Nevada Reports 2001 (117 Nev.) PDF

117 Nev.
1, 1 (2001)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 117
____________
117 Nev. 1, 1 (2001) Chapman v. State
MELVIN CHAPMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34144
January 29, 2001 16 P.3d 432
Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of
sexual assault with a minor under sixteen years of age and fifteen counts of lewdness with a
child under the age of fourteen. Eighth Judicial District Court, Clark County; Michael A.
Cherry, Judge.
Defendant was convicted by jury in the district court of three counts of sexual assault
with minor under sixteen years of age and fifteen counts of lewdness with child under age of
fourteen. Defendant appealed. The supreme court, Agosti, J., held that: (1) defendant failed to
show compelling reason to entitle him to independent psychological examination of
child-victim; (2) defendant was not entitled to introduce evidence of independent sources of
child-victim's knowledge of sexual activities and male anatomy; (3) State was not obligated
to preserve tapes from child-victim's mother's answering machine; and (4) defendant failed to
show that State failed to gather or preserve evidence, despite failure to obtain tapes.
Affirmed.
Morgan D. Harris, Public Defender, and Scott L. Coffee and Robert L. Miller, Deputy
Public Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District
Attorney, James Tufteland, Chief Deputy District Attorney, and Mark S. Karris, Deputy
District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant failed to show compelling reason to entitle him to independent psychological examination of child-victim in trial for
sexual assault and lewdness, where clinical forensic interviewer used by State was not expert, State did not have expert interview
victim, testimony of victim's mother, younger brother, and clinical forensic interviewer corroborated victim's testimony, and ugly
divorce between victim's parents and animosity between father and defendant were insufficient grounds to believe that victim's mental
or emotional state may have affected veracity.
2. Criminal Law.
Decision to grant or deny a defendant's request for a psychological examination of a child-victim is within the sound discretion
of the district court and will not be set aside absent an abuse of discretion.
3. Criminal Law.
In exercising discretion in determining whether to grant or deny a defendant's request for a psychological examination of a
child-victim, the district court should base its decision on the facts and circumstances of each case and the law.
4. Criminal Law.
It would be error to preclude an examination of a child-victim by an expert in psychiatry or psychology if: (1) the State
employed such an expert, (2) the defendant shows that there are not compelling reasons for the victim to be in need of protection, (3)
evidence of the crime has little or no corroboration beyond the victim's testimony, and (4) there is a reasonable basis for believing that
the victim's mental or emotional state may have affected veracity, and whether or not the defendant had presented a compelling need
for examination is the overriding question, which is answered based upon analysis of the other factors, which are to be weighed, but
not necessarily equally.
5. Criminal Law.
Trial judge should order a psychological examination of a child-victim if the defendant presents a compelling reason for such an
examination.
6. Rape.
Defendant was not entitled to introduce evidence of independent sources of child-victim's knowledge of sexual activities and
male anatomy in trial for sexual assault and lewdness, where incidents of supposed sexual conduct and familiarity with male anatomy
were neither specific nor indicative of any ability on part of victim to contrive charges against defendant.
7. Rape.
Child-victim's prior sexual experiences may be admissible to counteract the jury's perception that a young child would not have
the knowledge or experience necessary to describe a sexual assault unless it had actually happened.
edge or experience necessary to describe a sexual assault unless it had actually happened.
8. Rape.
If, after balancing the probative value of evidence of independent sources of a child-victim's knowledge of sexual activities and
the male anatomy against its prejudicial effect, the trial court determines that the evidence should be admitted, the opportunity to be
afforded the defendant is the opportunity to show, by specific incidents of sexual conduct, that the victim has the experience and
ability to contrive a charge against him.
9. Criminal Law.
State was not obligated to preserve tapes from child-victim's mother's answering machine in trial for sexual assault and
lewdness, where State never had possession of tapes, and where defense knew of existence of tapes and could have subpoenaed them
from victim's mother.
10. Criminal Law.
Defendant failed to show that State failed to gather or preserve evidence, despite failure to obtain tapes from child-victim's
mother's answering machine, even if tapes contained statements that defendant claimed they did, where defendant did not show that
evidence was material, that loss of tapes was due to bad faith on part of State, or that loss resulted in prejudice to defense, and alleged
statements would not directly exculpate defendant, but would only support alternative defense theory that charges were fabricated.
Before Young, Agosti and Leavitt, JJ.
OPINION
By the Court, Agosti, J.:
Appellant Melvin Chapman was convicted by a jury of sexually assaulting, and
lewdness with, the young daughter of his live-in girlfriend. On appeal, Chapman contends
that the district court erred in: (1) denying his motion for an independent psychological
examination of the victim; (2) excluding evidence of independent sources of the victim's
knowledge of sexual activities and the male anatomy; and (3) refusing to dismiss the charges
against him based on the State's failure to preserve and disclose specifically requested
evidence as required by Brady.
1
We conclude that these contentions lack merit.
[Headnote 1]
First, Chapman argues that the district court erred in denying his request that the
victim submit to an independent psychological examination. Chapman maintains that because
the State relied on the testimony of an expert, he was entitled to have a defense expert
examine the victim. We disagree.
__________

1
Brady v. Maryland, 373 U.S. 83, 87 (1963).
[Headnotes 2, 3]
The decision to grant or deny a defendant's request for a psychological examination of
a child-victim is within the sound discretion of the district court and will not be set aside
absent an abuse of discretion. Keeney v. State, 109 Nev. 220, 226, 850 P.2d 311, 315 (1993),
overruled in part by Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000). Moreover, in
exercising that discretion, [t]he district court should base its decision on the facts and
circumstances of each case and the law as reaffirmed [in Keeney]. Keeney, 109 Nev. at 226,
850 P.2d at 315.
[Headnote 4]
In Keeney, we determined that
it would be error to preclude a defendant from having an alleged child-victim examined
by an expert in psychiatry or psychology if: (1) the State has employed such an expert;
(2) the victim is not shown by compelling reasons to be in need of protection; (3)
evidence of the crime has little or no corroboration beyond the testimony of the victim;
and (4) there is a reasonable basis for believing that the victim's mental or emotional
state may have affected his or her veracity.
Id. at 226, 850 P.2d at 315. Thus, when determining whether a defense expert in psychiatry or
psychology may examine a child-victim of sexual assault, the foregoing factors must be
considered by the district court. Id.; see also Griego v. State, 111 Nev. 444, 450-51, 893 P.2d
995, 999-1000 (1995) (reviewing each factor of the Keeney four-part test and balancing the
factors in the context of the facts of the case).
[Headnote 5]
In Koerschner, we clarified that the second factor of the Keeney test improperly
shifted to the State the burden of showing compelling reasons why the child-victim is in need
of protection from an order for an independent psychological examination. Koerschner, 116
Nev. at 1116-17, 13 P.3d at 455. We reemphasized the vitality of Washington v. State, 96
Nev. 305, 307, 608 P.2d 1101, 1102 (1980), in which we stated that [t]he trial judge should
order an examination if the defendant presents a compelling reason for such an examination.
And pertinent to our analysis here, we held that whether or not the defendant had presented a
compelling need for an examination is the overriding judicial question which is answered
based upon an analysis of the other three Keeney factors. Finally, we held that the first, third
and fourth Keeney factors were to be weighed but not necessarily given equal weight in the
analysis.
Applying Koerschner here, we note that the State did not rely on an expert in this
case.
on an expert in this case. Though we have held that a person need not be a licensed
psychologist or psychiatrist in order for their testimony to constitute that of an expert, the
clinical forensic interviewer who interviewed the victim concerning the incidents of sexual
abuse does not qualify as an expert for these purposes. See Marvelle v. State, 114 Nev. 921,
930, 966 P.2d 151, 156 (1998). As to the third factor, allegations of this type are always
difficult to corroborate due to the coercive and secretive nature of sexual assaults against
children. Nevertheless, there was corroborating evidence in the testimony of the victim's
mother, younger brother, and the clinical forensic interviewer. Finally, the facts of an ugly
divorce between the victim's parents, and animosity between her father and Chapman, are
insufficient grounds to believe that the victim's mental or emotional state may have affected
her veracity. Here, Chapman failed to show a compelling reason for an independent
psychological examination. We therefore conclude that the district court's denial of
Chapman's motion was not an abuse of discretion.
[Headnotes 68]
Chapman next argues that the district court erred in excluding evidence of
independent sources of the victim's knowledge of sexual activities and the male anatomy. A
child-victim's prior sexual experiences may be admissible to counteract the jury's perception
that a young child would not have the knowledge or experience necessary to describe a sexual
assault unless it had actually happened. See Summitt v. State, 101 Nev. 159, 163-64, 697 P.2d
1374, 1377 (1985). If, after balancing the probative value of such evidence against its
prejudicial effect, the trial court determines that the evidence should be admitted, the
opportunity to be afforded the defendant is the opportunity to show, by specific incidents of
sexual conduct, that the prosecutrix has the experience and ability to contrive' a charge
against him. Id. at 164, 697 P.2d at 1377 (quoting State v. Howard, 426 A.2d 457, 462 (N.H.
1981)).
We conclude that the incidents of supposed sexual conduct and familiarity with the
male anatomy were neither specific nor indicative of any ability on the part of the victim to
contrive the charges against Chapman. Therefore, the district court did not err in excluding
them.
[Headnotes 9, 10]
Finally, Chapman argues that the charges against him should have been dismissed
because the State's failure to preserve tapes from the victim's mother's answering machine
was a Brady violation. We conclude that this argument lacks merit. Because the State never
had possession of the tapes, there was no Brady violation.
lation. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (a true Brady violation has
three components, one of which is the suppression of evidence by the State). Moreover, the
defense knew of the existence of the tapes and could have subpoenaed them from the victim's
mother.
In addition, any argument that the State failed to gather or preserve evidence fails as
well. Chapman has not shown that the evidence was material, that the loss of the tapes was
due to bad faith on the part of the State or that the loss resulted in prejudice to his defense.
See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998); Howard v. State, 95 Nev.
580, 582, 600 P.2d 214, 215-16 (1979). Even if the tapes contained the statements that
Chapman alleges they do, they would not directly exculpate him but only support his
alternative defense theory that the charges against him were fabricated. See Orfield v. State,
105 Nev. 107, 109, 771 P.2d 148, 149 (1989). Chapman was able to present other evidence to
support this theory.
Having considered Chapman's contentions and concluded that they lack merit, we
affirm the judgment of conviction of three counts of sexual assault with a minor under sixteen
years of age and fifteen counts of lewdness with a child under the age of fourteen.
Young and Leavitt, JJ., concur.
____________
117 Nev. 6, 6 (2001) Wynn v. Smith
STEPHEN A. WYNN, Appellant, v. JOHN L. SMITH, Respondent.
No. 31063
JOHN L. SMITH, Appellant, v. STEPHEN A. WYNN, Respondent.
No. 31220
BARRICADE BOOKS, INC., LYLE STUART, Appellants, v.STEPHEN A. WYNN,
Respondent.
No. 31221
January 29, 2001 16 P.3d 424
Appeal from an order of the district court granting summary judgment in favor of
John L. Smith in a defamation case (Docket No. 31063); appeal from an order of the district
court denying request for attorney fees (Docket No. 31220); appeal from a judgment upon a
jury verdict awarding compensatory and punitive damages for defamation (Docket No.
31221). Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
117 Nev. 6, 7 (2001) Wynn v. Smith
Public figure brought defamation action against author of unauthorized biography
about figure, book's publisher, and publisher's principal, alleging that statements in
advertisement for the book linking him to organized crime were libelous. After granting
author's motion for summary judgment, but denying his motion for attorney fees and costs,
the district court entered judgment on jury verdict in favor of public figure, awarding him
substantial compensatory and punitive damages. Appeals were taken. The supreme court held
that: (1) author, who did not write, edit, print, or distribute statement in advertisement, was
not liable for defamation; (2) district court's refusal to award attorney fees to author was not
an abuse of discretion; (3) as a matter of apparent first impression, advertisement was not a
protected statement under fair report privilege; and (4) erroneous malice instruction was
reversible error.
Affirmed in part, reversed in part and remanded.
[Rehearing denied September 18, 2001]
Schreck Morris and James J. Pisanelli and Todd L. Bice, Las Vegas; Stroock &
Stroock & Lavan, LLP, and Barry B. Langberg and Deborah Drooz, Los Angeles, California,
for Stephen A. Wynn.
JoNell Thomas, Las Vegas, for John L. Smith, Barricade Books, Inc., and Lyle Stuart.
Deutsch Klagsbrun & Blasband, New York, New York, for Barricade Books, Inc.,
and Lyle Stuart.
Allen Lichtenstein, Las Vegas; Davis, Wright, Tremaine and Laura Handman,
Washington, D.C., for Amicus Curiae.
1. Libel and Slander.
To establish a prima facie case of defamation, a plaintiff must prove: (1) a false and defamatory statement by 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.
Media defendant may not be held liable for damages in a defamation action involving a public official plaintiff unless actual
malice is pleaded and proven.
Author of unauthorized biography about public figure was not liable for defamation for a statement in book advertisement
linking figure to organized crime, where author did not write, edit, print, or distribute statement in advertisement. NRS 200.510.
4. Costs.
District court's refusal to award attorney fees under court rule requiring payment of costs and attorney fees of party making offer
if judgment finally obtained by offeree to author of unauthorized biography about public figure,
117 Nev. 6, 8 (2001) Wynn v. Smith
about public figure, following grant of summary judgment in his favor on defamation claim, was not an abuse of discretion. Court did
not find that public figure's action was brought either in bad faith or had no merit, and public figure could not have determined author's
role in allegedly defamatory advertisement for this book until after considerable discovery had taken place. NRS 17.115; NRCP 68.
5. Appeal and Error.
Claims for statutory attorney fees are fact intensive; thus, the supreme court will not disturb such awards absent an abuse of
discretion. NRS 17.115; NRCP 68.
6. Costs.
In exercising its discretion under provision in Rule of Civil Procedure requiring payment of costs and attorney fees of party
making offer if judgment finally obtained by offeree, the district court must carefully evaluate the following factors: (1) whether the
plaintiff's claim was brought in good faith, (2) whether the defendant's 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. NRCP 68.
7. Costs.
Although explicit findings with respect to factors supporting award of attorney fees under provision in Rule of Civil Procedure
requiring payment of costs and attorney fees of party making offer if judgment finally obtained by offeree are preferred, the district
court's failure to make explicit findings is not a per se abuse of discretion. NRCP 68.
If the record clearly reflects that the district court properly considered the factors supporting award of attorney fees under
provision in Rule of Civil Procedure requiring payment of costs and attorney fees of party making offer if judgment finally obtained by
offeree, the supreme court will defer to its discretion. NRCP 68.
Allegedly defamatory statement in advertising for unauthorized biography about public figure, linking him to organized crime,
was not a protected statement under fair report privilege. Scotland Yard report referenced in statement was not accessible to the public,
and Scotland Yard never recognized report as official, but instead archived it for being substandard and unsubstantiated.
Unauthorized or confidential investigatory reports do not qualify as an official action or proceeding under the fair report
privilege to claim of defamation.
Fair report privilege is an exception to the common law rule that attaches liability for libel to a party who publishes a
defamatory statement.
Finding of malice in defamation action brought by public figure against publisher of unauthorized biography about figure and
publisher's principal required the jury to find that publisher harbored serious doubt, rather than just doubt, as to the veracity of
report allegedly linking figure to organized crime.
117 Nev. 6, 9 (2001) Wynn v. Smith
Inaccuracies in jury instructions mandate reversal unless it can be shown that any errors were harmless.
14. Appeal and Error; Libel and Slander.
Erroneously instructing jury that finding of malice could be predicated on finding that book publisher harbored doubt as to the
veracity of report allegedly linking public figure to organized crime was reversible error. Public figure's entire defamation claim against
publisher and its principal hinged on a finding of actual malice.
Ambiguity in allegedly defamatory statement in advertising for unauthorized biography about public figure, linking him to
organized crime, required jury determination on remand as to whether statement was an assertion of fact or opinion.
As a general rule, only assertions of fact, not opinion, can be defamatory. 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.
Rule for distinguishing an opinion from an assertion of fact, in a 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.
Although ordinarily the fact-versus-opinion issue is a question of law for the court in a defamation action, where the statement is
ambiguous, the issue must be left to the jury's determination.
Before the Court En Banc.
OPINION
Per Curiam:
Stephen A. Wynn is a well-known public figure in Nevada. Wynn filed an action for
defamation against John L. Smith, Barricade Books, Inc., and Barricade's principal, Lyle
Stuart, based upon statements made in an advertisement for Smith's unauthorized biography
of Wynn. The district court awarded Smith summary judgment, and the matter proceeded to
trial against the remaining defendants. The district court then entered judgment on a jury
verdict in favor of Wynn and against Stuart and Barricade Books for compensatory and
punitive damages totaling $3,173,000.00.
1

Wynn appeals from the summary judgment entered in favor of Smith. Smith appeals
from the district court's order denying him attorney fees.
__________

