1-3]
Ordinarily, before availing oneself of district court relief from an agency decision, one
must first exhaust available administrative remedies.
6
Two exceptions exist to the
exhaustion requirement. First, this court has discretion not to require exhaustion when the
issues relate solely to the interpretation or constitutionality of a statute.
7
Second,
exhaustion is not required when a resort to administrative remedies would be futile.
8

__________

2
State, Dep't of Taxation v. Scotsman Mfg., 109 Nev. 252, 254-55, 849 P.2d 317, 319 (1993).

3
NRS 360.291(1)(g) states: The legislature hereby declares that each taxpayer has the right: . . . to recover
an overpayment of taxes promptly upon the final determination of such an overpayment.

4
NRS 360.2935 states:
Except as otherwise provided in NRS 361.485, a taxpayer is entitled to receive on any overpayment
of taxes, after the offset required by NRS 360.320 has been made, a refund together with interest at a rate
determined pursuant to NRS 17.130. No interest is allowed on a refund of any penalties or interest paid
by a taxpayer.

5
NAC 360.190 provides:
1. Any person may petition for an advisory opinion concerning matters within the jurisdiction of the
department or commission.
2. All petitions must be in writing, be addressed to the director and set forth at least the following:
(a) A statement that an advisory opinion is requested;
(b) A succinct statement of all the facts and circumstances necessary to dispose of the petition;
(c) A clear, simple statement of the issue or question to be resolved;
(d) A statement of all statutes, rules, agency decisions or other authorities which the petitioner
believes may be relevant in disposing of the petition; and
(e) A statement with supporting arguments and authorities of the petitioner's opinion of a proper
disposition of the petition.

6
Scotsman, 109 Nev. at 254, 849 P.2d at 319.

7
State of Nevada v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982).

8
Scotsman, 109 Nev. at 255, 849 P.2d at 319. The Taxpayers also assert that any administrative remedies
would be inadequate, alleging that it is
As to the first exception, the United States Supreme Court has recognized that under
federal administrative procedures, the [a]djudication of the constitutionality of
congressional enactments has generally been thought beyond the jurisdiction of
administrative agencies. '
9

In deciding whether the presence of a constitutional question entitles one to bypass
available administrative remedies, a number of states have distinguished between
constitutional challenges to a statute on its face and the constitutionality of a statute as
applied. The Hawaii Supreme Court has held that [w]here the statute is attacked on its face,
the agency decision will rarely aid in the ultimate judicial resolution of the [claim].'
10
However, [w]hen determination of the constitutional issue depends on factual
determinations, they should be made first by the administrative officials who are especially
equipped to inquire, in the first instance, into the facts.'
11
The Alaska Supreme Court, in
accord with Hawaii, has stated that exhaustion may be required when non-constitutional
issues are present or when a factual context is needed for deciding the constitutional issue.'
12
By so distinguishing, these courts have left the fact-finding to the administrative
agencies,
__________
doubtful that the Department has the jurisdiction or authority to render an advisory opinion that a statute it
administers is unconstitutional. However, this court has stated that an administrative agency's interpretation of its
own regulation or statute is entitled to consideration and respect. See United States v. State Engineer, 117 Nev.
585, 589, 27 P.3d 51, 53 (2001).

9
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994) (quoting Johnson v. Robison, 415 U.S. 360,
368 (1974) (quoting Oestereich v. Selective Service Bd., 393 U.S. 233, 242 (1968) (Harlan, J., concurring in
result) (footnote omitted))).

10
HOH Corp. v. Motor Vehicle Ind. Lic. Bd., 736 P.2d 1271, 1275-76 (Haw. 1987) (quoting B. Schwartz,
Administrative Law 8.37, at 519 (2d ed. 1984)).

11
Id. at 1276 (quoting Schwartz, supra note 10, 8.37, at 519).

12
Standard Prod. v. Dept. of Revenue, 773 P.2d 201, 206 (Alaska 1989) (quoting Ben Lomond, Inc. v. Mun.
of Anchorage, 761 P.2d 119, 122 (Alaska 1988)); see also Horrell v. Department of Admin., 861 P.2d 1194,
1198 n.4 (Colo. 1993) (stating that [t]he Board, of course, may evaluate whether an otherwise constitutional
statute has been unconstitutionally applied with respect to a particular personnel action); State, Dept. of
Highway Safety v. Sarnoff, 776 So. 2d 976, 978 (Fla. Dist. Ct. App. 2000) (clarifying that a taxpayer need not
exhaust administrative remedies only when challenging the constitutionality of a tax statute on its face), aff'd,
825 So. 2d 351 (Fla. 2002); Kane County v. Carlson, 507 N.E.2d 482, 486 (Ill. 1987) (exhaustion of
administrative remedies is not required when a challenge to a statute's facial constitutionality or the agency's
jurisdiction is asserted and when no fact-finding is required by the agency); Com. v. DLX, Inc., 42 S.W.3d 624,
626 (Ky. 2001) (providing that the exception to the exhaustion doctrine did not apply to the case at bar because
the appellant did not challenge the facial validity of the statute); Liability Inv. Fund v. Med. Malpractice, 569
N.E.2d 797, 805-06 (Mass. 1991) (exhaustion of administrative remedies is not required for a facial challenge to
the constitutionality of an agency's enabling statute or for a
courts have left the fact-finding to the administrative agencies, which are in the best position
to make such determinations.
13
We also note that even states that do not require exhaustion
for as-applied challenges to the constitutionality of a statute do so only when the agency
need not make factual determinations or when pursuit of administrative remedies would be
futile.
14

[Headnote 4]
The Taxpayers' complaint challenges the constitutionality of NRS 370.440 to NRS
370.450, seeking a declaration of the statutes' validity as they apply to the Taxpayers. The
Taxpayers' complaint alleges, as a factual matter, that the Taxpayers cannot determine the
wholesale price of products being purchased from unlicensed out-of-state wholesalers on
which the tax is measured. The complaint also alleges that the tax statutes, as applied by the
Department of Taxation, discriminate against the Taxpayers. The Taxpayers thus challenge
the constitutionality of the statutes as applied to them.
Resolution of the Taxpayers' constitutional challenges hinges upon factual
determinations. We are persuaded that a distinction between the constitutionality of a statute
on its face as opposed to its constitutionality as applied is appropriate when applying the
exhaustion requirement. The constitutionality of the statutes challenged here, as applied,
involves a factual evaluation, and this evaluation is best left to the Department of Taxation,
which can utilize its specialized skill and knowledge to inquire into the facts of the case.
15

__________
challenge to the statute as applied to the party where the issue does not depend upon factual determinations
within the agency's expertise); Jott, Inc. v. Clinton Tp., 569 N.W.2d 841, 846 (Mich. Ct. App. 1997)
(exhaustion of [administrative] remedies requirement does not apply to a facial challenge to a zoning
ordinance); Farm Bureau Town & Country Ins. v. Angoff, 909 S.W.2d 348, 353 (Mo. 1995) (refusing to apply
the exception to the exhaustion doctrine because the appellant's claims involved construction of statutes and
factual issues essential to determining whether the appellant violated the statutes which it claimed to be
unconstitutional).

13
Of the states that have considered this issue, our research has failed to reveal any states that do not adhere
to the principle that an exception to the exhaustion doctrine may exist when a determination of the constitutional
issue does not depend upon factual findings by the agency.

14
See Karches v. City of Cincinnati, 526 N.E.2d 1350, 1355-56 (Ohio 1988) (where pursuit of administrative
remedies would be futile or unusually onerous, it was unnecessary to exhaust administrative remedies in order to
challenge the constitutionality of a zoning ordinance as applied to a specific parcel of property); Memorial Hosp.
v. Dept. of Rev. & Tax., 770 P.2d 223, 226 (Wyo. 1989) (party could seek a declaratory judgment regarding the
constitutionality of a statute as applied before exhausting administrative remedies where the parties stipulated to
the underlying facts, and no fact-finding by the agency was required).

15
Moreover, the United States Supreme Court has stated that [c]ourts . . .
As to the second exception, the Taxpayers have not demonstrated that resort to
administrative remedies would be futile.
Therefore, we conclude that the Taxpayers must exhaust their administrative remedies
before filing a complaint in the district court. Since they did not exhaust their administrative
remedies, the district court properly dismissed the complaint for lack of subject matter
jurisdiction.
Accordingly, we affirm the judgment of the district court dismissing the Taxpayers'
complaint for lack of subject matter jurisdiction.
____________
118 Nev. 842, 842 (2002) State v. Allen
THE STATE OF NEVADA, Appellant, v. RUTH LAMAY ALLEN, Respondent.
No. 38741
December 19, 2002 60 P.3d 475
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.
After defendant was charged with possession of a controlled substance for sale, she
moved to suppress evidence obtained during the execution of a search warrant. The district
court granted motion. State appealed. The supreme court held that: (1) deputy's failure to
provide defendant with both search warrant and affidavit setting forth probable cause required
suppression, and (2) deputy's conduct did not fall under Leon good faith exception to
exclusionary rule.
Affirmed.
Rehearing denied; en banc reconsideration granted; affirmed. 119 Nev.
----
, 69
P.3d 232 (2003).
Frankie Sue Del Papa, Attorney General, Carson City; David G. Allison, District
Attorney, and Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for
Appellant.
__________
must respect the judgment of the agency empowered to apply the law to varying fact patterns,' even if the issue
with nearly equal reason [might] be resolved one way rather than another.' Holly Farms Corp. v. NLRB, 517
U.S. 392, 399 (1996) (citations omitted); see also Campbell v. State, Dep't of Taxation, 109 Nev. 512, 515, 853
P.2d 717, 719 (1993) (stating that this court may not substitute its judgment for an agency's determination of
questions of fact). If we were to address the Taxpayers' claims without the benefit of the Department of
Taxation's expertise, we would usurp the Department's role as well as contravene the Supreme Court's directive
to give deference to an agency's reasonable interpretation of the law and facts at issue.
118 Nev. 842, 843 (2002) State v. Allen
Jack T. Bullock II, Winnemucca, for Respondent.
1. Criminal Law.
Deputy should have provided defendant with both search warrant and affidavit setting forth probable cause prior to search of her
residence, and failure to do so required suppression, where affidavit was not sealed, and the record did not indicate that the affiant
deputy attempted to do so. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
State and Federal Constitutions require a search warrant to be issued only upon a showing of probable cause. Const. art. 1, 18;
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. Const. art. 1, 18; U.S.
Const. amend. 4.
4. Criminal Law.
Meaning of a statute is a question of law to be reviewed de novo.
5. Statutes.
Supreme court reviews a statute to determine its plain meaning, which is intended to reflect legislative intent.
6. Statutes.
When a statute is plain and unambiguous, the supreme court will give that language its ordinary meaning and not go beyond it.
7. 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.
Statute governing issuance of search warrants provides that if a magistrate, for good cause, seals an affidavit of probable cause,
the search warrant may incorporate that affidavit by reference; however, the incorporation by reference provision does not eliminate the
requirement that the warrant itself contain a statement of probable cause. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045(3),
NRS 179.045(5)(b).
A statement of probable cause must be included in the search warrant. U.S. Const. amend. 4; NRS 179.045(5)(b).
Simply because an affidavit is incorporated by reference does not eliminate the need to include a statement of probable cause in
the warrant. U.S. Const. amend. 4; NRS 179.045(5)(b).
In cases where a magistrate has not sealed a search warrant 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. NRS 179.045.
12. Criminal Law.
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.
118 Nev. 842, 844 (2002) State v. Allen
13. Criminal Law.
Deputy's conduct providing defendant with a search warrant but not the accompanying affidavit setting forth probable cause did
not fall within Leon good faith exception to exclusionary rule, that is, deputy did not reasonably rely upon an invalid warrant, where
the statute requiring affidavit was not ambiguous. Const. art. 1, 18; U.S. Const. amend. 4; NRS 179.045.
14. Criminal Law.
Under the Leon good faith exception to the exclusionary rule, an officer's objectively reasonable reliance on an invalid search
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
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). We conclude that for a
search warrant to comply with this provision, the affidavit containing the probable cause
statement must be 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
__________

1
United States v. Leon, 468 U.S. 897 (1984).
118 Nev. 842, 845 (2002) State v. Allen
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).
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).
__________

2
Deputy Buxton testified that he was never trained to leave an affidavit at a residence.

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 a statement in the warrant that an affidavit was
incorporated by reference was necessary.
118 Nev. 842, 846 (2002) State v. Allen
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.
DISCUSSION
[Headnote 1]
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.
[Headnote 2]
The Nevada and United States Constitutions 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 3]
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;
__________

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
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 . . . .

8
Nev. Const. art. 1, 18; see also U.S. Const. amend. IV (substantially similar language).
118 Nev. 842, 847 (2002) State v. Allen
and (3) it must describe what will be seized. The linchpin of a warrant, however, is the
existence of probable cause.
[Headnotes 4-7]
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.
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 8-10]
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. 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.
__________

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

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

11

12
Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001).

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.
118 Nev. 842, 848 (2002) State v. Allen
[Headnote 11]
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.
[Headnote 12]
In the current case, the affidavit was not sealed, and the record does not indicate that
the Deputy attempted to do so. Thus, it 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.
16
Thus, we conclude that the evidence seized in the search of Ms. Allen's home
was correctly suppressed.
[Headnotes 13, 14]
We also hold that Deputy Buxton's conduct does not fall within the purview of the
Leon good faith exception to the exclusionary rule.
17
Exclusion is only appropriate where the
remedial objectives of the exclusionary rule are served.
18
Under the Leon exception, 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 the Deputy had properly incorporated
the affidavit by reference, he was required to provide Ms. Allen with both the search warrant
and the accompanying affidavit. Thus, Deputy Buxton's actions show that he did not have a
reasonable knowledge of what the law requires. If he did have such knowledge,
__________

16
See Leon, 468 U.S. at 906 (quoting United States v. Calandra, 414 U.S. 338, 354 (1974); Stone v. Powell,
428 U.S. 465, 540 (1976) (White, J., dissenting)).

17
See Powell v. State, 113 Nev. 41, 45, 930 P.2d 1123, 1125-26 (1997) (discussing Leon).

18
Id. (discussing Arizona v. Evans, 514 U.S. 1 (1995)).

19
Leon, 468 U.S. at 920 n.20 (citing United States v. Peltier, 422 U.S. 531, 542 (1975)).
118 Nev. 842, 849 (2002) State v. Allen
did have such knowledge, he would not have acted in a prohibited manner.
CONCLUSION
We conclude that the district court properly suppressed evidence seized from Ms.
Allen's home. Deputy Buxton did not follow the requirements of either NRS 179.045(5)(a) or
(b), and the Leon exception to the exclusionary rule does not apply. Accordingly, we affirm
the district court's order.
____________
118 Nev. 849, 849 (2002) O'Guinn v. State
ROY A. O'GUINN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37300
ROBERT RODNEY PRESFIELD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 38382
December 20, 2002 59 P.3d 488
Consolidated appeals from judgments of conviction seeking relief to withdraw guilty
pleas. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge (Docket No.
37300). Seventh Judicial District Court, White Pine County; Dan L. Papez, Judge (Docket
No. 38382).
One defendant pleaded guilty but mentally ill to burglary, open and gross lewdness,
and sexual assault on a victim sixty-five years of age or older. Second defendant pleaded
guilty but mentally ill to murder. Defendants appealed, seeking to withdraw their pleas and
proceed to trial. Consolidating the appeals, the supreme court held that defendants were
entitled to enter pleas of not guilty by reason of insanity.
Remanded.
Marcus D. Cooper, Public Defender, and Catherine A. Woolf, Howard S. Brooks, and
Joseph K. Abood, Deputy Public Defenders, Clark County, for Appellant O'Guinn.
Defender, Carson City, for Appellant Presfield.
Attorney, James Tufteland, Chief Deputy District Attorney,
Attorney, and Frank J. Coumou, Deputy District Attorney, Clark County, for Respondent in
Docket No. 37300.
Frankie Sue Del Papa, Attorney General, Carson City; Richard W. Sears, District
Attorney, White Pine County, for Respondent in Docket No. 38382.
1. Criminal Law.
Generally, the supreme court will not review a plea-validity challenge that is raised for the first time on appeal.
2. Criminal Law.
Exceptions to rule that supreme court will not review a plea-validity challenge that is raised for the first time on appeal are in
cases where: (1) the error clearly appears from the record, or (2) the challenge rests on legal rather than factual allegations.
3. Criminal Law.
Defendants who entered pleas of guilty but mentally ill were entitled to enter pleas of not guilty by reason of insanity, as statute
abolishing defense of legal insanity and creating plea of guilty but mentally ill was unconstitutional. NRS 174.035(3), (4).
OPINION
Per Curiam:
In separate proceedings, both appellants entered pleas of guilty but mentally ill.
Appellants appeal and present the issue as to whether our decision in Finger v. State
1
automatically entitles a defendant convicted pursuant to a guilty but mentally ill plea to
withdraw that plea and proceed to trial.
2

FACTS
O'Guinn v. State, Docket No. 37300
Roy O'Guinn entered a plea of guilty but mentally ill to an amended information
charging him with two counts of burglary, one count of open and gross lewdness, and two
counts of sexual assault on a victim sixty-five years of age or older. The original information
included one additional count of open and gross lewdness and three additional counts of
sexual assault on a victim sixty-five years of age or older that were dropped as part of the plea
agreement. O'Guinn allegedly committed the offenses after entering the rooms of both victims
while wandering through a hospital.
__________

1
0
.117 Nev. 548, 27 P.3d 66 (2001).

2
We elect to consolidate these appeals for disposition. See NRAP 3(b).
Pursuant to NRS 178.425, the district court ordered O'Guinn committed to Lakes
Crossing and suspended all proceedings until such time as O'Guinn was found competent to
stand trial. O'Guinn was subsequently found competent, and he entered a plea of not guilty.
After extensive negotiations, he entered a plea of guilty but mentally ill to all counts in the
amended information.
On each of the four felony counts, O'Guinn was sentenced, under the habitual criminal
statute, to concurrent life sentences with parole eligibility after ten years. O'Guinn was also
required to be on lifetime supervision and register as a sex offender. On the gross
misdemeanor count, he was sentenced to one year, concurrent with the life sentences.
O'Guinn did not attempt to withdraw his plea in district court. O'Guinn appeals
directly to this court, pursuant to this court's decision in Finger, seeking to withdraw his plea,
enter a plea of not guilty by reason of insanity, and proceed to trial.
Presfield v. State, Docket No. 38382
Presfield was originally charged with murder in the stabbing death of Paul Swope in
Ely, Nevada. Three doctors examined Presfield, finding him competent to stand trial. The
State filed an amended information against Presfield charging him with battery with intent to
kill, with the use of a deadly weapon. Presfield entered a plea of guilty but mentally ill to the
charge.
The district court sentenced Presfield to 240 months in prison with the possibility of
parole after 80 months, and a consecutive sentence enhancement for the use of a deadly
weapon in the commission of the crime.
On appeal, Presfield argues this case should be remanded to the district court to allow
him to withdraw his plea of guilty but mentally ill, enter a plea of not guilty, and proceed to
trial.
DISCUSSION
[Headnotes 1, 2]
Both appellants base their appeal on the premise that mental illness prevented them
from understanding the consequences of the plea. Generally, we will not review a
plea-validity challenge that is raised for the first time on appeal.
3
There are exceptions to this
rule in cases where: (1) the error clearly appears from the record;
4
or (2) the challenge rests
on legal rather than factual allegations.
__________

3
Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (the defendant is required to bring the
challenge by filing a motion with the district court to withdraw the guilty plea or by initiating a post-conviction
proceeding).

4
Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994).
gations.
5
Here, the appellants challenge the validity of the pleas as being unknowing and
involuntary because of a change in the law that raises a legal question that this court may
resolve.
[Headnote 3]
In Finger, we found the 1995 amended version of NRS 174.035(4), abolishing the
defense of legal insanity, to be unconstitutional and unenforceable.
6
We held the portion of
NRS 174.035(4) creating a plea of guilty but mentally ill unconstitutional and rejected the
amended version of NRS 174.035(3) in its entirety.
7
We further determined that legal
insanity is a well-established and fundamental principal of the law of the United States
protected by the Due Process Clauses of both the United States and Nevada Constitutions.
8
We then concluded that the preexisting statutes that were amended or repealed by the 1995
statute should remain in full force and effect.
9

Therefore, appellants should be allowed to enter pleas of not guilty by reason of
insanity.
CONCLUSION
The statutory scheme under which appellants entered their pleas is unconstitutional
and unenforceable. Therefore, both of the cases must be remanded to the district court and
appellants be provided an opportunity to enter new pleas. On remand, the State will not be
bound by any plea negotiations previously agreed to by the parties and the original charges in
both cases may be reinstated.
We therefore order these appeals remanded for further proceedings in accordance with
this decision.
I was among those who dissented to the conclusion in Finger v. State,
1
that the
amended version of NRS 174.035(4) abolishing the defense of legal insanity was
unconstitutional and unenforceable. Although my opinion on this issue remains unchanged,
Finger compels the outcome reached by the majority.
__________

5
See Lyons v. State, 105 Nev. 317, 319, 775 P.2d 219, 220 (1989).

6
117 Nev. at 575, 27 P.3d at 84.

7
Id. at 576, 27 P.3d at 84.

8
Id. at 575, 27 P.3d at 84.

9
Id. at 576, 27 P.3d at 84.

1
117 Nev. 548, 27 P.3d 66 (2001).
____________
118 Nev. 853, 853 (2002) Sheriff v. Burdg
SHERIFF, WASHOE COUNTY, Appellant, v. ALICE MAE BURDG and KIT JEROME
BURDG, Respondents.
No. 38105
THE STATE OF NEVADA, Appellant, v. STEPHEN GLENN SANTILLANEZ and LARRY
SHAWN EARLY, Respondents.
No. 38264
December 20, 2002 59 P.3d 484
Consolidated appeals from district court orders concluding that NRS 453.322(1)(b) is
unconstitutional. Second Judicial District Court, Washoe County; James W. Hardesty, Judge
(No. 38105); Brent T. Adams, Judge (No. 38264).
Defendants were charged, in separate cases, with felony possession of a majority of
the ingredients required to manufacture a controlled substance. The district court granted
defendants' petitions for pretrial writs of habeas corpus or their motions to dismiss. State
appealed. The supreme court held that statute criminalizing possession of majority of
ingredients required to manufacture a controlled substance was facially vague, in violation of
due process.
Affirmed.
Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Appellants.
Walter B. Fey, Reno, for Respondent Kit Jerome Burdg.
Marc P. Picker, Reno, for Respondent Alice Mae Burdg.
M. Jerome Wright, Reno, for Respondent Stephen Glenn Santillanez.
Steven G. McGuire, Public Defender, James P. Logan, Chief Deputy Public Defender,
and Paul C. Giese, Deputy Public Defender, Carson City, for Respondent Larry Shawn Early.
1. Appeal and Error; Criminal Law.
The constitutionality of a statute is a question of law that the appellate court reviews de novo.
To overcome the presumption of the constitutionality of a statute, there must be a clear showing of invalidity.
The doctrine that a statute is void for vagueness is predicated upon its repugnancy to the Due Process Clause. Const. art. 1, 8.
A statute is void for vagueness, in violation of due process, if it fails to define the criminal offense with sufficient definiteness
that a person of ordinary intelligence cannot understand what conduct is prohibited and if it lacks specific standards, encouraging
arbitrary and discriminatory enforcement. Const. art. 1, 8.
A challenger who has engaged in 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. Const. art. 1, 8.
6. Constitutional Law; Controlled Substances.
Statute criminalizing possession of a majority of the ingredients required to manufacture a controlled substance was facially
vague, in violation of due process because statute contained no intent element and therefore imposed criminal sanctions on
non-criminal activity, and it failed to list items that might be described as ingredients required to manufacture or compound a
controlled substance, so that the statute failed to provide fair notice of prohibited conduct and it allowed arbitrary and discriminatory
enforcement. Const. art. 1, 8; NRS 453.322(1)(b).
OPINION
Per Curiam:
In these consolidated appeals we consider the constitutionality of NRS 453.322(1)(b),
which criminalizes possession of a majority of the ingredients required to manufacture a
controlled substance. The district court granted respondents Kit Jerome Burdg's and Alice
Mae Burdg's petitions for writs of habeas corpus (No. 38105) and granted respondents
Stephen Glenn Santillanez's and Larry Shawn Early's motions to dismiss (No. 38264). In both
orders, the district court found NRS 453.322(1)(b) to be void for vagueness, and therefore,
unconstitutional. We agree and affirm the district court's ruling.
FACTS
Kit and Alice Burdg
Detective Tim Kuzanek of the Washoe County Sheriff's Office, who was assigned to
the Consolidated Narcotics Unit, received information in late 1998 and early 1999 about a
methamphetamine manufacturing operation at 294 East Ninth Street in Sun Valley. Based on
this information, on August 24, 2000, Detective Kuzanek examined the garbage from the
property. This revealed several items that are commonly seen at methamphetamine
operations, including a possible chemical bottle and pH papers,
papers, which are used to test acidic or base levels when manufacturing methamphetamine.
Using this evidence, Detective Kuzanek obtained a search warrant for the property, which
belonged to Kit Burdg.
That same day, law enforcement officers conducted a search of the property. During
the search, law enforcement officers found several items in a shed that was located on the
property, including flasks, funnels, scales, gloves, stained rags, pH papers, a hot plate, duct
tape, coffee filters, aspirin, an electric fan, razor blades, plastic bottles, drug paraphernalia,
jars, matches without striker plates, ephedrine tablets, a bottle of hydrogen peroxide, a butane
torch, a can of Coleman fuel, bottles of Red Devil lye, a bottle suspected of containing iodine,
a container suspected of containing acid, and a can suspected of containing acetone. Officers
also found in the shed papers with Kit's name and a pay and owe sheet.
1
Notably, a
presumptive chemical test conducted on some white powder obtained from the property was
positive for the presence of pseudoephedrine, a chemical used to manufacture
methamphetamine.
Kit Burdg voluntarily turned himself in following the search, and he was arrested.
Alice Burdg, Kit's wife, was arrested soon thereafter.
Alice and Kit Burdg were charged with the crime of possession of a majority of the
ingredients required to manufacture a controlled substance, a felony violation under NRS
453.322(1)(b). On September 25, 2000, a preliminary hearing was held. At the preliminary
hearing there was conflicting testimony regarding the ingredients required to manufacture
methamphetamine. Detective Kuzanek testified that he had made methamphetamine under
laboratory conditions, using red phosphorus, iodine, ephedrine or pseudoephedrine,
Coleman fuel, muriatic acid, [and] Red Devil lye. Christopher Adduci, an agent for the Drug
Enforcement Administration, testified that two or three substances are adequate to
manufacture methamphetamine. Agent Adduci testified that the ingredients used to
manufacture methamphetamine were not themselves controlled substances, but were
common substances, consisting of pseudoephedrine (an ingredient in many common
household cold/flu medicines), red phosphorus (which can be extracted from common
household matches), and iodine. He also indicated that there can be others, but he could not
testify as to what other chemical substances were needed. After the preliminary hearing, Alice
and Kit were bound over on the charged crime.
__________

1
Officer Steve O'Farrell, who participated in the execution of the search warrant, testified at the preliminary
hearing that a pay and owe sheet is a list that people would make for monies owed or product [controlled
substance] given out.
On November 13, 2000, Kit filed a pretrial petition for writ of habeas corpus, arguing
among other things that NRS 453.322(1)(b) is unconstitutionally overbroad and vague. Alice
joined in Kit's petition, adopting his argument, but she added an additional argumentthe
State failed to present any evidence that Alice resided on the property when the raid occurred.
On June 6, 2001, the district court granted the Burdgs' petitions for writs of habeas corpus,
ruling that NRS 453.322(1)(b) is void for vagueness, and therefore is unconstitutional.
Stephen Santillanez and Larry Early
On September 28, 2000, the Washoe County Consolidated Narcotics Unit arrested
Stephen Glenn Santillanez and Larry Shawn Early. They too were charged with possession of
a majority of the ingredients required to manufacture a controlled substance in violation of
NRS 453.322(1)(b). The specific controlled substance was methamphetamine.
On May 10, 2001, Santillanez and Early filed motions to dismiss, arguing that NRS
453.322(1)(b) is unconstitutionally vague and overbroad. In its opposition to the motions, the
State made an offer of proof regarding the evidence it believed supported the charge. The
State proffered that several bottles and other containers were recovered during the execution
of a search warrant for the premises controlled by Santillanez and Early. Chemical samples
were tested at the Washoe County Crime Lab, and the test revealed the following chemicals:
iodine, ephedrine, pseudoephedrine, red phosphorus, hydrochloric acid, and
methamphetamine. On July 3, 2001, the district court granted Santillanez's and Early's
motions to dismiss following its ruling in the Burdg case. The State appealed both rulings.
We consolidated the two appeals.
DISCUSSION
NRS 453.322(1)(b) provides that it is unlawful for a person to [p]ossess a majority of
the ingredients required to manufacture or compound a controlled substance other than
marijuana, unless he is at a laboratory that is licensed to store such ingredients. The district
court held that the statute is void for vagueness because [i]t is a criminal statute which
contains no mens rea requirement, and infringes on an individual's liberty interest and
further, because the statute does not provide sufficiently specific limits on the enforcement
discretion of the police. The State challenges the district court's ruling on two grounds: the
district court did not determine whether the statute is vague as applied to the defendants (in
both cases), and the district court failed to address whether the statute is vague in all of its
applications.
[Headnotes 1, 2]
Resolution of these appeals involves the constitutionality of a statute, which is a
question of law that this court reviews de novo.
2
This court has stated, [s]tatutes are
presumed to be valid, and the burden is on the challenger to make a clear showing of their
unconstitutionality.
3
To overcome this burden, there must be a clear showing of
invalidity.
4

[Headnotes 3-5]
The doctrine that a statute is void for vagueness is predicated upon its repugnancy to
the due process clause of the Fourteenth Amendment to the United States Constitution.
5
A
statute is void for vagueness if it fails to define the criminal offense with sufficient
definiteness that a person of ordinary intelligence cannot understand what conduct is
prohibited and if it lacks specific standards, encouraging arbitrary and discriminatory
enforcement.
6
The Supreme Court has also held that a facial-vagueness challenge is
appropriate when the statute implicates constitutionally protected conduct or if the statute is
impermissibly vague in all of its applications.
7
But [a] challenger who has engaged in
conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others.
8

[Headnote 6]
Under any of the tests noted above, we conclude that a facial-vagueness challenge is
appropriate. More specifically, we conclude that NRS 453.322(1)(b) is facially vague because
it infringes on constitutionally protected conduct, is incapable of any valid applications, fails
to provide sufficient notice of the prohibited conduct, and encourages arbitrary and
discriminatory enforcement. First, this criminal statute contains no intent element, and
consequently the statute imposes criminal sanctions on what is otherwise non-criminal
activity. We recognize that the evil that NRS 453.322(1)(b) addresses is clearly the
manufacturing of controlled substances, and the statute is not meant to convict a person
simply because that person possesses a combination of a few common household items.
__________

2

3
Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991).

4
Sheriff v. Martin, 99 Nev. 336, 340, 662 P.2d 634, 637 (1983).

5
Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975); see also Cunningham v. State, 109
Nev. 569, 570, 855 P.2d 125, 125 (1993) (stating that a statute that does not give fair notice of prohibited
conduct, is violative of the Due Process Clause, Article 1, Section 8 of the Nevada Constitution).

6
Kolender v. Lawson, 461 U.S. 352, 357 (1983).

7
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982); accord Martin, 99 Nev. at 340,
662 P.2d at 637.

8
Martin, 99 Nev. at 340, 662 P.2d at 637.
convict a person simply because that person possesses a combination of a few common
household items. But without an intent element, the statute infringes on an individual's liberty
interest.
9

During oral argument, the State asserted that it is common practice to build in a mens
rea requirement when a statute is not explicit. However, we note that the general intent
statute, NRS 193.190, does not alleviate the absence of an intent element in NRS
453.322(1)(b) because it is unclear where an intent element would be implied. For instance,
the statute at issue is missing not only the intent to possess a majority of the ingredients
required to manufacture, but more significantly, the intent to possess those ingredients for the
purpose of manufacturing a controlled substance.
In addition to missing an intent element, the statute fails to provide a person of
ordinary intelligence with fair notice of what conduct is prohibited. In particular, it fails to list
the items that might be described as ingredients required to manufacture or compound a
controlled substance. An ingredient is commonly defined as something that enters into a
compound or is a component part of any combination or mixture.
10
The legislative history
of NRS 453.322(1)(b) indicates that the Legislature enacted the statute because of concerns
regarding methamphetamine labs. The Assembly Committee on Judiciary was presented with
an exhibit titled Methamphetamine Lab Indicators, which, according to the committee's
minutes, was a list of ingredients of methamphetamine.
11
However, that list includes items
other than those that would fit the common definition of ingredients, such as pots and pans,
tubing, funnels, buckets, bottles, and coffee grinders and filters.
12
The list does not indicate
what ingredients are required to manufacture a controlled substance such as
methamphetamine.
Moreover, we conclude that the absence of an intent element and the ambiguities
regarding the required ingredients allow arbitrary and discriminatory enforcement. Thus, NRS
453.322(1)(b), as written, fails to provide law enforcement with adequate guidance
concerning the precise scope of activities it aspires to proscribe.
__________

9
Cf. Chicago v. Morales, 527 U.S. 41, 55 (1999) (Stevens, J., concurring) (applying a facial-vagueness
analysis to a Chicago ordinance that required a police officer to give an order of dispersal upon observing a
person whom he reasonably believed to be a street gang member loitering in a public place with one or more
persons because the ordinance is a criminal law that contains no mens rea requirement, and infringes on
constitutionally protected rights (citations omitted)).