1
The district court also awarded Wynn costs in the amount of $166,096.74. Thus, the total award in favor of
Wynn was $3,339,096.74.
117 Nev. 6, 10 (2001) Wynn v. Smith
attorney fees. Stuart and Barricade appeal from the judgment entered upon the jury verdict.
We conclude the district court did not err by dismissing the case against Smith on summary
judgment, since Smith did not participate in the advertisement's publication, and did not
abuse its discretion by denying Smith's request for attorney fees. We conclude the district
court did err, however, by giving the jury an inaccurate instruction on actual malice, which
requires reversal of the judgment against Barricade and Stuart.
FACTS
Running Scared: The Life and Treacherous Times of Las Vegas Casino King Steve
Wynn was written by Smith and was scheduled for publication by Stuart and Barricade. In
anticipation of this event, Stuart and Barricade announced the book in a trade catalog
advertisement. The announcement contained several sensational statements about Wynn.
Among these statements, the advertisement declared that Smith's book details why a
confidential Scotland Yard report called Wynn a front man for the Genovese family. The
Genovese Family is a reputed organized criminal enterprise allegedly based in New York
City.
Wynn sued Smith, Stuart, and Barricade, claiming the statements in the advertisement
linking him to organized crime were libelous. Smith moved for summary judgment. He
argued that the facts demonstrated he had not participated in the writing or publication of the
advertisement and, as a matter of law, could not be held liable for the statements contained
therein. In this, he argued that the entire extent of his involvement with the advertisement was
his hope that the book would be advertised and his act of sending Stuart supporting materials
for the manuscript that was developed into the book, including the report about Wynn from
Scotland Yard. The district court agreed and granted Smith's motion. Smith then moved to
recover attorney fees and costs. The district court denied that motion.
The case against Stuart and Barricade proceeded to trial. A district court jury found
that the statement describing Wynn as a front man for the Genovese family was libelous
and, as noted, awarded Wynn substantial compensatory and punitive damages.
DISCUSSION
[Headnotes 1, 2]
To establish a prima facie case of defamation, a plaintiff must prove: (1) a false and
defamatory statement by 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. See Chowdhry v. NLVH, Inc., 109 Nev. 47S
117 Nev. 6, 11 (2001) Wynn v. Smith
478, 483, 851 P.2d 459, 462 (1993). Under the rule established in New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964), a media defendant may not be held liable for damages
in a defamation action involving a public official plaintiff unless actual malice is pleaded
and proven. This rule was extended to public figure plaintiffs, such as Wynn, in Curtis
Publishing Company v. Butts, 388 U.S. 130 (1967).
Libel, in turn, is defined by Nevada statute as
a malicious defamation, expressed by printing, writing, signs, pictures or the like,
tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue,
or reputation, or to publish the natural defects of a living person or persons, or
community of persons, or association of persons, and thereby to expose them to public
hatred, contempt or ridicule.
NRS 200.510(1). The statute further provides that [e]very person, whether the writer or
publisher, convicted of the offense is guilty of a gross misdemeanor. NRS 200.510(2)
(emphasis added).
Claim of liability as to Smith
We first address Wynn's contention that the district court improperly granted summary
judgment to Smith. This court reviews orders of summary judgment de novo. See Bulbman,
Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992). Summary judgment is
appropriate where there is no genuine issue as to any material fact. NRCP 56(c).
[Headnote 3]
Wynn does not challenge the district court's factual findings. He concedes that Smith
took no part in the drafting or publication of the advertisement. Wynn disputes, however, the
district court's determination that Smith was not liable for Barricade's defamatory statement
as a matter of law because he did not publish the advertisement. He urges this court to hold
instead that a source of a defamatory statement may be held liable for that statement when the
statement has been published and the source intended that the statement be published. In
support of his proposed rule, Wynn cites Mitchell v. Superior Court, 690 P.2d 625 (Cal.
1984).
In Mitchell, the California Supreme Court concluded that, in civil actions for libel, a
news reporter has a qualified privilege (a reporter's privilege) to withhold disclosure of the
identity of confidential sources or information obtained from those sources. Id. at 632. In
considering the scope of this privilege, the California court observed via obiter dictum that if
a source acting with actual malice
117 Nev. 6, 12 (2001) Wynn v. Smith
ing with actual malice furnishes defamatory material to a publisher with the expectation that
the material (either verbatim or in substance) will be published, the source should be liable
for the publication. Id. at 633. The court further explained that the rationale for making the
originator of the defamatory statement liable for its foreseeable republication was the strong
causal link between the actions of the originator and the damage caused by republication. Id.
(quoting McKinney v. County of Santa Clara, 168 Cal. Rptr. 89, 94 (1980)).
We decline to adopt the Mitchell dictum in this instance. Here, Smith provided Stuart
and Barricade a manuscript accompanied by his own investigatory documents, including the
Scotland Yard Report. The language in the report to which the advertisement referred was
that:
The strong inference which can be drawn from the new intelligence is that Stephen
WYNN, the President of GNI [Golden Nugget Incorporated], has been operating under
the aegis of the Genovese family since he first went to Las Vegas in the 1960's to
become a stockholder in the New Frontier Casino.
It must be said that some of the data supporting this view, taken on its own, is not
conclusive. However, the connections are so numerous and significant that it would be
impossible to accept coincidence as a reasonable explanation.
2

(Footnote added.)
These statements are much more qualified and couched in statements of investigative
opinion than the ultimate phraseology that marks the advertisement published by Barricade. It
was Barricade that recast the subject of the report into a representation of the contents that is
arguably factual rather than mere opinion. See discussion infra.
Accordingly, we affirm the district court and hold that Smith may not be held liable
for defamation for a statement that he did not write, edit, print, distribute or otherwise
publish. Because we affirm the district court's summary judgment in favor of Smith for the
reasons stated above, we need not address Smith's alternative arguments.
Smith's claim for attorney fees
[Headnote 4]
We now review whether the district court correctly denied Smith's request for attorney
fees. Smith's application for fees was premised on NRS 17.115
__________

2
The report then details a number of purported instances that, according to its author, tended to support these
conclusions.
117 Nev. 6, 13 (2001) Wynn v. Smith
premised on NRS 17.115 and NRCP 68, which allow an award of attorney fees and costs
when a party fails to recover more than a tendered offer of judgment. The focus of Smith's
argument is not that the district court failed to consider his request under the Beattie factors,
but that it reached the wrong conclusion under those factors.
[Headnotes 5, 6]
Claims for attorney fees under NRS 17.115 and NRCP 68 are fact intensive. Thus, we
will not disturb such awards in the absence of an abuse of discretion. Uniroyal Goodrich Tire
v. Mercer, 111 Nev. 318, 324, 890 P.2d 785, 789 (1995) (citing Schouweiler v. Yancey Co.,
101 Nev. 827, 833, 712 P.2d 786, 790 (1985)). In exercising its discretion under NRCP 68,
the district court must carefully evaluate the following factors: (1) whether the plaintiff's
claim was brought in good faith; (2) whether the defendant's 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. Beattie v.
Thomas, 99 Nev. 579, 588-89, 688 P.2d 268, 274 (1983).
[Headnotes 7, 8]
Although explicit findings with respect to these factors are preferred, the district
court's failure to make explicit findings is not a per se abuse of discretion. See Schwartz v.
Estate of Greenspun, 110 Nev. 1042, 1049, 881 P.2d 638, 642 (1994). If the record clearly
reflects that the district court properly considered the Beattie factors, we will defer to its
discretion. Id.
While the district court did not explicitly address each factor separately in its order,
the parties do not dispute that the district court evaluated the request for attorney fees under
the proper factors. The evaluation is reflected throughout the record on appeal, including the
parties' moving papers and the district court's explanation of its order, to wit:
[It could not] find that the plaintiff's Complaint against John L. Smith for the catalog ad
was brought either in bad faith or had no merit. In fact, plaintiff could not determine
John Smith's role in the advertisement for this book until after considerable discovery
had taken place. Therefore, the Court declines to award John Smith any attorney fees in
this action.
Because it considered each of the Beattie factors, we cannot conclude that the
district court's refusal to award attorney fees to Smith was an abuse of discretion.
117 Nev. 6, 14 (2001) Wynn v. Smith
conclude that the district court's refusal to award attorney fees to Smith was an abuse of
discretion.
3

Fair report privilege
[Headnote 9]
Stuart and Barricade raise the next issue on appeal. They urge us to extend the fair
report privilege, a doctrine we recognized in Sahara Gaming v. Culinary Workers, 115 Nev.
212, 984 P.2d 164 (1999), to the official proceeding at issue in this case (namely, the
Scotland Yard investigation and report). We agree that the privilege should not be limited to
judicial proceedings like those at issue in Sahara Gaming. It should apply to all public,
official actions or proceedings. However, the Scotland Yard report at issue here does not
involve such an official action or proceeding. We therefore refuse to apply the privilege in
this case.
The fair report privilege is described in the Restatement (Second) of Torts 611
(1965):
The publication of defamatory matter concerning another in a report of an official
action or proceeding or of a meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate and complete or a fair abridgment
of the occurrence reported.
The fair report privilege is premised on the theory that members of the public have a
manifest interest in observing and being made aware of public proceedings and actions.
Access to information concerning the conduct of public representatives is critical to the
citizenry's supervision and evaluation of actions taken on its behalf. Obviously unable to
monitor all official acts in person, citizens rely on third party accounts of such actions. If
accurate reports of official actions were subject to defamation actions, reporters would be
wrongly discouraged from publishing accounts of public proceedings. However, comment
d to section 611 of the Restatement (Second) of Torts provides that it is not clear whether
the privilege extends to a report of an official proceeding that is not public or available to the
public under law.
Stuart and Barricade both contend that the statement at issue[Running Scared]
details why a confidential Scotland Yard report called Wynn a front man for the Genovese
familyis a protected statement under the fair report privilege. They argue that their
publication accurately reported the Scotland Yard official report,
__________

3
Wynn also contends that the offer of judgment was invalid because it was conditional. Although Smith,
Stuart, and Barricade's offers of judgment were presented on a single document, they were properly apportioned,
and there was nothing on the face of the document to suggest that each offer was conditional upon the
acceptance of the others. Accordingly, we find this contention to be without merit.
117 Nev. 6, 15 (2001) Wynn v. Smith
publication accurately reported the Scotland Yard official report, and, thus, was a privileged
statement. This court has not before addressed the question of whether a report generally
unavailable to the public, like the Scotland Yard report in this case, is a report of an official
action or proceeding subject to the fair report privilege.
The United States Court of Appeals for the Third Circuit has addressed the issue.
Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981), involved a libel suit brought against a
news magazine that published a summary of an FBI report that identified a prominent
political figure as a member of an organized crime family. The court held that the FBI files
were official because government officials acting in their official capacities compiled them.
Id. at 140. The court also concluded that the privilege applied to the reports based on the
public's right to information, and the benefit conferred on the public by the FBI's resources to
investigate matters of public concern, which individuals alone could not attain. Id. at 142.
The court justified its ruling by emphasizing that an examination of the affairs of elected
officials is obviously a matter of legitimate public concern. Id.
Eight years later, the Third Circuit questioned the reasoning of the Medico decision in
Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069 (3d Cir. 1988). In Schiavone, the
court observed that important countervailing policy considerations raise serious issues
concerning the appropriate application of the privilege to confidential FBI investigation
files. Id. at 1086. The purpose of the privilege, the court pointed out, is to encourage the
accurate reporting of information already available to the public. Id. Allowing the privilege to
cover confidential reports would bring to light information that the government had no
intention of releasing, and which could be used as a powerful tool for injury. Id. at 1086 n.26.
The court went on to note that Medico, a decision based upon Pennsylvania's fair report
privilege, had been criticized as not in harmony with the mainstream of the common law.'
Id. at 1086 (quoting F. Harper, F. James & O. Gray, The Law of Torts 5.24 n.33 (2d ed.
1986)).
[Headnotes 10, 11]
We agree with the court's reasoning in Schiavone and hold that unauthorized or
confidential investigatory reports do not qualify as an official action or proceeding under
the fair report privilege. The policies underlying the privilege are simply not served by the
rule urged by Stuart and Barricade. The privilege is an exception to the common law rule that
attaches liability for libel to a party who publishes a defamatory statement. See Schiavone,
847 F.2d at 1086 n.26. The purpose of this exception is to obviate any chilling effect on the
reporting of statements already accessible to the public.
117 Nev. 6, 16 (2001) Wynn v. Smith
ate any chilling effect on the reporting of statements already accessible to the public.
Here, the Scotland Yard report referenced in the statement at issue was not accessible
to the public, nor did Scotland Yard itself ever recognize it as official. The report was never
sent to the British Gaming Control Board, which urged Scotland Yard to compile the report,
and the report was archived for being substandard and unsubstantiated. Inclusion of such a
report within the ambit of the fair report privilege would directly conflict with the protections
provided by our libel laws, and would undermine the basis of the privilege itself. We
conclude that this privilege should not be extended to allow the spread of common innuendo
that is not afforded the protection accorded to official or judicial proceedings. Accordingly,
we hold that the statement at issue is not subject to the protection afforded by the fair report
privilege because the report was not official.
The jury instruction regarding malice
[Headnote 12]
Stuart and Barricade contend that the jury was given an improper instruction on the
issue of actual malice, a standard required by the U.S. Constitution when the subject of the
alleged defamation is a public figure. See New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964).
[Headnote 13]
Inaccuracies in jury instructions mandate reversal unless it can be shown that any
errors were harmless. See, e.g., Robey v. State, 96 Nev. 459, 462, 611 P.2d 209, 211 (1980).
Relevant Nevada case law holds that [r]eckless disregard for the truth may be defined as a
high degree of awareness of the probable falsity of a statement. It may be found where the
defendant entertained serious doubts as to the truth of the statement, but published it
anyway. Posadas v. City of Reno, 109 Nev. 448, 454, 851 P.2d 438, 443 (1993) (emphasis
added). Further, in Nevada Independent Broadcasting v. Allen, 99 Nev. 404, 414, 664 P.2d
337, 344 (1983), we held that [t]here must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the truth of his publication (citing
St. Amant v. Thompson, 390 U.S. 727, 731 (1968)); see also Garrison v. Louisiana, 379 U.S.
64, 74 (1964) (holding that only those false statements made with the high degree of
awareness of their probable falsity demanded by New York Times may be the subject of either
civil or criminal sanctions).
The court instructed the jury on malice as follows:
In this action, plaintiff must prove by clear and convincing evidence
117 Nev. 6, 17 (2001) Wynn v. Smith
evidence that one or both defendants knew the communication was false or acted in
reckless disregard of these matters. Clear and convincing evidence means evidence
establishing every factual element to be highly probable or evidence which must be so
clear as to leave no substantial doubt.
* * * *
Reckless disregard for the truth or falsity of a publication may be found where the
publisher entertained doubt as to the veracity of an informant or the accuracy of a report
and the defendant failed to make reasonable efforts to investigate. In determining
whether the defendant(s) entertained a doubt as to the veracity of the information, you
may consider whether there were obvious reasons to doubt.
[Headnote 14]
The malice instruction in this case only required the jury to find that Barricade
harbored doubt, in opposition to serious doubt, as a required predicate for finding
recklessness, i.e., malice. Thus, the malice instruction did not sufficiently qualify the degree
of doubt required for a finding of malice in accordance with Posadas and Allen. Rather, the
omission of the critical language regarding degree of doubt emphasized above effectively
reduced the standard of proof required to establish malice. Because the entire case against
Stuart and Barricade hinged on a finding of actual malice, the erroneous malice instruction
requires reversal of the district court's judgment and remand for a second trial as to Stuart and
Barricade.
Assertions of fact or opinion
[Headnotes 15, 16]
Stuart and Barricade contend that the statement at issue constituted non-actionable
opinion. As a general rule, only assertions of fact, not opinion, can be defamatory. 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.
K-Mart Corporation v. Washington, 109 Nev. 1180, 1192, 866 P.2d 274, 281 (1993) (citing
Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990)) (citation omitted).
[Headnotes 17, 18]
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. See Allen, 99 Nev. at 410, 664 P.2d at 342.
117 Nev. 6, 18 (2001) Wynn v. Smith
Although ordinarily the fact-versus-opinion issue is a question of law for the court, where the
statement is ambiguous, the issue must be left to the jury's determination. Id.
Here, the statement at issue in the advertisement is: [the book] details why a
confidential Scotland Yard report called Wynn a front man for the Genovese family.
Barricade contends that the use of the term why in this representation, as a matter of law,
constitutes a statement of opinion, not fact. We disagree. The statement in question is
ambiguous on this point and, therefore, on remand, the question of whether it is an assertion
of fact or opinion should be submitted for determination by the jury.
CONCLUSION
The district court properly granted summary judgment to Smith, but did not abuse its
discretion under Beattie in its refusal of Smith's application for attorney fees. We therefore
affirm the district court's order granting summary judgment and denying attorney fees in
Docket Nos. 31063 and 31220. We also conclude that the jury received improper instructions
on the issue of malice in the trial against Stuart and Barricade. Accordingly, in Docket No.
31221, we reverse the district court's judgment and remand the matter for a new trial.
4

Becker, J., concurring:
I agree that the district court improperly instructed the jury on the issue of malice,
using the standard set forth in New York Times
1
rather than the standard required by our
holdings in Posadas and Allen.
2
I write separately to indicate my disagreement with the
serious doubt standard for investigation created by these cases. In my opinion, the standard
imposed by the United States Supreme Court in New York Times is the better rule of law.
__________

4
Stuart and Barricade also contend on appeal that the compensatory and punitive damage awards were
excessive, and that Wynn's cost bill was unsubstantiated. In light of our resolution of other issues raised by the
parties, these claims are rendered moot. We have considered the other claims of error asserted by Stuart and
Barricade and find them to be without merit.
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this
matter.

1
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

2
Posadas v. City of Reno, 109 Nev. 448, 851 P.2d 438 (1993); Nevada Independent Boadcasting v. Allen, 99
Nev. 404, 664 P.2d 337 (1983).
____________
117 Nev. 19, 19 (2001) Canterino v. The Mirage Casino-Hotel
JOSEPH D. CANTERINO, Appellant, v. THE MIRAGE CASINO-HOTEL, A Nevada
Corporation, dba THE MIRAGE, Respondent.
No. 30659
January 29, 2001 16 P.3d 415
Appeal from an order of the district court 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
hallway. The district court ordered a new trial after patron did not accept remittitur of jury
verdict. Patron appealed. The supreme court, Shearing, J., held that: (1) damages award for
past and future physical pain and impairment and mental anguish was not excessive, (2)
patron's counsel's inappropriate and unprofessional appeals to jury during closing arguments
were not so pervasive as to taint jury verdict, but (3) jurors who did not agree that hotel was
liable should have participated in the determination of damages.
Affirmed in part, reversed in part and remanded.
Rehearing granted; opinion modified; remanded. 118 Nev.
----
, 42 P.3d 808
(2002).
Rose, J., with whom Young, J., joined, dissented in part.
Goodman Chesnoff & Keach, Las Vegas, for Appellant.
Morris Pickering, Las Vegas, for Respondent.
Appellate court reviews a trial court's order for a new trial that is conditional upon the plaintiff's refusal to accept an order of
remittitur for abuse of discretion.
On appeal of an order for a new trial that is conditional upon the plaintiff's refusal to accept an order of remittitur, appellate
court accords deference to the trial judge's decision and rejects a challenge to the judge's discretion if there is a material conflict of
evidence regarding the extent of the damages, but if there is no conflict, the order to remit becomes suspect unless the amount awarded
by the jury is so excessive as to suggest passion and prejudice.
3. Damages.
Damages awards to hotel patron who was severely beaten and robbed in hotel hallway of $500,000.00 for past physical pain and
mental anguish, $1,500,000.00 for future physical pain and mental anguish, $500,000.00 for past physical impairment, and
$1,500,000.00 for future physical impairment were not excessive, in light of uncontradicted evidence of medical experts that
patron suffered permanent neurological damage,
dence of medical experts that patron suffered permanent neurological damage, including hearing, balance, and pyramidal track
impairment, and suffered psychological injuries, including agoraphobia, panic disorder, and post-traumatic stress disorder, which kept
him virtually housebound, unable to work or participate in sports or activities he had previously enjoyed.
4. Appeal and Error; Damages.
In actions for damages in which the law provides no legal rule of measurement, it is the special province of the jury to determine
the amount that ought to be allowed, so that a court is not justified in reversing the case or granting a new trial on the ground that the
verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or corruption in the jury.
5. Damages.
The elements of pain and suffering are wholly subjective, and because of their very nature a determination of their monetary
compensation falls peculiarly within the province of the jury.
6. Damages.
The mere fact that a verdict is large is not conclusive that it is the result of passion or prejudice.
7. New Trial.
Finding that plaintiff's injury was not outwardly visible was an inappropriate basis for ordering a remittitur, as the principal
injury was neurological and the brain damage resulted in a total change in personality and lifestyle.
Hotel patron's counsel's inappropriate and unprofessional appeals to jury during closing arguments of premises liability action,
discussing his personal experiences and opinions, personally attacking opposing counsel, mentioning a verdict in another case, and
mentioning wealth of hotel, were not so pervasive as to taint jury verdict for patron when considered against the overwhelming
evidence supporting the verdict, especially where hotel's counsel neither objected to most of the comments nor moved for a mistrial.
To mandate reversal, the prejudicial comments must permeate the trial to the degree that the appellate court is convinced that
passion and prejudice influenced the jury's verdict.
10. Trial.
Jurors who did not agree that hotel was liable on premises liability claim brought by patron who was beaten and robbed still had
to participate in the determination of damages. NRS 16.030(4).
If the judge answers a juror question correctly, failure to notify the parties or counsel of juror question is harmless error. NRS
16.140.
Disqualification of trial judge was a matter to be determined in the trial court pursuant to district court rules, and thus, appellate
court would not address argument that trial judge should have been disqualified for bias.
OPINION
By the Court, Shearing, J.:
Joseph Canterino sued the Mirage Casino-Hotel for damages incurred after being
beaten and robbed in the hotel hallway. After a nine-day trial, the jury awarded Joseph
Canterino $5,760,291.35 in damages for past and future physical pain and mental anguish,
physical impairment, lost earning capacity and medical expenses. The Mirage filed a motion
for a new trial. The district court issued a conditional order of remittitur, finding the jury
award of damages excessive, and reducing the damage award to $1,500,000.00. Canterino did
not accept the remittitur, and the district court ordered a new trial. Canterino appeals, seeking
reinstatement of the jury award. The Mirage argues that a new trial is warranted on the
grounds of an improper jury instruction, as well as improper arguments by Canterino's
counsel. We conclude the jury verdict on the issue of liability should be reinstated, but that a
new trial must be had on the issue of damages.
DISTRICT COURT PROCEEDINGS
Canterino presented the following evidence. In April 1992, Canterino traveled from
New York to Las Vegas with $100,000.00 to gamble. He reserved a room at the Mirage for
the duration of his stay. On his second day at the Mirage, Canterino left his hotel room and
was walking down the hallway when he was approached by a stranger. As Canterino glanced
in the man's direction, another man hit Canterino in the head with a baseball bat. The two
men repeatedly hit Canterino and stole his fanny pack where he kept his money. Canterino's
attackers were never apprehended.
Canterino testified to his injuries, and presented extensive medical evidence of
permanent physical, neurological and psychological injuries.
The Mirage presented evidence to show that it had no liability and, through
cross-examination of Canterino's witnesses, attempted to challenge the cause, nature and
severity of Canterino's injuries.
After jury instructions and closing arguments, the eight-person jury retired to
deliberate. After deliberating for some time, the jury submitted a question to the district court.
The jury asked: If 6 (Jurors) agree that the defendant was negligent . . . can the obstaining
[sic] 2 (Jurors)participate in determing [sic] damages? Please advise? Initially, the district
court told the bailiff to contact the attorneys as required under NRS 16.140. The bailiff told
the judge that the Mirage's lead attorney was unavailable but she left the name of another
attorney to contact.
she left the name of another attorney to contact. The judge decided not to contact the
replacement attorney or Canterino's attorney and simply responded to the jury question,
instructing that the two jurors voting against liability could not participate in the damage
award determination. The jury returned a verdict in favor of Canterino for $5,760,291.35
about half an hour later.
The district court subsequently issued a conditional order of remittitur reducing the
damage award to $1,500,000.00 on the basis of the following findings:
1. That the verdict returned by the jury in the amount of $5,760,291.35 was
excessive, was shocking to the conscience and tainted by plaintiff's appeals to the jury
which resulted in bias, passion and prejudice.
2. That the verdict was shocking in relation to the evidence as to the severity and
extent of plaintiff's injuries.
3. That the plaintiff does not present visible injury that can support such a verdict.
4. That the verdict awarded by the jury is unreasonable in light of the cumulative
evidence presented at trial.
5. That unless a remittitur is ordered by the court a fair and just resolution of the case
cannot be reached.
Canterino refused to accept the remittitur. The district court set aside the jury verdict
and ordered a new trial. Canterino appeals from that order.
EXCESSIVENESS OF DAMAGES AWARD
[Headnotes 1, 2]
The district court has the power under NRCP 59(a)(6) to order a new trial when
excessive damages appear to have been given under the influence of passion or prejudice.
This court reviews a trial court's order for a new trial that is conditional upon the plaintiff's
refusal to accept an order of remittitur for abuse of discretion. See Harris v. Zee, 87 Nev. 309,
311, 486 P.2d 490, 491 (1971). On appeal, we accord deference to the trial judge's decision
and reject a challenge to the judge's discretion if there is a material conflict of evidence
regarding the extent of the damages. Id. However, if there is no conflict, the order to remit
becomes suspect unless the amount awarded by the jury is so excessive as to suggest passion
and prejudice. Id.
[Headnote 3]
In this case, no conflicting evidence concerning the extent of Canterino's injuries or
the amount of his monetary damages was offered by the Mirage. In fact, Dr. Ivan
Bodis-Wollner testified for Canterino, even though he was one of the three physicians that the
Mirage hired as an expert to conduct independent medical examinations on Canterino.
Mirage hired as an expert to conduct independent medical examinations on Canterino. Dr.
Bodis-Wollner, professor of neurology at State University of New York, director of the
Parkinson Center-Movement Disorders and a physician board-certified in neurology and
psychiatry, testified that he conducted tests which objectively determined that Canterino's
brain and various nerve pathways were permanently damaged. Dr. Bodis-Wollner also
confirmed that there is a strong association between agoraphobia-panic disorder and the type
of neurological damage from which Canterino suffered.
The other doctors who testified for Canterino confirmed the permanency of the
neurological damage, and the causal relationship between the objective physical damage and
the psychological manifestations that Canterino and his doctors described. The
uncontradicted evidence showed that Canterino suffered hearing, balance and pyramidal track
impairment as a result of the neurological damage. He presented extensive evidence that he
suffered psychological injuries that kept him virtually housebound, unable to work or
participate in any of the sports or activities that he had previously enjoyed. A treating
psychologist found that Canterino exhibited the most severe case of co-morbid panic
disorder, agoraphobia and post-traumatic stress disorder that she had ever seen.
Not only did the Mirage present no evidence contradicting Canterino's medical
experts' testimony, but all its evidence related to whether the Mirage provides reasonable
security to its guests. In opening statements, the Mirage did not mention that it disputed
Canterino's injuries, stating:
But the interesting part of this case is it's a mystery; it's a mystery thatbecause the
Mirage doesn't dispute Mr. Canterino was beaten. But where was he beaten; when was
he beaten; by whom was he beaten and why?
The Mirage apparently only disputed liability.
In its conditional order of remittitur, the district court reduced the damages for past
physical pain and mental anguish from the jury award of $500,000.00 to $50,000.00, for
future physical pain and mental anguish from the jury award of $1,500,000.00 to
$150,000.00, for past physical impairment from the jury award of $500,000.00 to $50,000.00,
and for future physical impairment from the jury award of $1,500,000.00 to $150,000.00. The
district court found the jury award shocking in relation to the evidence as to the severity and
extent of plaintiff's injuries. We cannot agree. The evidence showed that Canterino suffered
a great amount of pain, anguish and impairment that would not diminish in the future. All the
evidence supported the view that this forty-year-old man's life was essentially ruined, and the
jury apparently believed that.
believed that. The damages awarded by the jury were not excessive considering the
uncontradicted evidence at trial.
[Headnotes 46]
This court has held that damages for pain and suffering are peculiarly within the
province of the jury. In Stackiewicz v. Nissan Motor Corporation, 100 Nev. 443, 454, 686
P.2d 925, 932 (1984), this court stated that the trial court cannot revisit a jury's damage award
unless it is flagrantly improper.
In actions for damages in which the law provides no legal rule of measurement it is the
special province of the jury to determine the amount that ought to be allowed, so that a
court is not justified in reversing the case or granting a new trial on the ground that the
verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice
or corruption in the jury. . . . The elements of pain and suffering are wholly subjective.
It can hardly be denied that, because of their very nature, a determination of their
monetary compensation falls peculiarly within the province of the jury. . . . We may not
invade the province of the fact-finder by arbitrarily substituting a monetary judgment in
a specific sum felt to be more suitable.
Stackiewicz, 100 Nev. at 454-55, 686 P.2d at 932 (quotations and citations omitted). The
mere fact that a verdict is large is not conclusive that it is the result of passion or prejudice.
Id. (citing Beccard v. Nevada National Bank, 99 Nev. 63, 66 n.3, 657 P.2d 1154, 1156 n.3
(1983)).
[Headnote 7]
In view of the uncontradicted evidence of Canterino's damages, it cannot be said that
the jury's award was excessive. Furthermore, one of the district court's findings in support of
reducing damages was that the plaintiff does not present visible injury that can support such
a verdict. There is no dispute that the injury was not outwardly visible since the principal
injury was neurological and the brain damage resulted in a total change in personality and
lifestyle. The finding that an injury is not outwardly visible is an inappropriate basis for
ordering a remittitur.
[Headnotes 8, 9]
The district court also found that the plaintiff's improper appeals resulted in jury bias,
passion and prejudice. It is true that Canterino's counsel made inappropriate and
unprofessional appeals to the jury. During closing arguments, he discussed his personal
experiences and opinions; he personally attacked opposing counsel; he mentioned a verdict in
another case; he mentioned the wealth of the Mirage. However, to mandate reversal, the
prejudicial comments must permeate the trial
udicial comments must permeate the trial to the degree that this court is convinced that
passion and prejudice influenced the jury's verdict. See Barrett v. Baird, 111 Nev. 1496,
1515, 908 P.2d 689, 702 (1995); cf. DeJesus v. Flick, 116 Nev. 812, 7 P.3d 459 (2000)
(damage award after inflammatory argument exceeded proof). Canterino's counsel's
comments, although clearly inappropriate, were not so pervasive as to taint the jury verdict
when considered against the overwhelming evidence supporting the jury verdict.
Furthermore, although Mirage counsel now alleges that the improper comments were
egregious, Mirage trial counsel neither objected to most of the comments nor made a motion
for a mistrial. The objections which were made were sustained. The election not to seek a
mistrial is simply a matter of trial tactics.
Since the jury's award was amply supported by the evidence and counsel's conduct did
not permeate the trial and taint the verdict, we conclude that the district court abused its
discretion in ordering a new trial on the basis that Canterino refused to accept the remittitur.
As discussed below, however, since not all jurors participated in the damages determination,
the district court properly granted a new trial with respect to damages, albeit for the wrong
reasons.
JUROR PARTICIPATION
[Headnote 10]
During jury deliberations, the jurors sought clarification of whether the two jurors
who disagreed on liability could participate in the determination of damages. Without
notifying counsel, the district court judge responded that the dissenting jurors could not
participate.
[Headnote 11]
NRS 16.140 requires that any answer to a juror question shall be in the presence of
or after notice to the parties or counsel. However, if the judge answers the juror question
correctly, failure to notify the parties or counsel is harmless error. See Cavanaugh v. State,
102 Nev. 478, 484, 729 P.2d 481, 485 (1986). We conclude that the error was not harmless
since the answer was incorrect.
Whether jurors who do not agree that there is liability should participate in the
deliberation of damages is an issue of first impression in Nevada. While the Nevada
Constitution does not address the necessary number of parties to arrive at a valid verdict,
NRS 16.030(4) provides that [t]he jury must consist of eight persons, unless the parties
consent to a lesser number. This language suggests that all jurors should participate in all
phases of deliberations. Even if a juror believes that there is no liability,
there is no reason why that juror cannot effectively evaluate the evidence of damages. As the
Arizona Supreme Court stated in Perkins v. Komarnyckyj, 834 P.2d 1260, 1263 (Ariz. 1992):
The principle is simple. The constitutional right of trial by jury carries with it the right
to have every issue tried by the jury that has been empaneled, not by two-thirds of that
jury, or three-fourths, or any other fraction. . . . The jurors who have been empaneled
are required to consider and decide each of the issues submitted to them by the court.
The cases cited establish that jurors who find themselves in a minority on one issue
may not withdraw or be excluded from consideration of the other issues in the case.
We will not uphold a jury verdict that does not represent the deliberations of all
jurors. Not all of the jurors need agree. A verdict may be rendered by three-fourths of the
jurors. Nev. Const. art. 1, 3. However, all the jurors must participate in the deliberations.
Only the damages portion of the jury verdict is flawed by the district court's erroneous
instruction. It is clear that the jury determined that the Mirage was negligent after listening to
numerous witnesses, argument on both sides and proper instructions. Therefore, although we
reverse the district court's new trial order as it relates to liability, we affirm the order as it
relates to damages and remand this matter for a new trial on damages. See Hotel Riviera, Inc.
v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).
DISQUALIFICATION OF JUDGE
[Headnote 12]
Canterino has alleged that the district court judge should be disqualified for bias. The
disqualification of the trial judge is a matter to be determined in the district court pursuant to
district court rules; therefore, we do not address this argument.
CONCLUSION
We reverse the district court's order granting a new trial as it pertains to liability and
affirm the order as it pertains to damages. This matter is remanded to the district court for a
new trial on the damages issue.
1

Becker, J., concurs.
__________

1
The Honorable Myron Leavitt, Justice, voluntarily recused himself from participation in the decision of this
appeal.
Maupin, C. J., concurring:
I agree that the district court's order granting a new trial must be affirmed as to
damages but reversed as to liability. I write separately to address the inference that may be
drawn from the separate opinion of Rose, J., that we must address all claims of attorney
misconduct in comparison with those addressed in DeJesus v. Flick.
1
In my view, claims of
plain error arising from attorney misconduct should only rarely implicate the analytical
construct of DeJesus.
Notwithstanding the resolution of a very discrete fact pattern in DeJesus, the general
rule of appellate review in this state holds that trial counsel must perfect objections on the
record to preserve a record on appeal. We have also traditionally agreed with the proposition
articulated by other state courts that, [g]enerally a claim of misconduct is entitled to no
consideration on appeal unless the record shows a timely and proper objection and a request
that the jury be admonished.
2
Thus, it is only in extreme cases that a trial court cannot
adequately defuse an act of impropriety committed in the presence of a jury.
3

Reversal under the plain error doctrine based upon claims of attorney misconduct to
which no objection is lodged is only appropriate when we can clearly determine from the
record that the verdict obtained is objectively unreliable.
4
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. Rather, the nature of the conduct must be weighed in the individual case along with
whether the conduct has had a real effect on the reliability of the verdict rendered by the jury.
In this, we must concede that no litmus test for evaluating these matters is possible.
I also suggest that we operate from the premise or presumption that,
__________

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

2
Horn v. Atchison, Topeka and Santa Fe Railway Co., 394 P.2d 561, 565 (Cal. 1964); see also DeJesus, 116
Nev. 812, 826, 7 P.3d 459, 468-69 (Rose, C. J., dissenting).

3
Id.

4
DeJesus, 116 Nev. at 816, 7 P.3d at 464-65.
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. When failure to object or seek a
mistrial can be reasonably attributed to tactical choices of trial counsel, we need not reach the
question of plain error absent the most egregious misconduct resulting in a verdict that is
clearly and objectively unreliable.
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 Cantarino'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.
Given that the failure to object or seek a mistrial was so arguably a matter of trial
tactics, any issue arising from the alleged misconduct in this case was waived. Thus, we need
not undertake a comparison of the conduct below to that discussed in DeJesus. Also, as noted
by Agosti, J., in her separate opinion herein, the real issue in these matters does not, of
necessity, involve a comparison of conduct, but rather, involves the net effect of the
misconduct on the verdict actually obtained.
Agosti, J., concurring:
I concur with the majority but write separately to underscore what I believe is the
crucial difference which distinguishes this case from DeJesus v. Flick.
1

The record in DeJesus objectively demonstrated that the jury had disregarded the
evidence in arriving at its verdict. Flick, the plaintiff, had proved future medical expenses of,
at best, $21,000.00. Plaintiff's counsel miscalculated his proof and argued to the jury that he
had proven between $30,000.00 and $35,000.00 in future medical expenses. The jury
awarded Flick future medical expenses in the extraordinary sum of $100,000.00. So, despite
DeJesus's failure to object to plaintiff's counsel's egregious and improper closing arguments,
this court determined that it could review as plain error the trial court's decision to deny
DeJesus's motion for a new trial. The error was plain, not because the verdict was large, but
because it was objectively unreliable.
__________

1
116 Nev. 812, 7 P.3d 459 (2000).
In the case at hand, it cannot be said that the jury's verdict was objectively unreliable,
only that it was large. The jury's verdict was well within the range of the evidence produced.
The trial judge happened to disagree with the size of the verdict. His disagreement is a far cry
from a conviction that the jury was influenced by passion and prejudice in reaching its
verdict. '
2
The Barrett standard for testing whether attorney misconduct warrants action
requires the court to examine the misconduct to determine if its flavor sufficiently
permeates an entire proceeding so as to warrant the conviction that the verdict was the
product of passion and prejudice.
3
Under the Barrett standard, the movant need not prove
that the result would have been different absent the misconduct.
4
However, Barrett did not
address the application of the standard when no objection has been made to the perceived
misconduct.
I believe that when no objection has been made, the party seeking a new trial must
establish, as a predicate to relief, that the verdict is objectively unreliable. The Mirage is
unable to establish that the verdict is outside the evidence. The verdict in this case is not
objectively unreliable. In DeJesus, it was plain, clear and undeniable that the jury ignored the
evidence of future medical expenses and awarded Flick four to five times more than she had
proved. The DeJesus verdict demonstrated both [m]isconduct of the jury or prevailing party
and that [e]xcessive damages . . . have been given under the influence of passion or
prejudice as required in order to grant a new trial under NRCP 59(a).
The result reached in this case is correct. The district court did abuse its discretion in
ordering a new trial on liability when Canterino rejected the court's remittitur. I also agree,
however, that reversal is warranted since all jurors did not participate in the damages verdict.
Rose, J., with whom Young, J., joins, concurring in part and dissenting in part:
I concur in the majority opinion, but dissent from the conclusion that the improper and
inflammatory remarks of counsel did not taint the jury verdict. The improper arguments were
numerous and committed throughout the trial. These comments were so prejudicial that the
district court granted the Mirage's motion for a new trial and found,
__________

2
Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995) (quoting Kehr v. Smith Barney, Harris
Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil of California v. Perkins, 347
F.2d 379, 388 (9th Cir. 1965))).