10
Webster's Collegiate Dictionary 622 (9th ed. 1985).

11
Hearing on A.B. 454 Before the Assembly Comm. on Judiciary, 70th Leg., 15 & ex. F (Nev., March 19,
1999).

12
Id. ex. F.
guidance concerning the precise scope of activities it aspires to proscribe.
Because we conclude that NRS 453.322(1)(b) is facially vague, we need not address
the State's remaining arguments concerning overbreadth and an as-applied analysis. For the
same reason, we need not address the Burdgs' sufficiency of the evidence argument.
CONCLUSION
We hold that NRS 453.322(1)(b) is void for vagueness on its face. Therefore, NRS
453.322(1)(b) violates the Fourteenth Amendment to the United States Constitution, and
Article 1, Section 8 of the Nevada Constitution. Accordingly, we affirm the district court's
order declaring NRS 453.322(1)(b) unconstitutional.
____________
118 Nev. 859, 859 (2002) City of Las Vegas v. Dist. Ct.
CITY OF LAS VEGAS, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
HONORABLE JEFFREY D. SOBEL, District Judge, Respondents, and JAMES
EDWARD CHARLES, Real Party in Interest.
No. 38582
December 20, 2002 59 P.3d 477
Original petition for a writ of certiorari or mandamus.
City sought extraordinary writ directing district court to vacate its order holding
unconstitutional statute providing that a person who annoys or molests a minor is guilty of a
misdemeanor. The supreme court, Agosti, J., held that: (1) facial vagueness challenge was
appropriate, abrogating Lyons v. State, 105 Nev. 317, 775 P.2d 219 (1989), Sheriff v.
Anderson, 103 Nev. 560, 746 P.2d 643 (1987), and Smith v. State, 112 Nev. 1269, 927 P.2d
14 (1996); and (2) statute was void for vagueness.
Petition denied.
Shearing, J., with whom Maupin and Becker, JJ., agreed, dissented in part.
Bradford R. Jerbic, City Attorney, and Cynthia S. Leung, Deputy City Attorney, Las
Vegas, for Petitioner.
Marcus D. Cooper, Public Defender, and Jennifer L. Rusley, Deputy Public Defender,
Clark County, for Real Party in Interest.
1. Criminal Law.
Where a particular statute is so imprecise that vagueness permeates the text of the statute, it is subject to facial attack, if the
statute both: (1) fails to provide notice sufficient to enable ordinary people to understand what conduct is prohibited; and (2) authorizes
or encourages arbitrary and discriminatory enforcement.
2. Criminal Law.
A facial vagueness challenge is appropriate, even where no substantial First Amendment concerns are implicated, if the penal
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; abrogating Lyons v. State, 105 Nev.
317, 775 P.2d 219 (1989), Sheriff v. Anderson, 103 Nev. 560, 746 P.2d 643 (1987), and Smith v. State, 112 Nev. 1269, 927 P.2d 14
(1996). U.S. Const. amend. 1.
The overbreadth doctrine provides that a law is void on its face if it sweeps within its ambit other activities that in ordinary
circumstances constitute an exercise of protective First Amendment rights, such as the right to free expression or association. U.S.
Const. amend. 1.
4. Constitutional Law; Infants.
Statute providing that a person who annoys or molests a minor is guilty of a misdemeanor was facially void for vagueness in
violation of due process because statute did not provide fair notice of boundaries of unlawful conduct and authorized and encouraged
arbitrary enforcement. Const. art. 1, 8; U.S. Const. amend. 14; NRS 207.260 (2000).
The Due Process Clauses of the United States and Nevada Constitutions guarantee that every citizen shall receive fair notice of
conduct that is forbidden. Const. art. 1, 8; U.S. Const. amend. 14.
Although mathematical precision is not possible in drafting statutory language, to comport with due process, the law must, at a
minimum, delineate the boundaries of unlawful conduct. Some specific conduct must be deemed unlawful so individuals will know
what is permissible behavior and what is not. Const. art. 1, 8; U.S. Const. amend. 14.
7. Criminal Law.
The touchstone of the void for vagueness doctrine is to ensure that the legislature has provided guidelines for enforcement in
order to prevent a standardless sweep that allows police officers, prosecutors, and juries to pursue their personal predilections. Const.
art. 1, 8; U.S. Const. amend. 14.
8. Criminal Law.
Although a limiting construction is appropriate to clarify ambiguous statutory language, supreme court cannot apply a limiting
construction to a law where the terms employed are so vague that no standard of conduct is proscribed at all.
OPINION
The City of Las Vegas seeks an extraordinary writ directing the district court to vacate
its order holding that NRS 207.260 is unconstitutional. At the time relevant to this petition,
NRS 207.260 provided in part that a person who annoys or molests a minor is guilty of a
misdemeanor.
1
For the reasons stated below, we conclude that the district court did not err
in holding that the statute was facially void and unconstitutional. Therefore, we deny the
City's petition.
On September 13, 2000, the City filed a criminal complaint charging real party in
interest James Edward Charles with one count of annoying a minor pursuant to NRS 207.260.
The complaint alleged that Charles willfully and unlawfully annoy[ed] a minor . . . by
following [her] from her residence to another residence, thereafter asking for her ten to fifteen
times.
At a pretrial hearing, counsel for Charles challenged the constitutionality of NRS
207.260. The district court subsequently ruled that NRS 207.260 was unconstitutionally
vague because people of common intelligence must necessarily guess as to the conduct it
proscribes. The City then petitioned this court for extraordinary relief, arguing that the district
court erred in ruling that NRS 207.260 was facially void for vagueness. Pursuant to this
court's order, Charles has filed an answer to the City's petition. This matter is now fully at
issue and ready for decision.
The instant petition presents this court with an important, unsettled issue regarding the
constitutionality of a criminal statute. In reviewing this issue, two different district courts
have reached contrary conclusions.
2
This court will exercise its discretion to entertain a
petition for extraordinary relief in order to resolve a split of authority among lower courts.
3
Accordingly, we have elected to review the merits of the instant petition.
4

__________

1
NRS 207.260 was amended in 2001. See 2001 Nev. Stat., ch. 560, 10, at 2789. This opinion does not
address the amended version of the statute; it considers NRS 207.260 solely as it existed in September 2000,
when Charles was charged. See 1995 Nev. Stat., ch. 443, 185, at 1240.

2
We are informed that, in considering the identical issue in an unrelated case, another district court judge
concluded that NRS 207.260 is not unconstitutional because it conveys a sufficiently definite warning as to the
[proscribed] conduct so as to enable a person of ordinary intelligence to understand what conduct was
forbidden.

3
State of Nevada v. Dist. Ct., 116 Nev. 127, 134, 994 P.2d 692, 696-97 (2000).

4
See also NRS 34.020(3) (permitting this court's review by certiorari where the district court has ruled on the
constitutionality of a statute or ordinance at issue in a municipal court prosecution).
The City first argues that the district court erred in considering the facial vagueness of
the statutory language without first applying it to Charles' conduct. We disagree.
[Headnote 1]
Recently, in Chicago v. Morales,
5
a plurality of the United States Supreme Court
recognized that imprecise criminal laws are subject to facial attack under two different
doctrines.
First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the
exercise of First Amendment rights if the impermissible applications of the law are
substantial when judged in relation to the statute's plainly legitimate sweep. Second,
even if an enactment does not reach a substantial amount of constitutionally protected
conduct, it may be impermissibly vague because it fails to establish standards for the
police and public that are sufficient to guard against the arbitrary deprivation of liberty
interests.
6

In Kolender v. Lawson, the Supreme Court also observed:
As generally stated, the void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.
7

We view the underlying reasoning of Kolender and the Morales plurality to be sound, and we
now conclude that where a particular statute is so imprecise that vagueness permeates the
text of such a law, it is subject to facial attack, if the statute both: (1) fails to provide notice
sufficient to enable ordinary people to understand what conduct is prohibited; and (2)
authorizes or encourages arbitrary and discriminatory enforcement.
8

The City argues, however, that under this court's case law, a statute that is challenged
as void for vagueness must be evaluated on an as-applied basis unless First Amendment
concerns are implicated. The City correctly observes that this court has reiterated this rule in
numerous decisions, including Sheriff v. Anderson,
9
Lyons v. State,
10
and Smith v. State.
11
On the other hand,
__________

5
527 U.S. 41 (1999) (plurality opinion).

6
Id. at 52 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-15 (1973); citing Kolender v. Lawson, 461
U.S. 352, 358 (1983)).

7
Kolender, 461 U.S. at 357.

8
Morales, 527 U.S. at 55-56.

9
103 Nev. 560, 746 P.2d 643 (1987).

10
105 Nev. 317, 775 P.2d 219 (1989).

11
112 Nev. 1269, 927 P.2d 14 (1996).
hand, conflicting Nevada case law suggests that this court will consider whether an enactment
is facially void for vagueness, even if no First Amendment interests are implicated, when the
challenged statute is so vague that it fails to give persons of ordinary intelligence fair notice
of what conduct is permitted or forbidden. For example, in Cunningham v. State, this court
upheld a facial vagueness challenge to a statute under the Due Process Clause of the Nevada
Constitution as appropriate, where the challenged statute prohibited the doing of an act in
terms so vague that people of common intelligence [were required to] necessarily guess as to
its meaning and where the statute was so vague that it [did] not provide a constitutional
basis for criminal prosecution.
12
This court has also found certain county and city
ordinances to be facially void under the void for vagueness doctrine even though the cases
disclosed no readily apparent or clearly implicated First Amendment concerns.
13

[Headnotes 2, 3]
In light of our conflicting precedent in this regard, we now clarify that a facial
vagueness challenge is appropriate, even where no substantial First Amendment concerns are
implicated, if the penal 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. To the extent
that Lyons, Anderson, Smith, and other decisions of this court indicate that a facial vagueness
challenge may only be appropriate where First Amendment concerns are implicated, they are
hereby modified.
14

[Headnote 4]
Therefore, we reject the City's claim that the district court erred in analyzing the facial
validity of the statute, rather than considering the constitutionality of the statute in light of
Charles' specific conduct. Further, we agree with the district court that former NRS 207.260
was facially invalid. In our view, the statute:
__________

12
109 Nev. 569, 570, 855 P.2d 125, 125 (1993).

13
See Eaves v. Board of Clark Co. Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980) (holding that ordinance
prohibiting escort services was void for vagueness under the Nevada and United States Constitutions); In re
Laiolo, 83 Nev. 186, 426 P.2d 726 (1967) (holding that a Reno Municipal Code requiring banks to pay a
licensing fee in certain circumstances and making it unlawful to carry on a business without a license was
unconstitutionally vague).

14
When a statute raises First Amendment concerns, the appropriate facial challenge is generally a claim
dependent upon the overbreadth doctrine, rather than the void for vagueness doctrine. The overbreadth doctrine
provides that a law is void on its face if it sweeps within its ambit other activities that in ordinary circumstances
constitute an exercise of protective First Amendment rights, such as the right to free expression or association.
Thornhill v. Alabama, 310 U.S. 88, 97 (1940).
(1) failed to provide the citizens of our state with fair notice of the prohibited conduct; and (2)
authorized and encouraged arbitrary enforcement.
15

[Headnotes 5, 6]
The Due Process Clauses of the United States and Nevada Constitutions
16
guarantee
that every citizen shall receive fair notice of conduct that is forbidden.
17
The fair notice
requirement ensures that citizens will not have to speculate about the meaning of a particular
law, and will therefore have the ability to conform their conduct to that law.
18
Although
mathematical precision is not possible in drafting statutory language, the law must, at a
minimum, delineate the boundaries of unlawful conduct.
19
Some specific conduct must be
deemed unlawful so individuals will know what is permissible behavior and what is not.
20

In the instant case, when Charles was charged in September 2000, NRS 207.260
provided:
A person who annoys or molests a minor is guilty of a misdemeanor. For the second
and each subsequent offense he is guilty of a category B felony and shall be punished
by imprisonment in the state prison for a minimum term of not less than 1 year and a
maximum term of not more than 6 years, and may be further punished by a fine of not
more than $5,000.
21

Notably, the criminal complaint in this case merely charged that Charles had willfully and
unlawfully annoyed a minor; it did not allege that Charles had molested a minor. Thus,
the State apparently read the statute to prohibit either the annoying or molesting of a minor.
__________

15
See Morales, 527 U.S. at 56-59.

16
U.S. Const. amend XIV; Nev. Const. art. 1, 8.

17
United States v. Harriss, 347 U.S. 612, 617-18 (1954); Cunningham, 109 Nev. at 570, 855 P.2d at 125.

18
Morales, 527 U.S. at 58-59.

19
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).

20
Id.

21
1995 Nev. Stat., ch. 443, 185, at 1240 (emphasis added). NRS 207.260(1)(a), as amended, now provides
a person who annoys or molests or attempts to annoy or molest a minor, including, without limitation, soliciting
a minor to engage in unlawful sexual conduct, is guilty of . . . a misdemeanor. 2001 Nev. Stat., ch. 560, 10, at
2789. Sexual conduct is defined in NRS 200.700(3). As noted, this opinion does not address whether the current
amended version of NRS 207.260 is sufficiently specific to withstand a constitutional attack. That question is
well beyond the scope of the matter before us. See State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948)
(recognizing that this court will only decide actual controversies, not abstract questions that do not affect the
matter in issue), overruled in part on other grounds by Ex Parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965).
The language of the statute does not specify what type of annoying behavior is
prohibited, nor does it define the term molest. By its terms, the statute is not limited only to
annoyances of a sexual nature, and it provides no indication of whether the perpetrator must
subjectively intend to annoy the minor, or if mere unintentional, bothersome conduct, in and
of itself, is sufficient to subject an individual to criminal sanctions.
The plain meaning of the terms of NRS 207.260 provide little additional guidance.
The term annoy is commonly defined as to disturb or irritate [especially] by repeated
acts.
22
The term molest is a synonym for the term annoy and literally means to annoy,
disturb, or persecute [especially] with hostile intent or injurious effect.
23

In Coates v. City of Cincinnati, the Supreme Court considered the use of the word
annoy in an ordinance that made it unlawful for three or more people to assemble on a
sidewalk and conduct themselves in a manner annoying to persons passing by.
24
In
holding that the ordinance was unconstitutionally vague because it subjects the exercise of
the right of assembly to an unascertainable standard, the Court reasoned:
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague,
not in the sense that it requires a person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense that no standard of conduct
is specified at all. As a result, men of common intelligence must necessarily guess at
its meaning.
25

We conclude that the standard of conduct proscribed by NRS 207.260, namely, conduct
which is annoying, does not provide fair notice because the citizens of Nevada must guess
when conduct that bothers, disturbs, irritates or harasses a minor rises to the level of criminal
conduct.
26

__________

22
Merriam Webster's Collegiate Dictionary 47 (10th ed. 1997).

23
Id. at 749.

24
402 U.S. at 611 n.1.

25
Id. at 614 (quoting Connally v. General Const. Co., 269 U.S. 385, 391 (1926)).

26
In so concluding, we recognize there is disagreement on the use of the term annoy with reference to a
standard of conduct. Some jurisdictions have held that statutes employing the term were void for vagueness. See,
e.g., Langford v. City of Omaha, 755 F. Supp. 1460 (D. Neb. 1989); Poole v. State, 524 P.2d 286 (Alaska
1974); People v. Norman, 703 P.2d 1261 (Colo. 1985); State v. Bryan, 910 P.2d 212 (Kan. 1996); City of
Spokane v. Fischer, 754 P.2d 1241 (Wash. 1988). Others, however, have concluded that statutes employing the
terms annoy or molest were sufficiently definite. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568,
569-72 (1942) (upholding statute that punished offensive, derisive or annoying words on basis of
[Headnote 7]
We also conclude that NRS 207.260 authorizes and encourages arbitrary enforcement.
27
Because the statute fails to adequately set forth the conduct proscribed, it provides those
charged with enforcement of its provisions unfettered and unguided discretion to decide what
annoying activity falls within its parameters. A law that fails to provide fair notice and allows
such unfettered discretion is unconstitutionally vague.
28
Indeed, the touchstone of the void
for vagueness doctrine is to ensure that the legislature has provided guidelines for
enforcement in order to prevent a standardless sweep [that] allows policemen, prosecutors,
and juries to pursue their personal predilections.'
29
Because NRS 207.260 provides
insufficient notice of the conduct prohibited and contains no guidelines for law enforcement,
we conclude that the statute is unconstitutionally void on its face under the United States and
the Nevada Constitutions.
30

As an alternative to declaring the statute facially void, the City urges this court to
apply a limiting construction to NRS 207.260. The City argues that this court can save the
statute from invalidity by imposing a reasonable person standard, or by reading it in context
with NRS 193.190
31
and NRS 194.010.
32
We reject the City's invitation to construe the
statute in a manner that renders it constitutional.
[Headnote 8]
In our system, . . . defining crimes and fixing penalties are legislative, not judicial,
functions.
33
Although a limiting construction is appropriate to clarify ambiguous statutory
language, this court cannot apply a limiting construction to a law where the terms employed
are so vague that no standard of conduct is proscribed at all.
__________
fighting words construction given by state courts); Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965); Matter
of Maricopa County Juv. Action, 838 P.2d 1365 (Ariz. Ct. App. 1992); People v. Thompson, 253 Cal. Rptr. 564
(Ct. App. 1988); State v. King, 303 S.W.2d 930 (Mo. 1957).

27
See Morales, 527 U.S. at 60-61.

28
See Kolender, 461 U.S. at 357-60.

29
Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)).

30
U.S. Const. amend. XIV; Nev. Const. art. 1, 8.

31
NRS 193.190 provides that [i]n every crime or public offense there must exist a union, or joint operation
of act and intention, or criminal negligence.

32
NRS 194.010(6), as it existed prior to the 2001 amendment, provided that a person is not criminally liable
in instances where he committed the act or made the omission charged, through misfortune or by accident,
when it appears that there was no evil design, intention or culpable negligence. 1995 Nev. Stat., ch. 637, 34,
at 2467.

33
United States v. Evans, 333 U.S. 483, 486 (1948).
scribed at all.
34
To construe NRS 207.260 in a manner that would render it constitutional,
this court would have to engage in judicial legislation and rewrite the statute substantially.
We prefer to leave such extensive statutory revisions to the legislature. As the United States
Supreme Court has observed, the legislature may not set a net large enough to catch all
possible offenders, and leave it to the courts to step inside and say who could be rightfully
detained, and who should be set at large.
35

We conclude that the district court did not err in ruling that NRS 207.260, as it existed
prior to the 2001 amendment, was facially void for vagueness. The statute is constitutionally
inadequate under the United States and the Nevada Constitutions because: (1) it does not
provide fair notice of the boundaries of unlawful conduct; and (2) it authorizes and
encourages arbitrary enforcement. Accordingly, we deny the City's petition for extraordinary
relief.
Young, C. J., Rose and Leavitt, JJ., concur.
Shearing, J., with whom Maupin and Becker, JJ., agree, concurring in part and
dissenting in part:
I agree that the City of Las Vegas's petition should be denied because the statute in
question is unconstitutionally vague as applied to this case. However, I do not agree with the
majority that the statute is unconstitutionally vague on its face.
James Edward Charles was charged with willfully and unlawfully annoying a minor
under NRS 207.260. I agree with the majority that the conduct of annoying a minor is
unconstitutionally vague. That charge is unconstitutional because it fails to notify
individuals what conduct is prohibited, and it encourages arbitrary and capricious
enforcement by police.
1
If annoying a minor alone were unlawful, virtually every parent
would at one time or another be a lawbreaker.
However, I do not agree with the majority that NRS 207.260 is unconstitutional on its
face. When Charles was charged, the statute provided a person who annoys or molests a
minor is guilty of an offense. While annoys is too vague, molests is not. I do not agree
with the majority that molest is a synonym for annoy. Even the dictionary definition of
molest cited by the majority belies that statement because molesting is not just annoying,
but includes a requirement that the molestation be with hostile intent or injurious effect.
2
Thus, a component of mens rea or criminal intent is added to the statute when molestation
is charged.
__________

34
See generally id.

35
United States v. Reese et al., 92 U.S. 214, 221 (1875).

1
Chicago v. Morales, 527 U.S. 41, 49-50 (1999) (internal quotation marks and citation omitted).

2
See majority opinion ante p. 865.
mens rea or criminal intent is added to the statute when molestation is charged. While the
only way we can determine what is annoying is to look at the reaction of the alleged victim,
we can determine molesting by the acts and intent of the perpetrator. The ordinary meaning
of the word is sufficient to limit the conduct proscribed and to warn an average person of the
conduct prohibited.
3

NRS 207.260 should be declared unconstitutionally vague to the extent that it
prohibits annoying, but not to the extent it prohibits molesting. This is not judicially
rewriting the statute, but rather limiting the applicability to the portion that does not offend
the Constitutions of the United States and the State of Nevada.
____________
118 Nev. 868, 868 (2002) Hiibel v. Dist. Ct.
LARRY D. HIIBEL, Petitioner, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF HUMBOLDT, and THE
HONORABLE RICHARD A. WAGNER, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 38876
December 20, 2002 59 P.3d 1201
Original petition for a writ of certiorari challenging the district court's order affirming
petitioner's conviction in justice court for resisting or obstructing an officer investigating a
crime.
The supreme court, Young, C. J., held that, as a matter of first impression, a Nevada
statute allowing an officer, during an investigatory stop, to detain a person to ascertain his
identity and the suspicious circumstances surrounding his presence abroad, did not violate the
Fourth Amendment right to privacy.
Petition denied.
Agosti, J., with whom Shearing and Rose, JJ., agreed, dissented.
Defender, Carson City, for Petitioner.
__________

3
Graham v. State, 362 So. 2d 924, 925 (Fla. 1978); see also Annotation, Vagueness as Invalidating Statutes
or Ordinances Dealing with Disorderly Persons or Conduct, 12 A.L.R.3d 1448, 1452 (1967).
Frankie Sue Del Papa, Attorney General, Carson City; David G. Allison, District
Attorney, and Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for Real
Party in Interest.
Fundamental to a democratic society is the ability to wander freely and anonymously, if one so chooses, without being
compelled to divulge information to the government about who one is or what one is doing. U.S. Const. amend. 4.
The right to be let alone, or to simply live in privacy, is a right protected by the Fourth Amendment. U.S. Const. amend. 4.
The Fourth Amendment right to privacy is not absolute, and like all freedoms, it includes both limitations and responsibilities,
with one such limitation being reasonableness, because the Fourth Amendment protects only against unreasonable invasions of
privacy. U.S. Const. amend. 4.
Traditionally, in resolving issues implicating the Fourth Amendment right to privacy, the touchstone question is whether the
invasion of privacy is reasonable. U.S. Const. amend. 4.
The reasonableness of an intrusion on the Fourth Amendment right to privacy is determined by balancing the public interest and
the individual's right to personal security free from arbitrary interference by law enforcement officers. U.S. Const. amend. 4.
Considerations regarding the reasonableness of an intrusion on the Fourth Amendment right to privacy involve the weighing of
the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of
the interference with individual liberty. U.S. Const. amend. 4.
A primary concern, when determining the reasonableness of an intrusion on the Fourth Amendment right to privacy, is to assure
that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers
in the field. U.S. Const. amend. 4.
8. Arrest.
Any intrusion on the Fourth Amendment right to privacy was reasonable, as to statute allowing an officer, during an
investigatory stop, to detain a person to ascertain his identity and suspicious circumstances surrounding his presence; knowing the
identity of a suspect allowed officers to more accurately evaluate and predict potential dangers that may arise during investigative stop,
the requirement to produce identification enabled an officer to determine whether the suspect was breaking certain laws, the nation was
at war against enemies operating with concealed identities, and the intrusion on privacy was minimal. U.S. Const. amend. 4; NRS
171.123(3).
OPINION
By the Court, Young, C. J.:
The pertinent issue before us is whether NRS 171.123(3), which requires a person
stopped under reasonable suspicion by a police officer to identify himself or herself, violates
the Fourth Amendment of the United States Constitution. We conclude NRS 171.123(3) does
not violate the Fourth Amendment because it strikes a balance between constitutional
protections of privacy and the need to protect police officers and the public. Therefore,
Hiibel's petition for a writ of certiorari is denied.
In pertinent part, NRS 171.123 provides:
1. Any peace officer may detain any person whom the officer encounters under
circumstances which reasonably indicate that the person has committed, is committing
or is about to commit a crime.
. . . .
3. The officer may detain the person pursuant to this section only to ascertain his
identity and the suspicious circumstances surrounding his presence abroad. Any person
so detained shall identify himself, but may not be compelled to answer any other
inquiry of any peace officer.
4. A person may not be detained longer than is reasonably necessary to effect the
purposes of this section, and in no event longer than 60 minutes.
In response to a call from police dispatch, Humboldt County Sheriff's Deputy Lee
Dove drove to the scene where a concerned citizen had observed someone striking a female
passenger inside a truck. There, Dove spoke to the concerned citizen and was directed to a
parked truck. When Dove approached the truck, he noticed skid marks in the gravel,
suggesting the truck had been parked in a sudden and aggressive manner. Dove saw Larry D.
Hiibel standing outside the truck and thought he was intoxicated based on his eyes,
mannerisms, speech, and odor. Hiibel's minor daughter was in the passenger side of the truck.
When Dove asked Hiibel to identify himself, Hiibel refused. Instead, Hiibel placed his hands
behind his back and challenged the officer to take him to jail.
Hiibel said he would cooperate but was unwilling to provide identification, because he
did not believe he had done anything wrong. After eleven requests for identification, to no
avail, Dove arrested Hiibel. Dove described the situation as follows:
[D]uring my conversation with Mr. Hiibel, there was a point where he became
somewhat agressive [sic].
I felt based on me not being able to find out who he was, to identify him, I didn't
know if he was wanted or what is [sic] situation was, I [w]asn't able to determine what
was going on crimewise in the vehicle, based on that I felt he was intoxicated, and how
he was becoming aggressive and moody, I went ahead and put him in handcuffs so I
could secure him for my safety, and put him in my patrol vehicle.
Hiibel was charged with and found guilty of resisting a public officer, in violation of
NRS 199.280.
1
The justice of the peace in Humboldt County determined that [Hiibel] was
asked only for identification and failure to provide identification obstructed and delayed Dove
as a public officer in attempting to discharge his duty.
On appeal, the district court held it was reasonable and necessary for Dove to
request identification from Hiibel and affirmed Hiibel's conviction. Evidence over and above
simply failing to identify himself was found to support Hiibel's arrest and conviction, which
included Dove's suspicion that Hiibel engaged in driving under the influence. The district
court balanced the public's interest in requiring Hiibel to identify himself against Hiibel's
Fifth Amendment right to remain silent. The district court determined it was crucial for the
safety of an officer and possible victims to know the identity of a person suspected of battery,
domestic violence, and driving under the influence.
We conclude this case is properly before this court pursuant to NRS 34.020(3),
because the constitutionality of NRS 171.123(3) presents an issue of first impression.
Accordingly, we will address the merits of Hiibel's constitutional challenge to NRS
171.123(3).
[Headnotes 1, 2]
Fundamental to a democratic society is the ability to wander freely
2
and
anonymously, if we so choose, without being compelled to divulge information to the
government about who we are or what we are doing.
__________

1
NRS 199.280 states:
A person who, in any case or under any circumstances not otherwise specially provided for, willfully
resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his
office shall be punished:
1. Where a dangerous weapon is used in the course of such resistance, obstruction or delay, for a
category D felony as provided in NRS 193.130.
2. Where no dangerous weapon is used in the course of such resistance, obstruction or delay, for a
misdemeanor.
Hiibel was also arrested for the misdemeanor charge of domestic battery. This charge was dismissed at the
State's request, prior to trial.

2
See Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972).
or what we are doing.
3
This right to be let alone
4
to simply live in privacyis a right
protected by the Fourth Amendment and undoubtedly sacred to us all.
5

[Headnote 3]
Yet, this right to privacy is not absolute.
6
Like all freedoms we enjoy, it includes
both limitations and responsibilities. One such limitation to the right of privacy is
reasonableness. The Fourth Amendment only protects against unreasonable invasions of
privacy, or searches and seizures, by the government.
7

The United States Supreme Court has twice expressly refused to address whether a
person reasonably suspected of engaging in criminal behavior may be required to identify
himself or herself.
8
Therefore, the issue is unresolved.
9

There is a split of authority among the federal circuit courts of appeals on this issue.
10
In Oliver v. Woods,
11
the Tenth Circuit Court of Appeals upheld a Utah statute that requires
individuals to produce identification to an officer during an investigatory stop. However, in
Carey v. Nevada Gaming Control Board,
12
the Ninth Circuit Court of Appeals held that
NRS 171.123(3) violates the Fourth Amendment because the serious intrusion on personal
security outweighs the mere possibility that identification [might] provide a link leading
to arrest.
__________

3
Brown v. Texas, 443 U.S. 47, 52-53 (1979).

4
Public Utilities Comm'n v. Pollak, 343 U.S. 451, 468 (1952) (Douglas, J., dissenting).

5
Terry v. Ohio, 392 U.S. 1, 9 (1968) (citing Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251
(1891)).

6
Id.

7
Id. (citing Elkins v. United States, 364 U.S. 206, 222 (1960)).

8
Brown, 443 U.S. at 53 n.3 (We need not decide whether an individual may be punished for refusing to
identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.);
Kolender v. Lawson, 461 U.S. 352, 361-62 n.10 (1983) (holding that a California statute requiring an individual
who loitered or wandered the streets to produce credible and reliable identification to an officer upon request
of a police officer was unconstitutional on vagueness grounds, but refusing to consider whether the statute
violated the Fourth Amendment).

9
Albright v. Rodriguez, 51 F.3d 1531, 1537-38 (10th Cir. 1995); Gainor v. Rogers, 973 F.2d 1379, 1386
n.10, 1389 (8th Cir. 1992) (noting that Supreme Court has not determined whether an officer may arrest an
individual for refusing to identify himself or herself during an investigative stop); Tom v. Voida, 963 F.2d 952,
959 n.8 (7th Cir. 1992) (observing that whether individuals may refuse to answer questions asked by an officer
during an investigative stop is a question unanswered by the Supreme Court).

10
Compare Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 881 (9th Cir. 2002), and Martinelli v. City
of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987), with Oliver v. Woods, 209 F.3d 1179, 1190 (10th Cir. 2000),
and Albright, 51 F.3d at 1537.

11
209 F.3d at 1190.

12
279 F.3d 873.
sonal security outweighs the mere possibility that identification [might] provide a link leading
to arrest.'
13
We find the reasoning in Carey to be unpersuasive. Given the conflicting
authority, we believe an independent analysis of the constitutionality of NRS 171.123(3) is
warranted.
[Headnotes 4-7]
Traditionally, in resolving issues implicating the Fourth Amendment right to privacy,
the following touchstone question has been asked: Is the invasion of privacy reasonable?
14
Reasonableness is determined by balancing the public interest and the individual's right to
personal security free from arbitrary interference by law officers.'
15
Considerations involve
the weighing of the gravity of the public concerns served by the seizure, the degree to which
the seizure advances the public interest, and the severity of the interference with individual
liberty.
16
A primary concern is to assure that an individual's reasonable expectation of
privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in
the field.
17

[Headnote 8]
Balancing these interests, we conclude that any intrusion on privacy caused by NRS
171.123(3) is outweighed by the benefits to officers and community safety. The public
interest in requiring individuals to identify themselves to officers when a reasonable suspicion
exists is overwhelming. The United States Supreme Court has recognized that American
criminals have a long tradition of armed violence, and every year in this country many law
enforcement officers are killed in the line of duty, and thousands more are wounded.
18
The
most dangerous time for an officer may be during an investigative stopwhen a suspect is
approached and questioned.
Judicial notice is taken that in the year 2000, fifty-one officers were murdered in the
line of duty.
19
These homicides occurred as follows: thirteen during traffic stops/pursuits,
twelve during arrest situations, ten during ambushes, eight during responses to disturbance
calls, six during investigations of suspicious persons, and two during prisoner transport.
__________

13
Id. at 880 (quoting Lawson v. Kolender, 658 F.2d 1362, 1366-67 (9th Cir. 1981), aff'd, 461 U.S. 352
(1983)).

14
Terry, 392 U.S. at 9.

15
Brown, 443 U.S. at 50 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)).

16
Id. at 50-51 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).

17
Id. at 51 (citing Delaware v. Prouse, 440 U.S. 648, 654-55 (1979)).

18

19
Federal Bureau of Investigation, U.S. Dep't of Justice, Crime in the United States 2000, at 291 (2001).
two during prisoner transport.
20
Of the suspects who committed these killings, twenty had
been previously arrested for crimes of violence, nine had previously assaulted a police officer,
and twelve were on probation or parole.
21
Moreover, 15,915 officers were assaulted that
year.
22
If the officers referenced in these statistics had known the identity and history of their
attackers prior to being assaulted or killed, perhaps some of these incidents could have been
prevented.
Knowing the identity of a suspect allows officers to more accurately evaluate and
predict potential dangers that may arise during an investigative stop. It follows that an officer
making a reasonable investigatory stop should not be denied the opportunity to protect
himself from attack by a hostile suspect.
23
For example, the suspect may be a former felon
or wanted for an outstanding arrest warrant. Such persons pose a heightened risk of danger to
officers and the public during investigatory encounters.
Additionally, if suspects are not legally required to identify themselves, what could an
officer do if a suspicious person were loitering outside a daycare center or school? Perhaps
that person is a sex offender. How are officers to enforce restraining orders? Or, how are
officers to enforce curfew laws for minors without a requirement to produce identification? In
these situations, it is the observable conduct that creates a reasonable suspicion, but it is the
requirement to produce identification that enables an officer to determine whether the suspect
is breaking the law.
Most importantly, we are at war against enemies who operate with concealed
identities and the dangers we face as a nation are unparalleled. Terrorism is changing the
way we live and the way we act and the way we think.
24
During the recent past, this country
suffered the tragic deaths of more than 3,000 unsuspecting men, women, and children at the
hands of terrorists; seventeen innocent people in six different states were randomly gunned
down by snipers; and our citizens have suffered illness and death from exposure to mail
contaminated with Anthrax. We have also seen high school students transport guns to school
and randomly gun down their fellow classmates and teachers. It cannot be stressed enough:
__________

20
Federal Bureau of Investigation, U.S. Dep't of Justice, Law Enforcement Officers Killed and Assaulted,
2000, at 28 (2001), at http://www.fbi.gov/ucr/killed/00leoka.pdf (last visited Nov. 12, 2002) (this document was
discontinued in print after 1999 and is now only available on the Internet as referenced above).

21
Id. at 4.

22
Id. at 75.

23
Adams v. Williams, 407 U.S. 143, 146 (1972).

24
Interview by Tony Snow with Senator Tom Daschle, United States Senate, Washington, D.C. (Oct. 21,
2002), http://www.foxnews.com/ story/0,2933,66236,00.html.
stressed enough: This is a different kind of war that requires a different type of approach and
a different type of mentality.
25
To deny officers the ability to request identification from
suspicious persons creates a situation where an officer could approach a wanted terrorist or
sniper but be unable to identify him or her if the person's behavior does not rise to the level of
probable cause necessary for an arrest.
Contrary to the dissent's opinion, requiring a suspect to reveal his name is not an
abrogation of the Bill of Rights. Bills of rights give assurance to the individual of the
preservation of his liberty. They do not define the liberty they promise.
26
Furthermore, it
has been recognized since the early development of common law that [a]ll rights tend to
declare themselves absolute to their logical extreme. Yet all in fact are limited by the
neighborhood of principles of policy which are other than those on which the particular right
is founded, and which become strong enough to hold their own when a certain point is
reached.
27
The point of requiring a suspect to provide identification during a lawful
investigatory stop has been reached.
The requirements of NRS 171.123(3) are also reasonable and involve a minimal
invasion of personal privacy.
28
Reasonable people do not expect their identitiestheir
namesto be withheld from officers. Rather, we reveal our names in a variety of situations
every day without much consideration. For instance, it is merely polite manners to introduce
ourselves when meeting a new acquaintance. A person's name is given out on business cards,
credit cards, checks, and driver's licenses, to name a few more instances. In addition,
everyone is required to reveal government issued identification to airport officials and are
subject to random searches before proceeding to flight gates. Asking a suspect to state his or
her name when an officer has an articulable suspicion is nominal in comparison.
To hold that a name, which is neutral and non-incriminating information, is somehow
an invasion of privacy is untenable. Such an invasion is minimal at best. The suspect is not
required to provide private details about his background, but merely to state his name to an
officer when reasonable suspicion exists. The Supreme Court held it reasonable for officers to
pat down and frisk a person during an investigative stop.
29
As the Court recognized in Terry
v. Ohio,
__________

25
President George W. Bush, Address During a News Conference (Oct. 11, 2001),
http://www.cnn.com/2001/US/10/11/gen.bush.transcript/ index.html.

26
Benjamin N. Cardozo, The Paradoxes of Legal Science 97 (1928).

27
Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908).

28
Adams, 407 U.S. at 146 (A brief stop of a suspicious individual, in order to determine his identity . . . may
be most reasonable in light of the facts known to the officer at the time. (citing Terry, 392 U.S. at 21-22)).

29
Terry v. Ohio, it would be unreasonable to require that police officers take unnecessary risks
in the performance of their duties.
30
Requiring identification is far less intrusive than
conducting a pat down search of one's physical person.
Here, Hiibel was suspected of domestic violence against his minor daughter and
driving under the influence of alcohol. Based on skid marks in the gravel, it appeared that
Hiibel parked his truck in a quick and aggressive manner. Hiibel refused eleven requests by
officers to identify himself. Instead, Hiibel placed his hands behind his back and challenged
the deputy to take him to jail. An ordinary person would conclude it was Hiibel who was
unreasonable, not the law.
Finally, NRS 171.123(3) is narrowly written. It applies only in situations where an
officer has an articulable suspicion that a person is engaged in criminal behavior. [C]ommon
sense often makes good law, once wrote United States Supreme Court Justice William O.
Douglas.
31
Requiring a person reasonably suspected of committing a crime to identify
himself or herself to law enforcement officers during a brief, investigatory stop is a
commonsense requirement necessary to protect both the public and law enforcement officers.
It follows that NRS 171.123(3) is good law consistent with the Fourth Amendment.
32

Leavitt and Becker, JJ., concur.
I join in the result reached by the majority, stressing again that NRS 171.123 is
narrowly written, and that its requirement that persons reasonably suspected of criminal
misconduct be required to identify themselves to police during brief investigatory stops is a
commonsense requirement for the protection of the public and law enforcement officers.
I write separately to note that the majority has not somehow overreacted to the
dangers presented by the war against domestic and international terrorism. Our decision today
is truly related to the ability of police to properly and safely deal with persons reasonably
suspected of criminal misconduct, here, domestic violence and driving under the influence of
alcohol.
Notwithstanding the sentiments voiced by my dissenting colleagues, NRS 171.123, as
stated by Young, C. J., in the majority opinion, is good law consistent with the Fourth
Amendment.
__________

30
Id. at 23.

31
Peak v. United States, 353 U.S. 43, 46 (1957).

32
The dissent, as dramatically worded as it is, does not refute this position.
Agosti, J., with whom Shearing and Rose, JJ., agree, dissenting:
As the majority aptly states, the right to wander freely and anonymously, if we so
choose, is a fundamental right of privacy in a democratic society. However, the majority
promptly abandons this fundamental right by requiring suspicious citizens to identify
themselves to law enforcement officers upon request, or face the prospect of arrest. I dissent
from the majority's holding that the identification portion of NRS 171.123 is constitutional.
It is well-established that police officers may stop a person when reasonable suspicion
exists that that person is engaged in illegal activity.
1
However, it is equally well-established
that detaining a person and requiring him to identify himself constitutes a seizure of his
person subject to the requirements of the Fourth Amendment.
2
In light of these
constitutional requirements, the United States Supreme Court has stated that although the
officers may question the person, the detainee need not answer any questions.
3
Furthermore,
unless the detainee volunteers answers and those answers supply the officer with probable
cause to arrest, the detainee must be released.
4

The Fourth Amendment requires that governmental searches and seizures be
reasonable. Reasonableness is determined by a weighing of the gravity of the public
concerns served by the seizure, the degree to which the seizure advances the public interest,
and the severity of the interference with individual liberty.
5
A court's primary concern in
weighing these interests is to assure that an individual's reasonable expectation of privacy is
not subject to arbitrary invasions solely at the unfettered discretion of officers.
6

Anonymity is encompassed within the expectation of privacy, a civil liberty that is
protected during a Terry stop. The majority now carves away at that individual liberty by
saying that a detainee must surrender his or her identity to the police.
I agree with the Ninth Circuit Court of Appeals' reasoning on the issue of whether a
person may be arrested for refusing to identify himself during a Terry stop.
7
In Martinelli v.
City of Beaumont,
__________

1
Terry v. Ohio, 392 U.S. 1, 21-22 (1968); see also State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949
(2000).