3
Id.

4
Id. at 1515, 908 P.2d at 702.
a new trial and found, in its conditional order of remittitur, that Canterino's attorney's
misconduct resulted in bias, passion, and prejudice. Following the recent dictates of
DeJesus v. Flick, 116 Nev. 812, 7 P.3d 459 (2000), I believe that we are compelled to affirm
in totality the order granting a new trial.
In order to preserve a contention for appellate review, an attorney is typically required
to make specific objections to improper argument. See Beccard v. Nevada National Bank, 99
Nev. 63, 66, 657 P.2d 1154, 1156 (1983). Where attorney misconduct is of such an
inflammatory quality and of such a sheer quantity that it amounts to plain error, however,
review is appropriate without regard to the opposing party's objection. See DeJesus, 116 Nev.
at 816, 7 P.3d at 462. In so reviewing, reversal is warranted upon our finding that the
prejudicial comments so permeated the trial that we are convinced that the jury's verdict was
influenced by passion and prejudice. See Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d
689, 702 (1995).
In this case, the Mirage did object to some of Canterino's attorney's impermissible
statements, including his comment in closing about the tremendous, tremendous difficulty it
is for somebody like [Canterino] to fight the most powerful, richest hotel-casino in the world,
the Mirage. It is misconduct for an attorney to deliberately attempt to appeal to the economic
prejudices of the jury by commenting on the wealth of the defendant. See, e.g., Hoffman v.
Brandt, 421 P.2d 425, 428 (Cal. 1966). Thus, the Mirage's objection to the prejudicial
comment was properly sustained by the district court.
Canterino's attorney engaged in many other unobjected-to instances of misconduct
that support the district court's order for a new trial. As required by DeJesus, then, we should
at a minimum, assess these instances to determine whether they are so numerous in quantity
and inflammatory in quality to amount to plain error. See DeJesus, 116 Nev. at 816, 7 P.3d at
462.
First, we should examine the other objectionable statements Canterino's attorney made
about the wealth of the Mirage. These statements include commentary about the money the
Mirage spent on expert witnesses and security; commentary on the inability of the wealth of
the Mirage to restore Canterino's health; and commentary about the inability of the Mirage's
millions to depict Canterino's housebound status as phony. All of these statements were
inflammatory and keenly calculated to prejudice the jury.
Next, we should look to other statements made during closing argument that may have
been improperincluding, references to the McDonald's coffee case where a woman
received $3 million in damages, comments on the credibility of Mirage's counsel, and
statements of personal opinion.
In this case, Canterino's attorney argued: I talked to you about that McDonald's case.
That woman got burned and she got $3 million. And I don't know whether it was right or not.
That jury decided that's what they thought was right. You're the jury here. You have to decide
what's right. The comparison that Canterino's attorney built in this argument is prejudicial
and completely improper. There is no logical connection between this case and the
McDonald's case except that Canterino's attorney was attempting to expand the jury's concept
of a reasonable award. We should not condone this type of argument. See Wright & Ford
Millworks, Inc. v. Long, 412 So. 2d 892, 894 (Fla. Dist. Ct. App. 1982) (holding that an
attorney's comparison of jury awards in other cases to the present case was improper and
prejudicial).
Additionally, Canterino's attorney argued:
How bad do they want to win? The chief of security told us he lied because his lawyer
told him to lie. That's how bad they want to win. They will perjure themselves.
Miss Ellsworth [Mirage counsel] told you just a minute agoshe had repeated it
during the case, the second or third time I've heard it in this casethe same lie over and
over and over.
In making these comments, Canterino's attorney strayed from permissible argument to a
purposeful attack on opposing counsel portraying her as a liar and perjurer. The design of this
closing argument was to inculcate the jury with a belief that the Mirage's attorney was
untrustworthy. In doing so, the argument sought to inflame the jury in order to obtain a
verdict on the basis of personal prejudice instead of on the weight of evidence provided at
trial. See Las Palmas Assocs. v. Las Palmas Ctr., 1 Cal. Rptr. 2d 301, 315 (Ct. App. 1991);
Thomas v. Dalpos, 326 N.E.2d 42, 46 (Ill. App. Ct. 1975); Board of County Rd. Comm'rs of
the County of Wayne v. GLS LeasCo, Inc., 229 N.W.2d 797, 800 n.3 (Mich. 1975); Tucker v.
Kansas City S. Ry., 765 S.W.2d 308, 310 (Mo. Ct. App. 1989) (holding that it is improper,
unethical, and prejudicial to make personal attacks on opposing counsel or witnesses).
Further, Canterino's attorney told the jury:
You know, I'm going to tell you one last thing before I finish up with this. One thing
happened in this case, one thing was said in this case that absolutelyI mean, I just
couldn't stand it.
Dr. Basili told us that Mr. Canterino one snowy day had to stand by the window and
watch his mother go outside and shovel snow, and she slipped and she hurt herself. . . .
My father died when I was a small boy. I know what it is to be raised by your
mother.
to be raised by your mother. I can imagine what Mr. Canterino felt not being able to go
out and shovel snow and to watch his mother slip and fall and hurt herself. . . .
But Miss Ellsworth, she said to Dr. Basili, how old was she, 55? There was nothing
from preventing her from going out there doing it, was there?
That's cold, ladies and gentlemen. That's the Mirage.
As with previous statements made by Canterino's attorney, this statement was
designed to personally attack the opposing attorney and to discredit her before the jury. The
added hyperbole that the Mirage is cold was simply an attempt to prejudice the jury against
the Mirage not on the basis of facts, but through inflamed emotion. Canterino's attorney's
opinion was not relevant to the trial, nor was it to be considered by the jury. See Betts v.
Manville Personal Injury Settlement Trust, 588 N.E.2d 1193, 1216 (Ill. App. Ct. 1992)
(holding that it is prejudicial error for an attorney to discuss personal experience or personal
opinion in closing argument).
Although the Mirage failed to object to the impermissible commentary regarding the
Mirage's wealth, the McDonald's coffee case, the credibility of counsel, and Canterino's
attorney's personal opinion, I believe that these instances of misconduct are so numerous and
inflammatory that they amount to plain error. Further, Canterino's attorney's arguments are
not only prejudicial, they exceed the boundaries of acceptable professional conduct.
Canterino's primary injuries from the attack at the Mirage were neurological damage
that caused tingling in his feet, relatively minor optic nerve damage and hearing loss, and
psychological problems including post-traumatic stress disorder, panic disorder and
agoraphobia that prevented him from traveling more than a few blocks from his house. His
treating psychiatrist stated that his panic disorder had subsided, but he continued to be
apathetic. Canterino and his experts claimed that these maladies made him totally disabled
and unemployable. Based upon this evidence, the jury awarded the following damages:
Physical pain and mental anguish in
the past
..........$
500,000.00
Physical pain and mental anguish in
the future
.......1,500,000.00
Physical impairment in the
past.........................................................................................................500,000.00
Physical impairment in the
future...................................................................................................1,500,000.00
Loss of earnings in the
past................................................................................................................250,000.00
Loss of earning capacity in the
future..............................................................................................1,211,250.00
Medical expenses in the
past.................................................................................................................55,139.55
Medical expenses in the
future............................................................................................................243,901.80
.....................$5,760,291.35
The district court judge took strong exception to the verdict and the claim that Mr.
Canterino was totally disabled.
Canterino . . . is far from totally disabled. What Canterino can do is walk very well,
possibly run (in court he displayed this ability when he literally sprinted from the
witness stand back to his chair), has the use of both arms and legs, thinks for himself,
communicates with others, can both read and write, has functionally good eyesight, and
can care for himself.
In trial testimony, Canterino admitted that he flew alone from New York to Las Vegas
for trial and walked each day from his hotel four blocks away to the courthouse.
Standing individually, the instances of misconduct may not warrant reversal; when
assessed cumulatively under the precept of DeJesus, however, the misconduct so permeated
the proceeding that I believe the jury verdict was based, at least in part, on passion and
prejudice rather than on the evidence presented at trial.
Accordingly, I believe that the district court's issuance of the conditional order of
remittitur was not an abuse of discretion and that its order for a new trial should be affirmed.
____________
117 Nev. 34, 34 (2001) Badillo v. American Brands, Inc.
ANTONIO BADILLO, THOMAS FRANKLIN, JACK M. LIPSMAN, DEBRA K. OTTING,
ROBERT TASSIELLO, REGINA BASILIO, ROBERT MURPHY, JAMES A.
DILULLO, DENNIS HONEYWELL, VITO DIENNO, MARTIN N. HALNAN, V.
ARLENE CHRISTENSEN, WILLIAM JOSEPH, KIMBERLY BOSLEY, NORMAN
SELCER, ANNE SELCER, CLARA VIRGA, LORETTA BROWN, BRADLEY
DOUD, and EARL WITTIG, Appellants, v. AMERICAN BRANDS, INC.,
AMERICAN TOBACCO COMPANY, B.A.T. INDUSTRIES, P.L.C., BATUS
HOLDINGS, INC., BATUS TOBACCO SERVICES, INC., BGLS, INC., BRITISH
AMERICAN TOBACCO COMPANY, LTD., BROWN & WILLIAMSON
TOBACCO CORPORATION, BROOKE GROUP LTD., DOSAL TOBACCO
CORPORATION, LIGGETT GROUP, INC., LIGGETT & MYERS, INC., LOEWS
CORPORATION, LORILLARD, INC., LORILLARD TOBACCO COMPANY,
NATIONAL ASSOCIATION OF TOBACCO DISTRIBUTORS, PHILIP MORRIS,
INC., PHILIP MORRIS COMPANIES, INC., PHILIP MORRIS INTERNATIONAL,
INC., PHILIP MORRIS MARKETING SA, PHILIP MORRIS PRODUCTS, INC.,
R.J. REYNOLDS TOBACCO COMPANY, RJR NABISCO, INC., RJR NABISCO
HOLDINGS CORPORATION, THE COUNCIL FOR TOBACCO
RESEARCH-U.S.A., INC., THE TOBACCO INSTITUTE, INC., TOBACCO
INSTITUTE, INC., TOBACCO MERCHANTS ASSOCIATION OF THE UNITED
STATES, UNITED STATES TOBACCO COMPANY, and UST, INC., Respondents.
No. 34300
January 30, 2001 16 P.3d 435
Certified questions from the United States District Court for the District of Nevada;
Philip M. Pro, Judge.
Smokers and casino employees brought class action suits against parent corporations,
cigarette manufacturers, affiliated corporations, trade association, and research-funding
organization, seeking, among other things, establishment of a court-supervised medical
monitoring program to aid in early diagnosis and treatment of tobacco-related illnesses. The
United States District Court for the District of Nevada certified questions. The supreme court
held that Nevada common law did not recognize a cause of action for medical monitoring,
although remedy of medical monitoring could be available.
Questions answered.
Beckley Singleton Jemison Cobeaga & List and Daniel F. Polsenberg and Beau
Sterling, Las Vegas, for Appellants.
Edwards & Winterton, Chtd., and Nicholas A. Boylan, Las Vegas; Gerard &
Associates, Las Vegas; Humphrey, Farrington & McClain, P.C., and John F. Edgar and
Gregory Leyh, Independence, Missouri, for Appellants Selcer, Virga, Brown, Doud, Wittig,
DiEnno and Halnan.
LoBello & LoBello, Las Vegas; Blumenthal, Ostroff & Markham, La Jolla, California;
Chavez & Gertler LLP, Mill Valley, California, for Appellants Christensen, Joseph and
Bosley.
Ross Law Chartered, Carson City; Peter L. Flangas, Las Vegas; Murray Law Firm
and Perry M. Nicosia, New Orleans, Louisiana; The Godfrey Firm and Patrick M. Files, New
Orleans, Louisiana, for Appellants Badillo, Franklin, Lipsman, Otting, Tassiello, Basilio,
Murphy, Dilullo and Honeywell.
Backus & Associates, Ltd., Las Vegas; Simpson Thatcher & Bartlett, New York, New
York, for Respondent B.A.T. Industries, P.L.C.
Burton Bartlett & Glogovac, Reno, for Respondents Lorillard Tobacco Company and
Lorillard, Inc.
Dickerson, Dickerson, Consul & Pocker and Douglass A. Mitchell, Las Vegas;
Debevoise & Plimpton, New York, New York; Bryan Cave, Overland Park, Kansas, and
Phoenix, Arizona, for Respondent The Council for Tobacco Research-U.S.A., Inc.
Guild Russell Gallagher & Fuller, Reno; Kasowitz, Benson, Torres & Friedman,
LLP, New York, New York, for Respondents Brooke Group Ltd., Liggett Group, Inc., Liggett
& Myers, Inc., and BGLS, Inc.
Hunterton & Associates, Las Vegas; Skadden, Arps, Slate, Meagher & Flom LLP,
New York, New York, for Respondents United States Tobacco Company and UST, Inc.
Hutchison & Steffen, Las Vegas; Chadbourne & Parke LLP, Los Angeles, California,
for Respondent British American Tobacco Company, Ltd.
Jones Vargas and Gary R. Goodheart, Las Vegas; Covington & Burling, Washington,
D.C., for Respondents The Tobacco Institute, Inc., and Tobacco Merchants Association of the
United States.
Kummer Kaempfer Bonner & Renshaw, Las Vegas, for Respondents Loews
Corporation, Lorillard Tobacco Company and Lorillard, Inc.
Lionel Sawyer & Collins and Dennis L. Kennedy and David N. Frederick, Las Vegas;
Davis Polk & Wardwell, New York, New York, for Respondents R.J. Reynolds Tobacco
Company, RJR Nabisco, Inc., RJR Nabisco Holdings Corporation, Brown & Williamson
Tobacco Corporation, American Tobacco Company, American Brands, Inc., BATUS
Holdings, Inc., and BATUS Tobacco Services, Inc.
Schreck Morris, Las Vegas; Shook Hardy & Bacon L.L.P., Kansas City, Missouri;
Heller Ehrman White & McAuliffe LLP and Anna S. McLean, San Francisco, California, for
Respondents Philip Morris, Inc., and Philip Morris Companies, Inc.
Martinez & Gutierrez, Miami, Florida, for Respondent Dosal Tobacco Corporation.
Sedgwick, Detert, Moran & Arnold, San Francisco, California, for Respondents
Brown & Williamson Tobacco Corporation, BATUS Holdings, Inc., BATUS Tobacco
Services, Inc., and American Tobacco Company.
Womble Carlyle Sandridge & Rice, Winston-Salem, North Carolina; Jones Day
Reavis & Pogue, Los Angeles, California; Cleveland, Ohio; and Dallas, Texas, for
Respondent R.J. Reynolds Tobacco Company.
Chester H. Adams, City Attorney, Sparks, for Amicus Curiae City of Sparks.
Lefebvre, Barron & Vivone, Chtd., and Andrew Craner, Las Vegas, for Amici Curiae
American Gaming Association, Nevada Association of Employers, Nevada Resort
Association, Nevada Self-Insurers Association, Reno-Sparks Chamber of Commerce, and
Retail Association of America.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP, Reno, for
Amicus Curiae Associated General Contractors.
McMullen Strategic Group, Reno, for Amicus Curiae Las Vegas Chamber of
Commerce.
Perry & Spann, Reno; Crowell & Moring LLP and Victor E. Schwartz, Mark A.
Behrens and Emma K. Burton, Washington,
D.C., for Amici Curiae Product Liability Advisory Council, Inc., and American Tort Reform
Association.
William E. Peterson, Senior Vice President and General Counsel, for Amicus Curiae
Sierra Pacific Resources.
Piscevich & Fenner, Reno, for Amici Curiae Builder's Association of Northern
Nevada, DR Partners, Economic Development Authority of Western Nevada, Nevada
Development Authority, Nevada Farm Bureau, Nevada Franchised Auto Dealers Association,
Nevada Manufacturer's Association, Nevada Mining Association, Nevada Petroleum
Marketers & Convenience Store Association, Terrible Herbst, Inc., and U-Haul Company of
Nevada.
1. Damages.
Nevada common law does not recognize a cause of action for medical monitoring, although a remedy of medical monitoring
may be available for an underlying cause of action.
2. Damages.
A claim for medical monitoring seeks to recover the anticipated costs of long-term diagnostic testing necessary to detect latent
diseases that may develop as a result of tortious exposure to toxic substances.
3. Action.
Court cannot recognize a remedy absent an underlying cause of action.
Appellate court need not consider an issue that has not been fully raised by appellants or meaningfully briefed by either party.
5. Constitutional Law.
Altering common law rights, creating new causes of action, and providing new remedies for wrongs is generally a legislative, not
a judicial, function.
6. Action.
The supreme court possesses the power to create a common law cause of action, but court construes such power narrowly and
exercises it cautiously.
OPINION
Per Curiam:
This case comes to the court in the form of certified questions from the United States
District Court for the District of Nevada. The federal district court requested that we issue an
opinion stating Nevada law with respect to the following two questions: (1) whether Nevada
common law recognizes a medical monitoring cause of action
cause of action or remedy where medical testing facilitates the detection of diseases resulting
from exposure to a toxic substance; and (2) if Nevada common law recognizes a medical
monitoring cause of action or remedy, what elements must a plaintiff prove to be entitled to
medical monitoring. We conclude that Nevada common law does not recognize a medical
monitoring cause of action but the remedy of medical monitoring may be available. The
elements necessary for a medical monitoring remedy may depend upon the cause of action for
which the medical monitoring is a remedy. The parties have not meaningfully briefed the
issue and therefore we decline to decide it.
FACTS
Appellants are plaintiffs in four potential classes who brought class action suits
against seven parent corporations, six current or former cigarette manufacturers, nine
affiliated corporations, one trade association, and one research-funding organization, seeking,
among other things, the establishment of a court-supervised medical monitoring program to
aid in the early diagnosis and treatment of tobacco-related illnesses. In one of the four cases,
the named plaintiff and proposed class members are smokers. In the other three cases, the
plaintiffs and proposed class members are casino employees (both nonsmokers and former
smokers) who claim exposure to environmental or secondhand tobacco smoke at work. The
federal district court consolidated the casino employee cases under Badillo.
All four actions are at an early stage. Discovery has been confined to class
certification issues with motions for class certification pending in the three casino employee
cases. Appellants assert various claims against the defendant tobacco companies, including
strict liability, negligence, fraud, and misrepresentation. Appellants seek medical monitoring
to detect whether they have any diseases as a result of their exposure to cigarette smoke. The
federal district court determined that class certification of appellants for medical monitoring
hinges on whether medical monitoring is a viable cause of action or a viable remedy under
Nevada law.
Noting no controlling precedent in Nevada law for the viability of medical monitoring
as a claim or a remedy, the federal district court on its own motion requested that this court
answer the following two questions of law pursuant to NRAP 5: (1) whether Nevada common
law recognizes a medical monitoring cause of action or remedy where medical testing
facilitates the detection of diseases resulting from exposure to a toxic substance; and (2) if
Nevada common law recognizes a medical monitoring cause of action or remedy,
action or remedy, what elements must a plaintiff prove to be entitled to medical monitoring.
DISCUSSION
[Headnote 1]
The tort system attempts to accomplish the goals of compensation, allocation of cost,
and deterrence. See Diane P. Wood, Commentary on the Futures Problem, by Geoffrey C.
Hazard, Jr., 148 U. Pa. L. Rev. 1933, 1933 (2000). Medical monitoring is a novel,
non-traditional tort and remedy. See Thompson v. American Tobacco Co., 189 F.R.D. 544,
552 (D. Minn. 1999). Medical monitoring has evolved, in part, because the traditional
common law tort system, which was inherited from post-feudal England and was developed
to address conflicts raised by simple, straightforward traumatic injuries, is ill-designed to deal
with the field of mass torts and latent, rather than immediate, injuries. See Amy B.
Blumenberg, Medical Monitoring Funds: The Periodic Payment of Future Medical
Surveillance Expenses in Toxic Exposure Litigation, 43 Hastings L.J. 661, 667-75 (1992); see
also Wood, supra, at 1933-34.
[Headnote 2]
A claim for medical monitoring seeks to recover the anticipated costs of long-term
diagnostic testing necessary to detect latent diseases that may develop as a result of tortious
exposure to toxic substances. Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 429 (W.
Va. 1999). The Third Circuit Court of Appeals aptly explained that the tort was created in an
effort to accommodate a society with an increasing awareness of the danger and potential
injury caused by the widespread use of toxic substances. In re Paoli Railroad Yard PCB
Litig., 916 F.2d 829, 850 (3d Cir. 1990).
Since the landmark decision Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242,
247 (1984), in which a New York appeals court acknowledged medical monitoring could be a
recoverable damage, appellate courts in at least ten other states have recognized claims for
medical monitoring.
1
In addition, federal courts have interpreted state law in at least seven
additional states and the District of Columbia as permitting claims for medical monitoring.
__________

1
See, e.g., Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. Dist. Ct. App. 2000); Bower v. Westinghouse Elec.
Corp., 522 S.E.2d 424 (W. Va. 1999); Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998);
Redland Soccer Club, Inc. v. Dep't of the Army, 696 A.2d 137 (Pa. 1997); Potter v. Firestone Tire & Rubber
Co., 863 P.2d 795 (Cal. 1993); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993); Meyerhoff v.
Turner Constr. Co., 534 N.W.2d 204 (Mich. Ct. App. 1995); Burns v. Jaquays Mining Corp., 752 P.2d 28
(Ariz. Ct. App. 1987); Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987); see also Elam v. Alcolac, Inc.,
765 S.W.2d 42 (Mo. Ct. App. 1988) (dictum), cert. denied, 493 U.S. 817 (1989).
and the District of Columbia as permitting claims for medical monitoring.
2
A Maryland
Circuit Court recently concluded that a cause of action for medical monitoring exists in
Maryland, but the Maryland Court of Appeals did not reach the issue because it dismissed the
case on other grounds. See Philip Morris v. Angeletti, 752 A.2d 200, 249-51 (Md. 2000).
Badillo urges this court to recognize medical monitoring as a cause of action or, in the
alternative, as a remedy. Badillo argues that recognizing medical monitoring would be
consistent with past policies of this court to construe Nevada's common law of torts in
furtherance of justice and public policy. Badillo contends that medical monitoring advances
several sound public policy concerns, including fostering access to early medical testing for
those exposed to hazardous substances, mitigating the costs of serious future illnesses,
preventing the inequitable allocation of medical intervention costs, deterring future public
exposure to hazardous substances, and promoting elemental justice. Furthermore, Badillo
contends that this court has the power to create a common law cause of action. Finally,
Badillo argues that Nevada should join the overwhelming majority of jurisdictions that
recognize medical monitoring and alleges that every court that has considered medical
monitoring since Askey, including a majority of federal circuits, has adopted it.
Respondents argue that medical monitoring is contrary to Nevada common law of
torts because to recover future damages requires present physical impact, injury, or illness. To
permit recovery otherwise, respondents contend, would be too speculative and would result in
unpredictable liability and arbitrary outcomes.
Moreover, respondents contend there are compelling public policy arguments against
recognizing a medical monitoring cause of action or remedy for exposure to toxic substances.
First, respondents argue that medical monitoring would trigger a flood of litigation because
modern society lives in a sea of toxins. Virtually everyone, respondents assert, might be a
potential plaintiff. Second, respondents argue that granting medical monitoring claims to
large numbers of asymptomatic plaintiffs, who may never become ill,
__________

2
See, e.g., Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109 (N.D. Ill. 1998) (applying Illinois law);
Witherspoon v. Philip Morris, Inc., 964 F. Supp. 455 (D.D.C. 1997) (applying District of Columbia law); Burton
v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995) (applying Kansas law); Day v. NLO, 851 F.
Supp. 869 (S.D. Ohio 1994) (applying Ohio law); Bocook v. Ashland Oil, Inc., 819 F. Supp. 530 (S.D. W. Va.
1993) (applying Kentucky law); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468 (D. Colo. 1991) (applying
Colorado law); Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th Cir. 1991) (applying West Virginia and Virginia
law); Stead v. F.E. Myers Co., 785 F. Supp. 56 (D. Vt. 1990) (applying Vermont law).
never become ill, will divert and possibly even deny limited resources to plaintiffs with
meritorious claims of serious illness. Third, respondents argue that being awarded a medical
monitoring claim will preclude plaintiffs from filing a claim for damages if they later develop
physical injuries. Finally, respondents argue that because a decision to recognize medical
monitoring for asymptomatic persons requires a careful balancing of complex, diverse, and
competing social interests, this decision would best be left to the Legislature.
As a preliminary matter, we note Badillo's trend analysis is somewhat overstated.
Although a growing number of appellate courts have recognized medical monitoring
(seventeen states plus the District of Columbia), this is far from an overwhelming majority
of jurisdictions as Badillo claims. Nor do we agree, as Badillo further asserts, that every
court and a majority of federal circuits that have considered medical monitoring since Askey
have adopted it. See, e.g., Trimble v. Asarco, Inc., 232 F.3d 946, 963 (8th Cir. 2000)
(applying Nebraska common law); Wood v. Wyeth-Ayerst Lab. Div., No.
1999-CA-001717-MR, 2000 WL 1610658, at *3 (Ky. Ct. App. Oct. 27, 2000) (opinion not
final stating that although a medical monitoring remedy is recognized, no medical monitoring
cause of action exists in Kentucky). Even if all of Badillo's claims were true, they would not
present a rational basis for this court's compliance. Cf. Hinegardner v. Marcor Resorts, 108
Nev. 1091, 1095, 844 P.2d 800, 803 (1992).
Courts have recognized medical monitoring more often as a remedy
3
than as a cause
of action.
4
When recognized as a remedy, medical monitoring is usually tied to a cause of
action in trespass, nuisance, strict liability, or negligence. See Blumenberg, supra, at 671-72.
Most commonly it is tied to a cause of action in negligence. See id. at 672.
[Headnote 3]
In advocating that we recognize medical monitoring as a viable remedy, Badillo did
not identify an underlying cause of action anywhere in the briefs or during oral argument,
even when specifically questioned on this topic. We cannot recognize a remedy absent an
underlying cause of action. See Tomiyasu v. Golden, 81 Nev. 140, 156, 400 P.2d 415, 424
(1965) (Gabrielli, D.J., dissenting).
__________

3
See, e.g., Bower, 522 S.E.2d 424; Bourgeois, 716 So. 2d 355; Witherspoon, 964 F. Supp. 455; Burton, 884
F. Supp. 1515; Potter, 863 P.2d 795; Hansen, 858 P.2d 970; Bocook, 819 F. Supp. 530.

4
See, e.g., Petito, 750 So. 2d 103; Redland Soccer Club, Inc., 696 A.2d 137; Meyerhoff, 534 N.W.2d 204;
Cook, 755 F. Supp. 1468.
[Headnote 4]
In the tobacco litigation context, we note that claims for medical monitoring relief
have been tied to causes of action in torts and contracts, including fraud, failure to warn,
misrepresentation, strict liability, deceptive trade practices, breach of express warranty,
breach of implied warranty of merchantability, breach of implied warranty of fitness for a
particular purpose, negligence, conspiracy, intentional infliction of emotional distress,
intentional exposure to a hazardous substance, and violation of consumer protection statutes.
See, e.g., Angeletti, 752 A.2d 200; Thompson, 189 F.R.D. 544; Chamberlain v. American
Tobacco Co., 70 F. Supp. 2d 788 (N.D. Ohio 1999); Emig v. American Tobacco Co., 184
F.R.D. 379 (D. Kan. 1998); Ruiz v. American Tobacco Co., 180 F.R.D. 194 (D.P.R. 1998);
Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90 (W.D. Mo. 1997); Witherspoon
v. Philip Morris, Inc., 964 F. Supp. 455 (D.D.C. 1997); Arch v. American Tobacco Co., 175
F.R.D. 469 (E.D. Pa. 1997); Castano v. American Tobacco Co., 160 F.R.D. 544 (E.D. La.
1995), rev'd, 84 F.3d 734 (5th Cir. 1996); Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp.
1515 (D. Kan. 1995). Without input from the parties, we decline to consider this
overwhelming array of causes of action to which the remedy of medical monitoring could
attach. Moreover, we need not consider an issue that has not been fully raised by appellants or
meaningfully briefed by either party. See Anderson v. Anderson, 107 Nev. 570, 571-72 n.1,
816 P.2d 463, 465 n.1 (1991).
In the alternative, Badillo argues that we should recognize medical monitoring as a
common law cause of action. We decline to do so.
[Headnotes 5, 6]
Altering common law rights, creating new causes of action, and providing new
remedies for wrongs is generally a legislative, not a judicial, function. See National R.R.
Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 457-58 (1974). This
court possesses the power to create a common law cause of action. See Rupert v. Stienne, 90
Nev. 397, 399-404, 528 P.2d 1013, 1014-17 (1974); see also State v. Eaton, 101 Nev. 705,
711, 718, 710 P.2d 1370, 1374, 1379 (1985), overruled on other grounds by State, Dep't of
Transp. v. Hill, 114 Nev. 810, 963 P.2d 480 (1998). However, we construe such power
narrowly and exercise it cautiously. See Rupert, 90 Nev. at 404, 528 P.2d at 1017.
In the instances in which we have created a new common law cause of action, the
facts have been more clear-cut and the issues better defined by other jurisdictions than in the
case before us. See Rupert, 90 Nev. 397, 528 P.2d 1013 (creating a cause of action in tort for
personal injury
tort for personal injury from a motor vehicle accident for one spouse against another by
abrogating the doctrine of spousal immunity); see also Eaton, 101 Nev. 705, 710 P.2d 1370
(creating a cause of action for emotional distress caused by apprehending the death or serious
injury of a loved one due to another's negligence); cf. Greco v. United States, 111 Nev. 405,
409, 893 P.2d 345, 347 (1995) (declining to recognize a wrongful life cause of action because
of the difficulty of the issues).
The case before us involves a class action that includes former smokers and
nonsmokers who claim harm from exposure to environmental or secondhand tobacco smoke.
We acknowledge considerable scientific evidence links tobacco use with several serious
diseases and adverse health outcomes, such as lung, oral, laryngeal, esophageal, bladder,
kidney, pancreatic, stomach, and cervical cancers, chronic obstructive pulmonary disease,
coronary heart disease, stroke, intrauterine growth retardation, low-birthweight babies, and
unsuccessful pregnancies. See U.S. Dept. of Health and Human Services, Reducing the
Health Consequences of Smoking: 25 Years of Progress, A Report of the Surgeon General, 5,
97-101 (1989). We are also sympathetic to those who are burdened with the ravages of
tobacco-related illnesses and to those who fear their exposure to environmental tobacco
smoke, particularly in their workplace, may one day lead to ill-health. However, we are
unpersuaded on the facts of this case to recognize a cause of action or remedy for medical
monitoring for exposure to hazardous substances.
Exposure to environmental tobacco smoke raises many complex issues of legal
causality and proof, such as the length and intensity of exposure necessary to create a
significant increased risk or harm. Cf. Angeletti, 752 A.2d at 237 (citations omitted). In
addition, causality and proof are complicated by potential mitigating factors, such as
individual medical history and other co-existing adverse health behaviors. Id. at 238. The
defendants' contribution to harm is also not clear-cut. Defendant manufacturers made
hundreds of different products containing different ingredients. See Barnes v. American
Tobacco Co., 161 F.3d 127, 135 (3d Cir. 1998). A toxic exposure that is discrete and more
ascertainable would be less problematic.
Finally, we note that the elements of medical monitoring as a cause of action are not
uniform from one jurisdiction to another. See, e.g., Bower, 522 S.E.2d at 432-33; Bourgeois
v. A.P. Green Indus., Inc., 716 So. 2d 355, 360-61 (La. 1998); Redland Soccer Club, Inc. v.
Dep't of the Army, 696 A.2d 137, 145-46 (Pa. 1997); Hansen v. Mountain Fuel Supply Co.,
858 P.2d 970, 979 (Utah 1993); Ayers v. Township of Jackson, 525 A.2d 287, 312 (N.J.
1987). Nor is there agreement whether present physical injury is required for a medical
monitoring claim.
injury is required for a medical monitoring claim. Some jurisdictions do not require present
physical injury, while others do. Compare, e.g., Bower, 522 S.E.2d at 430; Petito v. A.H.
Robins, Co., 750 So. 2d 103, 105-06 (Fla. Dist. Ct. App. 2000); Hansen, 858 P.2d at 977;
Bourgeois, 716 So. 2d at 359; Potter v. Firestone Tire & Rubber, Co., 863 P.2d 795, 822-23
(Cal. 1993); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468, 1477 (D. Colo. 1991);
Meyerhoff v. Turner Constr. Co., 534 N.W.2d 204, 206 (Mich. Ct. App. 1995); Ayers, 525
A.2d at 308, 312; with, e.g., Burton, 884 F. Supp. at 1523; Witherspoon, 964 F. Supp. at 467;
Abney v. Exxon Corp., 755 So. 2d 283, 290 (La. Ct. App. 1999).
CONCLUSION
In light of the lack of consensus in other jurisdictions and the complex fact pattern of
tobacco litigation and causality, we hold that Nevada common law does not recognize a cause
of action for medical monitoring. A remedy of medical monitoring may be available for an
underlying cause of action, but neither party has briefed the issue nor set forth the cause of
action to which it would provide a remedy. Therefore, we do not have enough information to
provide an answer to the second certified question.
5

____________
117 Nev. 44, 44 (2001) Reinkemeyer v. Safeco Ins. Co.
DR. JOSEPH REINKEMEYER and PATRICIA REINKEMEYER, Appellants, v. SAFECO
INSURANCE COMPANY OF AMERICA, Respondent.
No. 34507
January 30, 2001 16 P.3d 1069
Certified questions of law pursuant to NRAP 5 from the United States District Court
concerning the applicability of NRS 687B.385 and the constitutionality of that statute. United
States District Court, District of Nevada; Howard D. McKibben, Judge.
Insureds brought action against homeowners' insurer to challenge nonrenewal of the
policy for claims that were not the insureds' fault. The United States District Court for the
District of Nevada granted summary judgment for insurer, and insureds appealed. After
certifying question to, and obtaining response from, the Nevada Supreme Court, the Court of
Appeals, 166 F.3d 982, vacated and remanded. On remand, the district court certified
question. The supreme court held that: (1) the statute which prohibits an insurer from
canceling,
__________

5
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.
prohibits an insurer from canceling, refusing to renew, or increasing the premium for a policy
of casualty or property insurance as a result of claims with respect to which the insured was
not at fault applied to homeowners' insurance policy; and (2) it was facially constitutional.
Questions answered.
Leverty & Associates and Matthew L. Sharp, Reno, for Appellants.
Erickson Thorpe & Swainston, Ltd., and William G. Cobb and Paul M. Bertone, Reno,
for Respondent.
1. Insurance.
Statute which prohibits an insurer from canceling or refusing to renew a policy of casualty or property insurance as a result of
claims with respect to which the insured was not at fault applied to homeowners' insurance policy, even though the legislature later
amended it to limit it to automobile policies. NRS 687B.385 (1996).
2. Statutes.
The supreme court is not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning.
3. Federal Courts.
Supreme court lacks authority to answer the federal court's certified question on constitutionality under the United States
Constitution. NRAP 5.
4. Constitutional Law; Eminent Domain.
The Due Process and Takings Clauses of the state constitution require that regulations fixing prices must guarantee a fair and
reasonable return on the various classes of business written by insurers authorized to conduct the business of insurance within the state.
Const. art. 1, 8.
5. Constitutional Law; Eminent Domain; Insurance.
Statute which prohibits an insurer from canceling, refusing to renew, or increasing the premium for a policy of casualty or
property insurance as a result of claims with respect to which the insured was not at fault is a form of price fixing and must guarantee a
fair and reasonable return in order to comply with the state Due Process and Takings Clauses. Const. art. 1, 8; NRS 687B.385
(1996).
6. Constitutional Law; Eminent Domain; Insurance.
Statute which prohibits an insurer from canceling, refusing to renew, or increasing the premium for a policy of casualty or
property insurance as a result of claims with respect to which the insured was not at fault is not facially unconstitutional under the state
Due Process and Takings Clauses. Const. art. 1, 8; NRS 687B.385 (1996).
7. Statutes.
The facial validity of a statute is a question of law which must be answered without any reference to the underlying facts in the
case.
OPINION
Per Curiam:
The United States District Court, District of Nevada, has certified two questions to
this court pursuant to NRAP 5.
1
The first question is whether NRS 687B.385, which
prohibits the cancellation or nonrenewal of certain types of insurance policies, applied to
homeowner's insurance policies prior to a 1997 amendment, which expressly limited the
statute's applicability to automobile insurance policies. The second question is if the pre-1997
version of NRS 687B.385 did apply to homeowner's insurance policies, whether the statute
violated the United States and Nevada Constitutions.
We conclude that the pre-1997 version of NRS 687B.385 did apply to homeowner's
insurance policies. Although we have no authority under NRAP 5 to answer the second
question concerning the constitutionality of the statute under the United States Constitution,
we conclude that the statute is not facially unconstitutional under the Nevada Constitution.
FACTS AND PROCEDURAL HISTORY
Dr. Joseph Reinkemeyer and Patricia Reinkemeyer were insured by Safeco Insurance
Company of America under a homeowner's insurance policy. Between 1989 and 1993, the
Reinkemeyers submitted three claims under the policy totaling over $200,000.00. The losses
were not the fault of the Reinkemeyers. Safeco declined to renew the Reinkemeyers'
insurance policy in 1994.
The Reinkemeyers sued Safeco claiming that Safeco violated various provisions of
NRS 687B.310 through NRS 687B.420, which govern the cancellation and nonrenewal of
certain types of insurance policies. Specifically, the Reinkemeyers contended that NRS
687B.385 prohibited Safeco from declining to renew their policy. At the time Safeco declined
to renew the Reinkemeyers' policy in 1994, NRS 687B.385 provided:
An insurer shall not cancel, refuse to renew or increase the premium for renewal of a
policy of casualty or property
__________

1
NRAP 5(a) provides that:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United
States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District
Court, when requested by the certifying court, if there are involved in any proceeding before those courts
questions of law of this state which may be determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court there is no controlling precedent in the decisions of the
supreme court of this state.
insurance as a result of any claims made under the policy with respect to which the
insured was not at fault.
1987 Nev. Stat., ch. 466, 1, at 1063.
2
Safeco admits that the losses were not the fault of the
Reinkemeyers.
NRS 687B.310 limits the applicability of NRS 687B.385 to certain types of insurance
contracts. Specifically, NRS 687B.310(1) provides:
NRS 687B.310 to 687B.420, inclusive, apply to all binders and all contracts of
insurance the general terms of which are required to be approved or are subject to
disapproval by the commissioner, except as otherwise provided by statute or by rule
pursuant to subsection 3.
The United States Magistrate Judge found that the provisions of NRS 687B.310
through NRS 687B.420 do not apply to contracts of homeowner's insurance because there is
no requirement that the Insurance Commissioner approve or disapprove of the general terms
of such contracts. The magistrate also found that if NRS 687B.385 applied to this action, the
statute would be unconstitutional because it did not provide for a fair and adequate return.
The United States District Court Judge adopted that portion of the magistrate's report
and recommendation finding that the provisions of NRS 687B.385 concerning cancellation
and nonrenewal did not apply to homeowner's insurance contracts and granted Safeco's
motion for summary judgment. Because the United States District Court Judge concluded that
NRS 687B.385 did not apply to homeowner's insurance policies, he never reached the
constitutional issue.
The Reinkemeyers appealed this decision to the United States Court of Appeals for
the Ninth Circuit. Pursuant to NRAP 5, the Ninth Circuit certified the following question to
this court:
Is a homeowner's insurance policy, like the one at issue in this case, a contract of
disapproval by the Commissioner of Insurance, as provided by NRS 687B.310?
In the unpublished order answering this certified question, this court recognized that there is
no statutory provision requiring the commissioner to approve the terms of homeowner's
insurance policies.
3
However, this court concluded:
__________

2
In 1997, the legislature amended NRS 687B.385 by replacing the words casualty or property insurance
with motor vehicle insurance covering private passenger cars or commercial vehicles. 1997 Nev. Stat., ch.
603, 22.5, at 3033.