2
Brown v. Texas, 443 U.S. 47, 50 (1979).

3
Berkemer v. McCarty, 468 U.S. 420, 439 (1984).

4
Id. at 439-40; see Kolender v. Lawson, 461 U.S. 352, 360 n.9 (1983).

5
Brown, 443 U.S. at 50-51.

6
Id. at 51.

7
Although the United States Supreme Court has not yet addressed this issue and there is a split of federal
authority, I find the Ninth Circuit's approach to be the more lucid one.
Beaumont,
8
a woman was arrested for delaying a lawful police investigation by refusing to
identify herself during a Terry investigation.
9
The court held that allowing the police officers
to arrest the woman for failing to identify herself in effect allowed the officers to bootstrap
the authority to arrest on less than probable cause.'
10
The court determined that the
woman's interest in her personal security outweighed the mere possibility that
identification may provide a link leading to arrest.'
11

More directly on point, the Ninth Circuit in Carey v. Nevada Gaming Control Board
12
addressed the constitutionality of NRS 171.123(3), the very statute at issue here. In Carey,
a casino patron brought a claim under 42 U.S.C. 1983 against a Nevada Gaming Control
Board agent for violating his Fourth, Fifth and Fourteenth Amendment rights.
13
The agent
was called to a hotel to investigate Carey and another man, who were both suspected by hotel
employees of cheating.
14
The agent caused the men to be detained, identified himself,
indicated he was investigating gaming law violations, read them their Miranda rights and
conducted a pat-down search of both detainees.
15
During the Terry investigation, the agent
determined there was no probable cause to arrest the men for gaming violations.
16
However,
when the agent asked the men to identify themselves, Carey refused, and he was arrested
pursuant to NRS 171.123(3) and NRS 197.190.
17
On appeal, the Ninth Circuit noted that the
agent had reasonable suspicion to conduct a Terry stop, and also probable cause to arrest
Carey under NRS 171.123(3) and NRS 197.190 once Carey refused to identify himself.
However, the court concluded that NRS 171.123(3) and NRS 197.190, as applied to Carey,
violated the Fourth Amendment because the United States Supreme Court has consistently
recognized that a person detained pursuant to Terry is not obliged to answer ' questions
posed by law enforcement officers.
18
The court determined that Carey's interest in his
personal security outweighed any potential link leading to arrest that could be gleaned from
his identity,
__________

8
820 F.2d 1491 (9th Cir. 1987).

9
Id. at 1492.

10
Id. at 1494 (quoting Lawson v. Kolender, 658 F.2d 1362, 1366 (9th Cir. 1981), aff'd, 461 U.S. 352
(1983)).

11
Id. (quoting Lawson, 658 F.2d at 1366-67).

12
279 F.3d 873 (9th Cir. 2002).

13
Id. at 876.

14
Id.

15
Id.

16
Id.

17
Id. at 876, 879-80.

18
Id. at 881-82 (quoting Dunaway v. New York, 442 U.S. 200, 211 n.12 (1979) (quoting Terry v. Ohio, 392
U.S. 1, 34 (1968))).
arrest that could be gleaned from his identity, particularly because Carey's name was not
relevant to determining whether Carey had cheated.
19

Despite the above authority, the majority erroneously affirms Hiibel's conviction by
reflexively reasoning that the public interest in police and public safety outweighs Hiibel's
interest in refusing to identify himself. I am not persuaded. And I am uneasy about the
reasons given by the majority in justifying its holding.
The majority concludes that the governmental interest in police safety outweighs an
individual's interest in his right to keep private his identity. The majority relies upon FBI
statistics about police fatalities and assaults to support its argument. However, it does not
provide any evidence that an officer, by knowing a person's identity, is better protected from
potential violence. In Terry, the United States Supreme Court addressed the issue of officer
safety by carving out an exception to the Fourth Amendment to allow a police officer to make
certain that the person being detained is not armed with a weapon that could unexpectedly
and fatally be used against him
20
when the officer reasonably believes he is dealing with
an armed and dangerous individual.
21
The purpose of such a search is to ensure the detainee
is not armed with a weapon that could be immediately used against a police officer, not to
ensure against a detainee's propensity for violence based upon a prior record of criminal
behavior.
It is well known that within the context of a Terry stop an officer's authority to search
is limited to a pat-down to detect weapons. The officer may investigate a hard object because
it might be a gun. An officer may not investigate a soft object he detects, even though it might
be drugs. Similarly, an officer may not detect a wallet and remove it for search. With today's
majority decision, the officer can now, figuratively, reach in, grab the wallet and pull out the
detainee's identification. So much for our right to be left alone or as the majority saysto
wander freely and anonymously if we choose.
The majority avoids the fact that knowing a suspect's identity does not alleviate any
threat of immediate danger by arguing that a reasonable person cannot expect to withhold his
identity from police officers, as we reveal our names to different people every day. What the
majority fails to recognize, however, is that when we give our names to new acquaintances,
business associates and shop owners, we do so voluntarily, out of friendship or to complete a
transaction. With the heightened security at airports, for example, passengers are required to
provide picture identification. But non-passengers are free to wander that portion of the
airport that is unsecured without showing an ID.
__________

19
Id. at 880.

20

21
Id. at 27.
that is unsecured without showing an ID. Purchasing an airline ticket is a business
transaction, and the airlines may condition the sale on knowing who is the purchaser. In
contrast, being forced to identify oneself to a police officer or else face arrest is government
coercionprecisely the type of governmental intrusion that the Fourth Amendment was
designed to prevent. Furthermore, it is not necessary to have one's name on a credit card or
checkbook in order to effect a purchase. A dedicated libertarian, for example, might
deliberately eschew financial institutions, credit cards and checkbooks, engaging solely in
cash transactions, in order to jealously protect his individual rights, especially his right to be
anonymous, to be left alone, to wander freely.
Finally, the majority also makes an emotional appeal based upon fear and speculation
by arguing that the police would be powerless to protect innocent children from sex
offenders, to enforce restraining orders, and to enforce curfews for minors. What the majority
fails to recognize is that it is the observable conduct, not the identity, of a person, upon which
an officer must legally rely when investigating crimes and enforcing the law.
The majority further appeals to the public's fear during this time of war against an
enemy who operates with a concealed identity. Now is precisely the time when our duty to
vigilantly guard the rights enumerated in the Constitution becomes most important. To ease
our guard now, in the wake of fear of unknown perpetrators who may still seek to harm the
United States and its people, would sound the call of retreat and begin the erosion of civil
liberties. The court must not be blinded by fear. I am reminded of a statement by Justice Felix
Frankfurter, so aptly quoted by Chief Justice Young, the majority's author, in another search
and seizure case involving individual liberties protected by the Fourth Amendment:
[W]e are in danger of forgetting that the Bill of Rights reflects experience with police
excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is
easy to make light of insistence on scrupulous regard for the safeguards of civil liberties
when invoked on behalf of the unworthy. It is too easy. History bears testimony that by
such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily,
and brazenly in the end.
22

The majority, by its decision today, has allowed the first layer of our civil liberties to be
whittled away. The holding weakens the democratic principles upon which this great nation
was founded.
__________

22
Barrios-Lomeli v. State, 114 Nev. 779, 782, 961 P.2d 750, 752 (1998) (quoting Davis v. United States,
328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).
The undermining of that foundation is a harm more devastating to our country and to this
State than any physical harm a terrorist could possibly inflict. It would indeed be ironic if, in
the name of national defense, we would sanction the subversion of . . . liberties . . . which
make[ ] the defense of the Nation worthwhile.
23
Our nation is besieged. The terrorist threat
has shaken our complacency. Our way of life is threatened as never before. At this time, this
extraordinary time, the true test of our national courage is not our necessary and steadfast
resolve to defend ourselves against terrorist activity. The true test is our necessary and
steadfast resolve to protect and safeguard the rights and principles upon which our nation was
founded, our constitution and our personal liberties. I dissent from the majority's retreat from
this challenge.
____________
118 Nev. 881, 881 (2002) Reel v. Harrison
RICHARD L. REEL, Appellant, v. KATHRYN HARRISON (REEL), Respondent.
No. 36529
December 26, 2002 60 P.3d 480
Appeal from a district court order granting a petition to remove minor child from the
state. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court, Agosti, J., held that: (1) right to travel under Equal Protection
Clause is not violated by statute requiring custodial parent seeking to relocate from state with
child to obtain written consent of noncustodial parent, and (2) trial court acted within its
discretion in allowing former wife to relocate with child.
Affirmed.
Kent B. Hanson, Reno, for Appellant.
Kenneth J. Jordan, Carson City, for Respondent.
The right to travel under the Equal Protection Clause encompasses three components, protecting the right of a citizen of one
state to enter and to leave another state, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily
present in the second state, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens
of that state. U.S. Const. amend. 14.
Equal protection requires that no class of persons shall be denied the same protection of the law that is enjoyed by other classes
in like circumstances. U.S. Const. amend. 14.
__________

23
United States v. Robel, 389 U.S. 258, 264 (1967).
3. Child Custody; Constitutional Law.
Right to travel under Equal Protection Clause is not violated by statute requiring custodial parent seeking to relocate from state
with child to obtain written consent of noncustodial parent and to petition court for permission if noncustodial parent refuses to
consent because custodial and noncustodial parents are not similarly situated. U.S. Const. amend. 14; NRS 125C.200.
Supreme court will not consider constitutional issues that are not necessary to the determination of an appeal.
5. Child Custody.
The district court has wide discretion in determining what is in a child's best interest, and supreme court will not disturb the
judgment absent an abuse of discretion.
6. Child Custody.
Before moving child from state, custodial parents must satisfy the threshold criteria that (1) moving will create a real advantage
for both the child and the custodial parent, and (2) the custodial parent has a sensible good faith reason for the move. In addition to
economic factors, the court should consider noneconomic factors, such as those likely to contribute to the well-being and general
happiness of the custodial parent and child. NRS 125C.200.
7. Child Custody.
Once the custodial parent has satisfied the threshold requirement for moving child from state, court must weigh the following
factors: (1) the extent to which the move is likely to improve the quality of life for both the child and the custodial parent; (2) whether
the custodial parent's motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the noncustodial
parent; (3) whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by
the court; (4) whether the noncustodian's motives are honorable in resisting the motion for permission to remove, or to what extent, if
any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise; and (5)
whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to maintain a visitation schedule that
will adequately foster and preserve the parental relationship with the noncustodial parent. NRS 125C.200.
8. Child Custody.
In weighing factors to determine whether custodial parent should be permitted to move child from state, court must consider a
non-exhaustive list of sub-factors, such as: (1) whether positive family care and support, including that of the extended family, will be
enhanced; (2) whether housing and environmental living conditions will be improved; (3) whether educational advantages for the child
will result; (4) whether the custodial parent's employment and income will improve; (5) whether special needs of a child, medical or
otherwise, will be better served; and (6) whether, in the child's opinion, circumstances and relationships will be improved. NRS
125C.200.
9. Child Custody.
Trial court acted within its discretion in allowing former wife to relocate to New Jersey with child; former wife had better career
opportunities in New Jersey, there were educational opportunities for child in New Jersey, New Jersey provided opportunity to be near
extended family, former wife did not have bad faith reasons for move, and former husband would still have access to reasonable
visitation. NRS 125C.200.
OPINION
Appellant Richard Reel appeals from the district court order permitting his ex-wife,
Kathryn Harrison, to remove their minor child from the state, pursuant to NRS 125C.200.
The district court determined that NRS 125C.200 violates the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution by restricting a custodial parent's
fundamental right to travel. The district court also concluded that even if NRS 125C.200 is
constitutional, Harrison was still permitted to relocate the minor child to New Jersey, based
on the career and educational opportunities available there, the presence of the child's
extended family in New Jersey and the ability to maintain reasonable visitation with Reel, the
child's father. We conclude that NRS 125C.200 does not violate the United States
Constitution and that the district court did not abuse its discretion in granting the petition to
relocate.
Richard Reel and Kathryn Harrison were divorced in October 1990. The court
awarded Harrison primary physical custody of the parties' minor child. Reel was granted
reasonable rights of visitation, which the parties have historically worked out in an amicable
fashion. Generally, Reel sees the child two days each week, and occasionally for longer
periods during the summer.
On April 20, 2000, Harrison filed a petition under NRS 125C.200 to remove the child
from the state and to modify the divorce decree. Reel opposed the petition, and a hearing was
held. At the hearing, Harrison testified that while she earned $19,000.00 in 1999 as a craps
dealer in Carson City, she could earn at least $35,000.00 in New Jersey, working for her sister
and brother-in-law's company as a sales and marketing administrator, also potentially
qualifying for bonuses and even possibly acquiring a future equity share in the company.
Harrison lived in a 900-square-foot trailer in Carson City,
1
but if she and the child moved to
New Jersey, they would initially live with her sister and brother-in-law in their
3,000-square-foot, four-bedroom house in Matawyn, New Jersey. Harrison intended
eventually to rent a home in one of the many developments in Matawyn. Harrison also
planned to enroll the child in the Ravine Road School, which is dedicated to gifted and
talented students. Harrison testified that the child would qualify for the school on the basis
of her IQ score of 130.
__________

1
The record does not indicate if Harrison and the child have, in fact, moved to New Jersey. However, her job
opportunity was to begin in May or June 2000, and the district court's order was not stayed.
the child would qualify for the school on the basis of her IQ score of 130. Harrison also
testified that the Ravine Road School was superior to any of the gifted and talented programs
offered by the Carson City school system. Finally, Harrison stated that the child's aunt, uncle
and several cousins live in and around New Jersey. Because Harrison and the child have no
relatives living in Carson City, Harrison thought that it was important for the child to bond
with her family. Harrison also noted that the availability of many cultural activities in New
York City factored into her decision.
Reel testified that the career change was a good opportunity for Harrison and that he
had no reason to believe that Harrison's motives for moving to New Jersey were to frustrate
or interfere with his visitation rights. However, Reel objected because he believed that
removing the child from the stability of regular visitation with him was not in the child's best
interest. Reel testified that he and the child were very close; he proposed that the child live
with him for a year while Harrison became situated and comfortable in New Jersey. After one
year, Reel proposed that the parties re-evaluate the situation to ensure that the proposed move
satisfies the child's best interest. Harrison, in contrast, proposed a visitation schedule wherein
Reel would have visitation for eight consecutive weeks during the summer, during which
time the child support payments would be suspended, one week at Christmas and one week
during the child's spring break from school. Additionally, Harrison offered to pay one-half of
the child's travel costs to Nevada or of Reel's travel costs to New Jersey whenever he wanted
to visit.
After listening to the evidence, the district court concluded that NRS 125C.200
violated the Equal Protection Clause of the Fourteenth Amendment.
2
The district court
premised its finding on the United States Supreme Court's holding in Saenz v. Roe.
3
The
If Mr. Reel had the opportunity to move to Atlantic City to advance to a much higher
gaming position than he has right now, there is nothing in this set of laws that are on
these books or in these cases that have been decided by the Nevada Supreme Court
which would allow Ms. Harrison to come to this Court and prevent him from moving.
By the same token there [are] the laws on the books in NRS 125C.200 which suggests
that unless she gets his permission and she is the physical custodial parent that she is
not going to be allowed to move or unless she has the Court's permission on this
matter and if she doesn't do either of those two things it is to be held against her.
__________

2
U.S. Const. amend. XIV, 1.

3
526 U.S. 489 (1999).
permission on this matter and if she doesn't do either of those two things it is to be held
against her.
The district court then found that NRS 125C.200 implicitly restricts a custodial parent's
fundamental right to travel. Applying the strict scrutiny standard in reviewing the statute's
constitutionality, the district court found that no compelling state interest was satisfied by the
restriction. Therefore, the district court concluded that Harrison did not need the court's
permission to move to New Jersey with the child. Notwithstanding its legal conclusion
concerning NRS 125C.200's constitutionality, the district court also found that Harrison
would have met her burden for moving the child out-of-state under the factors set forth in
Schwartz v. Schwartz
4
because of the New Jersey career opportunities for Harrison, the New
Jersey educational opportunities for the child and the opportunity to be near extended family
in the East and because Reel would still have access to reasonable visitation with the child.
In examining NRS 125C.200, we perceive no constitutional defect.
5
The district
court determined that NRS 125C.200 implicitly restricts a citizen's right to travel, as it
imposes a penalty on the exercise of the custodial parent's right to relocate. Because the
noncustodial parent does not have to petition the district court to relocate from Nevada, the
district court determined that NRS 125C.200 violates the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution. Further, the district court
concluded that Nevada's interest in fostering the continued involvement of both parents with
their children and in encouraging parents to share rights and responsibilities of child rearing
6
is not a compelling governmental interest which is required to survive the strict scrutiny with
which we judge a statute when a fundamental right is implicated.
[Headnote 1]
The right to travel encompasses three components, protecting
the right of a citizen of one State to enter and to leave another State, the right to be
treated as a welcome visitor rather than an unfriendly alien when temporarily present in
the second State, and, for those travelers who elect to become permanent residents,
__________

4
107 Nev. 378, 812 P.2d 1268 (1991).

5
Initially, Harrison argues that Reel's appeal is moot because Reel sought custody of the child for a one-year
period of time during Harrison's relocation to New Jersey. Since more than one year has passed from the time of
Reel's proposal, Harrison argues that the appeal should be dismissed as moot. We conclude this argument is
without merit.

6
See NRS 125.460.
become permanent residents, the right to be treated like other citizens of that State.
7

Although Saenz addresses the third component, the district court concluded that NRS
125C.200 violates the first component of the right to travel, namely, the right of a citizen of
one state to enter and to leave another state.
[Headnote 2]
The United States Supreme Court has held that a classification that ha[s] the effect of
imposing a penalty on the exercise of the right to travel violate[s] the Equal Protection Clause
unless shown to be necessary to promote a compelling governmental interest.'
8
It is this
language that the district court quoted in concluding that NRS 125C.200 violates the Equal
Protection Clause by treating custodial parents differently from noncustodial parents. Equal
protection requires that no class of persons shall be denied the same protection of the law
which is enjoyed by other classes in like circumstances.
9
However, we have recognized that
a supportable classification between individuals is not unconstitutional
10
so long as all
persons similarly situated [are] treated alike.'
11

[Headnote 3]
NRS 125C.200 requires a custodial parent seeking to relocate from Nevada with the
child to obtain the written consent of the noncustodial parent. If the noncustodial parent
refuses to consent, the custodial parent must petition the court for permission to move the
child. The purpose of the statute is to preserve the rights and familial relationship of the
noncustodial parent with respect to his or her child.
12
We conclude that the district court
erroneously engaged in an equal protection analysis since custodial and noncustodial parents
are not similarly situated.
We have stated that when analyzing a petition to relocate, a court must balance the
custodial parent's interest in freedom of movement as qualified by his or her custodial
obligation, the State's interest in protecting the best interests of the child, and the competing
interests of the noncustodial parent.
__________

7
Saenz, 526 U.S. at 500.

8
Id. at 499 (quoting Shapiro v. Thompson, 394 U.S. 618, 634 (1969)).

9
Allen v. State, Pub. Emp. Ret. Bd., 100 Nev. 130, 135, 676 P.2d 792, 795 (1984).

10
See Redmen v. State, 108 Nev. 227, 236, 828 P.2d 395, 401 (1992) (stating that [d]istinctions between
classes are constitutionally improper if the basic distinction between the classes is insupportable), overruled on
other grounds by Alford v. State, 111 Nev. 1409, 1415 n.4, 906 P.2d 714, 718 n.4 (1995).

11
DeRosa v. Dist. Ct., 115 Nev. 225, 235, 985 P.2d 157, 164 (1999) (quoting Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 439 (1985)).

12
Schwartz, 107 Nev. at 381-82, 812 P.2d at 1270.
competing interests of the noncustodial parent.'
13
A custodial parent's freedom of
movement is qualified to the extent that moving the child from Nevada may adversely affect
the noncustodial parent's visitation rights or might otherwise not be in the child's best interest.
14
Obviously, the responsibilities and obligations of custodial and noncustodial parents are so
different that the parties cannot be considered similarly situated.
15

[Headnotes 4, 5]
Because we hold that NRS 125C.200 does not implicate the Equal Protection Clause,
16
we now evaluate whether the district court abused its discretion by permitting Harrison to
move with the minor child based upon the factors set forth in Schwartz.
17
The district court
has wide discretion in determining what is in a child's best interest, and we will not disturb
the judgment absent an abuse of discretion.
18

[Headnote 6]
In Schwartz, this court articulated guidelines for the removal of a child from the state.
Custodial parents must first satisfy the threshold criteria that (1) moving will create a real
advantage for both the children and the custodial parent,
19
and (2) the custodial parent has
a sensible good faith reason for the move.'
20
In addition to economic factors, the court
should consider noneconomic factors, such as those likely to contribute to the well being
and general happiness of the custodial parent and children.
__________

13
Id. at 382, 812 P.2d at 1270 (quoting Holder v. Polanski, 544 A.2d 852, 855 (N.J. 1988)) (emphasis
added).

14
Holder, 544 A.2d at 856.

15
Other jurisdictions have concluded likewise when discussing child support obligations. See Coghill v.
Coghill, 836 P.2d 921, 929 (Alaska 1992) (stating that the custodial and noncustodial parents are clearly not
similarly situated for the purposes of child support); see also Boris v. Blaisdell, 492 N.E.2d 622, 630 (Ill. App.
1986) (providing custodial and noncustodial parents are not similarly situated' since, after divorce, the
custodial parent's responsibility for the child's support as well as care is general and plenary, while the
noncustodial parent's responsibility is usually limited to the requirements of the support order).

16
Because we hold that custodial and noncustodial parents are not similarly situated, we need not engage
further in an equal protection analysis. This court will not consider constitutional issues which are not necessary
to the determination of an appeal. Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212 (1979).

17
107 Nev. 378, 812 P.2d 1268.

18
See Adams v. Adams, 86 Nev. 62, 64, 464 P.2d 458, 459 (1970) (citing Cosner v. Cosner, 78 Nev. 242,
371 P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960); Black v. Black, 48 Nev. 220, 228 P.
889 (1924)).

19
Schwartz, 107 Nev. at 382, 812 P.2d at 1271.

20
Jones v. Jones, 110 Nev. 1253, 1261, 885 P.2d 563, 569 (1994) (quoting Cooper v. Cooper, 491 A.2d 607,
613 (N.J. 1984), modified by Holder, 544 A.2d 852).
being and general happiness of the custodial parent and children.
21

[Headnote 7]
Once the custodial parent has satisfied the threshold requirement, the court must
weigh the following factors:
(1) the extent to which the move is likely to improve the quality of life for both the
children and the custodial parent; (2) whether the custodial parent's motives are
honorable, and not designed to frustrate or defeat visitation rights accorded to the
noncustodial parent; (3) whether, if permission to remove is granted, the custodial
parent will comply with any substitute visitation orders issued by the court; (4) whether
the noncustodian's motives are honorable in resisting the motion for permission to
remove, or to what extent, if any, the opposition is intended to secure a financial
advantage in the form of ongoing support obligations or otherwise; (5) whether, if
removal is allowed, there will be a realistic opportunity for the noncustodial parent to
maintain a visitation schedule that will adequately foster and preserve the parental
relationship with the noncustodial parent.
22

[Headnote 8]
In weighing the above factors, the court must also consider a non-exhaustive list of
sub-factors, such as:
(1) whether positive family care and support, including that of the extended family, will
be enhanced; (2) whether housing and environmental living conditions will be
improved; (3) whether educational advantages for the children will result; (4) whether
the custodial parent's employment and income will improve; (5) whether special needs
of a child, medical or otherwise, will be better served; and (6) whether, in the child's
opinion, circumstances and relationships will be improved.
23

[Headnote 9]
After carefully considering the above factors, the district court concluded that
Harrison would have met her burden because of the career opportunities for Harrison, the
educational opportunities for the child, the opportunity to be near extended family and
Harrison's good faith reasons for the move, and because Reel would still have access to
reasonable visitation. Because substantial evidence in the record supports the district court's
findings, we conclude that the district court did not abuse its discretion in permitting
Harrison to remove the child from Nevada.
__________

21
Id. at 1260, 885 P.2d at 568.

22
Schwartz, 107 Nev. at 383, 812 P.2d at 1271.

23
Id.
permitting Harrison to remove the child from Nevada.
24
Accordingly, we affirm the district
court's order.
Young, C. J., Maupin, Shearing, Rose, Leavitt and Becker, JJ., concur.
____________
118 Nev. 889, 889 (2002) Reno v. Reno Police Protective Ass'n
THE CITY OF RENO and RENO POLICE DEPARTMENT, Appellants, v. RENO POLICE
PROTECTIVE ASSOCIATION and STATE OF NEVADA, LOCAL
GOVERNMENT EMPLOYEE-MANAGEMENT RELATIONS BOARD,
Respondents.
No. 37060
December 26, 2002 59 P.3d 1212
Appeal from a district court judgment denying appellants' petition for judicial review
and affirming the administrative decision of the Employee-Management Relations Board.
Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
City sought judicial review of decision of the Employee-Management Relations Board
(EMRB) finding that City had engaged in prohibited practice by unilaterally changing criteria
used to discipline police officers for off-duty conduct. The district court denied the petition
for judicial review. City appealed. The supreme court held that: (1) the EMRB was not
collaterally estopped from deciding issue by arbitrator's decision, (2) EMRB was not required
to defer to arbitrations, (3) document transmitted by e-mail was subject to attorney-client
privilege, and (4) evidence supported EMRB's decision that City could not change criteria
without negotiation.
Affirmed.
Patricia A. Lynch, City Attorney, and Donald L. Christensen, Deputy City Attorney,
Reno, for Appellants.
Frankie Sue Del Papa, Attorney General, and Dianna Hegeduis, Deputy Attorney
General, Carson City, for Respondent Local Government Employee-Management Relations
Board.
__________

24
Reel also argues that Harrison violated FJDCR 19(4) because she never served him with a copy of a
proposed district court order and because the order allegedly contained conclusions beyond those which the
district court stated at the hearing. Because it appears that the district court prepared its own order, it is not clear
that FJDCR 19(4) even applies. Regardless, Reel was not prejudiced by any potential violation of FJDCR 19.
Michael E. Langton, Reno, for Respondent Reno Police Protective Association.
When reviewing an administrative decision, supreme court is limited to determining whether the decision is legally sound and is
based upon substantial evidence.
When reviewing an administrative decision, supreme court conducts an independent de novo review of questions of law to
determine whether there has been a clear error of judgment.
With respect to an agency's decision concerning an issue of fact, supreme court will affirm the agency's decision if it is
supported by substantial evidence.
4. Judgment.
The doctrine of collateral estoppel precludes parties from relitigating issues that were actually decided and necessary to a
judgment in an earlier suit on a different claim between the same parties.
5. Arbitration.
Collateral estoppel applies to arbitration.
6. Labor Relations.
When a collective bargaining agreement is at issue, the arbitrator's award must be based on the collective bargaining agreement,
and the deference bestowed upon arbitration findings is not limitless.
7. Labor Relations.
Employee-Management Relations Board (EMRB) was not collaterally estopped from determining whether appropriate criteria
were used by City in disciplining police officers' off-duty conduct, even though arbitrator had already made determination regarding
use of the criteria because collective bargaining agreement did not grant arbitrator jurisdiction to determine whether City engaged in
unfair labor practice, and EMRB had exclusive jurisdiction over issues of unfair labor practice.
8. Labor Relations.
An unfair labor practice, which is within the exclusive jurisdiction of the Employee-Management Relations Board (EMRB),
includes the prohibited practice of unilaterally changing a subject of mandatory bargaining.
9. Labor Relations.
A function of the Employee-Management Relations Board (EMRB) is to determine whether a matter falls within the scope of
mandatory bargaining.
Employee-Management Relations Board (EMRB) is not estopped from determining issues previously decided by an arbitrator
when the EMRB has exclusive jurisdiction over the issue.
Employee-Management Relations Board (EMRB) defers to prior arbitration if: (1) the arbitration proceedings were fair and
regular, (2) the parties agreed to be bound, (3) the decision was not clearly repugnant to the purposes and policies of the
Employee-Management Relations Act (EMRA), (4) the contractual issue was factually parallel to the unfair labor practice
issue,
labor practice issue, and (5) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.
The party desiring the Employee-Management Relations Board (EMRB) to reject an arbitration award has the burden of
demonstrating that the principles of deferral are not met.
In police officer disciplinary proceedings, Employee-Management Relations Board (EMRB) was not required to defer to
arbitrations on issue of whether appropriate criteria were used by City because parties did not agree to be bound by arbitrator's decision
regarding mandatory subjects of bargaining, and arbitrator's decisions were repugnant to Employee-Management Relations Act
(EMRA).
14. Witnesses.
Documents transmitted by e-mail are protected by the attorney-client privilege as long as the requirements of the privilege are
met. NRS 49.095(1).
15. Witnesses.
Memorandum authored by City's labor relations manager and sent by e-mail to chief deputy city attorney, two deputy city
attorneys, and assistant city manager qualified for attorney-client privilege, even though City policy provided that employees had no
expectation of privacy in using City equipment and that electronic data transmissions using City hardware or software could be
classified as public documents.
Substantial evidence to support agency decision is evidence that a reasonable person would deem adequate to support a
decision.
Supreme court is limited to reviewing the agency record as it was presented before the administrative body in order to determine
whether substantial evidence existed. If the agency's decision lacks substantial evidentiary support, the decision is unsustainable as
being arbitrary or capricious.
Evidence supported finding of Employee-Management Relations Board (EMRB) that a fourth criterion was added, without
negotiation, to list of criteria used to discipline police officers for off-duty conduct; executive director of police union testified that
only three criteria had been used previously, and there was evidence that two other officers had engaged in off-duty misconduct and
had not been disciplined.
The construction of a statute is a question of law, and therefore, independent review is appropriate.
20. Statutes.
Supreme court will not readily disturb an administrative interpretation of statutory language.
Before changing criteria used to determine whether to discipline police officer for off-duty conduct, City was required to
negotiate; criteria were a past practice and hence became part of collective bargaining agreement. NRS 288.150.
OPINION
Per Curiam:
This is an appeal from a district court order affirming the Employee-Management
Relations Board's (EMRB's) decision regarding the discipline of police officers. The
judgment of the district court is affirmed.
FACTS
On October 13, 1996, nine off-duty Reno police officers were involved in an
altercation at Caesar's Tahoe, located in Douglas County, Nevada, resulting in the arrest of
two officers for disorderly conduct and battery. In a separate matter, another police officer
was implicated in an off-duty episode and disciplined in July 1996. The Reno Police
Protective Association (RPPA) represented the majority of the officers involved in both
incidents. At the time of these events, all parties to this appeal, as well as the disciplined
officers, were governed by a collective bargaining agreement (the contract) that expired in
June 1997. The contract was negotiated by the RPPA and the City and contained all subjects
of mandatory bargaining required by NRS 288.150.
On June 17, 1997, the RPPA filed an unfair labor practice complaint against the City
with the EMRB. The complaint alleged that the City engaged in a prohibited practice in
violation of NRS 288.270
1
by adopting new criteria for disciplining police personnel for
off-duty conduct without conducting mandatory negotiation as required by NRS 288.150. The
RPPA argued that, prior to these incidents, the City had used three criteria known as the
Robertson criteria, but when the City disciplined these officers, it added an additional
criterion. The Robertson criteria, defining when police officers could be disciplined for
off-duty misconduct, included:
(a) identifying oneself as a police officer, thus placing himself/herself on duty, (b) the
use of any tools of the police officer trade, such as handcuffs, gun, badge, identification,
etc., and (c) did a third person know the individual as a police officer or identified the
individual as a police officer.
The City added the following criterion: did the conduct impair the reputation or operations
of the police department. The EMRB deferred hearing the complaint because the RPPA was
simultaneously arbitrating whether just cause existed to discipline the officers.
__________

1
NRS 288.270(1)(e) provides that a local government employer is prohibited from [r]efus[ing] to bargain
collectively in good faith with the exclusive representative as required in NRS 288.150.
simultaneously arbitrating whether just cause existed to discipline the officers.
The arbitrations pertinent to this appeal concerned the disciplinary actions taken
against a police officer from the Caesar's Tahoe incident and the officer from the July 1996
incident. The same arbitrator heard both disputes. The arbitrator, in both arbitrations, was
presented with three issues: (1) whether the City had jurisdiction to discipline the grievant for
his off-duty conduct, and (2) if so, whether the grievant was disciplined for just cause under
the contract, and (3) if not, what the remedy should be. The arbitrator determined that the
Robertson criteria were not a clearly enunciated, or acted-upon, past practice. The arbitrator
found that just cause existed to discipline the officers.
After completion of the grievance-arbitration process, upon the RPPA's request, the
EMRB conducted a hearing on January 11, 2000, concerning the deferred complaint. At the
outset, the City argued that the EMRB was estopped from hearing the matter because the
arbitrations resolved the complaint. The EMRB decided to hear the matter because the
complaint involved allegations of an unfair labor practice, a subject over which the EMRB
has exclusive jurisdiction.
During the hearing, the EMRB admitted a memorandum over the City's claim of
attorney-client privilege. Rick Gonzales, the City's labor relations manager, authored the
memorandum and sent it by e-mail to the chief deputy city attorney, two deputy city
attorneys, and the assistant city manager. Ron Dreher, executive director of the RPPA, found
the memorandum on his desk sometime after the arbitrations, but did not know who placed
the document on his desk. The EMRB concluded that documents transmitted by e-mail are
not covered by the attorney-client privilege.
On February 29, 2000, based on the evidence before it, and without deferring to the
arbitrator's findings, the EMRB issued its decision. The EMRB found that the City's use of
the Robertson criteria was an established practice, which could only be changed through
negotiation pursuant to NRS 288.150, and that the City engaged in a prohibited practice by
unilaterally changing that criteria. The City petitioned the district court for judicial review.
The district court denied the petition, finding that the EMRB's decision was supported by
substantial evidence. The City filed this appeal.
DISCUSSION
[Headnotes 1-3]
When reviewing an administrative decision, this court is limited to determining
whether the decision is legally sound and is based upon substantial evidence.
based upon substantial evidence.
2
This court conducts an independent de novo review of
questions of law to determine whether there has been a clear error of judgment.
3
However,
with respect to an agency's decision concerning an issue of fact, this court will affirm the
agency's decision if it is supported by substantial evidence.
4

Collateral estoppel
[Headnotes 4-6]
The City argues that the EMRB was precluded from determining whether the
Robertson criteria were previously utilized in disciplining police officers' off-duty conduct
because the arbitrator, in both arbitrations, determined the criteria were not utilized. The
doctrine of collateral estoppel precludes parties from re-litigating issues that were actually
decided and necessary to a judgment in an earlier suit on a different claim between the same
parties.
5
Collateral estoppel applies to arbitration.
6
However, when a collective bargaining
agreement is at issue, the arbitrator's award must be based on the collective bargaining
agreement,' and the deference bestowed upon arbitration findings is not limitless.
7

[Headnote 7]
Under the contract, the arbitrator had jurisdiction to determine if just cause existed to
discipline the officers, but not to determine whether the City engaged in an unfair labor
practice.
8
The parties only submitted their contract grievances to arbitration and did not
agree to arbitrate their NRS 2SS.150
__________

2
SIIS v. Romero, 110 Nev. 739, 742, 877 P.2d 541, 542 (1994).

3
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634-35, 877 P.2d 1032, 1034 (1994).