3
This court's unpublished order answering the Ninth Circuit's certified question was published as an appendix
to the Ninth Circuit's
[A] homeowner's insurance policy is a contract of insurance, the general terms of which
are subject to disapproval by the Commissioner of Insurance, and are subject to the
cancellation and nonrenewal provisions of NRS 687B.310 to 687B.420, except to the
extent that such a policy provides insurance for home protection as defined in NRS
690B.100.
4

Based on this answer, the Ninth Circuit vacated the judgment in favor of Safeco and
remanded the matter to the United States District Court.
Safeco then filed a new motion for summary judgment arguing that the 1997
amendment is evidence that the legislature never intended NRS 687B.385 to apply to
homeowner's insurance policies, but only to automobile insurance policies. Safeco's new
motion for summary judgment also contends that the cancellation and nonrenewal provisions
of NRS 687B.385 are unconstitutional because the statutory scheme does not guarantee a fair
and adequate return.
DISCUSSION
Whether NRS 687B.385, prior to the 1997 amendment, applied to homeowner's insurance
policies
[Headnote 1]
As noted above, at the time Safeco declined to renew the Reinkemeyers' insurance
policy in 1994, NRS 687B.385 prohibited an insurer from refusing to renew a policy of
casualty or property insurance as a result of any claims made under the policy with respect to
which the insured was not at fault. Safeco admits that the losses were not the fault of the
Reinkemeyers. In 1997, the legislature amended NRS 687B.385 by replacing the words
casualty or property insurance with motor vehicle insurance covering private passenger
cars or commercial vehicles. 1997 Nev. Stat., ch. 603, 22.5, at 3033.
Safeco primarily relies on the legislative history of the 1997 amendment in support of
its contention that the legislature intended the pre-1997 version of NRS 687B.385 to apply
only to automobile insurance policies, not homeowner's insurance policies. The
Reinkemeyers contend that the plain language of the pre-1997 version of NRS 687B.385, as
well as the legislative history of that bill,
__________
opinion. Reinkemeyer v. Safeco Ins. Co. of America, 166 F.3d 982, 985-86 (9th Cir. 1999).

4
NRS Chapter 690B contains special provisions governing the cancellation and nonrenewal of insurance
policies for home protection. Therefore, insurance for home protection is not subject to NRS 687B.385 through
NRS 687B.420.
of that bill, makes it applicable to homeowner's insurance policies. They also argue that this
court has already determined, in its answer to the Ninth Circuit's certified question, that NRS
687B.385, prior to the 1997 amendment, applied to homeowner's insurance policies.
In the order answering the Ninth Circuit's certified question, this court concluded that
a homeowner's insurance policy is subject to the cancellation and nonrenewal provisions of
NRS 687B.310 to 687B.420. The precise question that the Ninth Circuit certified to the
Nevada Supreme Court was the following:
Is a homeowner's insurance policy, like the one at issue in this case, a contract of
disapproval by the Commissioner of Insurance, as provided by NRS 687B.310?
The question currently certified by the federal district court, however, is not whether
the general terms of homeowner's insurance policies are required to be approved or are
subject to disapproval by the Insurance Commissioner. Rather, the instant question is whether
the pre-1997 version of NRS 687B.385, in light of the legislative history of the 1997
amendment, applied to homeowner's insurance policies. Our answer to the Ninth Circuit's
certified question never considered this issue.
5
Therefore, our answer to the Ninth Circuit's
certified question is not controlling.
We now turn to the question certified to us by the United States District Court. Prior
to the 1997 amendment, NRS 687B.385 applied to casualty or property insurance. Safeco
contends that, despite this language, the legislature intended the statute to apply only to
automobile insurance. NRS 687B.385 was amended in 1997 by the passage of A.B. 578.
Safeco relies on testimony presented to the Assembly Committee on Commerce which
indicated that A.B. 578 did not make substantive changes to existing law, but merely clarified
that the prohibitions contained in NRS 687B.385 applied only to commercial or private
passenger insurance policies. We reject Safeco's argument.
[Headnote 2]
[T]he authorities state that testimony before a committee is of little value in
ascertaining legislative intent, at least where the committee fails to prepare and distribute a
report incorporating the substance of the testimony.'
__________

5
In fact, the Ninth Circuit specifically recognized that this issue was not certified to the Nevada Supreme
Court, and the Ninth Circuit decline[d] to address the issue because it was not reached by the district court and
was not fully briefed by the parties. Reinkemeyer, 166 F.3d at 985. The Ninth Circuit specifically stated that
Safeco may raise this issue in the United States District Court on remand. Id.
committee fails to prepare and distribute a report incorporating the substance of the
testimony.' Robert E. v. Justice Court, 99 Nev. 443, 446, 664 P.2d 957, 959 (1983) (quoting
Seward Marine Services, Inc. v. Anderson, 643 P.2d 493, 497 n.8 (Alaska 1982)); see
generally 2A Norman J. Singer, Statutes and Statutory Construction, 48.10 (6th ed. 2000).
Furthermore, we conclude that the legislative history of the 1997 amendment should not
change the construction of the pre-1997 version of the statute. By the terms of the pre-1997
version of NRS 687B.385, the statute applied to homeowner's insurance policies. This court
is not empowered to go beyond the face of [the] statute to lend it a construction contrary to
its clear meaning. Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d 1020, 1022
(1985); see also Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984) (If
a statute is clear on its face a court cannot go beyond the language of the statute in
determining the legislature's intent.).
Therefore, we conclude that the pre-1997 version of NRS 687B.385 applied to
homeowner's insurance policies.
If NRS 687B.385, prior to the 1997 amendment, applied to homeowner's insurance policies,
does the statute violate the United States and Nevada Constitutions
[Headnote 3]
As a preliminary matter, we conclude that we lack authority to answer the federal
district court's second certified question to the extent that it requests an answer based on the
United States Constitution because that question would fall outside the purview of NRAP 5.
Therefore, we base our answer solely on our interpretation of the Due Process and Takings
Clauses of the Nevada Constitution, which virtually mirror the language in the United States
Constitution. Nev. Const. art. 1, 8(5) and (6). However, we look to federal caselaw for
guidance.
Safeco argues that NRS 687B.385 does not guarantee a fair and reasonable return and
therefore, is unconstitutional.
6
The United States Constitution requires that regulations
fixing prices must guarantee a fair and reasonable return. See Guaranty Nat. Ins. Co. v. Gates,
916 F.2d 508, 515 (9th Cir. 1990) (citing Federal Power Comm'n v. Hope Natural Gas Co.,
320 U.S. 591 (1944)).
[Headnotes 46]
We conclude that Nevada's Constitution also requires that regulations fixing prices
must guarantee a fair and reasonable return
__________

6
The magistrate agreed with Safeco on this point. As previously stated, however, the United States District
Court Judge did not adopt the magistrate's findings on the constitutional issue because he agreed that the statute
did not apply to homeowner's insurance policies.
ulations fixing prices must guarantee a fair and reasonable return on the various classes of
business written by insurers authorized to conduct the business of insurance within the State
of Nevada. No good reason has been offered by appellants to justify an interpretation
inconsistent with the federal constitution. We further conclude that NRS 687B.385 is a form
of price fixing since it prohibits an insurer from canceling, refusing to renew, or increasing
the premium on certain insurance policies. Therefore, we must consider if Nevada's statutory
scheme guarantees the constitutionally required fair and reasonable return.
The Ninth Circuit has decided a similar issue under the United States Constitution
involving certain provisions of Nevada's insurance code. In Guaranty, eight insurance
companies brought an action against Nevada's Insurance Commissioner challenging the
constitutionality of Chapter 784 of the 1989 Statutes of Nevada (Chapter 784). Id. at 509.
Chapter 784 mandated a rollback of automobile insurance rates to the levels in effect on July
1, 1988, and required a further reduction of fifteen percent below those rates. Those reduced
rates were to remain frozen at that level for one year. Id. Chapter 784 prohibited increases in
these reduced rates unless the Insurance Commissioner found that the insurer was
substantially threatened with insolvency. Id.
After concluding that the insolvency provision was unconstitutional, the Ninth Circuit
considered whether the insolvency provision could be severed from the remainder of the act.
Id. at 514-15. The court considered whether other provisions of Nevada's insurance code
guaranteed the constitutionally required fair and reasonable return. Id. at 515.
NRS 686B.050(1) provides that [r]ates must not be excessive, inadequate or unfairly
discriminatory. Furthermore, [r]ates are inadequate if they are clearly insufficient, together
with the income from investments attributable to them, to sustain projected losses and
expenses in the class of business to which they apply. NRS 686B.050(3).
The Guaranty court concluded that [NRS] 686B.050(3) guarantees only that an
insurer will break even [on any given class of business]; it does not guarantee the
constitutionally required fair and reasonable return.' 916 F.2d at 515. As the United States
Supreme Court explained:
[T]he fixing of just and reasonable rates, involves a balancing of the investor and the
consumer interests . . . . [T]he investor interest has a legitimate concern with the
financial integrity of the company whose rates are being regulated. From the investor or
company point of view it is important that there be enough revenue not only for
operating expenses but also for the capital costs of the business.
but also for the capital costs of the business. These include service on the debt and
dividends on the stock.
Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944). Therefore, the
Ninth Circuit concluded that the insolvency provision could not be severed from the
remainder of Chapter 784 [b]ecause section 686B.050(3) specifically defines inadequate' in
a constitutionally unacceptable fashion. Guaranty, 916 F.2d at 515.
While we find Guaranty instructive, we conclude that unlike the statutory scheme at
issue in Guaranty, NRS 687B.385 is not facially unconstitutional.
7
Because this case is
before us as a certified question posed by the federal district court, we need only address the
constitutional issue in terms of a facial challenge. We conclude that NRS 687B.385 is not
unconstitutional on its face.
[Headnote 7]
Initially, we note that the facial validity of a statute is a question of law which we
must answer without any reference to the underlying facts in the case before us. See Beavers
v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438 n.1, 851 P.2d 432, 434 n.1 (1993) (A
pure legal question' is a question that is not dependent upon, and must necessarily be
resolved without reference to any fact in the case before the court. An example . . . might be a
challenge to the facial validity of a statute.). Additionally, our research has determined that
successful facial challenges to the validity of price fixing statutes such as the one at issue here
are exceedingly rare. See State Farm Mut. Auto. Ins. Co. v. State, 590 A.2d 191, 198 (N.J.
1991) (citing Guaranty as an exceptional case where a statute freezing and rolling back
insurance rates was declared unconstitutional on its face).
NRS 687B.385 prevents insurers from canceling, refusing to renew, or increasing
premiums on certain insurance policies as a result of any claims made under the policy with
respect to which the insured was not at fault. An insurer remains free to cancel, refuse to
renew, or increase premiums for reasons which can be attributed to the fault of the insured or
other, non-prohibited reasons. Therefore, it is clear that an insurer may receive its
constitutionally required fair and reasonable rate of return by raising rates or canceling
policies for reasons other than those proscribed by NRS 687B.385.
Additionally, NRS 687B.385 is constitutionally valid on its face because the
constitutional requirement of a fair and reasonable rate of return
__________

7
It is worthwhile to note that the court in Guaranty only discussed the constitutional challenge in that case in
terms of a facial challenge. The Guaranty court never reached the appellant's as applied argument. See
Guaranty, 916 F.2d at 516.
rate of return does not apply to each individual policy. Instead, this constitutional mandate
applies to the entire range of policies issued by an insurer. The constitutional infirmity in
Guaranty was that the rollback provision mandated that insurers reduce rates on an entire
class of business, irrespective of any individual factors. In contrast, NRS 687B.385 applies
only to those policies where insurers attempt to cancel policies or increase premiums because
an insured has submitted claims for which the insured is not at fault. While NRS 687B.385
may necessitate an insurer sustain a loss on an individual policy, unlike the statutory scheme
invalidated in Guaranty, NRS 687B.385 does not deprive an insurer a fair and reasonable rate
of return on homeowners protection. Therefore, NRS 687B.385 is not facially
unconstitutional.
8

CONCLUSION
We conclude that the pre-1997 version of NRS 687B.385 applied to homeowner's
insurance policies. Furthermore, we conclude that Nevada's Constitution requires that
regulations fixing prices must guarantee a fair and reasonable return, and that NRS 687B.385
is not facially invalid.
____________
117 Nev. 53, 53 (2001) Leonard v. State
GREGORY NEAL LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33732
January 30, 2001 17 P.3d 397
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
first degree murder and robbery, and from a sentence of death. Eighth Judicial District Court,
Clark County; Michael L. Douglas, Judge.
Defendant was convicted in the district court of first degree murder and robbery and
was sentenced to death. He appealed. The supreme court, Young, J., held that: (1) prospective
jurors were properly removed for cause, (2) trial court acted within its discretion in affording
State latitude to ask leading questions of its witnesses, (3) evidence was sufficient to support
convictions, (4) prosecutor's comments did not constitute misconduct,
__________

8
Safeco may be able to present evidence to the United States District Court that NRS 687B.385 does, in fact,
deny them a fair and reasonable return. If such evidence is presented at trial, the federal district court will then
be able to ascertain whether NRS 687B.385 is unconstitutional as applied to Safeco. However, we take this
opportunity to reiterate that because of the procedural posture of this case, we only address the facial validity of
the statute. In this regard, it is clear to us that NRS 687B.385 is not unconstitutional on its face.
prosecutor's comments did not constitute misconduct, and (5) death penalty was not
disproportionate.
Affirmed.
[Rehearing denied May 8, 2001]
Maupin, C. J., and Rose, J., dissented in part.
JoNell Thomas, Las Vegas, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, and Peggy A. Leen, Deputy
1. Criminal Law.
Generally, failure to object will preclude appellate review of an issue.
2. Criminal Law.
Supreme court has discretion to address issues not preserved for appeal where there is plain error affecting the defendant's
substantial rights.
3. Criminal Law.
Public defender's office acted properly in withdrawing on basis of conflict of interest after discovering information about a
possible alternative suspect, who was also a client of the office. U.S. Const. amend. 6.
4. Criminal Law.
Defendant waived any claim associated with public defender's failure to disclose information it discovered, which caused it to
withdraw on basis of conflict of interest, where defendant indicated that he had obtained all relevant information from other sources.
U.S. Const. amend. 6.
5. Criminal Law; Jury.
The district court has discretion in deciding a request for individual voir dire. Absent an abuse of discretion or a showing of
prejudice to the defendant, supreme court will not disturb the district court's decision.
6. Jury.
Defendant was not entitled to conduct individual voir dire of all prospective jurors. Court permitted counsel broad discretion in
asking questions of potential jurors, and defense counsel could have requested individual, sequestered voir dire of that person.
7. Jury.
Prospective juror's equal consideration of the three possible forms of punishment, including death, is not required. Rather, the
proper question is whether a prospective juror's views would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.
8. Criminal Law.
References in voir dire and jury questionnaires to need for jurors to afford equal consideration to possible penalties did not
constitute plain error.
9. Criminal Law.
A jury is presumed to follow its instructions.
10. Criminal Law.
If a prospective juror was erroneously excused because of his or her views on the death penalty, then reversal of defendant's
death sentence would be warranted.
11. Criminal Law.
Trial court did not plainly err by dismissing for cause prospective juror who stated that she could probably consider the death
penalty but in very few circumstances, and who stated that she would probably favor prison over death penalty.
12. Jury.
It is not necessary that a prospective juror's bias be proved with unmistakable clarity in the printed record.
13. Jury.
District courts are not to use language, either by way of jury voir dire or jury questionnaire, indicating need to afford equal
consideration to the possible punishments.
The State's loss or destruction of evidence constitutes a due process violation only if the defendant shows either that the State
acted in bad faith or that the defendant suffered undue prejudice and the exculpatory value of the evidence was apparent before it was
lost or destroyed. U.S. Const. amend. 14.
Where there is no bad faith, the defendant has the burden of showing prejudice from loss of evidence, for due process purposes.
To show due process violation arising from loss of evidence, 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. U.S. Const. amend. 14.
17. Constitutional Law; Criminal Law.
Defendant's due process rights were not violated by State's failure to preserve recording of message allegedly left on a pager by
defendant, even though State presented testimony about message. There was no evidence that State acted in bad faith, defendant did
not demonstrate that it could reasonably have been anticipated that message was exculpatory, and credible evidence contradicted
defendant's contention that he did not leave message. U.S. Const. amend. 14.
18. Criminal Law.
Testimony regarding pager message allegedly left by defendant was not hearsay. There was credible testimony of message's
content and that defendant was the source of the message. NRS 51.035(3).
19. Criminal Law.
Any error was harmless with respect to admission of testimony about conversation that witness received call from unidentified
caller when witness paged murder victim. Conversation did little more than reaffirm that defendant had victim's pager, a fact supported
by other credible evidence.
20. Witnesses.
Trial court acted within its discretion in affording State latitude in asking questions of State witnesses to avoid improper
references to murder of which defendant had been convicted in another case. Trial court cautioned State that critical information was to
come from witnesses and not from State's attorneys, and defendant failed to object to particular instances of inappropriate leading
questions. NRS 50.115(3)(a).
21. Criminal Law; Witnesses.
Whether leading questions should be allowed is a matter mostly within the discretion of the trial court, and any abuse of the
rules regarding them is not ordinarily a ground for reversal. NRS 50.115(3)(a).
22. Witnesses.
Trial court did not improperly restrict cross-examination of State's witness when court sustained State's objection, on relevance
grounds, to question whether witness had transacted any business with victim. Question had been asked and answered previously, and
witness later stated that he did not have a business.
23. Witnesses.
Trial court acted within its discretion in restricting impeachment evidence that State witness had received some assistance from
State. Witness came forward and cooperated with police before receiving any favorable consideration, assistance rendered by State was
minor, and there was no evidence that assistance was contingent upon witness's agreement to testify.
24. Witnesses.
District court has less discretion to curtail cross-examination where potential bias is at issue.
25. Criminal Law.
Consistent with the Confrontation Clause, trial judges retain wide latitude to restrict cross-examination to explore potential bias
based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that
is repetitive or only marginally relevant. U.S. Const. amend. 6.
26. Criminal Law.
Any error was harmless with respect to trial court's limitation of scope of impeachment of State's witness. Impeachment
evidence did not call witness's credibility into serious question, there was no persuasive evidence of his involvement in murder, and
witness's account of his conversation with defendant was corroborated by finding of murder victim's body under defendant's bed.
27. Witnesses.
Prior consistent statement of witness was inadmissible before witness had been impeached. NRS 51.035(2)(b).
28. Criminal Law.
Premature admission of witness's prior consistent statements was, at most, harmless error. Statements would have been
admissible as prior consistent statements after witness was impeached with evidence of monetary assistance he received from State.
NRS 51.035(2)(b).
29. Witnesses.
It is improper for one witness to vouch for the testimony of another.
30. Courts.
Decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), in which supreme court set forth instructions explaining
deliberation in capital murder cases, applies prospectively only.
31. Homicide.
There was sufficient evidence of first degree murder under theory of willful, deliberate, and premeditated murder. There was
evidence that defendant was responsible for victim's death, homicide was committed by ligature strangulation, there was evidence that
defendant cut cord from some unknown source with intent of using it as a ligature, there was little physical evidence of a struggle,
injuries to victim could have indicated that defendant used force to preclude resistance, and it took approximately four minutes for
victim to die by strangulation.
32. Homicide.
Circumstantial evidence may be considered and provide sufficient evidence to infer the elements of premeditation and
deliberation in first degree murder prosecution.
33. Homicide.
Although a ligature strangulation may not always evidence a premeditated and deliberate murder, the character of killing by
such means provides some evidence that may support an inference of premeditation and deliberation in first degree murder
prosecution.
34. Robbery.
The jury need not be instructed that robbery requires intent to take property from a living person.
35. Robbery.
Pursuant to robbery statute, it is irrelevant when the intent to steal the property is formed, and it is not necessary that force or
violence involved in the robbery be committed with the specific intent to commit robbery. Rather, a robbery may be shown where a
defendant simply takes advantage of the terrifying situation he or she created and flees with the victim's property. NRS 200.380.
36. Robbery.
For offense of robbery, the intent to steal need not be formed at the time that force is used.
37. Robbery.
Evidence supported robbery conviction. Victim's body was found partially nude under defendant's bed, defendant was in
possession of victim's pager when he was arrested, and defendant gave broken necklace away that was similar to necklace commonly
worn by victim.
38. Homicide.
In first degree murder trial, court did not create unconstitutional presumption that improperly shifted burden of proof by
instructing jury, Malice may be implied when no considerable provocation appears, or when all the circumstances of the killing show
an abandoned and malignant heart. NRS 200.020(2).
39. Criminal Law.
Statutory language discussing malice was appropriate for use in jury instruction in first degree murder trial.
40. Sentencing and Punishment.
Instruction that jury's verdict may never be influenced by sympathy, prejudice or public opinion, but should be the product of
sincere judgment and sound discretion in accordance with these rules of law, was not improper, in penalty phase of capital murder
trial, where jury was properly instructed to consider mitigating evidence.
In punishment phase of capital murder trial, court did not err in instructing jury
instructing jury that although State Board of Pardons Commissioners had the power to modify sentences, jury was not to speculate as
to whether its sentence would be changed at a later date. At time of trial, Board did have power to commute defendant's sentence. NRS
213.085(1).
42. Criminal Law.
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.
43. Criminal Law.
Prosecutor did not commit misconduct in murder trial by suggesting that defense had opportunity to question another suspect
about murder. Prosecutor was arguing that defense had failed to substantiate defense claims that other individuals might have been
involved in murder.
44. Criminal Law.
Although a prosecutor may not normally comment on a defendant's failure to present witnesses or produce evidence, in some
instances the prosecutor may comment on a defendant's failure to substantiate a claim.
45. Criminal Law.
Even if prosecutor made improper remark by suggesting that defense had failed to substantiate claims that other individuals
might have been involved in murder, error was harmless, where prosecutor, upon defense objection, immediately clarified that defense
had no burden of proof.
Even prior to 1997 amendments to statute listing aggravating factors for first degree murder, prior conviction could be used as
an aggravating factor if it had been entered prior to penalty phase. NRS 200.033(2).
47. Criminal Law.
In considering claim of violation of right to speedy trial, it is necessary to consider the following factors: (1) the length of the
delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. U.S. Const. amend. 6.
48. Criminal Law.
Delay of approximately three years and seven months between time of arrest and commencement of trial did not violate
defendant's right to speedy trial. There had been two trials prior to trial at which defendant was convicted, reasons for most of the delay
were not the fault of the State or the court, defense counsel did not raise speedy trial issue before court, and defendant did not show
prejudice. U.S. Const. amend. 6.
49. Witnesses.
Federal anti-gratuity statute did not preclude admission of testimony of witness who was provided with some assistance by
State. Assistance given to witness was arguably provided for reasons other than his testimony, and statute provided no remedy, even
assuming that it was violated. 18 U.S.C. 201(c)(2).
Death penalty was not excessive for conviction of first degree murder. There was no compelling evidence in mitigation, and
defendant was a violent, dangerous individual, as evidenced by fact that instant offense was his second strangulation murder. NRS
177.055(2).
OPINION
By the Court, Young, J.:
The State charged appellant Gregory Neal Leonard with the murder and robbery of
Tony Antee. The State sought the death penalty for the murder. The case proceeded to a jury
trial. Leonard's first and second trials resulted in mistrials. His third trial resulted in his
conviction for first degree murder and robbery. The jury imposed a death sentence for the
murder, finding two aggravating circumstances: (1) the murder occurred in the commission of
or an attempt to commit robbery; and (2) Leonard had been convicted of another murder.
The judgment of conviction was entered on January 5, 1999. The district court
sentenced Leonard to a concurrent imprisonment term for the robbery. This appeal followed.
We affirm Leonard's conviction and sentence of death.
FACTUAL SUMMARY
Guilt phase evidence
The victim's body was discovered in Leonard's apartment, under his bed. The impetus
behind discovery of the body was Jesus Cintron's disclosure to police that Leonard had made
inculpatory statements to him.
Cintron testified for the State at trial. At the time of the victim's death, Cintron and
Leonard were both employed by the Mark Twain Apartments in Las Vegas, performing
general maintenance and repair. Leonard lived in an apartment near the maintenance shop,
but Cintron was living elsewhere at the time. Cintron testified that he spoke with Leonard by
phone on three occasions on Sunday, January 22, 1995. On the first two occasions, Leonard
asked Cintron to come to the Mark Twain Apartments because there was something that he
needed to talk to him about. Leonard refused to tell Cintron what he wanted, and Cintron
refused to meet Leonard.
That evening, Leonard left a voice message on Cintron's pager. After reviewing his
statement to police, Cintron testified that the message was Say yo, slick. Give me a call at
252-1010 or ten more people gonna die. Cintron called the number and reached a pager, and
Leonard called Cintron back. Cintron had caller ID that indicated the call was from the Mark
Twain Apartments.
1
Leonard told Cintron that he had killed someone the previous night
__________