4
Id. at 634, 877 P.2d at 1034.

5
University of Nevada v. Tarkanian, 110 Nev. 581, 598-99, 879 P.2d 1180, 1191 (1994), modified on other
grounds by Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 963 P.2d 465 (1998).

6
Int'l Assoc. Firefighters v. City of Las Vegas, 107 Nev. 906, 911, 823 P.2d 877, 880 (1991).

7
Id. at 910, 823 P.2d at 879 (quoting IBEW Local 396 v. Central Tel. Co., 94 Nev. 491, 493, 581 P.2d 865,
867 (1978)).

8
See Int'l Ass'n Firefighters v. Las Vegas, 112 Nev. 1319, 1323, 929 P.2d 954, 956 (1996) (finding that the
extent of arbitrators' jurisdiction over NRS Chapter 288 collective bargaining agreements depends upon the
construction of the agreement). The contract at issue provides that discipline must be for just cause and is subject
to review under the Article 28 grievance-arbitration procedures. Article 28(a) states that: The purpose of the . . .
grievance-arbitration procedure shall be to settle . . . disputes concerning the interpretation, application, and
enforcement of this Agreement raised by an employee or the Association.
agree to arbitrate their NRS 288.150 unfair labor practice claims.
9
Further, the contract itself
provides, in Article 28, that the arbitrator's decision is final and binding, unless the contract
provides otherwise. The contract later states in Article 31(b):
In the event the City intends to institute a change during the term of this Agreement of
a subject which falls within the scope of mandatory bargaining as outlined in
Subsection 2 of NRS 288.150, the City recognizes its duty to bargain with the
Association over said change. Disputes arising under this Article shall not be grievable
under Article 28 of this Agreement, but shall be submitted to the Nevada Local
Government Employee-Management Relations Board of resolution.
(Emphasis added.) The contract also states that the arbitrator's decision must be consistent
with the terms of the contract. Accordingly, disputes concerning a change in disciplinary
procedure, such as modification of the Robertson criteria, would be submitted to the EMRB,
10
and any factual finding or conclusion in an arbitration award concerning such modification
would not be final or binding.
[Headnotes 8-10]
This court has recognized that the EMRB has exclusive jurisdiction over unfair labor
practice issues.
11
An unfair labor practice includes the prohibited practice of unilaterally
changing a subject of mandatory bargaining.
12
A function of the EMRB is to determine
whether a matter falls within the scope of mandatory bargaining.
13
The EMRB has the duty
to administer NRS Chapter 288, and thus, is impliedly clothed with [the] power to construe
it as a necessary precedent to administrative action.
14
We conclude, therefore, that the
EMRB is not estopped from determining issues previously decided by an arbitrator when the
EMRB has exclusive jurisdiction over the issue. Thus, the EMRB did not err by hearing the
RPPA's unfair labor practice complaint.
__________

9
Cf. Rex, Inc. v. Manufactured Hous. Comm. of NM, 892 P.2d 947 (N.M. 1995) (holding that if a party
specifically agrees to arbitrate statutory claims, the private arbitration could bind an administrative body).

10
See NRS 288.150.

11
Rosequist v. Int'l Ass'n of Firefighters, 118 Nev. 444, 449, 49 P.3d 651, 654 (2002); NRS 288.110(2)
(stating that the EMRB hears and determines complaints arising out of NRS Chapter 288).

12
NRS 288.280 (providing that [a]ny controversy concerning prohibited practices may be submitted to the
board).

13
Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 446, 530 P.2d 114, 117 (1974).

14
Id.
Deferral
[Headnotes 11, 12]
The City argues that because the EMRB is patterned after the National Labor
Relations Board (NLRB), the EMRB is required to apply the deferral policy followed by the
NLRB.
15
This court has held that it is proper to look toward the NLRB for guidance on
issues involving the EMRB.
16
The NLRB defers to a prior arbitration if:
(1) the arbitration proceedings were fair and regular; (2) the parties agreed to be bound;
(3) the decision was not clearly repugnant to the purposes and policies of the [National
Labor Relations Act (NLRA)]; (4) the contractual issue was factually parallel to the
unfair labor practice issue; and (5) the arbitrator was presented generally with the facts
relevant to resolving the [unfair labor practice].
17

The party desiring the NLRB to reject an arbitration award has the burden of demonstrating
that these principles are not met.
18
We adopt the NLRB deferral policy and conclude that the
EMRB must apply these principles in determining whether to defer to an arbitration.
However, under these principles, the EMRB would not be required to defer to the arbitrations
in this case.
[Headnote 13]
First, the parties did not agree to be bound by the arbitrator's decision regarding
changes to mandatory subjects of bargaining.
19
In fact, the contract specifically stated that
disputes concerning changes to mandatory bargaining were to be submitted to the EMRB.
Further, under the contract, an arbitrator's decision as to negotiable subjects is not final, or
binding. When the NLRB has deferred to arbitration awards, the parties had specifically
agreed to be bound, under their collective bargaining agreement, to the arbitrator's decision on
that particular matter.
20

__________

15
See Rosequist, 118 Nev. at 449, 49 P.3d at 654.

16
Id.

17
Garcia v. N.L.R.B., 785 F.2d 807, 809 (9th Cir. 1986) (quoting Spielberg Manufacturing Co., 112
N.L.R.B. 1080, 1082 (1955)); see also Olin Corp., 268 N.L.R.B. 573, 574 (1984).

18
Olin, 268 N.L.R.B. at 574.

19
See Garcia, 785 F.2d at 809 (holding that for the deferral policy to apply, the parties must have agreed to
be bound by the arbitration).

20
See Utility Workers Union v. N.L.R.B., 39 F.3d 1210, 1213 (D.C. Cir. 1994) (finding that parties must
have contractually agreed to be bound by the [arbitration] (emphasis added)); Spielberg, 112 N.L.R.B. at 1087
(deferring to arbitration award because parties agreed that issue of reinstatement would be submitted to
arbitration).
Secondly, the arbitrator's decisions were repugnant to the Employee-Management
Relations Act (EMRA).
21
Under the NLRB deferral standard, the NLRB need not defer if the
arbitrator's decision is not susceptible to an interpretation consistent with the [NLRA].
22
Here, the EMRB has exclusive jurisdiction over alleged prohibited practices concerning
mandatory bargaining issues.
23
The arbitrator found that the City may unilaterally adopt
rules and enforce them with disciplinary action, as long as the rules are reasonable and not in
conflict with the law. Yet, under the EMRA, disciplinary procedure is a mandatory subject of
negotiation.
24
We conclude, therefore, that the EMRB was not required to defer to the
arbitrations in this particular matter.
E-mail and the attorney-client privilege
The EMRB admitted the Gonzalez memorandum, a document normally protected by
the attorney-client privilege, because the memorandum was transmitted by e-mail.
25
Under
the attorney-client privilege, a client may refuse to disclose, and . . . prevent any other person
from disclosing, confidential communications: [b]etween himself or his representative and
his lawyer or his lawyer's representative.
26
The EMRB is required by Nevada law to give
effect to the attorney-client privilege.
27
The EMRB concluded that documents sent by e-mail
cannot be considered privileged.
[Headnote 14]
Contrary to the EMRB's decision, documents transmitted by e-mail are protected by
the attorney-client privilege. Courts have generally looked to the content and recipients of the
e-mail to determine if the e-mail is protected.
28
California has enacted a statute providing
that
__________

21
See Garcia, 785 F.2d at 809 (holding that the deferral policy does not apply if the arbitrator's finding is
repugnant to the NLRA).

22
Olin, 268 N.L.R.B. at 574.

23
See Rosequist, 118 Nev. at 449, 49 P.3d at 654; NRS 288.110(2).

24
NRS 288.150(2)(i).

25
The RPPA stipulated that all individuals that received the Gonzales memorandum were covered by the
attorney-client privilege.

26
NRS 49.095(1).

27
NRS 233B.123(1) (stating that [a]gencies shall give effect to the rules of privilege recognized by law).

28
See Mold-Masters Ltd. v. Husky Injection Molding Systems, No. 01 C 1576, 2001 WL 1558303 (N.D. Ill.
Dec. 6, 2001) (considering whether e-mails contained communications concerning legal advice); Nat'l
Employment Service Corp. v. Liberty Mutual Insurance Co., No. 93-2528-G, 1994 WL 878920, at *2-3 (Mass.
Super. Ct. Dec. 12, 1994) (holding e-mails sent to or from an in-house counsel protected because contained legal
advice and plaintiff failed to prove e-mails were disclosed to third parties); U.S. v.
statute providing that [a] communication between a client and his or her lawyer is not
deemed lacking in confidentiality solely because the communication is transmitted by . . .
electronic means between the client and his or her lawyer.
29
Similarly, the American Bar
Association (ABA) has concluded that an attorney does not violate the confidentiality
provisions of the Model Rules of Professional Conduct by using e-mail as long as the client
has agreed to that mode of communication.
30
The ABA has also found that e-mails pose no
greater risk of interception or disclosure than other modes of communication commonly
relied upon as having a reasonable expectation of privacy and [t]he level of legal protection
accorded e-mail transmissions . . . supports the reasonableness of an expectation of privacy.
31
We conclude that a document transmitted by e-mail is protected by the attorney-client
privilege as long as the requirements of the privilege are met.
[Headnote 15]
The EMRB contends that the Gonzales memorandum was not confidential based on
City Management Policies and Procedures (policy) that cover the use of City computers. The
policy provides that employees have no expectation of privacy in using City equipment and
that [e]lectronic data transmissions using City hardware or software may be classified as
public documents. However, the policy is meant to deprive expectations of privacy only as
to personal use and warn employees that the City has the right to review personal documents
on City hardware. Such policies are common in workplaces. If a document transmitted by
e-mail could not be privileged based on such a policy, very few e-mails would be protected.
Further, the City's policy specifically encourages the use of e-mail for City business purposes
to increase the efficiency of communication between the departments. It seems unlikely that
the City would encourage such use for business if the City did not view these transmissions as
confidential. We conclude that the Gonzales memorandum was confidential, and therefore
privileged, despite the City's policy. Although the EMRB erred by admitting the Gonzales
memorandum, the error is harmless because substantial evidence supported the EMRB's
decision even without the memorandum.
__________
Keystone Sanitation Co., Inc., 903 F. Supp. 803 (M.D. Pa. 1995); Johnson v. Sea-Land Service, No. 99
CIV9161WHPTHK, 2001 WL 897185 (S.D.N.Y. Aug. 9, 2001); Yurick ex rel. Yurick v. Liberty Mut. Ins. Co.,
201 F.R.D. 465 (D. Ariz. 2001).

29
Cal. Evidence Code 952 (West 1995).

30
ABA Comm. On Ethics and Prof'l Responsibility, Formal Op. 413 (1999) (discussing the confidentiality of
unencrypted e-mail).

31
Id. at 1.
Substantial evidence
[Headnotes 16, 17]
Substantial evidence is evidence that a reasonable person would deem adequate to
support a decision.
32
This court is limited to reviewing the agency record as it was presented
before the administrative body in order to determine whether substantial evidence existed.
33
If the agency's decision lacks substantial evidentiary support, the decision is unsustainable as
being arbitrary or capricious.
34

[Headnote 18]
Ron Dreher, executive director of the RPPA, testified that the Robertson criteria were
the established procedure for imposing discipline on officers for off-duty conduct during
Police Chief Richard Kirkland's and Police Chief Robert Bradshaw's tenures. Further, the
RPPA submitted into evidence a letter from Deputy Chief of Police James Weston, the chief
in charge of the officers involved, to Dreher, in which Weston stated he looked toward four
factors for imposing discipline for off-duty conduct. The Robertson criteria are only
composed of three of those factors. Weston included the fourth factor of whether the
conduct impair[ed] the reputation or operations of the police department. The letter was
dated after the Caesar's Tahoe incident.
Dreher testified that Weston utilized the Robertson criteria until the Caesar's Tahoe
incident. During Weston's tenure, two other officers were involved in off-duty conduct
affecting the reputation of the police department. One of those officers was arrested for a
DUI, her picture was featured on the front page of the newspaper, and she was identified as
an officer. Another officer committed domestic violence and was also identified in the
newspaper as a police officer. Neither officer was disciplined. Based on this evidence in the
record, we conclude that substantial evidence supports the EMRB's decision that the
Robertson criteria were an established past practice, and that the fourth factor was added
without negotiation.
Mandatory subjects of negotiation
[Headnotes 19, 20]
The City contends that its discipline of the police officers for off-duty misconduct was
not a unilateral change of disciplinary procedure in violation of NRS 2SS.150.
__________

32
Schepcoff v. SIIS, 109 Nev. 322, 325, 849 P.2d 271, 273 (1993).

33
Employment Security Dep't v. Cline, 109 Nev. 74, 76, 847 P.2d 736, 738 (1993).

34
NRS 233B.135(3); State, Dep't Mtr. Veh. v. Root, 113 Nev. 942, 947, 944 P.2d 784, 787 (1997).
procedure in violation of NRS 288.150. The EMRB found otherwise. The construction of a
statute is a question of law, and therefore, independent review is appropriate.
35
However,
this court will not readily disturb an administrative interpretation of statutory language.
36
This court has held that [a]n agency charged with the duty of administering an act is
impliedly clothed with power to construe it as a necessary precedent to administrative action
[and] great deference should be given to the agency's interpretation when it is within the
language of the statute.'
37
The EMRB has the authority to interpret and administer NRS
Chapter 288.
38

[Headnote 21]
NRS 288.150(1) states that government employers must negotiate with employee
organizations concerning mandatory subjects of bargaining. NRS 288.150(2) provides a list
of these subjects, which includes [d]ischarge and disciplinary procedures. The EMRB
determined, based on substantial evidence, that the Robertson criteria established what
actions of an off-duty officer were punishable. The criteria are not included in the contract,
nor do they mention disciplinary procedure for off-duty conduct. However, the EMRB has
previously held that an employer may create, by practice over a substantial period of time, a
term or condition of employment which it is obligated to continue, subject to negotiation.
This notwithstanding the clear and unambiguous terms of the collective bargaining
agreement.
39
The EMRB determined that the Robertson criteria were a past practice and
hence became part of the contract.
Criteria used in determining whether to impose discipline on an individual for
off-duty conduct clearly fit within the definition of disciplinary procedure. Discipline
means to punish
40
while procedure is an established way of doing things.
41
The
Robertson criteria were the established criteria for determining punishable conduct of
off-duty officers. We conclude, therefore, the EMRB had substantial evidence on which to
base the determination that when the City added an additional criterion to the Robertson
criteria without negotiation, it failed to comply with NRS 288.150.
__________

35
Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).

36
Westergard v. Barnes, 105 Nev. 830, 834, 784 P.2d 944, 947 (1989).

37
State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (quoting Clark Co. Sch. Dist., 90
Nev. at 446, 530 P.2d at 117).

38
NRS 288.110.

39
Ormsby County Education Assoc. v. Carson City School Dist., No. A1-045527, Item No. 311, at 8 (EMRB
Apr. 1, 1993) (citation omitted).

40
Webster's Third New International Dictionary 645 (1968).

41
Id. at 1807.
CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court.
____________
118 Nev. 901, 901 (2002) Matter of Water Rights of Humboldt River
In the Matter of the Determination of the Relative Rights of the Claimants and Appropriators
of the Waters of the Humboldt River Stream System and Tributaries.
SOUTH FORK BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS
OF NEVADA; and MARVIN McDADE, in His Capacity as Chairman of the South
Fork Band Council, Appellants, v. STATE ENGINEER OF THE STATE OF
NEVADA and WATER COMMISSIONERS OF THE SIXTH JUDICIAL DISTRICT
COURT, Respondents.
No. 37094
December 26, 2002 59 P.3d 1226
Appeal from an order holding appellants in contempt of court pursuant to NRS
533.220 and NRS 22.100. Sixth Judicial District Court, Humboldt County; Richard Wagner,
Judge.
State Engineer filed petition seeking order to show cause why Indian tribe and Tribal
Council Chairman should not be held in contempt for preventing water commissioners from
diverting water in accordance with water rights decrees. The district court denied Tribe and
Chairman's motion to dismiss. They filed a petition for writ of prohibition. The supreme court
denied relief, South Fork Band, Te-Moak Tribe v. Dist. Ct., 116 Nev. 805, 7 P.3d 455 (2000).
On remand, the district court found Tribe and Chairman in contempt and sentenced Chairman
to suspended sentence of incarceration. Tribe and Chairman appealed. The supreme court
held that: (1) district court lacked authority to order Tribe to take legislative action; (2)
district court had authority to conditionally order Tribe to post bond of $10,000; and (3)
incarceration of Chairman was not warranted.
Affirmed in part and reversed in part.
Nevada Legal Services and Raymond Rodriguez, Carson City, for Appellants.
Frankie Sue Del Papa, Attorney General, and Paul G. Taggart, Deputy Attorney
General, Carson City, for Respondents.
1. Contempt.
Supreme court had jurisdiction over direct appeal from district court's contempt order, where proceeding arose in part from
contempt order issued as a final judgment under statute governing distribution of water rights by State Engineer. NRS 533.220.
2. Contempt.
When reviewing a contempt order on a direct appeal, as opposed to considering a writ petition, supreme court will overturn the
contempt order only where there has been an abuse of discretion.
3. Indians.
Under Indian Commerce Clause, district court lacked authority to order Indian tribe to enact resolution to provide safe
environment for water commissioners and allow access across reservation land. U.S. Const. art. 1, 8, cl. 3.
4. Indians.
The power to regulate an Indian tribe's external affairs lies with Congress. U.S. Const. art. 1, 8, cl. 3.
5. Contempt.
Statute governing distribution of water by State Engineer authorizes imposition of both criminal and civil contempt penalties.
NRS 533.220.
6. Contempt.
A civil contempt order must be conditional or indeterminatethat is, it must end if the contemnor complies.
7. Contempt.
A criminal contempt order must be determinate or unconditional, and it is not affected by any future action by the contemnor.
8. Indians.
Order requiring Indian tribe to post $10,000 bond if it violated injunctions in contempt order was a civil contempt order rather
than a criminal contempt order; condition was designed to coerce Tribe's compliance.
9. Contempt.
Courts have inherent power to enforce their decrees through civil contempt proceedings, and this power cannot be abridged by
statute.
10. Contempt.
A civil contempt order may be used to compensate the contemnor's adversary for costs incurred because of the contempt.
11. Indians.
District court had inherent authority to impose contempt order requiring Indian tribe, if it violated contempt order, to post bond
to reimburse State for extraordinary expenses incurred in protecting regulation of water diversion from future interference.
12. Contempt.
Government officials enjoy no absolute immunity from adjudications of contempt.
13. Contempt.
Courts should only use criminal contempt against a government official for acts performed in an official capacity when the
official has persistently refused to abide by court orders, or has persistently been disrespectful or disruptive in court proceedings.
14. Indians.
Incarceration for criminal contempt was not warranted by Tribal Council Chairman's actions to stop what he viewed as a
trespass by water commissioners on reservation land, based on ambiguous language in United States district court injunction;
at contempt hearing,
United States district court injunction; at contempt hearing, Chairman displayed willingness to cooperate with State officials and
district court.
OPINION
Per Curiam:
This appeal concerns the scope of a district court's power to enter orders of contempt,
and the standard upon which we must review such orders. When the legislature has provided
for a direct appeal of a district court's contempt order, we will review for abuse of discretion.
We hold that a district court's contempt power does not encompass the power to order an
Indian tribe to enact a legislative resolution. The district court may order that, if a contemnor
continues in its contempt, it must post a bond as security to cover costs incurred as a result of
the contempt. Additionally, the district court has the power to sentence a government official
to jail for criminal contempt committed in an official capacity, but, under the facts here, it
was an abuse of discretion to do so.
FACTS
Historical perspective
This appeal represents the latest chapter in more than 100 years of litigation over
water rights appurtenant to properties bordering the Humboldt River.
1
In 1913, responding
to protracted litigation over the Humboldt and other rivers, the Nevada Legislature enacted a
statutory system allowing the State Engineer to determine water rights from the State's rivers
and streams. After this court upheld this statutory scheme,
2
the State Engineer began a
lengthy process of determining water rights on the Humboldt River. This process concluded
in 1935, when the Sixth Judicial District Court entered a modified set of water rights decrees,
collectively known as the Humboldt Decree.
Among the properties covered by the Humboldt Decree were five privately-owned
ranches, which the United States purchased between 1937 and 1942 to create a reservation for
appellant South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada
(the Tribe). The original Humboldt Decree required affected landowners to pay a water
assessment fee, which the United States paid on behalf of the Tribe for some period of time
after creation of the reservation,
__________

1
For purposes of brevity and clarity, references to prior federal and state court proceedings involving the
parties in the present dispute will be cited as South Fork I, II, or III, based on their chronological order.

2
See Ormsby County v. Kearney, 37 Nev. 314, 350, 142 P. 803, 809-11 (1914).
United States paid on behalf of the Tribe for some period of time after creation of the
reservation, although it is disputed whether the Tribe ever paid the fee itself.
In order to control the flow of water to Tribal and private lands, the State Engineer
must periodically adjust diversions located on property known as the Gund Ranch, which is
adjacent to the reservation. The Gund Ranch diversion cannot reasonably be reached without
crossing the reservation. By early 1998, the United States had ceased paying the Tribe's
assessment fee. On March 8, 1998, the South Fork Band Council (the Tribal Council)
enacted a resolution that it would not pay the assessment fee and would not allow the State
Engineer access to adjust the Gund Ranch diversion.
After the Tribal Council refused to rescind its resolution, the State Engineer initiated
contempt proceedings in the Sixth Judicial District Court against Marvin McDade, the
Chairman of the Tribal Council, and the United States. The United States removed the matter
to the United States District Court for the District of Nevada.
3
The United States District
Court entered a preliminary injunction allowing the water commissioners onto the
reservation, but not across it. Later, the United States District Court remanded the matter to
the Sixth Judicial District Court,
4
but that order of remand is presently pending on appeal
before the United States Court of Appeals for the Ninth Circuit.
Procedural posture of the present litigation
The separate events leading to the present litigation started in 1998, after the Tribal
Council enacted a resolution that its ditch rider would adjust the Gund Ranch diversion,
and that the State of Nevada Water Master and employees must cease attempts to assess fees
and regulate South Fork waters.
It became clear in early 1999 that the Tribe's ditch rider was not regulating the water
in conformance with the Humboldt Decree. On September 13, 1999, Wayne Testolin,
Supervising Water Commissioner for the Humboldt Decree, and two other water
commissioners entered the reservation in order to reach the Gund Ranch diversion. A Tribal
police officer and Tribal Council Chairman McDade followed them. When the water
commissioners entered the Gund Ranch, the police officer stopped them and placed Testolin
under arrest for trespass. The Tribal officer then escorted Testolin off the reservation. There is
no indication that the Tribe attempted to prosecute Testolin.
__________

3
See State Engineer v. South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d 1163, 1165 (D. Nev. 1999)
(hereinafter South Fork I), vacated in part, 114 F. Supp. 2d 1046 (D. Nev. 2000) (hereinafter South Fork
III).

4
See South Fork III, 114 F. Supp. 2d at 1053.
On September 20, 1999, the State Engineer responded by issuing Order 1154, which
ordered the Tribe to allow the water commissioners access across the reservation. The Tribe
did not respond, and on November 9, 1999, the State Engineer filed a petition with the district
court seeking an order to show cause why the Tribe and McDade should not be held in
contempt of court.
5
After the district court denied the Tribe and McDade's motion to dismiss
the State Engineer's petition, they sought direct relief from this court by way of a writ of
prohibition, which we denied.
6
We held that the Tribe had waived sovereign immunity in
this matter, as the Sixth Judicial District Court had jurisdiction over the water rights
appurtenant to the reservation land before the reservation existed.
7

On remand, the district court engaged in a lengthy analysis of state and federal law,
and concluded that it had exclusive jurisdiction over the Humboldt River water rights. The
district court found the Tribe and McDade in contempt for preventing the water
commissioners, who are officers of the court, from enforcing the Humboldt Decree, and for
diverting water in violation of the Humboldt Decree.
The district court ordered McDade and the Tribe to refrain from interfering with the
water commissioners or from diverting water from the Humboldt River. It also sentenced
McDade to three days' imprisonment, but suspended the sentence. The court next ordered the
Tribe to enact a resolution to provide a safe environment for the [w]ater [c]ommissioners
and allow access to the tribal property by the [w]ater [c]ommissioners to carry out their duties
under the Humboldt Decree. The district court stated that, if the Tribe did not enact such a
resolution within thirty days, it would direct the Elko County Sheriff's Department to provide
protection to the water commissioners while on the reservation.
The district court next ordered that, should the Tribe fail to abide by these injunctions,
it would be required to post a $10,000 bond to cover the cost of security guards and/or
locking mechanisms to prevent the Tribe from diverting water in violation of the Humboldt
Decree. Finally, the district court ordered the Tribe to pay any extraordinary costs incurred in
enforcing the Humboldt Decree. The Tribe and McDade appeal, challenging: (1) the district
court's order that the Tribe enact the resolution; (2) the order that,
__________

5
The State Engineer also separately petitioned for an order to show cause against the United States for failure
to pay the assessment fees. The United States removed the petition to the United States District Court, but that
court remanded to the Sixth Judicial District Court. That order of remand is also pending on appeal before the
United States Court of Appeals for the Ninth Circuit.

6
South Fork Band, Te-Moak Tribe v. Dist. Ct., 116 Nev. 805, 7 P.3d 455 (2000) (hereinafter South Fork
II), cert. denied, 531 U.S. 1191 (2001).

7
Id. at 810-11, 7 P.3d at 458-59.
that, if the Tribe violates the contempt order, it must post a $10,000 bond; and (3) McDade's
suspended three-day jail sentence.
DISCUSSION
Jurisdiction and standard of review
[Headnote 1]
This is a direct appeal of the district court's contempt order. We held in Pengilly v.
Rancho Santa Fe Homeowners
8
that this court generally has no jurisdiction over appeals
from contempt orders, but rather, such orders must be challenged through a writ petition.
Pengilly relied on the fact that, in general, there is no statutory authority to appeal a contempt
order.
9
This proceeding, however, arises in part from a contempt order entered as a final
judgment under NRS 533.220, which expressly provides a right of appeal from the judgment
in like manner as appeals in other civil cases.
10
Accordingly, we have jurisdiction over this
direct appeal.
11

We also held in Pengilly that we will follow the standard of review applicable to the
particular writ petition involved.
12
This rule obviously does not apply here, where we
consider a direct appeal. Accordingly, we must determine which standard of review applies to
a direct appeal of a contempt order. The contempt power involves a court's inherent power to
protect dignity and decency in its proceedings, and to enforce its decrees.
13
A district court
generally has particular knowledge of whether a person has committed contempt.
14

__________

8
116 Nev. 646, 649-50, 5 P.3d 569, 571 (2000).

9
See id.

10
2. Upon the neglect or refusal of any claimant to the use of water as provided in this chapter to carry
out or abide by an order or decision of the state engineer acting as an officer of the court, the state
engineer may petition the district court having jurisdiction of the matter for a review of such order and
cause to be issued thereon an order to show cause why the order and decision should not be complied
with.
. . . .
5. Appeals from the judgment may be taken to the supreme court in like manner as appeals in other
civil cases; but notice of appeal must be served and filed within 40 days from the entry of judgment.

11
See NRAP 3A(b)(1).

12
Pengilly, 116 Nev. at 650, 5 P.3d at 571-72.

13
See Noble v. Noble, 86 Nev. 459, 463, 470 P.2d 430, 432 (1970), overruled on other grounds by Westgate
v. Westgate, 110 Nev. 1377, 1381, 887 P.2d 737, 739 (1994).

14
Pengilly, 116 Nev. at 650, 5 P.3d at 571-72.
[Headnote 2]
A discretionary standard gives proper deference to the district court's intricate
knowledge of the proceedings, and affords the district court sufficient leeway to exercise its
inherent power. Thus, when reviewing a contempt order on a direct appeal, as opposed to
considering a writ petition, we will overturn the contempt order only where there has been an
abuse of discretion.
15

Order to enact a resolution
[Headnote 3]
The district court ordered the Tribal Council to enact a resolution to provide a safe
environment for the water commissioners and allow access across reservation land. The State
Engineer characterizes this provision as an order to provide a Tribal police escort for the
water commissioners. The actual language of the order, however, does not mention Tribal
police. If the district court intended the words provide a safe environment to mean police
escort, then the provision is unenforceable due to vagueness.
16
We view the provision as
only requiring the Tribe to enact a resolution to abide by the injunctions of the contempt
order. However, as discussed below, we conclude that ordering the Tribe to take legislative
action constitutes a clear abuse of discretion by the district court.
[Headnote 4]
The Tribe argues that the district court's order requiring the Tribe to enact the
resolution violates the Indian Commerce Clause. The Indian Commerce Clause provides:
The Congress shall have Power . . . [t]o regulate Commerce . . . with the Indian Tribes.
17
The United States Supreme Court has explained that, under the Indian Commerce Clause,
the States . . . have been divested of virtually all authority over Indian commerce and Indian
tribes.
18
Indian tribes, as sovereign nations, have power to make their own substantive law
in internal matters.
19
The power to regulate an Indian tribe's external affairs lies with
Congress.
20

__________

15
See Guerin v. Guerin, 114 Nev. 127, 134, 953 P.2d 716, 721 (1998).

16
See State Indus. Ins. System v. Sleeper, 100 Nev. 267, 270, 679 P.2d 1273, 1275 (1984) (civil contempt
order is not enforceable unless it sets forth the details of compliance in clear, specific and unambiguous
terms ' (quoting Southwest Gas Corp. v. Flintkote Co., 99 Nev. 127, 131, 659 P.2d 861, 864 (1983) (quoting
Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967)))).

17
U.S. Const. art I, 8.

18
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62 (1996).

19
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).

20
See Boff v. Burney, 168 U.S. 218, 221-22 (1897).
Whether or not a resolution to obey a court order is viewed as an internal tribal matter
or as an external matter, a state court lacks the power to compel it. While the district court has
jurisdiction over the Tribe to ensure compliance with the Humboldt Decree,
21
this
jurisdiction does not extend to compelling legislative action by the Tribal Council. The
district court enjoined the Tribe from interfering with the water commissioners' access to the
water diversions. The Tribe must abide by this injunction regardless of any Tribal resolution.
The order to enact a resolution to provide a safe environment and allow the water
commissioners access was superfluous and exceeded the district court's jurisdiction.
Therefore, requiring the Tribe to take legislative action constituted an abuse of discretion by
the district court.
The State Engineer argues, however, that the Tribe agreed to enact this resolution.
Even assuming such an agreement could be valid, our review of the record indicates that
McDade only offered to present such a measure for the Tribal Council's vote. This offer did
not vest the district court with jurisdiction to order the Tribal Council to vote in favor of the
measure. Accordingly, we reverse that part of the district court's order that requires the Tribal
Council to enact a resolution, as an abuse of discretion. As noted, however, the district court
may, on remand, enter orders imposing direct injunctive relief in aid of the Humboldt Decree.
Bond requirement
The Tribe argues that the requirement that it post a $10,000 bond if it violates the
district court's order illegally imposes a fine in excess of the statutory maximum fine of $500
for criminal contempt under NRS 22.100.
22
The State Engineer responds that the district
court's order was not a penalty in a criminal contempt proceeding, but rather a civil contempt
order intended to coerce the Tribe into complying with the Humboldt Decree.
[Headnote 5]
The Tribe replies that the State Engineer initiated these contempt proceedings under
NRS chapter 22, and is, therefore, limited by NRS 22.100. The State Engineer's petition,
however, was brought under both NRS chapter 22 and NRS 533.220 and specifically requests
both civil and criminal contempt sanctions. By giving the district court supervisory control
over the State Engineer's distribution of water rights and the power to hold hearings on
violations of water rights decrees,
__________

21
South Fork II, 116 Nev. at 810-11, 7 P.3d at 458-59.

22
Upon the answer and evidence taken, the court or judge or jury, as the case may be, shall determine
whether the person proceeded against is guilty of the contempt charged; and if it be found that he is guilty
of the contempt, a fine may be imposed on him not exceeding $500, or he may be imprisoned not
exceeding 25 days, or both . . . .
distribution of water rights and the power to hold hearings on violations of water rights
decrees, NRS 533.220 implicitly authorizes the district court to impose civil contempt
penalties. The district court was not therefore limited to criminal contempt sanctions under
NRS 22.100. We must still determine, however, whether the $10,000 bond requirement is
civil or criminal in nature.
[Headnotes 6-8]
We have explained that the distinction between civil and criminal contempt is whether
the punishment is designed to coerce the contemnor into complying with a court order . . .
[or] is intended to punish the contemnor for disobeying a court order.
23
A civil contempt
order must be conditional or indeterminate that is, it must end if the contemnor complies.
24
A criminal contempt order must be determinate or unconditional . . . [and it] is not
affected by any future action by the contemnor.
25
This court has held that where the
punishment is punitive rather than coercive, we will view the proceedings to be criminal in
nature.
26
Here, the district court ordered that the Tribe would have to post a $10,000 bond
only if it violated the injunctions in the contempt order. This condition was designed to
coerce the Tribe's compliance. Thus, this is a civil contempt order, regardless of the district
court's motive.
27

[Headnotes 9-11]
Courts have inherent power to enforce their decrees through civil contempt
proceedings, and this power cannot be abridged by statute.
28
A civil contempt order may be
used to compensate the contemnor's adversary for costs incurred because of the contempt.
29
The contempt order here required the Tribe, if it violated the contempt order, to post a bond
to reimburse the State for extraordinary expenses incurred in protecting regulation of the
Gund Ranch diversion from future interference. Such an order is within the district court's
inherent power and is not necessarily restricted or controlled by NRS 22.100.
__________

23
Warner v. District Court, 111 Nev. 1379, 1383, 906 P.2d 707, 709 (1995) (discussing Hicks v. Feiock, 485
U.S. 624, 633-35 (1988)).

24
Id. at 1383, 906 P.2d at 709.

25
Id.

26
See id. at 1379, 906 P.2d at 707; see also City Council of Reno v. Reno Newspapers, 105 Nev. 886, 784
P.2d 974 (1989).

27
Cf. Reno Newspapers, 105 Nev. at 893, 784 P.2d at 979 (concluding that while the contempt proceeding
had some aspects of civil contempt, the primary purpose was to punish those who violated the injunction, and
therefore was criminal in nature); see also Ex parte Sweeney, 18 Nev. 74, 76, 1 P. 379, 380 (1883) (holding
that a fine was punitive in nature and therefore it was a criminal contempt proceeding).

28
See Noble, 86 Nev. at 463, 470 P.2d at 432.

29
See State, Dep't Indus. Rel. v. Albanese, 112 Nev. 851, 856, 919 P.2d 1067, 1070-71 (1996).
restricted or controlled by NRS 22.100. We affirm that part of the district court's order
requiring the Tribe to post a bond should it violate the valid portions of the contempt order in
the future.
Jail sentence
The district court imposed a suspended three-day sentence against McDade for his
action in detaining the water commissioners. McDade argues that he has absolute immunity
from contempt orders for acts undertaken in an official capacity. This was an order exercising
criminal contempt powers.
This court in South Fork II held that the purchase of the Tribe's reservation land
effected a valid waiver of sovereign immunity, and that [t]he Sixth Judicial District has the
authority to hold in contempt those who interfere with or frustrate the actions of the state
engineer or water commissioners in the administration of the Humboldt Decree.
30
Accordingly, the State Engineer argues that the Tribe's claim of immunity was raised in South
Fork II and rejected. While the question of sovereign immunity was raised and resolved in
South Fork II, the question of absolute immunity of a tribal official acting in that capacity,
and the federal policy that protects tribal self-government, was not.
[Headnotes 12, 13]
Relying on cases giving tribal councils and officials immunity from civil liability, the
Tribe argues by analogy that it is immune from civil and criminal orders of contempt. We
disagree. Contempt powers involve a court's ability to control proceedings before it and to
enforce its orders and are not susceptible to analogy to tribal immunity from civil liability in
connection with claims for damages,
31
declaratory, or prospective injunctive relief.
32
Because we conclude that immunity for government officials would thwart the purpose
behind a court's contempt power, we hold that, as a matter of public policy, government
officials enjoy no absolute immunity from adjudications of contempt. Therefore, McDade
was not immune from the district court's contempt order. Our decision is bolstered by the
United States Supreme Court's dictum in Hutto v. Finney,
__________

30
South Fork II, 116 Nev. at 810, 7 P.3d at 458 (citing State v. District Court, 52 Nev. 270, 286 P. 418
(1930)).

31
See Dillon v. Yankton Sioux Tribe Housing Auth., 144 F.3d 581 (8th Cir. 1998); Val-U Constr. Co. v.
Rosebud Sioux Tribe, 146 F.3d 573 (8th Cir. 1998); Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1067
(1st Cir. 1979); GNS v. Winnebago Tribe of Nebraska, 866 F. Supp. 1185 (N.D. Iowa 1994); Cameron v. Bay
Mills Indian Community, 843 F. Supp. 334, 336 (W.D. Mich. 1994).

32
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978); see also Imperial Granite Co. v. Pala Band
of Mission Indians, 940 F.2d 1269 (9th Cir. 1991).
Supreme Court's dictum in Hutto v. Finney,
33
stating that a government official may be held
in civil or criminal contempt, possibly even imprisoned. While it appears that a criminal
contempt jail sentence is rarely, if ever, imposed against a government official for official
acts, a government official may be jailed until he or she complies with a court order.
34
Such
a civil contempt order, however, allows the government official to leave prison by complying
with the court order. A criminal contempt order, in contrast, imposes an absolute sentence,
which the official cannot escape; this is what occurred here. It is important to note that a
contempt order against a government official for official acts applies against the office, not
the individual.
35
Courts should only use criminal contempt against a government official for
acts performed in an official capacity when the official has persistently refused to abide by
court orders, or has persistently been disrespectful or disruptive in court proceedings.
[Headnote 14]
Here, McDade acted to stop what he viewed as a trespass on the reservation land,
based on ambiguous language in a United States district court injunction. At the contempt
hearing, McDade displayed a willingness to cooperate with the State Engineer and the district
court. This is not the sort of persistent disregard of a court order that justifies incarceration for
criminal contempt.
We therefore reverse that portion of the order imposing a suspended three-day jail
sentence against McDade.
CONCLUSION
District courts have discretion to find contempt and impose sanctions. Here, however,
the district court abused its discretion in ordering an Indian tribe to undertake legislative
action. Additionally, the district court abused its discretion by sentencing the Tribal Council
Chairman to a suspended jail sentence for an official act, as such a sanction should only be
used as a last resort when the government official persistently refuses to obey a court order.
We reverse the portions of the district court's contempt order directing the Tribe to adopt
legislation and imposing a suspended sentence on the Tribal Chairman, and affirm the
remainder of the order.
36

__________

33
437 U.S. 678, 690-91 (1978).

34
Cf. Swett v. Schenk, 792 F.2d 1447 (9th Cir. 1986).

35
See Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir. 1993); Bd. of Supervisors v. Superior Ct.
(Armstrong), 39 Cal. Rptr. 2d 906, 918 (Ct. App. 1995).

36
We deny the State Engineer's request that we determine exclusivity jurisdiction by the state court system
over all matters arising in connection with the Humboldt Decree.
____________
118 Nev. 912, 912 (2002) Gumm v. Mainor
JOHN GUMM, Appellant, v. W. RANDALL MAINOR, Esq.; THOMAS J. MURPHREY,
Esq.; ADVANCED ORTHOPEDIC CARE ASSOCIATES; LOUIS MORTILLARO,
Ph.D.; ADVANCED PAIN INSTITUTE nka CENTENNIAL SPINE AND PAIN
CENTER; ADVANCED PROSTHETICS AND ORTHOTICS; AFFORDABLE
HEARING CENTERS; ASSOCIATED PATHOLOGISTS; DIAGNOSTIC
IMAGING OF SOUTHERN NEVADA; KELLY G. HAWKINS & ASSOCIATES;
HEALTHSOUTH REHAB; INFINITY CAPITAL MANAGEMENT; MICHAEL
KRIEGER, M.D.; ORTHOFIX, INC.; SURGICARE/MEDICAL ACQUISITIONS,
INC.; LAKE MEAD HOSPITAL MEDICAL CENTER; LAKE MEAD
RADIOLOGISTS; LAS VEGAS THERAPY & DIAGNOSTIC CENTER; OPTION
HOME HEALTH CARE; and PAIN INSTITUTE OF NEVADA, Respondents.
No. 38424
December 26, 2002 59 P.3d 1220
Jurisdictional screening of an appeal from a post-judgment order, entered in a
personal injury action, which adjudicated various liens, directed disbursement of more than
$127,000 in court-held judgment funds to lienholders on their liens, and reserved more than
$18,500 for possible future distribution to lienholders for attorney fees, costs and interest.
Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge.
Patron who slipped and fell in grocery store brought personal injury action against
grocery store and maintenance company. After trial, patron's trial attorney moved to
adjudicate lienholders' claims to judgment proceeds. The district court ordered distribution of
funds to lienholders and patron's trial attorney. Patron appealed. The supreme court held that
order distributing funds was appealable special order made after final judgment.
Jurisdiction clarified and appeal allowed to proceed.
Myers & Spretnak, Las Vegas, for Appellant.
Albright Stoddard Warnick & Albright, Las Vegas, for Respondent Krieger.
Christensen & Boggess, Las Vegas, for Respondent Orthofix.
Deaner, Deaner, Scann, Malan & Larsen, Las Vegas, for Respondent Advanced Pain
Institute.
Glen J. Lerner & Associates and Craig K. Perry, Las Vegas, for Respondent
Surgicare.
118 Nev. 912, 913 (2002) Gumm v. Mainor
Mainor Harris Law Center, Las Vegas, for Respondent Mainor.
Thomas J. Murphrey, Las Vegas, for Respondent Murphrey.
Kathleen M. Paustian, Las Vegas, for Respondent Infinity Capital Management.
Simon Law Office, Las Vegas, for Respondents Advanced Orthopedic & Mortillaro.
Jeffrey J. Whitehead, Henderson, for Respondent Diagnostic Imaging.
To be appealable, a special order made after final judgment must be an order affecting the rights of some party to the action,
growing out of the judgment previously entered, and it must be an order affecting rights incorporated in the judgment. NRAP 3A(b)(2).
Order distributing judgment proceeds in personal injury action to medical lienholders and to plaintiff's trial attorney was special
order made after final judgment. Thus, supreme court had jurisdiction to hear appeal, where order affected plaintiff's right to
distribution of judgment proceeds. NRAP 3A(b)(2).
OPINION
Per Curiam:
This appeal from a post-judgment order provides us with an opportunity to clarify
what constitutes a special order made after final judgment, which is substantively appealable
under NRAP 3A(b)(2). We have generally held that a post-judgment order, to be appealable,
must affect the rights of the parties growing out of the final judgment, but this standard has
proved inadequate. Here, for example, the order does not technically affect the rights of the
parties growing out of the final judgment, but only the rights of the plaintiff, his trial
attorneys and various lienholders to receive judgment proceeds. Yet, the order would have
qualified as an appealable order under an earlier interpretation of the rule, which required
only that it affect some party's rights growing out of the judgment. We conclude that the
earlier interpretation is the preferable one since the more recent and narrower interpretation
contradicts the broad language of NRAP 3A(b)(2), which permits an appeal from any special
order made after final judgment.
118 Nev. 912, 914 (2002) Gumm v. Mainor
[Headnote 1]
Thus, to be appealable under NRAP 3A(b)(2), a special order made after final
judgment must be an order affecting the rights of some party to the action, growing out of the
judgment previously entered. It must be an order affecting rights incorporated in the
judgment. The order being appealed in this case clearly qualifies: it affects the plaintiff's right
to distribution of the judgment proceeds. We conclude that we have jurisdiction, and that the
appeal may therefore proceed.
FACTS AND PROCEDURAL HISTORY
Appellant John Gumm sued Albertson's, Inc., and Top Quality Maintenance for
personal injuries he sustained in a grocery store slip and fall accident. Gumm settled with the
maintenance company for its $500,000 insurance policy limits, and proceeded to trial against
Albertson's. A jury awarded Gumm more than $1.8 million (to be reduced by thirty percent
for his own fault). Gumm's settlement and award were subject to more than $120,000 in
medical provider lien claims, and a claim in an unspecified amount for his trial attorneys'
costs and fees. A dispute arose between Gumm and his trial attorneys, Randall Mainor and
Thomas Murphrey, regarding the validity of the medical liens and the amount of their
attorney fees. Gumm hired another attorney to help him resolve the dispute.
Mainor then filed a motion to interplead trust funds. Gumm apparently opposed the
motion on the basis that Mainor needed to file a separate complaint for interpleader under
NRCP 22. At the May 31, 2001 hearing on the motion, however, and in its June 6, 2001
order, the court (1) ruled that Mainor's motion was to be treated as a motion to adjudicate lien
claimants, (2) ordered that the $145,655.80 held in the attorneys' trust fund to cover medical
liens be deposited with the court clerk, (3) gave Gumm fifteen days within which to file
objections to lien claims, and (4) rescinded Mainor's agreement to reduce Gumm's
outstanding costs by $2,500. The court granted Gumm's request for NRCP 54(b) certification,
and Gumm appealed.
Gumm's appeal was docketed in this court on June 25, 2001, as No. 38079, and
dismissed for lack of jurisdiction on December 4, 2001, because no statute or court rule
permits an appeal from a post-judgment order electing to treat a motion to interplead funds as
a motion to adjudicate lien claimants, and the NRCP 54(b) certification was improper.
Meanwhile, on August 2, 2001, the district court entered another order on the
renamed motion to adjudicate lienholder claims. The court found that (1) the case had
proceeded in an orderly manner and it had jurisdiction to rule on the motion; (2) the liens
were valid; (3) Mainor did not breach his fiduciary duty to Gumm and properly deposited
the disputed lien funds with the court for disbursement;
118 Nev. 912, 915 (2002) Gumm v. Mainor
to Gumm and properly deposited the disputed lien funds with the court for disbursement; and
(4) the court had previously disclosed all relationships that could constitute a conflict of
interest and there had been no recusal motion, so there was no basis for recusal at the later
date. The court ordered distribution of $124,598.16 to the lienholders and $2,500 to Mainor,
and reserved the remaining $18,557.64 on deposit with the court for possible future
disbursement to the lienholders for attorney fees, costs and interest. The court granted
Gumm's request for NRCP 54(b) certification, and Gumm appealed.
DISCUSSION
[Headnote 2]
The jurisdictional question presented is a recurring one that needs clarification. Under
NRAP 3A(b)(2), with an exception not applicable here, an aggrieved party may appeal from
any special order made after final judgment.
1
Since 1957, we have cited or quoted
Wilkinson v. Wilkinson
2
as the seminal case establishing the following standard for such
special orders:
The mere fact that the order in point of time is made after a final judgment has been
entered does not render it appealable. It must affect the rights of the parties growing out
of final judgment.
No published case analyzes Wilkinson, however, or examines the cited authority upon which
this standard rests, although another divorce case has chosen a different analytical framework
for deciding whether an order denying a motion to amend a decree is appealable as a special
order made after final judgment.
3

__________

1
Formerly NRCP 72(b). Effective July 1, 1973, NRCP 72 through 76A were abrogated and replaced by the
Nevada Rules of Appellate Procedure. Before January 1, 1953, the effective date of the Nevada Rules of Civil
Procedure, the right to appeal was fixed solely by statute.

2
73 Nev. 143, 145, 311 P.2d 735, 736 (1957).

3
Burton v. Burton, 99 Nev. 698, 700, 669 P.2d 703, 705 (1983), held that a different analysis applies in the
context of an order denying a motion to amend a divorce decree, when the motion is based upon changed
circumstances and the moving party is not attacking the original judgment; in such cases, the order adjudicates
the facts and law at issue in the motion, and is appealable as a special order made after final judgment. Wilkinson
is cited in four other published opinions for the proposition that a post-judgment order may be appealed only if it
affects the rights of the parties growing out of final judgment: Wohlers v. Bartgis, 114 Nev. 1249, 1269 n.10,
969 P.2d 949, 963 n.10 (1998) (order denying post-judgment motion for post-judgment interest on punitive
damages not appealable as special order, but appeal construed as one from final judgment that failed to award
post-judgment interest); Koester v. Estate of Koester, 101 Nev. 68, 72, 693 P.2d 569, 572-73 (1985) (portion of
order construing original and amended divorce decrees not appealable as special order, but portion entering
original decree nunc pro tunc is); Alvis v.
118 Nev. 912, 916 (2002) Gumm v. Mainor
Wilkinson is a divorce and custody case. Such cases, by their very nature, may entail
numerous post-judgment proceedings over a period of years as the parties' circumstances
change and modifications are required. In Wilkinson, the court granted the wife a divorce
decree in 1952, which contained child custody and property settlement provisions. In March
1953, the court entered an order implementing the decree by restraining the husband from
disposing of any of his property. In November 1955, the husband moved to dissolve the
restraining order on the basis that it was no longer needed. The wife then moved for
allowances so that she could oppose the motion, and the court ordered the husband to pay
$500 in preliminary attorney fees. The husband appealed from that order.
4
The wife moved
to dismiss, and this court was faced with the question whether the husband's appeal was from
any special order made after final judgment.'
5

Apart from its summary of the facts and procedure, the Wilkinson court's entire
decision consists of two short paragraphs:
The mere fact that the order in point of time is made after a final judgment has been
entered does not render it appealable. It must affect the rights of the parties growing out
of final judgment. Tardy v. Tarbell, 54 Nev. 342, 16 P.2d 656.
The order here bears no relation to the final judgment or to its operation or
enforcement. It relates instead to the proceedings which remain pending, and in relation
to those proceedings is ancillary and interlocutory to the same degree as an order for
allowances pending final decree is ancillary and interlocutory to the principal action.
The nature of this order, then, is not that of an order after final judgment but of an
interlocutory order ancillary to pending proceedings.
6

The Wilkinson decision has been expanded beyond the boundaries established by the
facts of the case. Certainly, the order appealed from in Wilkinson is quite different from that
appealed from in this case and, apart from the broad language in the first paragraph above,
Wilkinson provides little guidance for determining whether the order before us is an
appealable special order made after final judgment.
__________
State, Gaming Control Bd., 99 Nev. 184, 186, 660 P.2d 980, 981 (1983) (order denying rehearing not
appealable as special order, though order granting rehearing is); and Katleman v. Katleman, 74 Nev. 141, 325
P.2d 420 (1958) (order denying wife's post-decree motion for allowances also unappealable as special order).
Wilkinson is cited more peripherally in two additional published opinions: Casino Operations, Inc. v. Graham,
86 Nev. 764, 765 n.1, 476 P.2d 953, 954 n.1 (1970); and Levinson v. Levinson, 74 Nev. 160, 162, 325 P.2d 771,
772 (1958).

4
73 Nev. at 144, 311 P.2d at 736.

5
Id. (quoting former NRCP 72(b)).

6
Id. at 145, 311 P.2d at 736.
118 Nev. 912, 917 (2002) Gumm v. Mainor
In the case cited by Wilkinson, Tardy Et Al. v. Tarbell Et Al.,
7
this court was also
faced with a motion to dismiss and, again, the case is unusual. The appeal arose out of the
interaction between parties in two separate district court cases. A judgment was entered for
plaintiff Tarbell in the first case, Tarbell v. Black Canyon Holding Co., No. 3107. The
plaintiff in the second case, Tardy v. Tarbell, No. 3495, then (1) obtained a writ of attachment
in the second case levied against the indebtedness evidenced by the judgment in the first case,
and (2) obtained a judgment in the second case against defendant Tarbell for $3,635. Shortly
thereafter, execution was issued in the first case and levied on real property belonging to
defendant Black Canyon. Before the scheduled sale under the execution, plaintiff Tardy in the
second case moved in the first case to recall and quash the execution. The district court in the
first case denied the motion, and Tardy and another person from the second case appealed.
Tarbell moved to dismiss.
8

This court first concluded that the order refusing to quash and recall the execution was
not appealable as a special order made after final judgment. In doing so, the Tardy court
reviewed the construction given this phrase by other courts and endorsed the following
expression of the principle by the Montana Supreme Court:
The special order, made after final judgment, from which an appeal lies, must be an
order affecting the rights of some party to the action, growing out of the judgment
previously entered. It must be an order affecting rights incorporated in the judgment.
9

The Tardy court then distinguished the Nevada case upon which the appellants relied,
Comstock Mill & Mining Co. v. Allen,
10
in which this court had earlier said: The statute
provides for an appeal from any special order made after judgment.' The right is given
without limitation or restriction. The Tardy court explained that the language in Comstock
was broad enough to support the appellants' contention that the order was appealable, but
because the appeal in that case was from an order retaxing costsclearly an order
contemplated by the statute as a special order after final judgmentthe court's broad
language was mere dictum that was of no consequence as an authority.
11
The court did not
explain why it concluded that an order retaxing costs was clearly a special order after
final judgment, while an order refusing to quash and recall execution was not.
__________

7
54 Nev. 342, 16 P.2d 656 (1932).

8
Id. at 343-44, 16 P.2d at 656-57.

9
Id. at 345, 16 P.2d at 657 (quoting Chicago, M. & St. P. Ry. Co. v. White, 93 P. 350, 351 (Mont. 1908)).

10
21 Nev. 325, 328, 31 P. 434, 435 (1892).

11
54 Nev. at 345, 16 P.2d at 657.
118 Nev. 912, 918 (2002) Gumm v. Mainor
explain why it concluded that an order retaxing costs was clearly a special order after final
judgment, while an order refusing to quash and recall execution was not.
Ironically, after discussing what constitutes a special order made after final judgment
and the inadequacy of dicta as supporting authority, the Tardy court then ruled: The
appellants, not being parties to the action, have no right to be heard, or to appeal from said
order. Hence the appeal must be dismissed.
12
The Tardy court's opinion thus suffers from
the same flaw as the Comstock court's opinionit is dictum that is of no consequence as an
authority.
In Comstock, the appeal was from an order regarding costs, which was entered after
dismissal of the water rights action.
13
In deciding that it had jurisdiction, this court noted that
the controlling statute provided for an appeal from certain preliminary orders, from the final
judgment or from any special order made after judgment. The right to appeal from a
post-judgment special order was, according to the court, of equal right and dignity with the
right to appeal from the judgment, and was given without limitation or restriction.
14
The
court held that the fact that the appellant had consented to the judgment and had lost his right
to appeal from the judgment did not affect his right to appeal from the order assessing costs;
the order was entered after the judgment and the plain language of the statute provided for an
appeal.
15

Wilkinson, Tardy and Comstock provide an inadequate basis for deciding what
constitutes an appealable special order made after final judgment. The best authority on this
issue provided by these cases is the Montana Supreme Court's opinion, in Chicago,
Milwaukee & St. Paul Railway Co. v. White,
16
which holds that an appealable special order
made after final judgment
must be an order affecting the rights of some party to the action, growing out of the
judgment previously entered. It must be an order affecting rights incorporated in the
judgment.
Wilkinson, although it relies indirectly upon this interpretation of the phrase, changes it and
states that the order must affect the rights of the parties growing out of final judgment.
17
There is neither explanation nor apparent reason in Wilkinson for requiring that the order
affect the rights of the parties instead of the rights of any party,
__________

12
Id. at 346, 16 P.2d at 657.

13
21 Nev. 325, 31 P. 434.

14
Id. at 328, 31 P. at 435.

15
Id. at 328-30, 31 P. at 435.

16
93 P. 350, 351 (Mont. 1908). Montana, like Nevada, allows appeals in civil cases from any special order
made after final judgment. M.R. App. P. 1(b)(2).

17
73 Nev. at 145, 311 P.2d at 736 (emphasis added).
118 Nev. 912, 919 (2002) Gumm v. Mainor
neither explanation nor apparent reason in Wilkinson for requiring that the order affect the
rights of the parties instead of the rights of any party, and the narrower interpretation
contradicts the broad language of NRAP 3A(b)(2), formerly NRCP 72(b), which permits an
appeal from any special order made after final judgment.
The district court's August 2, 2001 order in this case affected Gumm's right to the
money he was awarded on judgment through settlement or jury verdict. The district court's
order deprived Gumm of part of his judgment and distributed that money to others who
claimed a right to it. The order is analogous to orders adjudicating attorney liens and
awarding attorney fees and costs. This court has noted that a district court order awarding
attorney fees and costs is a special order made after final judgment that is appealable by a
party,
18
and it has allowed a client party to appeal from a post-judgment order adjudicating
an attorney's lien and awarding fees and costs.
19
Whether the district court properly
adjudicated the medical liens by post-judgment motion instead of in a separate proceeding is
one of the issues on appeal. Under the circumstances, it would be neither fair nor reasonable
to require Gumm to challenge the district court's distribution of part of his judgment proceeds
to medical lien claimants by writ petition, on the basis that the distribution order is not an
appealable special order made after final judgment; whereas, had the order distributed part of
his judgment solely to his attorneys, he could have appealed on the basis that the order was an
appealable special order made after final judgment.
Nevertheless, under Wilkinson's holding that an appealable special order made after
final judgment is one affecting the rights of the parties growing out of the final judgment, the
order at issue technically does not qualify. The order does not affect the rights of the
defendants, Top Quality Maintenance or Albertson's, who pay the same amount regardless
how the judgment is subsequently distributed. (The same may be said of a post-judgment
order adjudicating an attorney's lien and awarding fees and costs, from which a party is
permitted to appeal.) The Wilkinson interpretation is at odds with the rule's language, as well
as with the precedent the case relies upon in formulating the definition, and with the cases
that have allowed a party to appeal from a post-judgment order adjudicating an attorney's lien
and awarding attorney fees and costs.
This lack of clarity violates the fundamental principle that jurisdictional rules should
be simple and clear.
20
Therefore, we take this opportunity to clarify what constitutes a
special order made after final judgment, which is independently appealable under NRAP
3A{b){2).
__________

18
Smith v. Crown Financial Services, 111 Nev. 277, 280 n.2, 890 P.2d 769, 771 n.2 (1995).

19
Van Cleave v. Osborne, Jenkins & Gamboa, 108 Nev. 885, 840 P.2d 589 (1992).

20
Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987).
118 Nev. 912, 920 (2002) Gumm v. Mainor
this opportunity to clarify what constitutes a special order made after final judgment, which is
independently appealable under NRAP 3A(b)(2). We reject the Wilkinson interpretation, and
we adopt the Montana interpretation first endorsed in Tardy.
A special order made after final judgment, to be appealable under NRAP 3A(b)(2),
must be an order affecting the rights of some party to the action, growing out of the judgment
previously entered. It must be an order affecting rights incorporated in the judgment. Here,
the order being appealed affects Gumm's right to receive his judgment proceeds.
CONCLUSION
We conclude that the district court's August 2, 2001 order is appealable as a special
order made after final judgment and that we have jurisdiction over this appeal. Accordingly,
we reinstate the briefing schedule and preparation of transcripts.
21
Court reporter Kris
Cornelius shall have thirty days from the date of this opinion to comply with the provisions of
NRAP 9(b). Appellant shall have one hundred days from the date of this opinion within
which to file and serve the opening brief. Thereafter, briefing shall proceed in accordance
with NRAP 31(a)(1).
____________
118 Nev. 920, 920 (2002) Matter of Application of Duong
In the Matter of the Application of HUNG PHUC DUONG for an Order to Seal Records.
HUNG PHUC DUONG, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 39684
December 26, 2002 59 P.3d 1210
Motion to dismiss appeal from a district court order denying a petition to seal criminal
records. Eighth Judicial District Court, Clark County; Ronald D. Parraguirre, Judge.
The supreme court held that: (1) entry of order denying petition did not trigger the
thirty-day period within which to file appeal, (2) former convict's motion for reconsideration
of order did not toll thirty-day period, but (3) his post-judgment motions to amend or make
additional findings of fact or to alter or amend the judgment were tolling motions.
Motion denied.
Alan R. Johns, Las Vegas, for Appellant.
__________

21
Because numerous respondents are in proper person, we deny appellant's motion to assign the appeal to the
settlement process.
Stewart L. Bell, District Attorney, and Karen L. Van De Pol, Deputy District
Attorney, Clark County, for Respondent.
1. Records.
Entry of order denying former convict's petition to seal all criminal records related to his conviction did not trigger the thirty-day
period within which petitioner could file his appeal, where State failed to serve petitioner with written notice of order's entry. NRAP
4(a)(1).
The proper and timely filing of a notice of appeal is jurisdictional. NRAP 4(a)(1).
3. Records.
Petitioner's motion for reconsideration of order denying his petition to seal court records was not a tolling motion, and thus
did not toll thirty-day period within which petitioner could file his appeal from order. NRAP 4(a)(2).
4. Records.
Petitioner's post-judgment motions to amend or make additional findings of fact or to alter or amend the judgment denying his
petition to seal court records were tolling motions, and thus, petitioner's notice of appeal filed before trial court's disposition of such
motions was filed too early to vest jurisdiction in the appellate court. NRAP 4(a)(2); NRCP 52(b), 59.
OPINION
Per Curiam:
Hung Phuc Duong appeals from a district court order denying his petition to seal
criminal records. The State has moved to dismiss the appeal. According to the State, Duong's
notice of appeal was untimely and failed to vest jurisdiction in this court because it was filed
more than thirty days after Duong's counsel received a copy of the court's order and because
Duong's motion for reconsideration did not toll the time within which to appeal. The State
never served written notice of the order's entry on Duong, however, so NRAP 4(a)(1)'s
thirty-day deadline for filing a notice of appeal was not activated. And, although the motion
for reconsideration did not toll the time within which to appeal, Duong's alternative motions
to amend or make additional findings of fact or to alter or amend the judgment did. The
notice of appeal was not filed too late, but rather too early because the district court had not
resolved the alternative motions. After the district court formally resolved the tolling motions,
Duong filed an amended notice of appeal. We conclude that we have jurisdiction and there is
no jurisdictional basis for dismissing this appeal.
On February 11, 2002, Duong petitioned the district court under NRS 179.245 to seal
all criminal records relating to his 19S5 conviction for lewdness with a minor.
1985 conviction for lewdness with a minor. The State opposed Duong's petition. On March
11, 2002, the district court entered a minute order denying Duong's petition, and on March
19, 2002, the court entered a written order denying the petition. The summary order contained
no findings of fact or conclusions of law. And, although the order contained a certificate of
mailing indicating that it was mailed to Duong's attorney, the State did not serve Duong with
written notice of the order's entry.
On April 2, 2002, Duong moved the court to reconsider its order, or to clarify it and
enter more specific findings and conclusions, or to alter or amend the judgment. On April 29,
2002, the district court entered a minute order denying the motion, but also explaining its
reasons for denying the petition to seal Duong's criminal records. On May 8, 2002, the court
entered a written order summarily denying Duong's motion for reconsideration. This order
also contained a certificate of mailing, but again the State did not serve Duong with written
notice of this order's entry.
On May 21, 2002, Duong filed a notice of appeal from both orders.
On October 16, 2002, the State moved to dismiss the appeal. The State first argues
that Duong's notice of appeal was filed too late under NRAP 4(a)(1) because it was filed more
than thirty days after Duong's attorney received a copy of the order denying his petition. The
State is mistaken.
[Headnotes 1, 2]
The time for filing a notice of appeal in most civil proceedings is governed by NRAP
4(a)(1), which provides that the time begins when the written judgment or final order is
entered and expires thirty days after the date of service of written notice of the entry of the
judgment or order appealed from.
1
Since the proper and timely filing of a notice of appeal
is jurisdictional, there are sound reasons for this formal service requirement.
2
Requiring
parties to serve separate written notice of a judgment's or final order's entry sharply defines
the beginning of the thirty-day limitation period and provides a clear and definite warning that
the time within which to appeal has begun to run. This absolute rule eliminates any confusion
that could result from less formal practices, such as placing copies of filed orders in attorneys'
boxes at court, or mailing copies of orders that have been submitted to the court but have not
been signed and filed. Because the State did not serve Duong with written notice of the
March 19, 2002 order's entry, the thirty-day limitation had not yet begun when Duong filed
his notice of appeal on May 21, 2002.
__________

1
Three days are added to the thirty-day appeal period if service is accomplished by mail. See NRAP 26(c).

2
Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987).
the thirty-day limitation had not yet begun when Duong filed his notice of appeal on May 21,
2002. Therefore, the notice of appeal was not filed too late.
[Headnotes 3, 4]
The State also argues that Duong's April 2, 2002 motion for reconsideration did not
toll the time within which to file the appeal under NRAP 4(a)(2). Although a motion for
reconsideration is not a tolling motion, Duong's alternative motions to amend or make
additional findings of fact under NRCP 52(b) or to alter or amend the judgment under NRCP
59 were tolling motions.
3
Indeed, because the district court's May 8, 2002 order denying
reconsideration did not resolve Duong's alternative tolling motions, his notice of appeal was
filed too early to vest jurisdiction in this court. NRAP 4(a)(2) provides that a notice of appeal
filed before the formal disposition of any timely post-judgment motion enumerated in the
rule, including motions to amend or make additional findings of fact under NRCP 52(b) or to
alter or amend the judgment under NRCP 59, shall have no effect. Under NRAP 4(a)(2), the
time within which to file an appeal begins with the entry of a written order resolving the
tolling motion and expires thirty days from the date of service of written notice of that order's
entry. Consequently, we ordered Duong to show cause why this appeal should not be
dismissed for lack of jurisdiction. Duong procured the entry of a district court order formally
resolving the tolling motions and timely filed an amended notice of appeal, thereby vesting
jurisdiction in this court.
Accordingly, we deny the State's motion to dismiss this appeal, and we reinstate the
briefing schedule. The State shall have thirty days from the date of this opinion within which
to serve and file its answering brief. Thereafter, briefing shall proceed in accordance with
NRAP 31(a)(1).
While I concur in the result reached by the majority, I write separately to state once
again that our rules of appellate jurisdiction are unduly convoluted. This convolution
routinely causes parties as well as this court unnecessary effort and analysis. Thus, in my
view, a notice of appeal filed before resolution of tolling motions should be deemed valid for
the purpose of invoking this court's jurisdiction.
__________

3
NRAP 4(a)(2).
____________
118 Nev. 924, 924 (2002) Richmond v. State
RANDY RICHMOND, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 37933
December 27, 2002 59 P.3d 1249
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of
lewdness with a child under the age of fourteen. Second Judicial District Court, Washoe
County; James W. Hardesty, Judge.
The supreme court, Rose, J., held that: (1) new rule in Braunstein v. State, 118 Nev.
68, 40 P.3d 413 (2002), providing that evidence showing an accused possesses a propensity
for sexual aberration is not relevant to accused's intent, applied; (2) evidence that defendant
engaged in lewd conduct with another child was not admissible; and (3) admission of that
evidence was reversible error.
Maupin, J., dissented in part. Shearing, J., with whom Young, C. J., and Agosti, J.,
agreed, dissented in part.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.
Respondent.
1. Courts.
A new rule will apply to all cases on direct appeal regardless of whether the new rule is based on the Federal Constitution or
state law; however, retroactivity of a new rule of state law is only applicable when the issue has been preserved for appeal.
2. Courts.
New rule in Braunstein v. State, 118 Nev. 68, 40 P.3d 413 (2002), providing that evidence showing an accused possesses a
propensity for sexual aberration is not relevant to accused's intent, applies to all criminal cases arising from trials held prior to that
decision and not yet resolved on direct appeal, provided the issue has been preserved for appeal.
3. Criminal Law.
Defendant's motion in limine preserved for appellate review issue that prior bad act evidence was inadmissible, where district
court explored the objection during a hearing, and there was no hint that district court might reconsider the issue and change its ruling.
4. Criminal Law.
Where an objection has been fully briefed, district court has thoroughly explored objection during a hearing on a pretrial motion,
and district court has made a definitive ruling,
district court has made a definitive ruling, then a motion in limine is sufficient to preserve an issue for appeal.
5. Criminal Law.
Evidence that defendant engaged in lewd conduct with another child was not admissible in prosecution for sexual misconduct
with a minor. NRS 48.045(2).
6. Criminal Law.
Failure to exclude evidence in a Petrocelli hearing on admissibility of prior bad acts evidence is harmless error where
overwhelming evidence supports conviction. NRS 48.045(2).
7. Criminal Law.
Error in admitting prior bad acts evidence in prosecution for sexual misconduct with a minor was not harmless beyond a
reasonable doubt, where evidence of guilt was not overwhelming. NRS 48.045(2).
8. Criminal Law.
It is error for a witness to testify in such a manner that the jury could infer that the defendant had engaged in prior criminal
activity.
9. Criminal Law.
District court did not commit plain error in failing to sua sponte strike testimony implying that defendant had been previously
jailed, where remarks were brief, defendant conceded that the attorneys did not purposefully solicit them, and jury could have inferred
from testimony that any time defendant spent in jail was brief.
10. Criminal Law.
To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record.
OPINION
In Braunstein v. State,
1
this court modified the rules of evidence concerning the
admissibility of prior bad act evidence in prosecutions of sex crimes. The primary issue in
this appeal concerns whether this rule should apply to criminal convictions arising from trials
held prior to our decision in Braunstein, and not yet resolved on direct appeal.
We hold that Braunstein is to be applied to all criminal cases arising from trials held
prior to that decision and not yet resolved on direct appeal, provided the issue has been
preserved for appeal. Following a Braunstein analysis, we reverse Richmond's conviction and
remand for a new trial.
FACTS
Procedural history
The action below arises from the prosecution of Randy Richmond for sexual
misconduct with a minor referred to in this opinion as A.B.
__________

1
118 Nev. 68, 40 P.3d 413 (2002).
Richmond for sexual misconduct with a minor referred to in this opinion as A.B. The State
charged Richmond with four counts of lewdness with a child under the age of fourteen and
one count of open or gross lewdness, all five counts involving A.B. The State sought to
jointly try Richmond on an additional count of lewdness involving another child, A.R. The
district court conducted a Petrocelli
2
hearing and concluded that A.B.'s allegations were not
proved by clear and convincing evidence, and thus were not admissible with regard to A.R.'s
allegations. Accordingly, the district court ordered separate trials, with A.B.'s allegations to
be tried first. The district court, however, ruled that A.R.'s testimony would be admissible in a
trial of A.B.'s allegations, finding that clear and convincing evidence supported A.R.'s
allegations. Thus, at least in the view of the trial judge, evidence in the stronger case became
admissible in the weaker case.
The jury convicted Richmond of three counts of lewdness with a child under fourteen,
and acquitted him on the other counts. The district court sentenced Richmond to three
consecutive terms of life imprisonment with the possibility of parole after ten years.
Richmond appeals.
Factual background regarding A.B.
Starting in 1996, Richmond lived occasionally with A.B., her mother, grandmother,
and one other adult female. After moving to the Ponderosa Motel in Reno, Nevada, A.B.
visited Richmond in his apartment, always staying in the bedroom to watch television. At
some point, Richmond began touching A.B. in private areas on her body. A.B. testified that
Richmond made her touch his genitals and unsuccessfully attempted to persuade A.B.'s
cousin to do the same. In addition, A.B. testified to fuzzy kisses that Richmond would give
her, by putting his mouth on her belly and blowing on it. On another occasion, according to
A.B.'s testimony, Richmond touched her genitals through her clothes while she pleaded with
him to stop. Lastly, A.B. testified to an instance where A.B.'s dog, Keno, bit Richmond's
crotch, after which he exposed himself and engaged in sexually suggestive behavior.
A.R.'s testimony at A.B.'s trial
As noted, the other alleged child victim, A.R., testified at A.B.'s trial on behalf of the
State.
3
Richmond lived in A.R.'s apartment complex during the summer of 1999, when she
was ten or eleven years of age.
__________

2

3
Richmond was also convicted of one count of lewdness with a minor under the age of fourteen years for the
allegations made by A.R. This court, in Docket No. 38408, recently affirmed his conviction.
or eleven years of age. A.R., who lived with her mother and sister, visited Richmond several
times alone at his apartment. This would usually occur after school between 2:30 p.m. and
4:30 p.m., until her mother would return home from work. A.R. also spent the night several
times at Richmond's apartment. While at Richmond's apartment, A.R. would help around the
house and also watch television.
A.R. testified at trial to one occasion where Richmond indicated his desire to take her
to Disneyland and get a room with only one bed and break [her] into being a woman. In
addition, A.R. testified to several instances of sexual molestation by, or intercourse with,
Richmond.
Other evidence introduced at A.B.'s trial concerning A.R.
Detective Adam Wygnanski testified on behalf of the State concerning his contact
with Richmond following the report by A.R. Wygnanski testified that as soon as he identified
himself to Richmond, Richmond calmly responded: I know what this is all about. I am not a
child molester. According to Wygnanski, Richmond admitted to feeling really sick that he
was even thinking about the thought, referring to his emotional reaction to his conduct with
regard to A.R.
Detective Rebecca Clark interviewed Richmond on videotape, after a valid waiver of
his rights under Miranda v. Arizona.
4
Detective Clark testified to Richmond's statements that
he answered A.R.'s questions about sex, drew sexually explicit pictures of canine and human
female genitalia, and taught her how to masturbate.
5
The detective also testified that during
the interview, Richmond voluntarily drew a picture of the female genitals resembling the one
he had drawn for A.R. The district court admitted this drawing into evidence and allowed the
jury to view the videotape.
As noted above, Richmond was convicted at trial of A.B.'s allegations.
DISCUSSION
Braunstein
The majority of the issues presented in this appeal hinge on our recent decision in
Braunstein v. State, addressing the admissibility of prior bad act evidence in prosecutions
involving sexual misconduct. Prior to Braunstein, we followed a rule developed in
McMichael v. State,
__________

4
384 U.S. 436 (1966).