1
Leonard did not have a functional phone in his apartment, and he regularly used the phone in the
maintenance shop of the apartment complex.
night and that the body was under his bed. Leonard indicated that he was using the pager of
the person he had killed. Leonard asked Cintron to help dispose of the body. Leonard planned
to wrap the body in carpet and leave it in a dumpster. Cintron told Leonard that he was crazy,
and then Leonard threatened to kill Cintron and several others.
2

Cintron subsequently contacted the police and played the voice message that Leonard
had left on his pager. Several police officers acknowledged the poor quality of the recording.
However, one officer testified that he had recognized Leonard's voice. Although police
returned the pager to Cintron without recording the message, the substance of the message
was memorialized in an affidavit supporting Leonard's arrest and in Cintron's tape-recorded
statement.
Police went to the Mark Twain Apartments, where they came into contact with
Leonard and subsequently spoke with him at the maintenance office. Leonard ultimately
refused to allow police to search his apartment. Police decided to remove everyone from the
apartment so that it would be secure, and Leonard agreed. There were three individuals
present in Leonard's apartment at that time: Leonard's cousin, Jerry Leonard (Jerry), Jerry's
girlfriend, Rose Lewis, and Martina Harkins. After these three were removed, a police officer
conducted a sweep of the apartment to make sure that nobody else was inside. During the
sweep, she discovered the victim's body under Leonard's bed.
Leonard was arrested and was found to be wearing a pager, which was later identified
as belonging to the victim. The phone number for the pager was 252-1010, the same number
that Leonard had given to Cintron as a contact number. Leonard volunteered that he did not
know how the body had gotten under his bed because he had been out of town in Stateline for
the past few days.
Cintron stopped going to work immediately after the discovery of the body at
Leonard's apartment. Cintron testified that Leonard called him from jail on several occasions
and that he felt that one of the calls was threatening. Cintron received money for relocation
expenses from the State, and he received $1,000 from the secret witness fund.
The victim's body was recovered, autopsied, and identified as Tony Antee. The victim
was wearing a T-shirt, a thermal-type shirt, and briefs that were pulled down partly
exposing his genitals.
__________

2
Leonard also told Cintron that he had killed another individual, Thomas Williams; however, this fact and
other facts relevant to the robbery and murder of Williams were not admitted into evidence during the guilt
phase of the instant case. Leonard was ultimately convicted in the other case, and he received a death sentence.
This court affirmed the conviction and sentence. See Leonard v. State, 114 Nev. 1196, 969 P.2d 288 (1998),
cert. denied, 528 U.S. 828 (1999).
shirt, and briefs that were pulled down partly exposing his genitals. Three pieces of cord that
came together in a plastic knob were found wrapped around the victim's neck; the cord
resembled a mini-blind or curtain cord. The cord had left deep impressions that completely
encircled the victim's neck.
Dr. Giles Sheldon Green performed the autopsy on the morning of January 24. Green
testified that the victim had died approximately two to three days previously. Green found no
evidence of sexual assault. The cause of death was determined to be asphyxia due to
strangulation. Green indicated that it would take the average person about four minutes to die
of strangulation and that continuous pressure would have to be applied for that time. He
indicated that there was no reason to believe that it took less than that time to kill the victim.
The victim's body had other minor external injuries, unrelated to the cause of death. These
included an abrasion and a small scratch to the victim's forehead, which Green indicated were
made about the time of the victim's death. Internal examination indicated bruising to the
victim's head; these injuries had also been inflicted recently, less than a day prior to the
victim's death. The injuries to the victim's head were possibly sufficient to stun the victim or
even cause unconsciousness. The victim had a blood-alcohol content of .02 percent.
Little other relevant physical evidence was recovered that might indicate the
circumstances of the murder. However, a bloodstained carpet sample was taken from a spot
near the entranceway of Leonard's apartment. DNA testing indicated that the blood on the
sample was the victim's. A rubber glove with a trace amount of blood was found in a basket
on the bottom shelf of a coffee table in Leonard's apartment. Three blood spots were found on
the bathroom floor of Leonard's apartment; testing indicated that the blood could have come
from the victim or from Leonard since they had the same blood type.
There is little evidence about the victim's actions prior to the murder, although many
of the witnesses, in addition to Leonard, knew or had at least met the victim, including
Cintron, Jerry, and Rose Lewis. Vincent Altamura, an acquaintance of the victim, testified
that he tried to contact the victim on Sunday, January 22. He paged the victim at
approximately 3:00 p.m., and someone other than the victim responded to the page.
Several witnesses testified to Leonard's actions prior to discovery of the body.
Leonard's cousin, Jerry, testified that he went to Leonard's apartment on the morning of
Sunday, January 22, and was there for much of the day. When Jerry arrived, Leonard was
wearing a robe, and it appeared that he had just awoken. Martina Harkins was in the
bedroom. Harkins left later that day. Jerry indicated that Leonard was acting strangely
indicated that Leonard was acting strangely and that Leonard was in and out of the apartment
during the day. Jerry left at about 4:00 p.m. to walk Rose Lewis to an interview, and he
returned with Lewis a couple of hours later. During the evening, Gladys Burton came into the
apartment for a time. Harkins returned to the apartment in the late evening, shortly before the
police arrived. Jerry further testified that Leonard had sent him a letter in March or April of
1995 asking him to testify falsely in the case (apparently to implicate Cintron), but that he had
not saved the letter.
Gladys Burton also testified. Burton had been involved in a short relationship with
Leonard a few weeks prior to the murder. She was at Leonard's apartment on Friday night,
January 20, from approximately 8:00 or 9:00 p.m. until approximately 2:00 a.m. the next
morning. Leonard's cousin and girlfriend were also there. Burton did not see Leonard on
Saturday, but she spoke with him by phone on several occasions. Leonard visited Burton for a
short time early Sunday afternoon. Leonard was kind of broke down [sic] and kind of sad,
and at times he had tears in his eyes. Leonard and Burton made plans to see each other again
that evening.
In the evening, Burton picked up Leonard and later visited his apartment for a short
time. Leonard was acting very differently, and at one point he said, you don't know what I
did . . . last night. Leonard gave Burton a broken necklace, which she later gave to the
police; the necklace was identified by the victim's sister as being similar to one worn by the
victim.
3

The defense called two witnesses, Lori Knight, former manager of the Mark Twain
Apartments, and Martina Harkins. Leonard did not testify. The defense attempted to call into
question the credibility of Jerry Leonard and Jesus Cintron and to suggest that they might
have been involved in the killing.
Penalty phase
In the penalty phase, the State presented Leonard's judgment of conviction for the
murder and robbery of Thomas Williams (with the sentence redacted). The State presented
the testimony of a pathologist and a detective concerning the circumstances of Williams'
murder, which also involved strangulation of the victim. The State also presented victim
impact evidence from the victim's sister in the instant case.
The defense did not present evidence or argument at the penalty phase. Defense
counsel indicated that Leonard had requested that they not call certain witnesses.
__________

3
The victim's sister testified that she did not see the necklace in the victim's personal effects after the murder.
DISCUSSION
[Headnotes 1, 2]
On appeal, Leonard raises numerous issues of alleged error. Before discussing
Leonard's contentions, we note that Leonard failed to preserve many of his claims for appeal
by making appropriate objection. Generally, failure to object will preclude appellate review of
an issue.
4
Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 482 (2000). This court does,
however, have discretion to address issues not preserved for appeal where there is plain error
affecting the defendant's substantial rights. Id. at 666, 6 P.3d at 482-83 (citing NRS 178.602).
Accordingly, we need address Leonard's claims that were not preserved for appeal only to
determine if such error occurred. Where appropriate in the following discussion, we will note
instances in which Leonard did not properly preserve a claim for review on appeal.
I. Withdrawal of county public defender
[Headnote 3]
Leonard's original counsel, the Clark County Public Defender's Office, withdrew on
the basis of a conflict of interest after discovering information about a possible alternative
suspect, who was also a client of the office. Leonard makes various claims pertaining to the
withdrawal and the failure of the public defender to disclose to Leonard the information that
it discovered. Leonard has not demonstrated error.
[Headnote 4]
The purported conflict of interest provided a facially legitimate reason for the public
defender to withdraw. See SCR 157; SCR 166; see also Strickland v. Washington, 466 U.S.
668, 692 (1984) (stating that counsel has an obligation to avoid conflicts of interest). Leonard
has not shown error based on a conflict of interest because he has not shown that counsel
actively represented conflicting interests' and that an actual conflict of interest adversely
affected his lawyer's performance.' Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan,
446 U.S. 335, 350, 348 (1980)). Further, Leonard waived any claim associated with the
public defender's failure to disclose the information it discovered when he indicated that he
had obtained all relevant information from other sources.
__________

4
Leonard attempts to avoid this rule by asserting that trial counsel's failure to raise many of these issues in the
district court constitutes ineffective assistance of counsel as a matter of law. This court will normally decline to
review claims of ineffective assistance of counsel on direct appeal unless an evidentiary hearing has been held in
the district court. See Gibbons v. State, 97 Nev. 520, 522-23, 634 P.2d 1214, 1216 (1981). Having considered
Leonard's claims, we conclude that there is no reason to reach any issue of ineffective assistance of counsel at
this juncture.
when he indicated that he had obtained all relevant information from other sources.
5

II. Individual voir dire
Leonard contends that the district court erred in refusing to allow individual voir dire
of all prospective jurors. Leonard supports his contention by arguing that there was extensive
pretrial publicity in the case and thus, individual voir dire was necessary to explore what
prospective jurors had learned about the case. Leonard also emphasizes that this is a capital
case and asserts that there was a possibility of racial prejudice.
[Headnote 5]
The district court has discretion in deciding a request for individual voir dire. See
Haynes v. State, 103 Nev. 309, 316, 739 P.2d 497, 501 (1987); see also Mu'Min v. Virginia,
500 U.S. 415, 427 (1991). Absent an abuse of discretion or a showing of prejudice to the
defendant, this court will not disturb the district court's decision. Haynes, 103 Nev. at 316,
739 P.2d at 501.
[Headnote 6]
Here, the record reflects that the district court ensured sufficient inquiry of the
prospective jurors, including inquiry into pretrial publicity. The court permitted counsel broad
discretion in asking questions of the potential jurors. If defense counsel were concerned about
a particular prospective juror, they could have requested individual, sequestered voir dire of
that person. See generally Haynes, 103 Nev. at 316, 739 P.2d at 501 (stating that defense
counsel could have requested independent, sequestered voir dire of prospective jurors who
were suspected of holding back on an issue).
Further, Leonard has not shown that he was prejudiced. Leonard cites five prospective
jurors who indicated in court that they had prior exposure to the case through the news media.
However, all of these individuals were ultimately excused for cause, for various reasons.
III. Removal of prospective jurors for cause
Leonard asserts that the district court applied an erroneous standard in excusing
prospective jurors for cause because of their views on the death penalty.
__________

5
Leonard's new counsel sought disclosure of the information that the public defender had discovered. After
the district court ordered limited disclosure, Leonard's counsel and the public defender both sought relief by
filing writ petitions in this court. We dismissed the writ petitions as moot after Leonard represented that he had
obtained the information that he wanted from other sources. The district court subsequently vacated its prior
order.
views on the death penalty. Leonard argues that the district court erroneously considered
whether prospective jurors could equally consider the three possible punishments and
erroneously excused individuals pursuant to this standard.
[Headnote 7]
We agree that equal consideration of the three possible forms of punishment,
including death, is not required. Rather, the proper question is whether a prospective juror's
views would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.' Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
Further, the death penalty is reserved for a limited class of offenders. Although
equal might be equated with fair consideration, it is susceptible to being interpreted to
require that jurors accord the same consideration to each of the possible penalties. There is no
such requirement under Nevada law. The death penalty is permissible only where at least one
aggravating circumstance is proven beyond a reasonable doubt and where any mitigating
circumstances do not outweigh the aggravating circumstance or circumstances. See NRS
200.030(4)(a). Even assuming these conditions are met, the jury has discretion not to impose
death.
[Headnotes 810]
Although the voir dire and jury questionnaire both contained references to the need for
jurors to afford equal consideration to the possible penalties, Leonard failed to object to this
language.
6
We are not persuaded that Leonard has demonstrated plain error that would
warrant relief, notwithstanding his failure to object.
7
We specifically reject Leonard's
contention that references to equal consideration "tainted the instructions given to the
jury" about punishment.
__________

6
The questionnaire included an explanation of the penalty phase procedure and questions about the
prospective jurors' views on the penalties. Although question 54 simply asked whether prospective jurors were
open to considering all three forms of punishment, question 55 further inquired: In your present state of mind,
can you, if selected as a juror, consider equally all three possible forms of punishment and select the one that
you feel is the most appropriate depending upon the facts and the law? (Emphasis in original.) If the answer
was no, the questionnaire called for an explanation.