5
A.R.'s testimony did not actually describe this incident.
McMichael v. State,
6
Findley v. State,
7
and their progeny.
8
McMichael held that evidence
showing a defendant possesses a propensity for sexual aberration is relevant to the
defendant's intent in a sex-crime prosecution.
9
Findley extended this principle to the effect
that the probative value of such evidence outweighs the risk of prejudice as a matter of law.
10

The rule in McMichael and Findley remained in effect at the time of Richmond's trial.
However, subsequent to Richmond's trial, we overruled these cases in Braunstein, stating:
[W]e specifically . . . repudiate the legal proposition stated in McMichael v. State that
evidence showing an accused possesses a propensity for sexual aberration is relevant to
the accused's intent.
11

In doing so, we held that the district court must analyze the proposed evidence under NRS
48.045(2).
12

Retroactivity
Richmond's briefs, filed prior to Braunstein, urged us to overrule the McMichael line
of cases. We now consider whether Braunstein applies to Richmond's appeal.
In determining whether a new rule of criminal law applies retroactively, we have
inquired whether the new rule derives from the United States Constitution or from state law.
A new federal constitutional rule must be applied retroactively to all cases which are not
final, i.e., which have not finished the process of direct appeals and certiorari to the United
States Supreme Court.
13
In contrast, [w]hen questions of state law are at issue, state courts
generally have the authority to determine the retroactivity of their own decisions.
__________

6
852 (1985), and overruled by Braunstein, 118 Nev. 68, 40 P.3d 413.

7
94 Nev. 212, 577 P.2d 867 (1978), overruled by Braunstein, 118 Nev. 68, 40 P.3d 413.

8
Braunstein, 118 Nev. at 73-75, 40 P.3d at 417-18.

9
94 Nev. at 189, 577 P.2d at 401.

10
94 Nev. at 215, 577 P.2d at 868; see also Braunstein, 118 Nev. at 75, 40 P.3d at 418.

11
Braunstein, 118 Nev. at 73, 40 P.3d at 417 (footnote omitted).

12
show that he acted in conformity there with. It may, however, be admissible for other purposes, such as
accident.

13
See Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
generally have the authority to determine the retroactivity of their own decisions.
14

The new rule in Braunstein simply interprets NRS 48.045(2), an evidence statute
concerning the admissibility of prior bad acts. This is clearly an issue of state law, and does
not derive from the United States Constitution. We have generally refused to apply new rules
of state law retroactively.
15

[Headnotes 1, 2]
We now adopt the United States Supreme Court's retroactivity rule enunciated in
Griffith v. Kentucky
16
for new rules of state law; therefore, we will apply a new rule to all
cases on direct appeal regardless of whether the new rule is based on the Federal Constitution
or state law. This promotes consistency and fairness because a new rule is applied to all cases
not finalized on direct appeal. However, we further hold that retroactivity of a new rule of
state law is only applicable when the issue has been preserved for appeal.
17
Accordingly, we
must now determine whether Richmond has preserved the prior bad act issue for appeal.
Appellate review
[Headnote 3]
The district court admitted A.R.'s allegations to prove a propensity for sexual
aberration. Richmond made a motion in limine to exclude A.R.'s testimony, but failed to
renew the objection at trial.
In 1983, in the case of Daly v. State,
18
we adopted the rule that a motion in limine,
without a contemporaneous objection during trial, is insufficient to preserve an issue for
appeal. In that case, Daly filed a pretrial motion to exclude evidence of other uncharged acts
of misconduct, which the district court granted.
19
At trial, however, witnesses referred to
several uncharged acts in their testimony, and defense counsel did not object to the evidence
or remind the district court of its prior ruling, nor did Daly raise the issue in his post-trial
motion.
20
In concluding that Daly waived the issue for appeal, we stated:
__________

14
American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 177 (1990) (plurality opinion).

15
See Garner v. State, 116 Nev. 770, 788-89, 6 P.3d 1013, 1025 (2000), cert. denied, 532 U.S. 929 (2001);
Gier v. District Court, 106 Nev. 208, 212-13, 789 P.2d 1245, 1248 (1990).

16
479 U.S. 314, 328 (1987).

17
Cf. Schoels v. State, 115 Nev. 33, 36-37, 975 P.2d 1275, 1276-77 (1999).

18
99 Nev. 564, 568, 665 P.2d 798, 801 (1983).

19
Id. at 567, 665 P.2d at 801.

20
Id. at 568, 665 P.2d at 801.
At least in situations where the district court has granted a party's motion in limine to
exclude evidence, the error, if any, does not occur until the matter arises during trial and
the court permits introduction of the contested evidence. The making of the motion in
limine, without further objection, is not enough in such circumstances to preserve the
issue on appeal.
21

Over a decade later, we again addressed the waiver issue in Staude v. State.
22
In his
first trial, Staude filed a pretrial motion to exclude evidence of his prior conviction for
voluntary manslaughter, and the district court denied the motion.
23
Staude's first trial ended
in a mistrial. In his second trial, Staude failed to renew his motion to exclude this evidence.
24
Following our conclusion that Staude failed to preserve the issue for appeal, we stated: A
ruling on a motion in limine is advisory, not conclusive; after denial of a pretrial motion to
exclude evidence, a party must object at the time the evidence is sought to be introduced in
order to preserve the objection for appellate review.
25

Thereafter, we decided Rice v. State.
26
There, Rice filed a motion in limine to
exclude evidence concerning the victim's cause of death and injuries that became evident to
medical personnel following the victim's admission to the hospital.
27
The district court
decided to limit the testimony regarding the extent of the victim's injuries.
28
But the court
decided to admit evidence of the cause of the victim's death after hearing the State's expert
testify outside the presence of the jury.
29
Thereafter, the State made comments during
opening statement regarding the victim's injuries discovered by medical personnel following
the victim's admission to the hospital.
30
Because Rice failed to object to these statements, we
concluded that the issue was waived on appeal.
31

Because Richmond failed to renew his objection regarding the admission of the prior
bad acts during trial, the State contends that Richmond has waived this issue for appeal.
Richmond, however, urges this court to overrule our cases that hold that a motion in limine
does not preserve an issue for appeal.
__________

21
Id. (citation omitted).

22
112 Nev. 1, 908 P.2d 1373 (1996).

23
Id. at 5, 908 P.2d at 1376.

24
Id.

25
Id.

26
113 Nev. 1300, 949 P.2d 262 (1997).

27
Id. at 1310, 949 P.2d at 269.

28
Id. at 1311, 949 P.2d at 269.

29
Id.

30
Id.

31
Id.
in limine does not preserve an issue for appeal. For support, Richmond presents three policy
arguments against the rule: (1) that it wastes the court's time for an attorney to renew all
objections from motions in limine, (2) that motions in limine serve no purpose if they cannot
preserve issues for appeal, and (3) that forcing a defense attorney to renew objections during
trial prejudices the jury because it might appear that the defense attorney is attempting to
obstruct the presentation of evidence. In light of Richmond's policy arguments, we now take
this opportunity to reconsider this issue.
The federal circuit courts that have considered this issue are divided.
32
The Fifth
Circuit requires a contemporaneous objection to the admissibility of the evidence during trial
to preserve the issue for appeal, unless a good reason exists not to do so.
33
The Fifth
Circuit's view is predicated on the theory that a motion in limine is essentially a hypothetical
situation and that a trial court is in a better position to rule on an evidentiary issue in light of a
specific trial situation.
34
The Eighth Circuit is in accord with the Fifth Circuit's view, but has
recognized an exception to the general rule if a trial court makes a definitive ruling on a
pretrial motion.
35

On the other hand, the Ninth Circuit, which adopted the Third Circuit's approach, has
held:
[W]here the substance of the objection has been thoroughly explored during the hearing
on the motion in limine, and the trial court's ruling permitting introduction of evidence
was explicit and definitive, no further action is required to preserve for appeal the issue
of admissibility of that evidence.
36

The Ninth Circuit noted that the purpose of a pretrial motion is to avoid cluttering up the trial
and to reduce the need for sidebar conferences and arguments outside the presence of the
jury.
__________

32
See Palmerin v. City of Riverside, 794 F.2d 1409, 1412 (9th Cir. 1986). In addition, we note that state
courts are also split on this issue. Id. at 1412 n.3.

33
Rojas v. Richardson, 703 F.2d 186, 189 (5th Cir.), opinion set aside for other reasons on reh'g, 713 F.2d
116 (5th Cir. 1983).

34
See U.S. v. Graves, 5 F.3d 1546, 1552 (5th Cir. 1993).

35
See United States v. Johnson, 720 F.2d 519, 522 (8th Cir. 1983) (stating that pretrial rulings of
admissibility of evidence are merely tentative, and therefore failure to make a contemporaneous objection at
trial precludes appellate review); see also Greger v. International Jensen, Inc., 820 F.2d 937, 941-42 (8th Cir.
1987) (stating that if the trial court made a definitive pretrial ruling on the issue, there is no need to continue
objecting).

36
Palmerin, 794 F.2d at 1413; see also American Home Assur. v. Sunshine Supermarket, 753 F.2d 321, 324
(3d Cir. 1985) ([I]f an issue is fully briefed and the trial court is able to make a definitive ruling, then the
motion in limine provides a useful tool for eliminating unnecessary trial interruptions.).
conferences and arguments outside the presence of the jury.
37
Today, we adopt the Ninth
Circuit's more flexible approach.
[Headnote 4]
We, therefore, hold that where an objection has been fully briefed, the district court
has thoroughly explored the objection during a hearing on a pretrial motion, and the district
court has made a definitive ruling, then a motion in limine is sufficient to preserve an issue
for appeal. To the extent that Daly, Staude, and Rice are inconsistent with our holding today,
they are modified.
In applying this approach, we conclude that Richmond preserved the prior bad act
issue for appeal. The district court held a Petrocelli hearing and ruled the evidence
admissible. There was no hint that the district court might reconsider the issue and change its
ruling. Accordingly, we permit Richmond to raise on appeal his objection to the introduction
of the prior sexual bad acts.
Evidence of prior sexual bad acts
The general rule under Nevada's rules of criminal evidence is that [e]vidence 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.
38
However, such evidence may be admissible for a
purpose not related to the character of the defendant, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
39
Notably, we
have held 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.
40
Our concern has been that this evidence will unduly
influence the jury to convict the defendant because, based on that evidence, the jury believes
the defendant is a bad person.
41

[Headnote 5]
We conclude that, under a Braunstein analysis, the district court erroneously admitted
A.R.'s testimony. First, the motive exception is inapplicable under these facts. The motive
exception generally applies to establish the identity of the criminal, or to prove malice or
specific intent.
__________

37
Palmerin, 794 F.2d at 1413.

38
NRS 48.045(2).

39
Id.

40
Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001); accord Walker v. State, 116 Nev. 442,
445, 997 P.2d 803, 806 (2000).

41
Tavares, 117 Nev. at 730, 30 P.3d at 1131.
ice or specific intent.
42
The motive exception may also be applicable where the charged
crime was motivated by a desire to hide the prior bad act.
43
Richmond had already begun
molesting A.B. before he met A.R., and molesting A.B. could not possibly disguise his
crimes against A.R.
Regarding the motive exception, the dissent states that motive for a sex crime is an
attraction to or obsession with the victim. In essence, the dissent contends that it is proper to
admit prior bad act evidence to show a sexual propensity, which we held in Braunstein is
inadmissible character evidence. Notably, McCormick on Evidence explains how the motive
exception in cases involving sex crimesto show a propensity for sexual aberrationis not
applicable, as compared to its use in other crimes:
Unlike the other purposes for other-crimes evidence, the sex-crime exception flaunts
the general prohibition of evidence whose only purpose is to invite the inference that a
defendant who committed a previous crime is disposed toward committing crimes, and
therefore is more likely to have committed the one at bar. Although one can argue for
such an exception in sex offenses in which there is some question as to whether the
alleged victim consented (or whether the accused might have thought there was
consent), a more sweeping exception is particularly difficult to justify. It rests either on
an unsubstantiated empirical claim that one rather broad category of criminals are more
likely to be repeat offenders than all others or on a policy of giving the prosecution
some extra ammunition in its battle against alleged sex criminals.
44

As the dissent acknowledges, the State has other methods at its disposal to demonstrate why
someone would sexually assault a child, i.e., expert witnesses.
Next, the common plan exception is inapplicable here, as this exception requires that
each crime should be an integral part of an overarching plan explicitly conceived and
executed by the defendant.
45
Indeed, this court has stated, The test is not whether the
other offense has certain elements in common with the crime charged, but whether it tends to
establish a preconceived plan which resulted in the commission of that crime.'
46

__________

42
1 McCormick on Evidence 190, at 665 (John W. Strong ed., 5th ed. 1999).

43
Id. at 661.

44
Id. at 669-70 (footnotes omitted).

45
Id. at 661.

46
Nester v. State of Nevada, 75 Nev. 41, 47, 334 P.2d 524, 527 (1959) (quoting 1 John Henry Wigmore,
Wigmore on Evidence 300 (2d ed. 1923)) (emphasis added).
We have held that a sexual assault at the same location and perpetrated in the same manner a
month before the sexual assault at issue was inadmissible because it did not establish a
common plan.
47
Here, Richmond appeared simply to drift from one location to another,
taking advantage of whichever potential victims came his way. His crimes were not part of a
single overarching plan, but independent crimes, which Richmond did not plan until each
victim was within reach.
Finally, the evidence regarding A.R. was not relevant under any of the other
exceptions to NRS 48.045. Therefore, we conclude that the district court abused its discretion
in admitting A.R.'s testimony.
[Headnotes 6, 7]
Failure to exclude evidence in a Petrocelli hearing is harmless error where
overwhelming evidence supports the conviction.
48
Here, the only evidence that Richmond
had molested A.B. was A.B.'s testimony. In fact, it appears from the record that this was more
a trial of A.R.'s allegations than A.B.'s allegations. Thus, we conclude that the evidence
concerning A.B. was not overwhelming, and that the extensive and highly prejudicial
evidence concerning A.R. was not harmless beyond a reasonable doubt.
Jury instruction on propensity for sexual aberration
Over Richmond's objection, the district court instructed the jury that it could consider
evidence of Richmond's prior bad acts to find that he possessed a specific propensity for
sexual aberration.
49
This instruction derives directly from an instruction we upheld in Bolin
v. State.
50
Our decision in Bolin relied entirely upon McMichael and Findley, the cases we
overruled in Braunstein. Because we held in Braunstein that evidence of other acts offered
to prove a specific emotional propensity for sexual aberration is inadmissible,
51
we direct
the district courts to cease instructing juries that such evidence is admissible.
__________

47
See Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989).

48
See Chappell v. State, 114 Nev. 1403, 1407, 972 P.2d 838, 840 (1998).

49
The challenged instruction provided:
Evidence of a person's character or a trait of his character or evidence of other crimes, wrongs, or
acts, is not admissible to show that he acted in conformity therewith on a particular occasion.
However, such evidence is admissible for other purposes, such as proof of motive, intent, knowledge,
identity, or common scheme or plan, and as evidence that the person possesses a specific emotional
propensity for sexual aberration.
(Emphasis added).

50
114 Nev. 503, 528-29, 960 P.2d 784, 800-01 (1998).

51
118 Nev. at 75, 40 P.3d at 418.
Testimony implying that Richmond had been previously jailed
[Headnotes 8, 9]
A.B. twice testified, once during direct examination and once on cross-examination,
that Richmond had been in jail prior to living with her family in 1999. Richmond did not
object or move to strike that testimony, and thus a plain error analysis applies.
52
It is error
for a witness to testify in such a manner that the jury could infer that the defendant had
engaged in prior criminal activity.
53

[Headnote 10]
To be plain, an error must be so unmistakable that it is apparent from a casual
inspection of the record.
54
Here, the remarks were brief, and Richmond concedes that the
attorneys did not purposefully solicit them. A.B. did not state why Richmond was in jail.
Further, between A.B.'s testimony that Richmond lived with her for three to four months prior
to November 1999, and A.R.'s testimony that she visited Richmond in his apartment in the
summer of 1999, the jury could infer that any time Richmond spent in jail was brief. The
district court did not commit plain error in failing to sua sponte strike this testimony.
CONCLUSION
The new evidentiary rule, which we announced in Braunstein, applies to all cases not
finalized on direct appeal and where the issue has been preserved for appeal.
Because we conclude that the district court erred at trial, we reverse Richmond's
conviction and remand the case for a new trial.
Leavitt and Becker, JJ., concur.
Maupin, J., concurring and dissenting:
I agree with Justice Rose that Richmond's convictions should be reversed and
remanded for a new trial. More particularly, I agree that a fully briefed and argued motion in
limine that leads to a definitive pretrial ruling is sufficient to preserve issues litigated in the
motion for appellate review. I also agree that we must apply the decision in Braunstein v.
State
1
to the present appeal. I write separately to note my individual views on the
admissibility of the other bad act evidence in this case and in these contexts generally.
__________

52
See Cordova v. State, 116 Nev. 664, 668, 6 P.3d 481, 484 (2000).

53
Thomas v. State, 114 Nev. 1127, 1142, 967 P.2d 1111, 1121 (1998).

54
Garner v. State, 116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), cert. denied, 532 U.S. 929 (2001).

1
118 Nev. 68, 40 P.3d 413 (2002).
generally. I will also briefly address the dissent's position on the application of Braunstein to
this matter.
Admissibility of other bad act evidence under NRS 48.045(2)
As noted by Justice Rose, the issues litigated in this appeal hinge on our recent
decision in Braunstein, and its invalidation of our rulings in McMichael v. State,
2
Findley v.
State,
3
and their progeny.
4
Under McMichael and Findley, evidence showing that a
defendant possessed a propensity towards sexual aberration was relevant to the defendant's
intent in a sex-crime prosecution
5
and, as a matter of law, the probative value of such
evidence outweighed the risk of prejudice.
6
This rule remained in effect at the time of
Richmond's trial and has been relied upon many times, as recently as our 1998 decision in
Bolin v. State.
7

The majority opinion in Braunstein states:
[W]e specifically . . . repudiate the legal proposition stated in McMichael v. State that
evidence showing an accused possesses a propensity for sexual aberration is relevant to
the accused's intent.
8

Although this language seemingly implies that other bad act evidence is never relevant to
show propensity towards sexual aberration, the Braunstein opinion goes on to stipulate that
such evidence is admissible if NRS 48.045(2)
9
is fully satisfied. The separate opinions of
Justices Rose and Shearing in this matter remove any ambiguity as to whether the repudiation
of McMichael and Findley renders such evidence irrelevant and thus inadmissible, as the
passage quoted above might seem to suggest. To the contrary,
__________

2

3
94 Nev. 212, 577 P.2d 867 (1978), overruled by Braunstein, 118 Nev. 68, 40 P.3d 413.

4
Braunstein, 118 Nev. at 73-75, 40 P.3d at 417-18.

5
McMichael, 94 Nev. at 189, 577 P.2d at 401.

6
Findley, 94 Nev. at 215, 577 P.2d at 868; see also Braunstein, 118 Nev. at 75, 40 P.3d at 418.

7
114 Nev. 503, 528-29, 960 P.2d 784, 800-01 (1998).

8
Braunstein, 118 Nev. at 73, 40 P.3d at 417 (footnote omitted). The undersigned justice dissented to this
change in doctrine. It is now, however, incumbent upon us to apply this new rule.

9
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
accident.
contrary, our pronouncements today, when read together with the entirety of the Braunstein
opinion, confirm that such evidence remains admissible if the proponent of the evidence can
show, as explained in Tinch v. State,
10
that (1) the other bad acts are relevant to the crime
charged, (2) the State can prove the prior bad acts by clear and convincing evidence, and (3)
the probative value of the evidence is not substantially outweighed by its prejudicial impact.
11

In applying Braunstein to the facts of the case, Justice Rose concludes that A.R.'s
evidence could not have been admitted in Richmond's prosecution for acts perpetrated against
A.B. to show motive or that the sexual assaults of A.B. were committed as part of a common
scheme or plan. I disagree with Justice Rose's view of the scope of the motive exception
under NRS 48.045(2).
12

The dissent cogently argues that A.R.'s testimony was relevant to demonstrate motive,
to wit: an attraction or obsession with a victim. Thus, the dissent reasons, attraction or
obsession with a child victim shows why the crime was committed. I agree. To me, whatever
might motivate one to commit a criminal act is legally admissible to prove motive under
NRS 48.045(2).
As one of the dissenters to the repudiation of McMichael and Findley, I also have to
agree that other acts of sexual aberration do show why a person would commit an act of
sexual violence upon a minor child. In this, such evidence is also admissible to show intent.
To me, why a person commits a crime from his or her mental viewpoint is inextricably
intertwined with that person's intent.
Beyond proof of motive and intent, a predilection towards this type of aberrant
behavior should remain relevant in these cases as a general matter because NRS 48.045(2) is
not restricted to the examples set forth as exceptions to non-admissibility of other acts or
wrongs to prove character. Such evidence is admissible under NRS 48.045(2) for other
purposes, such as proof of motive . . . . (Emphasis added.) If such evidence is admissible to
explain why an offense was committed, and if the evidence does not fit neatly within one of
the enumerated examples, the evidence is still admissible for other purposes. This of course
is the essence of McMichael and Findley, and why I dissented from the repudiation in
Braunstein of these cases.
__________

10
113 Nev. 1170, 946 P.2d 1061 (1997).

11
See Braunstein, 118 Nev. at 72-73, 40 P.3d at 416-17; Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65.

12
I agree that the other bad act evidence at issue here was not relevant to show Richmond assaulted A.B.
and A.R. as part of a common scheme or plan.
Third prong of Tinch
The dissent does not address whether the probative value of the motive evidence
substantially outweighed the prejudicial effect of its admission. I attribute this to the fact that
my dissenting colleagues oppose retroactive application of Braunstein in this case. If this is
so, it would appear that they wish to apply McMichael and Findley to affirm the judgment
below. Because I believe that we must now apply Braunstein to this controversy, and because
I believe application of the third prong of Tinch requires reversal, I will address this issue
immediately below.
13

As summarized by Justice Rose, the trial judge found that the claims of A.B. were not
cross-admissible in the trial of the A.R. accusations because the claims of A.B. were not
proved or established by clear and convincing evidence under Tinch. Notwithstanding my
view that A.R.'s claims were relevant as evidence of motive and intent in the A.B. trial, I
conclude that admission of the evidence of Richmond's misconduct with child victim A.R. in
the much weaker case involving the claims of A.B. was an abuse of discretion under the
majority's repudiation of McMichael and Findley in Braunstein. Clearly, the probative value
of A.R.'s allegations bolstered the much weaker A.B. case, that the trial court felt could not
pass muster under an even lesser burden of proof than would be required to convict
Richmond at trial. Thus, the prejudicial effect of the A.R. evidence substantially outweighed
its probative value.
Automatic exclusion/inclusion under NRS 48.045(2) and the upshot of Braunstein
The dissent argues that Justice Rose has misapplied Braunstein by implicitly creating
a rule of automatic exclusion of other acts of misconduct in these circumstances. In this, the
dissenting opinion also observes that the purpose of Braunstein was to overturn a rule of
automatic admissibility of evidence of sexual aberration, not to create a new rule of automatic
exclusion. Neither proposition is true.
First, McMichael and Findley required that such evidence be relevant to charges of
sexual assault, and that the other evidence be proved by clear and convincing evidence.
This second leg of the rule of admissibility under Tinch was applied by the district court with
regard to the admissibility of A.B.'s evidence in the prosecution of the A.R. allegations. The
third leg of admissibility, that the probative value of the evidence must not substantially
outweigh its prejudicial effect,
__________

13
I would agree that an analysis of this appeal under McMichael and Findley would require that Richmond's
conviction be affirmed. Under these prior cases, the third prong was established as a matter of law if the first two
prongs of Tinch were satisfied.
tially outweigh its prejudicial effect, was per se satisfied under McMichael and Findley
because other sexually aberrant acts, if proved by clear and convincing evidence, strongly
suggest the mental state required to commit acts such as pedophilia or forcible rape. Clearly,
the McMichael line of cases did not create a rule of automatic admissibility.
Second, if we assume that all three prongs of Tinch must be proved to establish
admissibility under NRS 48.045(2), particularly the elimination of Findley's rule that the
probative value of sexual aberration evidence is never outweighed by its prejudicial effect, an
automatic rule of exclusion has not been created under Justice Rose's Braunstein analysis.
Certainly, no rule of automatic non-admissibility exists under my analysis.
Under the dissent's application of the motive exception to the type of facts submitted
in this particular case, it is arguable that there are no cases where this evidence of motive will
be inadmissible under Braunstein's repudiation of Findley. If this is so, given that four
members of this court seem to agree on the scope of permissible motive evidence under NRS
48.045(2), the analytical exercise mandated under Braunstein has accomplished little of
significance in the way of change in evidentiary doctrine, at least as a practical matter. Thus, I
have revisited the repudiation of McMichael and Findley in order to urge that the dilemma
this case has created with regard to our retroactivity rules could be avoided by simply
reviving the rules set forth in these cases.
14
Having said this, I recognize that such is unlikely
and therefore will simply apply what I believe to be the new rule in this and in future cases.
15

Retroactive application of Braunstein
The majority in Braunstein overturned the McMichael line of cases in dealing with
Braunstein's claim that other bad act evidence was improperly admitted within the parameters
of the prior cases. He did not, in making his argument, seek our rejection of the prior cases as
valid authority. Richmond, on the other hand, urged in this appeal that we overturn these
precedents in briefs filed before our decision in Braunstein. Although we did not rule in
Braunstein's favor, we applied the new rule of admissibility to him.
__________

14
Evidence of separate acts of pedophilia or other forms of sexual aberration are not character evidence, but
are admissible for the other purpose of explaining why a crime of sexual deviance was committed. The mental
aberration that leads a person to commit a sexual assault upon a minor child, while not providing a legal excuse
to criminal liability, does explain why the event was perpetrated. Thus, I remain of the opinion that neither
McMichael nor Findley improperly expanded the scope of NRS 48.045(2).

15
As noted in the margin above, an analysis of this appeal under McMichael and Findley would mandate that
we affirm the conviction below. This does not change my view that the prior cases did not create an automatic
rule of admissibility.
in Braunstein's favor, we applied the new rule of admissibility to him. Having sought
repudiation of these prior cases, Richmond should likewise have the benefit of that analysis.
I note again that, as a practical matter, little has changed with regard to admissibility
of this type of evidence under the dissent's approach to admission of evidence under NRS
48.045(2). The trauma to the system the dissent claims will eventuate as a result of the
retroactive application of Braunstein in this case could have been avoided by leaving the
McMichael line of cases intact. This is simply the net effect of changes in the law to pending
cases.
My dissenting colleagues observe:
The cases on direct appeal should be analyzed under the case law applicable at the time
of the trial. However, this court could also review the cases on appeal by analyzing the
particular evidence to determine whether it would have been admissible under our rules
of evidence, as this court did in Braunstein.
16

The two quoted sentences are seemingly at odds. We must apply either the old or the new
rule. In this connection, I would reiterate that my dissenting colleagues' primary view on
retroactivity would ironically require our application of McMichael and Findley to the instant
controversy.
Shearing, J., with whom Young, C. J., and Agosti, J., agree, concurring in part and
dissenting in part:
I agree with the holding that a motion in limine is sufficient to preserve an issue for
appeal. I do not agree that the retroactivity standard used, for changes in constitutional and
substantive law rules, is appropriate for a change in a rule regarding admissibility of
evidence. I most definitely do not agree with the plurality in its interpretation of Braunstein v.
State.
1

The court adopts the retroactivity standard used by the United States Supreme Court
for constitutional issues
2
and automatically reverses the conviction in this case. The
automatic reversal is inappropriate. In Franklin v. State,
3
even when considering errors of
constitutional magnitude on direct review, this court applied a harmless error analysis and
upheld the convictions. In Franklin, this court stated:
In cases determining complete retroactivity or prospectivity of new constitutional
rules, the Supreme Court has consistently considered three factors:
__________

16
See dissenting opinion post p. 941.

1
118 Nev. 68, 40 P.3d 413 (2002).

2
Griffith v. Kentucky, 479 U.S. 314 (1987).

3
98 Nev. 266, 646 P.2d 543 (1982).
sistently considered three factors: (1) the purpose of the rule; (2) the reliance on prior,
contrary law; and (3) the effect retroactive application would have on the administration
of justice. See Tehan v. United States, 382 U.S. 406 (1966). We have adopted the same
analysis to determine the retroactivity of new Supreme Court rulings in which
retroactive effect has been left undecided. See Hatley v. State, 97 Nev. 360, 630 P.2d
1225 (1981).
4

As Justice Rose points out, the United States Supreme Court has held that, [w]hen questions
of state law are at issue, state courts generally have the authority to determine the retroactivity
of their own decisions.
5

The three factors, which this court has held should determine retroactivity, all favor
applying the new rule only to trials taking place after the new rule is announced. The purpose
of the new rule in Braunstein is simply to apply the existing rules of evidence for determining
the admissibility of evidence. Prosecutors conducted trials in reliance on the rule in prior case
law. The psychological burden on crime victims, and the financial burden on the system of
retrying cases tried under existing case law, militates toward not applying the new rule
retroactively. The cases on direct appeal should be analyzed under the case law applicable at
the time of the trial. However, this court could also review the cases on appeal by analyzing
the particular evidence to determine whether it would have been admissible under our rules of
evidence, as this court did in Braunstein. This promotes consistency and fairness, without
imposing the burdens of new trials on the judicial system.
The plurality misinterprets Braunstein. As a signatory to Braunstein, I did not and
would never have agreed to a rule of evidence that states that evidence of prior bad acts
offered to prove a specific emotional propensity for sexual aberration is always inadmissible.
In Braunstein, I held that the admissibility of evidence of sexual aberration must be
determined under the rules of evidence as stated in NRS Chapters 47 through 56, and
particularly NRS Chapter 48, and not by a blanket rule of admissibility in case law. Case law
following McMichael v. State
6
put sexual aberration in a special category as admissible
automatically in cases of sexual crimes against children. In Braunstein, this court repudiated
the legal proposition that in sex crimes,
__________

4
Id. at 269 n.2, 646 P.2d at 545 n.2.

5
American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 177 (1990) (plurality opinion).

6
court repudiated the legal proposition that in sex crimes, propensity for sexual aberration is
automatically admissible without further analysis.
7
I signed Braunstein because I believe that
it is wrong for this court to create a rule making a particular type of evidence automatically
admissible without regard for the rules of evidence and the facts of the individual case. It is
equally wrong to create a rule making that particular type of evidence automatically
inadmissible. The admissibility of all evidence must be determined under the appropriate
rules of evidence in our statutes, and that is what we held in Braunstein.
The plurality also states that evidence of sexual aberration is not relevant to prove
motive. I disagree. The plurality states that the motive exception applies to establish the
identity of the criminal, or to prove malice or specific intent. The motive exception may also
be applicable where the charged crime was motivated by a desire to hide the prior bad act.
8
That is a very limited and inaccurate view of motive evidence.
The motive for a crime can be, and often is, the opposite namely, an attraction to or
obsession with a victim, as in stalking. Even though motive is not an element of a crime and
need not be proven, it has virtually always been an integral element of proof in a criminal
trial. Often the motive is straightforward, as in robbery, where the desire or need for money is
readily understood by the jury. On the other hand, in a murder case, in order for a jury to
understand why a person would kill another person, it is very important to show the motive
for the killing.
Similarly, in cases involving sexual crimes against young children, it is important to
show a motive. The vast majority of the population cannot understand a sexual attraction to
children and finds it difficult to believe that an adult would sexually molest them. Therefore,
it is highly relevant and appropriate to establish that the defendant has a sexual attraction to
children. Often, this is shown by evidence of prior sexual relations with children, as is done in
both the instant case and in Braunstein. Sometimes it is shown by an expert witness. The rule
proposed by the majority would apply a blanket bar to any evidence of propensity for sexual
aberration, even expert witness testimony. That is not only wrong, but unprecedented, and not
conducive to achieving fair and just outcomes in child sexual abuse cases.
The plurality miscites McCormick on Evidence for the proposition that evidence of
other sex crimes is not admissible to prove a sexual aberration. On the contrary, McCormick
recognizes that sexual aberration is one of the accepted exceptions to prior bad act evidence
and is routinely admitted under provisions similar to NRS 4S.045.
__________

7
118 Nev. at 73-75, 40 P.3d at 417-18.

8
See plurality opinion by Justice Rose ante p. 932-33 (footnote omitted).
act evidence and is routinely admitted under provisions similar to NRS 48.045. Actually,
McCormick states:
As the rule indicates, there are numerous uses to which evidence of criminal acts may
be put, and those enumerated are neither mutually exclusive nor collectively
exhaustive. Subject to such caveats, examination is in order of the principal purposes
for which the prosecution may introduce evidence of a defendant's bad character.
Following this listing, some general observations will be offered about the use of other
crimes evidence for these purposes. The permissible purposes include the following:
. . . .
(9) To show a passion or propensity for unusual and abnormal sexual relations.
Initially, proof of other sex crimes was confined to offenses involving the same parties,
but many jurisdictions now admit proof of other sex offenses with other persons, at
least as to offenses involving sexual aberrations. Federal Rules of Evidence 413 and
414, added by Congress in 1994, allow the broadest conceivable use of similar crimes
in sexual assault and child molestation cases, making evidence of defendant's
commission of other such offenses admissible . . . for its bearing on any matter to
which it is relevant.
9

The evidence of Richmond's prior similar sexual molestation of a child was properly
admitted under our rules of evidence to show motive. I would affirm the judgment of
conviction of Randy Richmond for three counts of lewdness with a child under the age of
fourteen.
____________
118 Nev. 943, 943 (2002) Palmer v. Pioneer Inn Assocs., Ltd.
DENA PALMER, Appellant, v. PIONEER INN ASSOCIATES, LTD., a Limited Partnership,
Respondent.
No. 38213
December 27, 2002 59 P.3d 1237
Certified questions from the United States Court of Appeals for the Ninth Circuit.
The United States Court of Appeals for the Ninth Circuit certified questions
concerning the application of Nevada Supreme Court rule governing lawyer's ex parte
contacts. The supreme court held that managing-speaking agent test applies to rule providing
that in representing a client,
__________

9
1 McCormick on Evidence 190, at 659-60, 668-69 (John W. Strong ed., 5th ed. 1999) (citations omitted).
viding that in representing a client, a lawyer shall not communicate about subject of
representation with a party the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has consent of other lawyer or is authorized by law to do so, and
under that test, a party is an employee who has legal authority to bind the corporation in a
legal evidentiary sense.
Questions answered as recast.
Hardy & Associates and Ian E. Silverberg, Reno, for Appellant.
McDonald Carano Wilson LLP and Miranda Du and Pat Lundvall, Reno, for
Respondent.
Bradley Drendel & Jeanney, Reno, for Amicus Curiae Nevada Trial Lawyers
Association.
Rob W. Bare, Bar Counsel, and Felicia Galati, Assistant Bar Counsel, Las Vegas, for
Amicus Curiae State Bar of Nevada.
1. Attorney and Client.
Managing-speaking agent test applies to rule providing that in representing a client, a lawyer shall not communicate about
subject of representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has consent
of other lawyer or is authorized by law to do so. Under that test, a party is an employee who has legal authority to bind the corporation
in a legal evidentiary sense. SCR 182.
2. Attorney and Client.
Nevada does not follow portion of ABA Model Rule's former comment providing that contact is barred with an organization's
employee whose admission may constitute an admission on part of organization, nor does it follow the 2002 version of the comment.
OPINION
Per Curiam:
In this matter, we are asked by the United States Court of Appeals for the Ninth
Circuit to answer two certified questions:
1. In applying Supreme Court Rule 182 to an employee of a represented corporation,
does Nevada apply the portion of the commentary to Model Rule 4.2 barring ex
parte contact with an employee whose statement may constitute an admission on
the part of the organization?
2. If so, does Nevada interpret that portion of the commentary by analogy to Fed. R.
Evid. 801(d)(2)(D), by application of agency principles, or by a different analysis?
These questions concern the interpretation of SCR 182, which is based on ABA
Model Rule 4.2, as applied to employees of organizational clients. The rule is commonly
referred to as the no-contact rule.
We note that while the matter has been pending, the comment language at issue was
deleted in the 2002 amendments to the ABA Model Rules, and new language was adopted.
As we never formally adopted the comments to the Model Rules, we may interpret SCR 182
according to the new version of the comment, the old version of the comment, or some other
basis.
We also note that a literal reading of the Ninth Circuit's questions could yield a result
that offers no guidance: if we decide that the language at issue does not apply, then the
answer to the first question is no and the second question need not be addressed, but the
Ninth Circuit would still not know what test Nevada uses in applying SCR 182 to an
employee of a represented organization. We therefore rephrase the first question as follows,
and delete the second question:
What test does Nevada use in applying Supreme Court Rule 182 to an employee of a
represented organization?
The federal district court determined that if an employee's statement qualifies as a
party-opponent admission under FRE 801(d)(2)(D), then contact with the employee falls
within SCR 182's prohibition.
1
We conclude that the better test is the managing-speaking
agent test. We adopt this test, as set forth in this opinion, in determining whether contact
with an employee of a represented organization is barred by SCR 182.
FACTS
Dena Palmer applied for work as a waitress at the Pioneer Inn Hotel and Casino in
Reno, Nevada. She allegedly also discussed possible positions as a deli food server and a
restaurant supervisor with Greg Zamora, Food and Beverage Director. According to Palmer,
Zamora told her that she would be hired as a restaurant supervisor, but when she arrived for
work, Zamora told her she had been rejected by one of Pioneer's general managers because
she was pregnant. Palmer allegedly told him that she believed this was unlawful
discrimination, but Zamora confirmed that she would not be hired.
Pioneer asserted that Palmer was never hired because she did not complete Pioneer's
standard hiring process. This process begins with an initial screening by Pioneer's human
resources department,
__________

1
Palmer v. Pioneer Hotel & Casino, 19 F. Supp. 2d 1157 (D. Nev. 1998).
begins with an initial screening by Pioneer's human resources department, followed by an
interview with the department for which the applicant wishes to work. At that interview, an
offer of employment may be extended, conditional upon completion of the hiring process.
Upon acceptance of a conditional offer, the applicant is required to attend an orientation,
complete new hire forms, and obtain a police work card. Pioneer argued that since Palmer
completed only the first two steps, initial screening and an interview with the appropriate
department, she was never actually hired. Palmer essentially maintained that she attempted to
complete the hiring process, but was prevented from doing so when Zamora revoked the offer
of employment and told her she would not be hired because of her pregnancy.
Pioneer also asserted that only a deli food server position was available at the time
Palmer applied, and that Palmer rejected this position because the required hours conflicted
with her other job as a waitress at the Olive Garden. According to Pioneer, as no positions for
a waitress or restaurant supervisor were available at the time, Palmer could not have been
offered these positions. In contrast, Palmer claimed that Zamora gave her the restaurant
menus and a pamphlet on supervisor responsibilities to study, and told her the dress code
requirements for the position. Palmer alleged that in reliance on the offer of this better
position, she quit her job at the Olive Garden and purchased clothing suitable for a
supervisor. Additionally, Palmer argued that she would never have quit her job at the Olive
Garden if she did not believe that she had been hired.
When Palmer was not hired, she retained counsel almost immediately. Palmer's
attorney informed Pioneer by letter dated February 27, 1997, that he intended to file an action
on her behalf. In early March 1997, Palmer lodged a complaint with the Equal Employment
Opportunity Commission.
2
Pioneer retained counsel to represent it in the matter, and counsel
sent a letter to Palmer's attorney informing him of the representation.
In April 1997, George Kapetanakis, then an executive sous chef at Pioneer,
3
contacted Palmer's attorney. Following their discussion, Kapetanakis signed an affidavit,
prepared by Palmer's attorney, which stated: during the month of January, 1997, I
witnesse[d] Mr. Greg Zamora interviewing . . . [Palmer] . . . . I inquired of Mr. Zamora
whether he intended to hire [her] at which time Mr. Zamora
__________

2
The record does not reflect that Palmer filed a complaint with the Nevada Equal Rights Commissiononly
the EEOC complaint is mentioned.

3
It appears from the record that Kapetanakis later left Pioneer's employ, under hostile circumstances
apparently arising out of a workers' compensation dispute.
which time Mr. Zamora told me that he had already hired her. Kapetanakis's job was a
supervisory position that involved running Pioneer's main kitchen.
Palmer received a right-to-sue letter from the EEOC. On July 9, 1997, Palmer filed an
action in federal court alleging pregnancy and gender discrimination under Title VII,
4
and
pendent state law claims.
Pioneer moved to disqualify Palmer's counsel under SCR 182 based on his ex parte
contact with Kapetanakis.
5
The federal magistrate judge found that Kapetanakis was a
supervisor who had responsibility for interviewing and hiring cooks, dishwashers, and sous
chefs, although not waitresses, servers, or restaurant supervisors. The magistrate concluded
that, even though Kapetanakis was not involved in hiring waitresses, food servers, or
restaurant supervisors (any of the positions Palmer claims to have discussed with Zamora),
[b]ecause his job responsibilities included hiring employees, he was in a position to make
statements concerning the hiring policies of Pioneer. The magistrate then held that counsel's
contact with Kapetanakis constituted ex parte contact with a represented party under SCR
182, and sanctioned counsel by excluding the affidavit obtained by the contact, precluding
Kapetanakis from testifying about the information contained in the affidavit, and awarding
fees and costs of $2,800 to Pioneer. After Palmer filed an objection, the federal district court
affirmed the magistrate's order in its entirety.
Before trial, the district court dismissed two of Palmer's claims on summary
judgment. At trial, the jury found for Pioneer. Palmer appealed the summary judgment,
certain rulings at trial, and the order imposing sanctions for her counsel's ex parte contact.
The questions certified by the Ninth Circuit concern only the sanctions order.
DISCUSSION
SCR 182, Model Rule 4.2 and Comments
SCR 182 provides:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer in
the matter,
__________

4
42 U.S.C. 2000e to 2000e-17 (1994).

5
Palmer's counsel also contacted one other current employee and two former employees. Jennifer Walker, the
current employee, was a telephone operator, a non-supervisory position. The two former employees were Sarah
Favero, an on-call banquet worker, and Donna Lorenz, who was Food and Beverage Director before Zamora.
The federal district court found that counsel's contact with these individuals was not a violation of SCR 182, and
so they are not discussed in the Ninth Circuit's order or this opinion.
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by law to do so.
This rule was adopted verbatim from the original version of ABA Model Rule 4.2,
6
which in
turn was copied almost verbatim from Model Code of Professional Responsibility DR
7-104(A)(1). Before that, the same general concept was contained in Canon 9 of the ABA
Canons of Professional Ethics.
7

The primary purpose of the rule is to protect the attorney-client relationship from
intrusion by opposing counsel.
8
It protects parties from unprincipled attorneys and
safeguards the attorney-client privilege. It also promotes counsel's effective representation of
a client by routing communication with the other side through counsel, who can present the
information in a way most favorable to the client.
9
Sanctions for violating the rule have
included disqualification of counsel, monetary sanctions, exclusion of information obtained
by ex parte contact, prohibition on the use of such information at trial, and production to the
organization's counsel of information obtained by ex parte contact, including all or part of the
work product connected with the contact.
10

The rule's protections undisputedly extend to organizational parties, who must act
through their directors and employees.
11
Accordingly, at least some of the organization's
agents must be viewed as the equivalent of a party for the rule to have any effect.
12
A
conflict between policies arises, however. On one hand,
__________

6
See SCR 150(1); Model Rules of Prof'l Conduct R. 4.2 (1983). Model Rule 4.2 was amended in 1995 to
replace the word party with person, to clarify that communications occurring before litigation but after a
dispute had arisen were encompassed within the rule. See Model Rules of Prof'l Conduct R. 4.2 (1995); 2
Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering 38.2 (2001). Nevada has never adopted
this amendment. Model Rule 4.2 and its comments were amended in early 2002, when the ABA House of
Delegates approved proposed changes to the rules based on the Ethics 2000 Commission report. See Ethics 2000
Commission, at http://abanet.org/cpr/e2k-report_home.html (2002). The 2002 amendments are discussed infra.

7
Felicia Ruth Reid, Comment, Ethical Limitations on Investigating Employment Discrimination Claims: The
Prohibition on Ex Parte Contact with a Defendant's Employees, 24 U.C. Davis L. Rev. 1243, 1249 (1991).

8
Id. at 1250; see also ABA Center for Professional Responsibility, Annotated Model Rules of Professional
Conduct 398 (4th ed. 1999); Thomas W. Biggar, Discovery and Ethics: Dilemma in Interviewing Corporate
Employees, 1 Nev. L. Rev. 1, 5 (1998).

9
Reid, supra note 7, at 1250-51.

10
Biggar, supra note 8, at 4-5.

11
Id. at 2.

12
Id. at 1-2.
the rule's protective purposes are best served by defining this pool of agents broadly. On the
other hand, defining the pool more narrowly fosters the use of informal discovery methods,
which further the prompt and cost-effective resolution of disputes. Moreover, a narrower
definition affords a reasonable opportunity for pre-litigation investigation under Rule 11.
13
The question then becomes how to apply the rule in a way that best balances the competing
policies.
The ABA has attempted to provide some guidance in this area in its comments to the
Model Rules. SCR 150(2) explains that the comments to the ABA Model Rules were not
adopted by this court, but can be consulted for guidance. In our two published opinions on
SCR 182, we have considered the comments, as they stood at the time of those decisions, in
interpreting the rule. In Cronin v. District Court,
14
we followed a portion of the 1983
comments providing that communications with managerial-level employees of a corporate
client are included within SCR 182's scope. In the other case, In re Discipline of Schaefer,
15
we rejected a portion of the 1995 comments that suggested that a lawyer representing himself
in a matter was not included within the rule's scope.
The pertinent part of the 1995 comments to Model Rule 4.2, in effect at the time of
the federal district court's decision and the Ninth Circuit's certification order,
16
is as follows,
with emphasis added:
In the case of an organization, this Rule prohibits communications by a lawyer for
another person or entity concerning the matter in representation with persons having a
managerial responsibility on behalf of the organization, and with any other person
whose act or omission in connection with that matter may be imputed to the
organization for purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization. If an agent or employee of the
organization is represented in the matter by his or her own counsel,
__________

13
Reid, supra note 7, at 1252-53; Biggar, supra note 8, at 6; see also NRCP 11; Fed. R. Civ. P. 11. Inasmuch
as the duties imposed by the Nevada and federal versions of the rule are substantially the same, any reference in
this opinion to Rule 11 means both the federal and Nevada rules.

14
105 Nev. 635, 781 P.2d 1150 (1989).

15
117 Nev. 496, 25 P.3d 191, as modified 31 P.3d 365 (2001), cert. denied, 534 U.S. 1131 (2002).

16
In the original 1983 version, this text was designated as Comment 2. In the 1995 revisions, it was
renumbered Comment 4, but the text did not change. In the 2002 revisions, it was renumbered Comment 7, and
the text was changed substantially, as discussed in this opinion.
his or her own counsel, the consent by that counsel to a communication will be
sufficient for purposes of this Rule. Compare Rule 3.4(f) [concerning propriety of a
lawyer's request that a person other than a client refrain from voluntarily giving
information].
17

As noted above, the emphasized portion of the comment is at issue in this case.
The comments to Model Rule 4.2 were substantially revised in the 2002 amendments
to the Model Rules,
18
well after the conduct in this case took place, and after the certification
order was entered. While they were available in draft form at the time of the certification
order and when the parties filed their briefs with this court, they had not yet been approved.
As amended, the pertinent comment reads:
In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization's lawyer concerning the matter or has authority to obligate the organization
with respect to the matter or whose act or omission in connection with the matter may
be imputed to the organization for purposes of civil or criminal liability. Consent of the
organization's lawyer is not required for communication with a former constituent. If a
constituent of the organization is represented in the matter by his or her own counsel,
the consent by that counsel to a communication will be sufficient for purposes of this
Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of
an organization, a lawyer must not use methods of obtaining evidence that violate the
legal rights of the organization. See Rule 4.4.
19

The amendment deletes the portion of the earlier comment at issue in this matter. According
to the Ethics 2000 Commission's Report overview, the amendments to Rule 4.2 were part of
the commission's effort to [c]larif[y] existing rules and Comment to provide better
guidance and explanation to lawyers,
__________

17
Model Rules of Prof'l Conduct R. 4.2 cmt. 4 (1995).

18
Model Rule 4.2 received only a minor change, to clarify that a court may permit or prohibit contact in a
particular case. The change reflects actual practice under the former version of the rule. As amended in 2002,
Model Rule 4.2 reads as follows (the added language is emphasized):
In representing a client, a lawyer shall not communicate about the subject of the representation with a
person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court order.
Model Rules of Prof'l Conduct R. 4.2 (2002).

19
Id. R. 4.2 cmt. 7.
provide better guidance and explanation to lawyers, specifically, to clarif[y] application of
the Rule to organizational clients.
20
In particular, the Reporter's Explanation of Changes
states that the admission clause was deleted because it had been misapplied to situations
when an employee's statement could be admissible against the organizational employer, when
the clause was only ever intended to encompass those few jurisdictions with a law of
evidence providing that statements by certain employees of an organization were not only
admissible against the organization but could not thereafter be controverted by the
organization.
21

The recent amendments, and the reasons for them, are relevant to our consideration of
the issue, particularly because the former comment was never binding on Nevada lawyers,
and so retroactivity is not a concern.
Various tests for determining which employees are included within the rule's scope
Many competing policies must be considered when deciding how to interpret the
no-contact rule as applied to organizational clients: protecting the attorney-client relationship
from interference; protecting represented parties from overreaching by opposing lawyers;
protecting against the inadvertent disclosure of privileged information; balancing on one hand
an organization's need to act through agents and employees, and protecting those employees
from overreaching and the organization from the inadvertent disclosure of privileged
information, and on the other hand the lack of any such protection afforded an individual,
whose friends, relatives, acquaintances and co-workers may generally all be contacted freely;
permitting more equitable and affordable access to information pertinent to a legal dispute;
promoting the court system's efficiency by allowing investigation before litigation and
informal information-gathering during litigation; permitting a plaintiff's attorney sufficient
opportunity to adequately investigate a claim before filing a complaint in accordance with
Rule 11; and enhancing the court's truth-finding role by permitting contact with potential
witnesses in a manner that allows them to speak freely.
Various courts have formulated several tests for determining who is encompassed
within the no-contact rule. Most of the tests attempt to interpret the former comment to
Model Rule 4.2. At one extreme is the blanket test, which prohibits contact with current
and former employees of an organizational client;
__________

20
Charlotte Stretch, Overview of Ethics 2000 Commission and Report, at
http://abanet.org/cpr/e2k-ov_mar02.doc (2002).

21
See Model Rule 4.2Reporter's Explanation of Changes, at http://www.abanet.org/cpr/rule42memo.html
(Feb. 21, 2000).
current and former employees of an organizational client; at the other is the control group
test, which covers only high-level management employees. Several tests fall in the middle,
including a party-opponent admission test, a case-by-case balancing test, and a
managing-speaking agent test. Finally, a test crafted by the New York Court of Appeals
expressly disclaims any reliance on the former comment, but is admittedly based on the
managing-speaking agent test.
Blanket test
The blanket test prohibits all contact, and appears to have been adopted in very few
published decisions. A federal district court has concluded that a blanket rule prohibiting all
contact sets a bright-line rule that is easily followed and enforced.
22
That court also opined
that depositions were more reliable and ethically sound than informal interviews.
23

The primary advantage of this test is its clarity: no employees of a represented
organization may be contacted by opposing counsel. It also offers the most protection for the
organization. The cost of these advantages, however, is very high. A complete prohibition on
informal ex parte contact greatly limits, if not eliminates, counsel's opportunity to properly
investigate a potential claim before a complaint is filed, as required by Rule 11. Also, the
rules of civil procedure, especially the discovery rules, are designed to afford parties broad
access to information, and informal interviews are a cost-effective way of gathering facts, as
opposed to more expensive depositions, which preserve facts.
24

Party-opponent admission test
The test based on the hearsay rule appears to encompass almost as many employees as
the blanket test, and is the test adopted by the federal district court in this matter. This test
encompasses within the ethical rule any employee whose statement might be admissible as a
party-opponent admission under FRE 801(d)(2)(D) and its state counterparts.
__________

22
Public Serv. Elec. & Gas v. Associated Elec. & Gas, 745 F. Supp. 1037 (D.N.J. 1990), superseded by rule
amendment as recognized in Klier v. Sordoni Skanska Const. Co., 766 A.2d 761 (N.J. Super. Ct. App. Div.
2001) (incorporating control group test in text of rule as amended); see also Louis A. Stahl, Ex Parte Interviews
with Enterprise Employees: A Post-Upjohn Analysis, 44 Wash. & Lee L. Rev. 1181, 1196 (1987) (concluding
that a blanket rule best serves the purpose of the no-contact rule: to provide effective representation to the
client).

23
Public Serv. Elec., 745 F. Supp. at 1043.

24
Biggar, supra note 8, at 6 (stating that SCR 182 is an ethical rule, not a rule through which corporate
parties should gain the ability to control the flow of information to their adversaries).
and its state counterparts.
25
According to the evidence rule, an employee's statement is not
hearsay, and thus is freely admissible against the employer, if it concerns a matter within the
scope of the employee's employment, and is made during the employee's period of
employment.
The courts adopting the party-opponent admission test have concluded that the former
comment's reference to admissions was clearly meant to incorporate the rules of evidence
governing admissions. In Brown v. St. Joseph County,
26
an Indiana federal district court
quoted a leading treatise in reasoning that the evidentiary test gave a sound practical cast to
the rule: those who can hurt or bind the organization with respect to the matter at hand are off
limits except for formal discovery or except with the consent of the entity's lawyer.'
This test's primary advantage is that it protects the organization from potentially
harmful admissions made by its employees to opposing counsel, without the organization's
counsel's presence. The organization's interest in this regard is particularly strong because
such admissions are generally recognized as a very persuasive form of evidence.
27

The drawback of this test is that it essentially covers all or almost all employees, since
any employee could make statements concerning a matter within the scope of his or her
employment, and thus could potentially be included within the rule.
28
Thus, the
party-opponent admission test can effectively serve as a blanket test, thus frustrating the
search for truth.
29
An attorney attempting to comply with Rule 11's requirements would be
faced with two unenviable choices. The first option would be not to contact persons who
might be the best, if not the only, source of corroborating information. This option would
ensure that the attorney complies with SCR 182's prohibitions, but would result in the
attorney's failure to comply with Rule 11. The second option would be for the attorney to
second-guess what an employee might say,
__________

25
See Cole v. Appalachian Power Co., 903 F. Supp. 975 (S.D.W. Va. 1995); Brown v. St. Joseph County,
148 F.R.D. 246 (N.D. Ind. 1993); University Patents, Inc. v. Kligman, 737 F. Supp. 325 (E.D. Pa. 1990); see
also Weeks v. Independent School Dist. No. I-89, 230 F.3d 1201 (10th Cir. 2000) (purporting to adopt the
managing-speaking test, but applying FRE 801(d)(2)(D) to determine which employees speak for the
university), cert. denied, 532 U.S. 1020 (2001); id. at 1214-15 (Briscoe, J., concurring) (identifying the
inconsistency in the majority's analysis, and explicitly basing his concurrence on FRE 801(d)(2)(D)); see also
NRS 51.035(3)(d) (mirroring FRE 801(d)(2)(D)).

26
148 F.R.D. at 254 (quoting 2 Hazard & Hodes, supra note 6, 38.6, at 38-9).

27
Reid, supra note 7, at 1274.

28
Id. at 1277.

29
Biggar, supra note 8, at 15.
would be for the attorney to second-guess what an employee might say, in an attempt to
determine whether contact might be permissible, which would result in the attorney risking an
SCR 182 violation.
30

In addition, a party admission may be challenged through impeachment of the witness,
by presenting contradictory evidence, or by explaining the admission.
31
Accordingly, it is not
clear that this test properly balances the competing policies.
Managing-speaking agent test
The managing-speaking agent test appears to have evolved before the tests discussed
above, in response to a United States Supreme Court case discussing the scope of the
attorney-client privilege as applied to an organizational client. In Upjohn Co. v. United States,
32
the Court held that the privilege was not restricted to an organization's control group.
Rather, the Court held that mid- and even low-level employees could have information
necessary to defend against a potential claim, and thus communications between such
employees and counsel were protected by the privilege. While acknowledging that the
Upjohn opinion did not expressly apply to the no-contact rule, the courts adopting the
managing-speaking agent test in Upjohn's wake reasoned that the protection afforded an
organization under the no-contact rule should be commensurate with that afforded by the
attorney-client privilege.
33
At the same time, relying on dicta in Upjohn stating that
confidential communications, not facts, were entitled to protection, these courts determined
that the rule should not be expanded so broadly that informal investigation through ex parte
interviews was restricted too severely.
Some courts adopting this test have done so without reference to Model Rule 4.2's
former comment, which includes three categories of employees: those with managerial
responsibility, those whose acts or omissions could be imputed to the organization to
establish liability, or those whose statements could constitute an admission by the
organization.
34
Other courts applied the former comment in determining that the test best
interpreted one or more categories of employees listed in the former comment.
__________

30
Id. at 3-4.

31
Reid, supra note 7, at 1278; see also Chaffee v. Kraft General Foods, Inc., 886 F. Supp. 1164 (D.N.J.
1995) (explaining the difference between a judicial admission, which is conclusively binding, and an evidentiary
party admission, which may be challenged); In re Applin, 108 B.R. 253 (Bankr. E.D. Cal. 1989) (same).

32
449 U.S. 383 (1981).

33
See Chancellor v. Boeing Co., 678 F. Supp. 250 (D. Kan. 1988); Wright by Wright v. Group Health Hosp.,
691 P.2d 564 (Wash. 1984).

34
See Wright, 691 P.2d 564; Model Rules of Prof'l Conduct R. 4.2 cmt. 4 (1995).
comment in determining that the test best interpreted one or more categories of employees
listed in the former comment.
35
No court appears to have adopted precisely the same
statement of the test.
36

In all of its formulations, the managing-speaking agent test restricts contact with those
employees who have speaking authority for the organization, that is, those with legal
authority to bind the organization.
37
Which employees have speaking authority is
determined on a case-by-case basis according to the particular employee's position and duties
and the jurisdiction's agency and evidence law. This is the essence of the test as set forth in
the most-cited case adopting it, the Washington Supreme Court's opinion in Wright by Wright
v. Group Health Hospital.
38

Beyond this common factor, the test has sometimes included other employees. For
example, in jurisdictions with an evidence rule similar to FRE 801(d)(2)(D), courts have
applied the evidence rule in determining which employees speak for the organization, thus
yielding a result similar to the party-opponent admission test.
39
Also, some courts have used
this test to interpret one or another of the categories in Model Rule 4.2's former comment, but
have also referred to the other categories, including those employees whose conduct could be
imputed to the organization.
40

Courts adopting this test have concluded that it best balances the competing policies
of protecting the organizational client from overreaching by opposing counsel through direct
contact with its employees and agents, and the adverse attorney's need for information in the
organization's exclusive possession that may be too expensive or impractical to obtain
through formal discovery.
__________

35
See Chancellor v. Boeing Co., 678 F. Supp. 250 (D. Kan. 1988) (applying test to admission category);
Palmer v. Pioneer Hotel & Casino, 19 F. Supp. 2d 1157 (D. Nev. 1998) (applying test to more clearly define
former comment's managerial category, but reasoning that other categories of former comment still apply).

36
Compare Weeks v. Independent School Dist. No. I-89, 230 F.3d 1201 (10th Cir. 2000) (purporting to adopt
the managing-speaking test, but applying FRE 801(d)(2)(D) to determine which employees speak for the
university), cert. denied, 532 U.S. 1020 (2001), and Chancellor, 678 F. Supp. 250 (implying that evidentiary
rules determine which employees have speaking authority), with Wright, 691 P.2d 564 (emphasizing that only
employees who could bind the organization are covered), and Porter v. Arco Metals, Div. of Atlantic
Richfield, 642 F. Supp. 1116 (D. Mont. 1986) (relying on Wright but stating the test differently).

37
See Chancellor, 678 F. Supp. at 253; Porter, 642 F. Supp. at 1118; Wright, 691 P.2d at 569.

38
691 P.2d 564.

39
See Weeks, 230 F.3d 1201; Chancellor, 678 F. Supp. 250.

40
See Chancellor, 678 F. Supp. 250; Palmer, 19 F. Supp. 2d 1157.
may be too expensive or impractical to obtain through formal discovery.
41
They also note,
relying on Upjohn's dicta, that the rule's purpose is not to protect an organization from the
revelation of prejudicial facts, thus disapproving of the party-opponent admission test.
42

The test's primary drawback is its lack of predictability.
43
As noted above, several of
the courts purporting to adopt the test have stated and applied it very differently. In addition,
because the test relies on a particular jurisdiction's agency and evidence law, its application
may yield divergent results.
Control group test
The final test that interprets the former comment to the rule is the control group test.
This test encompasses only those top management level employees who have responsibility
for making final decisions, and those employees whose advisory roles to top management
indicate that a decision would not normally be made without those employees' advice or
opinion.
44

This test serves the policies of preserving the availability of witnesses, reducing
discovery costs by permitting informal interviews of a broad range of employees, and
affording the best opportunity for pre-litigation fact investigation.
45
The test has become
disfavored following the Upjohn decision, because the control group test is narrower than the
attorney-client privilege rule approved in that case.
46
Also, it lacks predictability because it
is not always clear which employees fall within the control group.
47

Case-by-case balancing test
A few courts have adopted a case-by-case balancing approach.
48
Under this test, the
particular facts of the case must be examined to determine what informal contacts may be
appropriate in light of the parties' specific needs.
__________

41
See Wright, 691 P.2d at 569; see also Reid, supra note 7, at 1289-90.

42
Wright, 691 P.2d at 569.

43
Reid, supra note 7, at 1291; Biggar, supra note 8, at 12.

44
See Fair Automotive v. Car-X Service Systems, 471 N.E.2d 554, 560 (Ill. App. Ct. 1984).

45

46
Id. at 1286-87.

47
Id. at 1287.

48
See Erickson v. Winthrop Laboratories, 592 A.2d 33 (N.J. Super. Ct. Law Div. 1991), superseded by rule
amendment as recognized in Klier v. Sordoni Skanska Const. Co., 766 A.2d 761 (N.J. Super. Ct. App. Div.
2001) (incorporating control group test in text of rule as amended); Baisley v. Missisquoi Cemetery Ass'n, 708
A.2d 924 (Vt. 1998) (purporting not to choose between balancing test and New York test, but applying
balancing test).
of the parties' specific needs. Factors to be considered are the claims asserted, the employee's
position and duties, the employer's interests in protecting itself, and the alternatives available
to the party seeking an informal interview.
49
Results under the test have varied.
50
The
pertinent cases do not address counsel's difficulty in applying this test before an actual
interview, to determine whether the interview might later be found to be a rule violation.
Rather, it appears that this test has been applied only when a lawyer seeks prospective
guidance from a court, and it has not been used in making an after-the-fact determination of
whether an attorney has violated the ethical rule. While this approach offers a fact-specific
application of the no-contact rule and has some practical appeal in those situations when
counsel seeks court guidance before making an ex parte contact, it is not at all predictable and
does not have a sound analytical basis. Also, ex parte contact is most useful and necessary in
the pre-litigation stage, when counsel is complying with his or her Rule 11 obligation to
investigate whether a valid claim exists. A test that requires court intervention before contact
may be made does not further the purpose of permitting an adequate investigation under Rule
11. Accordingly, while the balancing approach may be useful in certain limited situations, it
cannot feasibly be applied as a universal standard for interpreting SCR 182.
New York test
Finally, an additional test has been formulated by the New York Court of Appeals in
Niesig v. Team I,
51
which explicitly rejects reliance on the former comment. The test is often
referred to as the alter ego test.
52
The court rejected the blanket test as too broad, and the
control group test as too narrow. It also expressed dissatisfaction with the existing
intermediate tests, because they were too uncertain in application. Instead, while
acknowledging that any non-blanket rule engendered some uncertainty, the court formulated
its own test:
__________

49
See Baisley, 708 A.2d at 933.

50
Compare Morrison v. Brandeis University, 125 F.R.D. 14 (D. Mass. 1989) (permitting ex parte contact by
counsel for the plaintiff professor, who was denied tenure, with professors sitting on the plaintiff's peer review
panel; such contact would appear to be prohibited under every other test), with Baisley, 708 A.2d at 933
(prohibiting ex parte contact with a cemetery caretaker in a case seeking damages for injuries suffered by the
plaintiffs' child when he fell upon a spiked fence surrounding the cemetery; such contact would appear to be
permissible under most of the other tests).

51
558 N.E.2d 1030 (N.Y. 1990).

52
The test that best balances the competing interests, and incorporates the most desirable
elements of the other approaches, is one that defines party to include corporate
employees whose acts or omissions in the matter under inquiry are binding on the
corporation (in effect, the corporation's alter egos) or imputed to the corporation for
purposes of its liability, or employees implementing the advice of counsel. All other
employees may be interviewed informally.
53

In particular, the court noted that its test would clearly permit direct access to employees
who were merely witnesses to an event for which the corporate employer is sued.
54
This
test has since been adopted by several courts.
55

One advantage of the New York test is that it balances the protection afforded to the
organization with the need for informal investigation, although it may go too far in protecting
the organization by including those employees whose conduct may be imputed to the
organization. Its disadvantage, as admitted by the Niesig court, is that any non-blanket rule
has an element of unpredictability, and so in close situations it may be difficult to determine
whether a particular employee is within its scope. In particular, as with the
managing-speaking agent test on which the New York test is based, it may be difficult to
determine which employees have sufficient authority to bind the organization.
The arguments of the parties and amici
Palmer first argues that the admission clause of the former comment should not be
followed.
56
She contends that it is difficult for an attorney who is attempting to comply with
Rule 11 while not violating ethical rules. According to Palmer, the former comment thus
chills proper representation of clients against an organizational opponent. Instead, Palmer
advocates the New York test. In the event this court decides to apply the admission clause,
Palmer argues that the party-opponent admission test relied upon by the district court is too
broad, and that the managing-speaking agent test should be adopted.
__________

53
Id. at 1035.

54
Id. at 1035-36.

55
See Strawser v. Exxon Co., U.S.A., 843 P.2d 613 (Wyo. 1992); State v. CIBA-GEIGY Corp., 589 A.2d 180
(N.J. Super. Ct. App. Div. 1991); Dent v. Kaufman, 406 S.E.2d 68, 72 (W. Va. 1991); MR & W v. President and
Fellows of Harvard, 764 N.E.2d 825 (Mass. 2002); Bouge v. Smith's Management Corp., 132 F.R.D. 560 (D.
Utah 1990).

56
Although the comment has since been amended, we could still conclude that it contains the best statement
of which employees should be covered; accordingly, the issue is not moot.
Pioneer argues that this court should apply the admission clause, and relies on this
court's citation to the comments generally in Cronin and Schaefer.
57
Pioneer further argues
that the federal district court appropriately applied the party-opponent admission test, because
any other test renders the admission clause superfluous.
Pioneer also relies on the Restatement (Third) of the Law Governing Lawyers, which
provides that attorneys are prohibited from contacting employees whose statements would
have the effect of binding the organization with respect to proof of the matter.
58
Pioneer
argues that this language is the same as applying the party-opponent admission test to
interpret the admission clause.
The Restatement is considerably narrower, however, because the party-opponent
admission test does not bind the organization to the admissionwhile the admission is
admissible, the organization is free to offer evidence contradicting the admission and/or
impeaching the party who made it.
59
The comments to the Restatement itself indicate that it
in no way advocates a standard based on the party-opponent admission rule, but rather that its
proposed rule follows the New York approach.
60

In its amicus brief, the Nevada Trial Lawyers Association argues that the admission
clause should not be followed, and cites heavily to the Ethics 2000 Commission's reports and
drafts.
61
In the event this court decides to follow the admission clause, the NTLA
essentially repeats Palmer's arguments that a managing-speaking agent test should be adopted
rather than the party-opponent admission test.
Finally, in its amicus brief, the state bar recommends that the admission clause be
rejected, and that we adopt the test crafted by the New York Court of Appeals. The state bar
strongly argues that the policies behind the rule are best served by the New York test. In a
final paragraph, the state bar recommends that in the event this court applies the admission
clause, the managing-speaking agent test would be preferable.
__________

57
Although Pioneer argues that our Schaefer opinion supports application of the former comment, and
Palmer concedes that Schaefer, together with Cronin, may lead us to conclude that we have adopted the former
comment, including the admission clause, we actually rejected the portion of the comment addressed in
Schaefer. See 117 Nev. at 507-08, 25 P.3d at 199-200.

58
Restatement (Third) of the Law Governing Lawyers 100 (2000).

59
See, e.g., Chaffee, 886 F. Supp. 1164; Applin, 108 B.R. 253.

60
Restatement, supra note 58, 100 cmt. e.

61
The NTLA's brief was filed in September 2001, before the amendments were formally adopted.
Analysis
[Headnote 1]
We conclude that the managing-speaking agent test, as set forth below, best balances
the policies at stake when considering what contact with an organization's representatives is
appropriate. The test protects from overbearance by opposing counsel those representatives
who are in a position to speak for and bind the organization during the course of litigation,
while still providing ample opportunity for an adequate Rule 11 investigation.
In addition, we conclude that the United States Supreme Court's reasoning in Upjohn,
while explicitly addressing only the attorney-client privilege, applies with equal force to the
no-contact rule, in that the purpose of SCR 182 is to protect the attorney-client relationship,
not to protect an organization from the discovery of adverse facts.
62
The managing-speaking
agent test best fulfills this purpose by not being over-inclusive. In particular, the
managing-speaking agent test adopted by this court does not protect the organization at the
expense of the justice system's truth-finding function by including employees whose conduct
could be imputed to the organization based simply on the doctrine of respondeat superior.
Finally, while any non-blanket rule has some uncertainty, we conclude that the test is
sufficiently clear to provide significant guidance to counsel.
63

[Headnote 2]
In embracing the managing-speaking agent test, we do not adopt Model Rule 4.2's
former comment. Also, we do not follow the 2002 comment, which essentially tracks the
New York test. Rather, SCR 182 should be interpreted according to the managing-speaking
agent test as set forth by the Washington Supreme Court in Wright by Wright v. Group Health
Hospital:
64

[T]he best interpretation of party in litigation involving corporations is only those
employees who have the legal authority to bind the corporation in a legal evidentiary
sense, i.e., those employees who have speaking authority for the corporation. . . . It is
not the purpose of the rule to protect a corporate party from the revelation of prejudicial
facts. Rather, the rule's function is to preclude the interviewing of those corporate
employees who have the authority to bind the corporation.
__________

62
See Upjohn, 449 U.S. at 395-96.

63
See Biggar, supra note 8, at 22 (noting that while ethical rules provide few bright lines, attorneys, who
must have a certain level of education, traiing, and common sense, can survive without them by being aware of
when to seek further guidance and what possible consequences may attach to questionable actions).

64
691 P.2d 564, 569 (Wash. 1984) (citations omitted).
. . . [E]mployees should be considered parties for the purposes of the disciplinary
rule if, under applicable [state] law, they have managing authority sufficient to give
them the right to speak for, and bind, the corporation.
In applying this test, we specifically note that an employee does not speak for the
organization simply because his or her statement may be admissible as a party-opponent
admission. Rather, the inquiry is whether the employee can bind the organization with his or
her statement. Also, an employee for whom counsel has not been retained does not become a
represented party simply because his or her conduct may be imputed to the organization;
while any confidential communications between such an employee and the organization's
counsel would be protected by the attorney-client privilege, the facts within that employee's
knowledge are generally not protected from revelation through ex parte interviews by
opposing counsel.
65

A lawyer must have a reasonable opportunity to conduct an investigation under Rule
11. This investigation would be unduly hampered by an over-inclusive test, such as the
party-opponent admission test adopted by the federal district court in this case. Such a test
essentially bars contact with all employees, because any employee could make a statement
concerning a matter within the scope of his or her employment, which would then be
admissible under FRE 801(d)(2)(D) or a state equivalent. A lawyer contacting the employee
could not know in advance whether the employee might make such a statement, and so would
be forced to choose between foregoing information that could be useful and even necessary to
a proper investigation, or risking sanctions for an SCR 182 violation. Without doubt, an
organization is entitled to the protections afforded by SCR 182, but just as for individuals,
this protection is not unlimited. The managing-speaking agent test most appropriately
balances these competing interests, and so it is the test we adopt.
CONCLUSION
Nevada does not follow the portion of the ABA Model Rule 4.2's former comment
providing that contact is barred with an organization's employee whose admission may
constitute an admission on the part of the organization, nor does it follow the 2002 version of
the comment. Rather, in interpreting SCR 182 as applied to employees of an organization,
we adopt the managing-speaking agent test.
__________

65
See Upjohn, 449 U.S. at 395-96. We note that an attorney who abuses the interview process by inquiring
into privileged matters, or even by permitting an employee to refer to confidential communications without
immediately warning the employee that such communications are protected and should not be disclosed, is
subject to appropriate sanctions.
applied to employees of an organization, we adopt the managing-speaking agent test. This test
preserves the protection afforded by SCR 182 to an organization, while permitting sufficient
flexibility to conduct an adequate pre-litigation investigation.
____________
118 Nev. 962, 962 (2002) Matter of Adoption of Minor Child
In the Matter of the Petition for Adoption of a Minor Child.
BIRTH MOTHER, Appellant, v. ADOPTIVE PARENTS and NEW HOPE CHILD AND
FAMILY AGENCY, Respondents.
No. 37244
December 27, 2002 60 P.3d 485
Appeal from an adoption decree. Second Judicial District Court, Washoe County;
Deborah Schumacher, Judge, Family Court Division.
Birth mother filed objection to adoption, alleging that she was incapable of giving
knowing, voluntary, and intelligent consent to relinquishment of her child. The district court
determined that birth mother's consent was valid and shortly thereafter granted adoptive
parents' petition for adoption. Birth mother appealed. The supreme court held that: (1) denial
of birth mother's supplemental objections to adoption was not an abuse of discretion; (2)
denial of birth mother's tardy discovery requests, filed after hearing had begun on her claim
that her relinquishment of child for adoption was not voluntary, was not an abuse of
discretion; and (3) mother's relinquishment of child for adoption was voluntary.
Affirmed.
Gamboa & Stovall, Reno, for Respondents.
When an appeal is taken from a final judgment, an interlocutory order entered prior to judgment may be reviewed by appellate
court.
2. Adoption.
Supreme court had jurisdiction to review birth mother's appeal from interlocutory order denying her motion to revoke
relinquishment of her parental rights. The court could construe notice of appeal to be from final adoption decree, where respondents
were not misled as to birth mother's error.
3. Adoption.
Denial of birth mother's supplemental objections to adoption was not an abuse of discretion, given that supplemental objections
that district court had improperly limited scope of cross-examination of one of adoptive parents' witnesses, agency failed to comply
with certain procedures, and adoptive parents breached communication agreement were without merit and irrelevant in determining
mother's consent to adoption. NRCP 15.
During a hearing, as in a trial, the right to discovery is subject to discretion of district court.
Absent an abuse of discretion, supreme court will not disturb a district court's decision regarding discovery.
Denial of birth mother's tardy discovery requests, filed after hearing had begun on her claim that her relinquishment of child for
adoption was not voluntary, was not an abuse of discretion; record did not reveal any justification for delay in requesting discovery,
discovery sought confidential documents which only pertained to adoption by adoptive parents, and the information requested was
irrelevant to whether birth mother's relinquishment of child was voluntary.
7. Adoption.
Names of adoptive parents did not have to appear on relinquishment form, where consent to relinquish parental rights and
consent for adoption form signed by birth mother stated that she was relinquishing her parental rights to an agency for specific purpose
of adoption, and form gave agency express permission to consent to adoption of child.
8. Adoption.
Birth mother's involvement in selection of adoptive parents did not transform an agency adoption into adoption by specific
parents, which would have required listing of those adoptive parents on relinquishment form.
Where conflicting evidence is presented, supreme court reviews district court's order to determine if its findings are supported by
substantial evidence.
10. Adoption.
Testimony of birth mother's counselor that, at time of relinquishment of her parental rights, she was incapable of giving
voluntary and intelligent consent to adoption did not support finding that relinquishment was involuntary, where counselor was not
birth mother's counselor at time of relinquishment and counselor did not interview individuals in contact with mother at time of
adoption but instead relied only on mother's statements and her history, which he acknowledged was less than full information he
usually relied on in making diagnoses.
11. Adoption.
Birth mother's consent to adoption was voluntary, where birth mother contacted adoption agency and sought information
regarding adoption, she specified her desire to be involved in adoption process, personally chose adoptive parents, and asked them to
adopt her child, she presented adoptive parents with several personal items for child, documentation expressly stated the
relinquishment was irrevocable, and for several months after relinquishment birth mother expressed her approval of adoptive parents in
cards written to them, as well as to agency.
OPINION
1

Per Curiam:
[Headnotes 1, 2]
This is an appeal from an adoption decree.
2
The birth mother relinquished her
parental rights to her child to New Hope Child and Family Agency (New Hope) for the
purpose of adoption. New Hope and the birth mother ultimately selected the adoptive parents.
The adoptive parents filed a petition for adoption with the district court. While the petition
was pending, the birth mother filed an objection to the adoption, alleging that, due to a series
of traumatic events that occurred around the child's birth, she was incapable of giving
knowing, voluntary, and intelligent consent to the relinquishment of her child.
Upon the birth mother's objection, the district court held a hearing to determine the
validity of her prior consent. During the three-day hearing, the birth mother filed
supplemental objections, additional discovery requests, and a motion to revoke the
relinquishment of her child because the relinquishment form did not state the names of the
adoptive parents. The district court denied all requests and motions. At the conclusion of the
hearing, the district court determined that the birth mother's consent was valid and, shortly
thereafter, granted the adoptive parents' petition for adoption.
__________

1
We originally decided this appeal in an unpublished order filed September 6, 2002. Respondents
subsequently requested publication of the order. Cause appearing, we grant the request and publish this opinion
in place of our prior unpublished order. Consistent with the confidentiality provisions set forth in NRS 127.140,
we have altered the caption and used non-identifying references to the birth mother, adoptive parents, and
adopted child.

2
The birth mother designates the district court order denying her motion to revoke the relinquishment of her
parental rights as the order she is appealing. However, this order is interlocutory and not appealable. Yet, this
court may construe the notice of appeal to be from the final judgment, if timely, and exercise jurisdiction over
the appeal as long as the respondents have not been misled by the birth mother's error. Forman v. Eagle Thrifty
Drugs & Markets, 89 Nev. 533, 535-36, 516 P.2d 1234, 1235-36 (1973), overruled on other grounds by Garvin
v. Dist. Ct., 118 Nev. 749, 59 P.3d 1180 (2002). There is no indication the respondents were misled in this case.
Moreover, when an appeal is taken from a final judgment, an interlocutory order entered prior to the judgment
may be reviewed by this court. Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d
1251, 1256 (1998). The final order in this matter is the adoption decree. Accordingly, this court has jurisdiction
to consider the interlocutory order denying the birth mother's motion to revoke the relinquishment of her parental
rights.
The birth mother then filed this appeal challenging the district court's: (1) failure to
consider her supplemental objections, (2) failure to grant her discovery requests, (3) denial of
her motion to revoke the relinquishment of the child for adoption, and (4) determination that
her consent was valid. We conclude that the birth mother's assertions lack merit and affirm
the order of the district court.
FACTS
When the birth mother gave birth to the child, she contacted New Hope, met with an
agent to discuss the possibility of adoption, and decided to pursue adoption. Upon the birth
mother's request to be involved in the adoption, New Hope and the birth mother worked
together to select the adoptive parents. New Hope sent her profiles of three potential adoptive
parents, from which she selected the respondent adoptive parents. She called the nurse at her
pediatrician's office and told the nurse she was placing the child up for adoption. The birth
mother then asked the nurse to expedite the release of the child's medical records because she
wanted the adoption to move quickly. A week prior to the adoption, the birth mother signed a
communication agreement, which provided for some contact between the birth mother and
the adopted child after the adoption. Handwritten in the agreement were requests for a visit on
or near the child's first three birthdays, a phone call per month for the first three months, a
phone call from the adoptive parents when they returned home after taking custody of the
child, and a videotape of the child when the child started walking.
The birth mother met with the adoptive parents at her home and asked them to adopt
her child. The following day, the adoptive parents returned to the birth mother's home to pick
up the child's belongings. The birth mother presented the adoptive parents with numerous
items, including a stack of photographs with handwritten notes indicating who she was in the
photos, some of the birth mother's own baby clothes, all of the child's clothes, a hospital
bracelet from when the child was born, and a blanket with the child's name on it.
That same day, the birth mother executed a consent to relinquish her parental rights
and consent for adoption as to her child. In so doing, the birth mother expressly relinquished
her child to New Hope for the purpose of adoption. The relinquishment/consent form did not
specify who the adoptive parents would be, but rather, she relinquished the child to New
Hope and gave it the authority to consent to the adoption of the child. The birth mother
testified that New Hope instructed her to read the relinquishment form and to ask questions.
form and to ask questions. The birth mother did not ask any questions and signed the forms.
The birth mother also signed a statement of understanding, which required her to initial next
to several statements that individually explained the effect of the adoption. Statement 4,
initialed by the birth mother, plainly states, If I relinquish my rights to my child, I will have
no legal rights to my child. Once the relinquishments are signed they are binding legally and
Are Not revocable.
The notary present at the relinquishment testified that the birth mother said that they
were giving up the child because they thought a lot and thought it would be better for the
child to not be with them. In the presence of the notary and an additional witness, an agent
for New Hope asked the birth mother whether she was forced or coerced into the
relinquishment, and she responded no. The agent also asked her if she understood the
relinquishment was irrevocable, and she responded yes.
After the birth mother signed the relinquishment documents, she physically
relinquished the child to the adoptive parents in an adoption ceremony. The birth mother
handed the child to the adoptive mother, who then passed the child to the birth father. The
birth father, in turn, handed the child to the adoptive father. The adoptive parents also signed
the communication agreement. The adoptive parents then took custody of the child.
Initially, the birth mother and the adoptive parents had a very amicable and
cooperative relationship. On several occasions, the birth mother sent cards to the adoptive
parents, expressing her gratitude for them and her approval of their parenting. She told them,
You make a beautiful family! The birth mother also sent cards to New Hope, thanking the
agency for handling the adoption and for sending her the adoptive parents' profile.
Six months after the relinquishment, however, the birth mother became upset when
the adoptive parents changed the child's middle name and put the child in daycare, after
allegedly promising her they would not do so. The birth mother sent a letter to New Hope
indicating her desire to terminate the adoption because [p]romises were made both in writing
and verbally, promises which have been broken. She sent a similar letter to the attorney
representing the adoptive parents and New Hope in the adoption, claiming to revoke her
consent to the adoption. She also called the adoptive parents at home and left a message
telling them that she wanted her child back. The birth mother accused the adoptive father of
touching the child inappropriately around the child's genitals on the date of the
relinquishment. Police determined this accusation was unfounded.
The adoptive parents filed a petition for the adoption of the child. While the petition
was pending, the birth mother filed an objection to the adoption, alleging that her consent
was invalid.
objection to the adoption, alleging that her consent was invalid. The district court held a
hearing to consider her objection. At the hearing, the birth mother's counselor testified that he
believed she was incapable of giving voluntary consent at the time of the adoption. However,
the counselor admitted that he was not her counselor at the time of adoption. Further, the
respondents' expert witness noted that the counselor should have interviewed individuals who
interacted with the birth mother at the time of the adoption. The counselor admitted he had
not, and that he used less information than he normally does in making a diagnosis.
After the start of the hearing, the birth mother filed two supplemental objections,
alleging additional grounds upon which to invalidate the adoption. The district court declined
to hear the birth mother's additional objections. During the hearing, the birth mother also
made several discovery requests. These requests were also denied by the district court. After
three days of testimony, the district court concluded that the birth mother's consent was valid
and denied her objection to the adoption. Soon thereafter, the district court granted the
adoptive parents' petition for adoption.
DISCUSSION
The birth mother's supplemental objections
[Headnote 3]
The birth mother's initial objection to the adoption challenged only the validity of her
consent. After the hearing commenced, the birth mother filed supplemental objections. The
birth mother claimed that the district court had improperly limited the scope of her
cross-examination of one of the respondents' witnesses. She argued the adoption was invalid
because New Hope failed to comply with certain procedures a child-placing agency must
follow in conducting an adoption, and it did not make all the inquiries necessary to determine
if the child was of Indian descent per NRS 127.052. She also alleged the adoptive parents
breached the communication agreement and that this was an additional reason to invalidate
the adoption.
The supplemental objections that the birth mother presented were without merit and
irrelevant in determining the validity of her consent to the relinquishment. The birth mother
was allowed to fully examine every witness on all factual matters. Sufficient evidence was
presented at the hearing, prior to the birth mother's supplemental objections, to indicate that
New Hope made all necessary inquiries into the child's ancestry. Further, the proceedings had
already begun, and the supplemental objections sought to enlarge the scope of the
proceedings beyond the issue of consent.
3

__________

3
Cf. Kantor v. Kantor, 116 Nev. 886, 891, 8 P.3d 825, 828 (2000) (hold-
The district court was not required to consider the birth mother's supplemental objections and
did not abuse its discretion by declining to do so.
4

The birth mother's discovery requests
After the hearing had begun, the birth mother made several discovery requests. She
served a subpoena, a subpoena duces tecum, and a notice to take the deposition of New
Hope's custodian of records. The birth mother requested that New Hope produce all records
pertaining to the child, including documents showing that New Hope complied with proper
procedure in conducting the adoption, that the relinquishment was lawful, and all documents
concerning the adoptive parents. She also served interrogatories and a request for production
of documents on the adoptive parents and New Hope. The birth mother then served another
subpoena and subpoena duces tecum on New Hope, identical to the first one. The district
court denied all requests.
[Headnotes 4, 5]
During a hearing, as in a trial, the right to discovery is subject to the discretion of the
district court.
5
Absent a clear abuse of discretion, we will not disturb a district court's
decision regarding discovery.
6
NRCP 26(i) instructs the district court, in exercising its
discretion, to consider, among other things, the diligence or lack of diligence of the party
seeking the discovery or order and the reasons for not having completed the discovery or
having had the motion heard earlier.
__________
ing that where proper, such as where there is undue delay, a district court may deny leave to amend).

4
See NRCP 15(d) (stating that upon motion of a party, the court may permit a party to serve a supplemental
pleading). Alternatively, if the birth mother were attempting to amend her original objection, she would have
either needed leave of court or written consent of the adoptive parents. NRCP 15(a) (stating that once a party
files a responsive pleading, a party may only amend his or her pleading by leave of court or by written consent of
the adverse party).

5
See NRCP 26(i). The district court, relying on NRCP 81(a), which provides that the NRCP do not govern
procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the
procedure and practice provided by the applicable statute, incorrectly found that the discovery provisions of the
NRCP do not govern adoption proceedings. Although the adoption statutes severely limit the grounds upon
which an adoption may be challenged and mandate the confidentiality of certain records and reports, the statutes
do not place any general limits on discovery in the event that the adoption becomes subject to a normal judicial
hearing. The adoption statutes are, therefore, not so inconsistent with the normal rules of discovery such that
they should not apply to adoption proceedings.

6
Diversified Capital v. City N. Las Vegas, 95 Nev. 15, 23, 590 P.2d 146, 151 (1979).
[Headnote 6]
The birth mother was granted all discovery requests that she made prior to the hearing.
She was given the opportunity to depose the New Hope agent who conducted the
relinquishment and adoption. She did not file the additional discovery requests until after the
hearing commenced. Our review of the record does not reveal any justification for the birth
mother's delay in requesting discovery. Further, the discovery requests seek confidential
documents, which only pertain to the adoption by the adoptive parents. This information is
irrelevant as to whether the birth mother's relinquishment was voluntary. The district court
also properly determined that this adoption proceeding was not the appropriate vehicle for
reviewing New Hope's general compliance with the law. Thus, the district court did not err by
denying the birth mother's requests for documents. We, therefore, conclude that the district
court did not abuse its discretion by denying the birth mother's tardy discovery requests.
The relinquishment form
[Headnote 7]
The birth mother argues that the relinquishment was defective because, she asserts,
this was a specific adoption, such that the names of the adoptive parents should have been,
but were not, included on the relinquishment form.
7
Contrary to the birth mother's
characterization of the adoption, this was an agency adoption, not a specific adoption, and the
names of the adoptive parents were not, therefore, required to appear on the relinquishment
for adoption form. Although this court has required that the names of the adoptive parents
appear on the relinquishment form for a specific adoption,
8
a similar requirement does not
exist for agency adoptions.
In this case, the adoption was clearly an agency adoption. The adoption statutes, as
interpreted by this court, contemplate two methods of placing a child for adoption.
9
A
specific adoption, governed by NRS 127.040, occurs where the natural parent directly selects
the adopting parents.
10
An agency adoption, governed by NRS 127.050, occurs where the
natural mother relinquishes the child to an agency with the intent that the agency act in
place of the parents in selecting the adopting parents.
__________

7
See Las Vegas Sun v. Franklin, 74 Nev. 282, 290-91, 329 P.2d 867, 871 (1958) (holding that if the names
of the adoptive parents are not disclosed to the biological mother and included on the relinquishment/consent
form for a specific adoption, the adoption may not be valid).

8
Id.

9
Id. at 289, 329 P.2d at 871.

10
Id. at 289-90, 329 P.2d at 871.
the agency act in place of the parents in selecting the adopting parents.
11

[Headnote 8]
Here, the Consent to Relinquish Parental Rights and Consent for Adoption form
signed by the birth mother stated that the birth mother was relinquishing her parental rights to
New Hope for the purpose of adoption. The consent form also gave New Hope express
permission to consent to the adoption of her child. Although the birth mother was involved in
selecting the adoptive parents, her involvement was limited, and it was New Hope, not the
birth mother, which sought and interviewed potential candidates. The birth mother's
involvement did not transform the agency adoption into a specific adoption. Because this was
an agency adoption, the district court did not err by denying the birth mother's motion to
revoke her relinquishment on the basis of the form used.
12

The validity of the birth mother's consent to relinquish her child for adoption
[Headnote 9]
The birth mother claims she was incapable of giving knowing, voluntary, and
intelligent consent to the relinquishment of her child. The birth mother presented testimony
and evidence at the hearing to indicate that she experienced a number of traumatic events
surrounding her child's birth and preceding her decision to relinquish her parental rights for
the purpose of adoption. However, conflicting evidence was presented regarding whether or
not these events rendered the birth mother incapable of consenting to relinquishment of her
child for adoption. Where conflicting evidence is presented, we review the district court's
order to determine if its findings are supported by substantial evidence.
13
We conclude that
there was substantial evidence in the record to support the district court's determination that
the birth mother's consent was valid.
__________

11
Id. at 290, 329 P.2d at 871.

12
The district court did not deny the motion on the merits, but rather treated the motion as one for summary
judgment and concluded that because the facts were in dispute, the motion should be denied. Although the
district court relied on the wrong reasoning to deny the motion, the result was correct and will, therefore, not be
disturbed on appeal. See, e.g., 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).

13
See Blanchard v. Nevada State Welfare Dep't, 91 Nev. 749, 751, 542 P.2d 737, 738 (1975).
[Headnote 10]
The birth mother's counselor testified that at the time of the relinquishment, the birth
mother was not capable of giving voluntary and intelligent consent to the adoption. The
counselor's diagnosis was called into question by the respondents' expert witness. The
respondents' expert witness testified that, in general, it is difficult to make retroactive
judgments and in order to effectively do so, the counselor should have interviewed
individuals in contact with the birth mother at the time of the adoption. The counselor
testified that he had not done so. Instead, the counselor relied only on the birth mother's
statements and her history, which, he himself acknowledged, was less than the full
information he usually relied on in making diagnoses.
[Headnote 11]
In addition to alleging that she was not psychologically capable of consenting to the
adoption, the birth mother also alleges that the adoption agency misled her, that she did not
understand the effect of the documents she signed, and that she did not understand the
relinquishment was irrevocable. Aside from her own testimony, and some portions of her
ex-husband's testimony, the birth mother presented no other evidence at trial to support these
contentions.
14
In fact, testimony was presented to suggest that the birth mother was fully
aware and in control of her actions at the time of consent.
The birth mother contacted New Hope and sought information regarding adoption.
She specified her desire to be involved in the adoption process, personally chose the adoptive
parents, and asked them to adopt her child. She presented the adoptive parents with several
personal items for the child. Per the birth mother's request, she executed a consent to
relinquish parental rights and consent for adoption. The documentation expressly stated the
relinquishment was irrevocable. That same day, she physically relinquished the child to the
adoptive parents. For several months after the relinquishment, the birth mother expressed her
approval of the adoptive parents in cards written to them, as well as to New Hope. This
admitted behavior supports the finding that the birth mother was aware of what was going on
at the time of the adoption and understood the effect of her relinquishment. The birth mother
was, according to her own testimony, an educated adult woman who has made many major
decisions in her life, including the purchase of a home about six months before the child was
born.
__________

14
The ex-husband testified that at the time of the relinquishment, the birth mother told him that she did not
understand the forms she was signing.
Based on the foregoing, we affirm the district court's adoption decree.
____________
118 Nev. 972, 972 (2002) Birth Mother v. Adoptive Parents
BIRTH MOTHER, Appellant, v. ADOPTIVE PARENTS and NEW HOPE CHILD AND
FAMILY AGENCY, Respondents.
No. 38572
December 27, 2002 59 P.3d 1233
Appeal from a district court order granting a motion to dismiss a contractual claim.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Birth mother filed action against adoptive parents and adoption agency for specific
performance of post-adoption contact agreement between the parties or, alternatively,
monetary damages, alleging breach of contract, unjust enrichment/quantum meruit, breach of
covenant of good faith and fair dealing, interference with contractual relations, emotional
distress, and negligent or intentional misrepresentation. The district court dismissed
complaint for failure to state a claim upon which relief can be granted. Birth mother appealed.
The supreme court, Shearing, J., held that agreement was unenforceable.
Affirmed.
Maupin, J., dissented in part. Rose, J., dissented.
Gamboa & Stovall, Reno, for Respondents.
1. Adoption.
Absent a specific statutory provision for the enforcement of post-adoption contact agreements, such an agreement between a
birth mother and the adoptive parents was unenforceable, where agreement was not incorporated into the adoption decree. NRS
127.160.
The supreme court reviews a district court's conclusions of law, including statutory interpretations, de novo.
3. Adoption.
Subsequent to an adoption decree, a natural parent has no rights to the child unless provided for in the decree. NRS 127.160.
4. Adoption.
While an agreement may grant a natural parent rights to post-adoption contact, enforcing it is inconsistent with the Legislature's
mandate that a natural parent may not exercise any right to the adopted child not incorporated in the adoption decree. NRS 127.160.
OPINION
This case involves an agreement between the appellant, birth mother, and the
respondents, adoptive parents and New Hope Child and Family Agency (New Hope), which
allowed the birth mother continuing contact, after the adoption, with the adopted child. All
parties consented to the agreement. After the birth mother attempted to terminate her
relinquishment of the child for adoption, the adoptive parents refused to continue to allow the
birth mother contact with the child.
1

The birth mother filed a complaint alleging several claims, including breach of
contract, based on the adoptive parents' noncompliance with the communication agreement.
The adoptive parents and New Hope filed a motion to dismiss, which the district court
granted. The birth mother appealed.
FACTS
Prior to relinquishing custody of her child, the birth mother executed a document with
New Hope entitled Agreement Regarding Communication With And/Or Contact Between
Birth Parents, Child Adoptee, and Adoptive Parents (communication agreement), which
New Hope had prepared. The communication agreement stated that the birth mother, her
ex-husband, and New Hope entered into a post adoption communication and contact
agreement which is in the child's best interests. With New Hope's assistance, the birth
mother selected the adoptive parents, and after meeting them, she relinquished her parental
rights and consented to the adoption. The adoptive parents signed the communication
agreement, which required that any prospective adoptive parent of the child agree to and
abide by its terms.
Pursuant to the communication agreement, the adoptive parents agreed to call the
birth mother when they first got home with the child and then once a month for the first three
months the child was in their custody. The adoptive parents further agreed to provide the birth
mother with pictures of the child and letters detailing her progress. The adoptive parents
agreed that the birth mother could request photos every six months. They also consented to
allow the birth mother to visit the child on or near each of the child's first three birthdays
and to send the birth mother a videotape when the child started walking.
__________

1
The parties to this appeal are also parties to an appeal in Docket No. 37244, which challenges the adoption
decree. See Matter of Adoption of Minor Child, 118 Nev. 962, 60 P.3d 485 (2002). Although the instant appeal
is not subject to the confidentiality provisions of NRS 127.140, we have nonetheless altered the caption in this
appeal and used non-identifying references to the birth mother, adoptive parents, and adopted child so that the
confidentiality required in Docket No. 37244 will not be undermined.
of the child's first three birthdays and to send the birth mother a videotape when the child
started walking.
The adoptive parents were complying with the communication agreement when they
filed their petition to adopt the child. However, shortly thereafter, the birth mother filed a
motion objecting to the adoption and demanding that the adoptive parents return the child to
her. Thereafter, the adoptive parents no longer permitted the birth mother contact with the
child. The district court denied the birth mother's motion and later granted the adoptive
parents' petition to adopt the child.
Subsequently, the birth mother filed a complaint against the adoptive parents and New
Hope seeking specific performance of the communication agreement or, in the alternative,
monetary damages. She alleged breach of contract, unjust enrichment/quantum meruit, breach
of the covenant of good faith and fair dealing, interference with contractual relations,
emotional distress, and negligent or intentional misrepresentation. The adoptive parents and
New Hope filed a motion to dismiss.
Without holding a hearing, the district court entered its order granting the motion to
dismiss. The district court stated that according to NRS 127.160 an adoption completely
abrogates the legal relationship between a child and his natural parents. An adoption decree
was entered for the adoption of the birth mother's child. The district court explained that the
adoption decree is the final and only document governing the terms of adoption, and
therefore, the birth mother needed to seek relief under the adoption decree. Because the
adoption decree did not refer to the communication agreement, and is the sole document
governing the adoption, it provided no relief for the birth mother as to claims involving the
communication agreement. Accordingly, the district court dismissed the birth mother's
complaint for failure to state a claim upon which relief can be granted.
DISCUSSION
[Headnotes 1, 2]
This court reviews a district court's conclusions of law, including statutory
interpretations, de novo.
2
Although Nevada does not have a statute that expressly addresses
the issue of post-adoption contact, unlike a number of other states,
3
NAC 127.210(4)(c) does
state that a child-placing agency
__________

2
Madera v. SIIS, 114 Nev. 253, 257, 956 P.2d 117, 120 (1998); Bopp v. Lino, 110 Nev. 1246, 1249, 885
P.2d 559, 561 (1994).

3
See Cal. Fam. Code 8714.7 (West Supp. 2002) (Postadoption contact agreements); Mass. Ann. Laws ch.
210, 6C (Law. Co-op. 1994 & Supp. 2002) (Agreement for Post-Adoption Contact or Communication);
Minn. Stat. Ann. 259.58 (West Supp. 2002) (Communication or contact agreements); Mont. Code Ann.
42-5-301 (2001) (Visitation and communication agreements); Neb. Rev. Stat. 43-162 (1998)
(Communication or
state that a child-placing agency [m]ay offer open adoptions in which . . . [c]ontact between
the adoptive family and biological parent may be arranged, if that contact is agreed upon by
all persons involved. The regulation does not explicitly provide for post-adoption contact;
however, it could be interpreted to permit agreements allowing such contact, especially
because we conclude that these agreements do not per se violate Nevada's public policy of
protecting a child's best interests. Yet, even if NAC 127.210(4)(c) encompasses these
agreements, Nevada law fails to provide enforcement for such agreements. In other
jurisdictions, agreements allowing post-adoption contact, while not prohibited, are also not
enforceable absent specific statutory provisions.
4
We conclude, therefore, that without such
a specific Nevada statutory provision, the agreement between the birth mother and the
adoptive parents is unenforceable.
[Headnotes 3, 4]
Further, Nevada law makes it clear that an adoption decree terminates all rights of the
natural parent and confers such rights upon the adoptive parents.
5
NRS 127.160 addresses
the rights and duties of adopted children and adoptive parents. It provides that:
Upon the entry of an order of adoption, the child shall become the legal child of the
persons adopting him, and they shall become his legal parents with all the rights and
duties between them of natural parents and legitimate child. . . . After a decree of
adoption is entered, the natural parents of an adopted child shall be relieved of all
parental responsibilities for such child, and they shall not exercise or have any rights
over such adopted child or his property.
We have previously determined that NRS 127.160 establishes a new legal family for the
adopted child and terminates the legal relationship between the child and her natural
kindred.
6
Thus, subsequent to an adoption decree, a natural parent has no rights to the child
unless provided for in the decree.
7
We conclude that while an agreement may grant a natural
parent rights to post-adoption contact, enforcing it would be inconsistent with the
Legislature's mandate that a natural parent may not exercise any right to the adopted
child not incorporated in the adoption decree.
__________
contact agreement; authorized; approval); Or. Rev. Stat. 109.305 (2001) (Interpretation of adoption laws;
agreement for continuing contact).

4
See Annette R. Appell, Enforceable Post-Adoption Contact Statutes, Part I: Adoption with Contact, 4
Adoption Q. 81, 83 (2000).

5
See NRS 127.160; Bopp, 110 Nev. at 1250, 885 P.2d at 562.

6
Bopp, 110 Nev. at 1250, 885 P.2d at 562.

7
Id.; NRS 127.160.
Legislature's mandate that a natural parent may not exercise any right to the adopted child not
incorporated in the adoption decree.
8

This decision leads to an unsatisfactory result in that natural parents may consent to an
adoption because, pursuant to an agreement, they believe they have a right to post-adoption
contact with the child.
9
However, what many of these natural parents fail to realize is that, if
the agreement is not incorporated in the adoption decree, their rights as to the child are
terminated upon adoption and any contact with the child may be had only upon the adoptive
parents' permission, regardless of the agreement. Despite this unfortunate result, this court
cannot enforce such an agreement until the Legislature mandates otherwise. Because this
agreement is unenforceable under Nevada law and the adoption decree governs, the birth
mother cannot seek relief based on the agreement. Accordingly, we affirm the judgment of
the district court granting the motion to dismiss.
Young, C. J., Agosti, Leavitt and Becker, JJ., concur.
Maupin, J., concurring in part and dissenting in part:
I agree that an agreement allowing post-adoption contact between birth parents and
the child relinquished for adoption is unenforceable under the circumstances present in this
case. I do not agree with the implication that a district court entering an adoption decree may
render such an agreement enforceable by incorporation.
The majority rightly states that, while birth parents and adoptive parents may enter
into post-adoption contact agreements, the agreements are unenforceable under NRS 127.160.
That is to say, there is nothing to prevent the birth and adoptive parents from making an
agreement allowing for post-adoption interaction, but there is no legal remedy for breach. My
concern lies with the implication that a district court may create enforceability by
incorporating the agreement into the formal decree of adoption. This, in my view, likewise
violates the public policy statement embodied in NRS 127.160:
Upon the entry of an order of adoption, the child shall become the legal child of the
persons adopting him, and they shall become his legal parents with all the rights and
duties between them of natural parents and legitimate child.
__________

8
See NRS 127.160; see, e.g., Lowe v. Clayton, 212 S.E.2d 582, 586-87 (S.C. 1975) (holding that an adoption
decree foreclosed enforcement of a prior contact agreement because the final adoption terminated all rights of
the natural parent), superceded by statute on other grounds as stated in Hagy v. Pruitt, 500 S.E.2d 168 (S.C. Ct.
App. 1998).

9
In such a situation, natural parents may attempt to contest the validity of their consent to an adoption by
arguing mistake of fact. To avoid this issue in the future, agencies should inform natural parents of the need to
incorporate the agreement into the adoption decree if their consent is conditioned upon post-adoption contact.
shall become his legal parents with all the rights and duties between them of natural
parents and legitimate child. . . . After a decree of adoption is entered, the natural
parents of an adopted child shall be relieved of all parental responsibilities for such
child, and they shall not exercise or have any rights over such adopted child or his
property.
Entry of a decree of adoption completes the process by which the birth parents are
relieved and divested of any rights to the relinquished child.
1
Until the Legislature changes
this, neither the parties nor a district court have the power to enforce such an agreement.
I disagree with the majority's conclusion that the contract allowing the birth mother
continued contact with the adopted child is unenforceable. The majority's decision abrogates
the appellant's freedom to contract, which this court should refrain from doing unless
absolutely necessary.
1

As the majority notes, NAC 127.210(4)(c) authorizes child-placing agencies to offer
open adoptions allowing continued contact between the adoptive family and the biological
parent. Additionally, on its face, NRS 127.160 does not prohibit agreements like those
permitted by NAC 127.210(4)(c). Thus, Nevada has no laws forbidding the continued contact
agreement that these parties freely entered into prior to the adoption;
2
and, in fact, Nevada
expressly permits such agreements.
I also believe it is patently unfair to have a biological parent agree to the adoption of
her or his child on the basis that continued contact will be permitted, but upon approval of the
adoption, refuse to enforce the continued contact agreement. A parent may specifically agree
to an adoption of a child based on the ability to have periodic contact with the child. The
enforcement of the adoption agreement without also recognizing the contact provision leaves
the biological parent with an adoption she or he never would have agreed to otherwise.
__________

1
See Bopp v. Lino, 110 Nev. 1246, 885 P.2d 559 (1994).

1
See My Fair Lady of Georgia v. Harris, 364 S.E.2d 580, 581 (Ga. Ct. App. 1987) (observing that public
policy requires that courts not lightly interfere with the freedom of parties to contract (internal quotation marks
omitted)); Zerr v. Zerr, 586 N.W.2d 465, 470-71 (Neb. Ct. App. 1998) (concluding that because the agreement
was fair and did not interfere with the district court's duty to independently scrutinize the property, child custody,
or child support issues, the parties' freedom to contract would be unreasonably inhibited if such an agreement
was not enforced).

2
See Veness v. Midland Risk Ins. Co., 732 N.E.2d 209, 211 (Ind. Ct. App. 2000) (concluding that the
importance of the freedom to contract demands that the court not find a contract unenforceable unless it
contravenes the clear and unambiguous language of the statute).
leaves the biological parent with an adoption she or he never would have agreed to otherwise.
We should not permit birth parents to be so misled.
Accordingly, I conclude that considerations of both fairness and freedom to contract
justify the enforcement of the continued contact agreement.
3
Whether a natural parent has
breached the continued contact agreement or relinquished the right to continue contact is an
issue left to another day.
Therefore, I respectfully dissent.
__________

3
See Miller v. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981) (concluding that public
policy does not require that an exculpatory lease provision not be enforced when it was freely contracted to by
the parties and was thus a valid exercise of their freedom to contract); see also Home Shopping Club v. Roberts
Broadcasting, 989 S.W.2d 174, 179 (Mo. Ct. App. 1998) (observing that it is in the public's best interest to
enforce contractual rights and obligations when parties exercise their freedom to contract within the confines of
the law).
____________

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