7
It appears that the district court did not reject out of hand every prospective juror who indicated difficulty in
affording equal consideration to the possible punishments. In context, the equal consideration inquiry could
have been directed at determining whether prospective jurors could fairly consider the death penalty and the
other penalty options. Indeed, both the State and the defense inquired further to clarify the position of certain
prospective jurors who indicated that they could not consider the punishments equally. The district court did not
preclude such inquiry. In general questioning of
equal consideration tainted the instructions given to the jury about punishment. A jury is
presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)). Presumably, the jury followed the
instructions it received at the penalty phase. That leaves only the question of whether any
prospective juror was erroneously excused for cause because of his or her views on the death
penalty. If a prospective juror was erroneously excused, then reversal of Leonard's death
sentence is warranted. See Gray v. Mississippi, 481 U.S. 648 (1987); Davis v. Georgia, 429
U.S. 122 (1976).
After having considered each of the instances cited by Leonard involving prospective
jurors who were excused for cause, we conclude that Leonard has not demonstrated that any
individual was erroneously excused. The court afforded the parties ample inquiry to explore
each prospective juror's views on the death penalty. During questioning, most of the
individuals cited by Leonard unequivocally indicated that their views would prevent or
substantially impair their ability to properly consider all of the penalty options, including the
death penalty. However, prospective juror no. 129 merits more specific comment and
consideration.
[Headnote 11]
Prospective juror no. 129 explained that she could probably consider the death
penalty in some situations and that it could be occasionally appropriate but probably in
very few circumstances. She favored abolishing the death penalty, and stated that she did not
think it does any good. She indicated that she would have a hard time looking the
defendant in the eye and, with her fellow jurors, telling him he deserved to die. She
represented that she would probably give much more weight to either choosing prison with
parole or prison without than the death penalty.
Having considered the complete transcript of the in-court questioning of prospective
juror no. 129, we are persuaded that Leonard has not demonstrated plain error that would
entitle him to relief,
__________
prospective jurors, the court explained that it was concerned with those prospective jurors who had serious
difficulties with the penalty options:
But what the Court needs to find out is, do we have any individuals that for whatever reason, and at
this time we don't know the reasons, we'll ask about it later, but that you would not be able to impose the
forms of punishment equally, that's if you would decide that there was first-degree murder, that you
would not equally be able to consider life with the possibility of parole, or life without the possibility of
parole or the death penalty, you have a problem, so much of a problem with one of those items where you
wouldn't consider it or that's the only one you could impose, if you would tell us now. That helps us
when we begin the questioning later.
(Emphases added.)
Leonard has not demonstrated plain error that would entitle him to relief, notwithstanding
defense counsel's failure to object to the prospective juror's removal for cause.
8
We are
mindful of the importance of proper objection, which affords the district court an opportunity
to avoid error by reconsidering or clarifying the basis for its decision. This is particularly true
here, where the observations of the district court and the parties are important. The trial court
has broad discretion in ruling on challenges for cause since these rulings involve factual
determinations. Walker v. State, 113 Nev. 853, 865, 944 P.2d 762, 770 (citing Witt, 469 U.S.
at 428-29). The trial court is better able to view a prospective juror's demeanor than a
subsequent reviewing court. See Darden v. Wainwright, 477 U.S. 168, 178 (1986).
Further, counsel's failure to speak in a situation later claimed to be so rife with
ambiguity as to constitute constitutional error is a circumstance we feel justified in
considering. Witt, 469 U.S. at 431 n.11. Leonard's failure to object might reflect a tactical
decision by counsel that is not susceptible to review on direct appeal.
9

[Headnote 12]
Given these concerns, there is no plain error under the facts of this case because the
record does not unequivocally reflect that the district court erred in excusing prospective juror
no. 129. It is not necessary that a prospective juror's bias be proved with unmistakable
clarity' in the printed record. Witt, 469 U.S. at 424. Prospective juror no. 129 expressed
serious reservations about the death penalty that raised doubts as to whether she would be
able to set aside those concerns and follow the law in this case. She indicated not only a
strong preference for punishments other than the death penalty, but real uncertainty about her
ability to return a death verdict.
[Headnote 13]
In sum, we conclude that Leonard has not demonstrated plain error. Nevertheless, we
are concerned that questions and refer
__________

8
The court excused prospective juror no. 129 for cause without specific objection by Leonard. The record
reflects that Leonard had opportunity to object but failed to take advantage of it.

9
Leonard's failure to object might be an indication of his contemporaneous impression that the juror was
biased and properly excluded. McKenna v. State, 101 Nev. 338, 343, 705 P.2d 614, 617 (1985). Alternatively,
counsel might have had other reasons for failing to object. For example, failure to object may have been a
deliberate decision on defense counsel's part who, for his own reasons, may not have wanted the person as a
juror. People v. Pitsonbarger, 568 N.E.2d 783, 794 (Ill. 1990) (citing Witt, 469 U.S. at 437 (Stevens, J.,
concurring in judgment); People v. Emerson, 522 N.E.2d 1109, 1119 (Ill. 1987)).
ences indicating the need to afford equal consideration to the possible punishments may be
misleading. As discussed above, language referring to the need for equal consideration does
not accurately reflect Nevada law. Accordingly, we direct the district courts to refrain from
utilizing such language in future proceedings, either by way of the jury voir dire or the jury
questionnaire.
IV. State's failure to preserve pager message
Leonard challenges the State's failure to preserve the recording of the message left on
Jesus Cintron's pager. He claims that the district court erred by failing to dismiss the charges
or, alternatively, preclude testimony about the message. He argues that it was fundamentally
unfair for the State to present testimony about the pager message when the State did not
afford him the means to directly challenge the source of the evidence.
[Headnotes 1416]
The State's loss or destruction of evidence constitutes a due process violation only if
the defendant shows either that the State acted in bad faith or that the defendant suffered
undue prejudice and the exculpatory value of the evidence was apparent before it was lost or
destroyed. Sheriff v. Warner, 112 Nev. 1234, 1239-40, 926 P.2d 775, 778 (1996); see also
Arizona v. Youngblood, 488 U.S. 51 (1988). Where there is no bad faith, the defendant has
the burden of showing prejudice. See Warner, 112 Nev. at 1240, 926 P.2d at 778. The
defendant must show that it could be reasonably anticipated that the evidence sought would
be exculpatory and material to [the] defense.' Id. (quoting Boggs v. State, 95 Nev. 911, 913,
604 P.2d 107, 108 (1979)). It is not sufficient to show merely a hoped-for conclusion' or
that examination of the evidence would be helpful in preparing [a] defense.' Id.
[Headnote 17]
Here, Leonard filed a motion to dismiss the case or, in the alternative, to suppress
evidence of the message. The district court held a hearing on the motion. At the conclusion of
the hearing, the district court denied Leonard's motion, stating that bad faith of the State was
not an issue and holding that Leonard had not shown that the evidence had exculpatory value
that was apparent before it was destroyed.
We conclude that the district court did not err. First, there is no evidence that the State
acted in bad faith. Second, Leonard did not demonstrate that it could reasonably be
anticipated that the message was exculpatory. Although Leonard denied leaving the message,
other credible evidence contradicted his contention.
[Headnote 18]
Leonard also argues that the district court should have excluded evidence of the pager
message as hearsay. We note, however, that there was credible testimony of the message's
content and that Leonard was the source of the message. Thus, the message was not hearsay
because it was admitted against Leonard as his own incriminating statement. NRS 51.035(3).
For the same reason, Leonard was not denied his constitutional confrontation rights.
Alternatively, Leonard asserts that the court should have instructed the jury that due to the
failure to preserve the message it should presume the evidence was adverse to the State.
10
Leonard has failed to specifically cite to any portion of the record where he requested special
instruction on such a presumption. Moreover, we conclude that such instruction was not
warranted given the facts of this case.
V. Vincent Altamura's conversation with unidentified caller
[Headnote 19]
Leonard argues that the district court erred by failing to exclude hearsay testimony
about the conversation that Vincent Altamura had with an unidentified caller. Leonard claims
that the conversation was not properly authenticated. Leonard also asserts that the error
implicated his right of confrontation.
The evidence at issue concerns the telephone call that Altamura received after he
paged the victim. Altamura indicated that the caller sounded like a young male. The caller
informed Altamura that Altamura had called Greg's pager, not the victim's, and that Greg
was too fucked up to come to the phone. The court instructed the jury not to consider the
testimony as evidence of who had possession of the pager, but only as evidence of whether
the victim was alive at the time.
Leonard persuasively argues that the same purpose might have been served if
Altamura had simply testified that someone other than the victim had responded to the page.
However, we recognize that the district court has some discretion in admitting evidence
pursuant to NRS 47.110. NRS 47.110 permits the trial court to admit evidence that is
admissible for one purpose but inadmissible for another if, upon request, the judge instructs
the jury accordingly. Moreover, any error is harmless. Even if the conversation should have
been excluded, it did little more than reaffirm that Leonard had the victim's pager on
Sunday, January 22,
__________

10
Leonard notes that NRS 47.250 contains the following disputable presumptions: (3) That evidence
willfully suppressed would be adverse if produced; and (4) That higher evidence would be adverse from
inferior being produced.
reaffirm that Leonard had the victim's pager on Sunday, January 22, a fact supported by other
credible evidence.
VI. Leading questions
[Headnote 20]
Leonard claims that the district court improperly afforded the State latitude in asking
leading questions of State witnesses.
Specifically, the State requested latitude in leading the State's lay witnesses who were
familiar with the facts of both this case and Leonard's other murder case. The State noted that
the prior trial resulted in a mistrial when one witness made a reference to the other murder.
The defense objected, indicating that the State should carefully caution the witnesses at issue
to avoid improper areas. The district court rejected the defense objection and concluded that it
would afford the State some latitude in leading the witnesses. However, the court cautioned:
I agree with [the] defense that the critical information should come from the testimony of
those witnesses, not from the attorneys for the State. Defense counsel clarified that the
defense understood the court's ruling but that they would be making necessary objections as
they arose.
[Headnote 21]
Given these facts, we conclude that Leonard has not demonstrated that the district
court erred. NRS 50.115(3)(a) provides that leading questions are generally impermissible on
direct examination without the permission of the court. Thus, the statute provides some
discretion to the court in this area. Further, [w]hether leading questions should be allowed
is a matter mostly within the discretion of the trial court, and any abuse of the rules regarding
them is not ordinarily a ground for reversal.' Barcus v. State, 92 Nev. 289, 291, 550 P.2d
411, 412 (1976) (quoting Anderson v. Berrum, 36 Nev. 463, 470, 136 P. 973, 976 (1913)).
Moreover, Leonard has failed to demonstrate, with specific citation to the record, that he
objected to particular instances of inappropriate leading questions.
VII. Limitation on cross-examination of Jesus Cintron
Leonard claims that the district court improperly limited his cross-examination of
Jesus Cintron. We address each of three instances of alleged error in turn.
[Headnote 22]
First, the district court sustained the State's objection, on relevance grounds, to the
question: Did you transact any business with [the victim]? This question, however, had
been essentially asked and answered by Cintron.
asked and answered by Cintron. Defense counsel previously asked whether Cintron had any
kind of business relationship with the victim, and Cintron indicated that Cintron did not
have a business. Moreover, defense counsel subsequently inquired whether Cintron had told
anyone that he had conducted business with the victim; Cintron answered no, reiterating that
he did not have a business. Under these circumstances, we conclude that the court did not
improperly restrict the defense inquiry.
Second, the district court sustained the State's objection to the question of whether
Cintron read any paperwork at Leonard's apartment prior to the weekend of January 21-22.
Leonard has not demonstrated that the district court restricted the defense inquiry in any way.
The court instructed defense counsel to be a little more specific with that question. The
prosecutor and defense counsel asked to approach the bench, an unreported bench conference
followed, and then defense counsel commenced a new line of questioning.
[Headnote 23]
Third, Leonard argues that the district court improperly restricted impeachment of
Cintron on the non-monetary benefits that he received from the State. Before Cintron
testified, the district court held a short evidentiary hearing outside of the presence of the jury
to resolve issues concerning the scope of impeachment. At the conclusion of the hearing, the
court decided to permit impeachment of Cintron regarding monetary assistance and benefits
he received but declined to permit impeachment in other areas. Specifically, it appears that
the State rendered some assistance to Cintron when he had difficulties with the law that arose
well after Cintron's initial disclosures to police in this case.
Having reviewed the record, we conclude that there are three areas of impeachment
that were precluded and that were supported by some evidence: (1) Cintron was released from
jail after intervention by the district attorney's office in a prior case; (2) Cintron might have
received assistance from the district attorney's office in getting his car back after it was
towed; and (3) the district attorney's office intervened on Cintron's behalf on two occasions so
that Cintron would have additional time to pay a fine. In denying the defense request to
impeach Cintron concerning the extensions of time that Cintron received to pay a fine, the
court noted that it was standard for the courts to grant such extensions.
The value of the impeachment evidence here is limited. The probative value of the
evidence to show bias was substantially diminished by the fact that Cintron came forward and
cooperated with the police before he received any favorable consideration. It is unlikely that
Cintron came forward with the expectation that the State would afford him special
consideration if and when he had subsequent difficulties with the law.
subsequent difficulties with the law. Further, the kind of assistance rendered by the State
appears to have been minor; for example, the State did not dismiss criminal charges based
upon Cintron's cooperation in this matter. Finally, there is no evidence that the assistance
Cintron received was contingent upon Cintron's agreement to testify in this case.
[Headnotes 24, 25]
Given the limited value of the impeachment evidence and the fact that the
impeachment would have necessitated reference to Cintron's otherwise inadmissible prior
criminal conduct, we conclude that the district court acted within its discretion in restricting
impeachment. We recognize that the district court has less discretion to curtail
cross-examination where potential bias is at issue. See Jackson v. State, 104 Nev. 409, 412,
760 P.2d 131, 133 (1988); Bushnell v. State, 95 Nev. 570, 572, 599 P.2d 1038, 1040 (1979).
Nevertheless, and consistent with the Confrontation Clause,
11
trial judges retain wide
latitude to restrict cross-examination to explore potential bias based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986); see also Davis v. Alaska, 415 U.S. 308, 316, 320 (1974); Bushnell, 95
Nev. at 573, 599 P.2d at 1040 (recognizing that an inquiry into a witness's possible bias or
motive to testify may be restricted when the inquiry was repetitive, irrelevant, vague,
speculative, or designed merely to harass, annoy or humiliate the witness).
[Headnote 26]
Moreover, we conclude that any error is harmless even assuming that the district court
should have afforded greater latitude to defense counsel in these areas. We reiterate that the
impeachment evidence does not call Cintron's credibility into serious question, and we note
that there is no persuasive evidence of his involvement in the murder and that his account of
his conversation with Leonard was corroborated by the finding of the victim's body under
Leonard's bed.
VIII. Disclosure of presentence investigation reports
Leonard asserts that the district court might have erred in failing to order the
disclosure of presentence investigation reports requested by the defense, and that this court
should order the reports for its own in camera inspection. Leonard has not shown that he was
denied any information pertinent to his request; thus, in camera review by this court is
unnecessary.
__________

11
See U.S. Const. amend. VI.
that he was denied any information pertinent to his request; thus, in camera review by this
court is unnecessary.
12

IX. Prior consistent statements
Leonard asserts that the State improperly elicited and referred to prior consistent
statements and related testimony to bolster its witnesses. Prior consistent statements are
generally inadmissible hearsay unless offered to rebut an express or implied charge against
[a witness] of recent fabrication or improper influence or motive. NRS 51.035(2)(b); see
also Patterson v. State, 111 Nev. 1525, 1532-33, 907 P.2d 984, 989 (1995).
[Headnote 27]
Here, Leonard only objected to one of the alleged instances of error. Specifically,
Leonard objected when the prosecutor asked Detective Skala about any statements made to
him by Jesus Cintron that were corroborated by the information on Cintron's pager. Since
Skala testified before Cintron was impeached, there had been no charge of recent fabrication
or bias, and thus testimony about what Cintron told police was not admissible as prior
consistent statements. Nor are we persuaded that it was necessary to admit the testimony for
probable cause purposes, as the State suggested.
[Headnote 28]
Nevertheless, we conclude that Leonard is not entitled to relief on his claim. The
statements would have been admissible as prior consistent statements after Cintron was
impeached with evidence of the monetary assistance he received from the State.
13
Cintron's
statements to police, made prior to the time of the alleged motive to fabricate (to assist the
State in exchange or in hope of further monetary compensation), could have been
subsequently admitted as prior consistent statements.
__________

12
Leonard initially sought disclosure of presentence investigation reports concerning State witnesses Jesus
Cintron and Vincent Altamura. The district court ordered disclosure of the reports on Altamura during later
proceedings. It appears that Cintron had not been convicted of a felony and that there were no relevant
presentence reports concerning him. Indeed, at a hearing on his motion, Leonard only argued for the disclosure
of the reports concerning Altamura.

13
We recognize that the State elicited this impeachment evidence from Cintron on direct examination. Our
review of the record reveals that the defense was going to impeach Cintron with this evidence if the State did not
present it. We note that defense counsel stated in opening argument that the defense would reveal that the State
witnesses had motives and inducements to embellish or to flat out just not tell you the truth or to leave things
out. More importantly, the defense had requested the district court to permit impeachment on this and other
issues and the district court had granted the defense request as to this impeachment evidence.
as prior consistent statements. The premature admission of these statements was, at most,
harmless error.
[Headnote 29]
Leonard failed to object to the remaining instances of alleged error, and we conclude
that there is no plain error under the facts of this case. Most of the references were general
and did not include specific prior statements that the witnesses had made; the primary
exception was certain testimony about some statements that Jesus Cintron made to police.
Nevertheless, as discussed above, these statements were ultimately admissible to rebut
impeachment evidence suggesting that Cintron was biased.
14

X. Sufficiency of evidence and jury instructions
Leonard asserts that insufficient evidence supports the jury verdicts of first degree
murder and robbery and the aggravating circumstance that the murder occurred in the
commission of or an attempt to commit robbery. Related to these claims are Leonard's
arguments that the jury was improperly instructed concerning: (1) robbery; (2) felony murder;
and (3) willful, deliberate, and premeditated murder. We reject Leonard's contentions.
Willful, deliberate, and premeditated murder
First, we address Leonard's claim that the jury instructions did not sufficiently and
properly define the elements of willful, deliberate, and premeditated murder. Leonard
specifically challenges an instruction that is virtually identical to the instruction upheld on
appeal in Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84 (1992), prospectively
modified by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). In his reply brief, Leonard
cites this court's recent decision in Byford and argues that it should be applied retroactively.
Leonard asserts that the instruction was particularly misleading here, given the State's attempt
to explain premeditation by analogy during closing argument.
15

[Headnote 30]
We conclude that there was no error in the instruction given to the jury.
__________

14
We further note, however, that it is improper for one witness to vouch for the testimony of another.
Marvelle v. State, 114 Nev. 921, 931, 966 P.2d 151, 157 (1998). Further, the police investigation itself was not
the issue at trial, and some testimony concerning the investigation could be deemed irrelevant insofar as it did
not directly relate to the issue of Leonard's guilt or innocence. See e.g., Zemo v. State, 646 A.2d 1050, 1053
(Md. Ct. Spec. App. 1994). Much of the testimony cited by Leonard could alternately be considered in these
contexts; however, we similarly conclude that it does not constitute plain error warranting relief.

15
At trial, Leonard did not object to the analogy offered by the State.
the jury. In Byford, we reconsidered the Kazalyn instruction. While we did not conclude that
it was error to use the instruction, we determined that further instruction explaining
deliberation would be preferable in the future, and we set forth instructions for future use.
Byford, 116 Nev. at 234-37, 994 P.2d at 713-15. Our decision in Byford is prospective. In
Garner v. State, 116 Nev. 770, 6 P.3d 1013 (2000), we clarified that for convictions predating
Byford, relief would not be warranted based solely on use of the Kazalyn instruction. We held
that the instructions required by Byford were a new requirement to be given only prospective
force. Id. at 788-89, 6 P.3d at 1024-25. Thus, the Kazalyn instruction adequately sets forth the
standard for proving willful, deliberate, and premeditated murder in this case.
[Headnotes 31, 32]
We further conclude that there is sufficient evidence of first degree murder under a
theory of willful, deliberate, and premeditated murder. First, there is ample evidence that
Leonard, and not some other individual, is responsible for the victim's death. Further, there is
sufficient circumstantial evidence from which the jury could have inferred premeditation and
deliberation. Evidence of premeditation and deliberation is seldom direct. Briano v. State,
94 Nev. 422, 425, 581 P.2d 5, 7 (1978). Circumstantial evidence may be considered and
provide sufficient evidence to infer these elements. See id. Here, the manner of the crime
itselfa ligature strangulationand the physical evidence relating to that crime provide
sufficient evidence to infer the requisite intent for first degree murder.
The ligature used by Leonard was apparently cut from a miniblind or curtain cord. It
had been wrapped tightly around the victim's neck, leaving deep impressions that completely
encircled his neck. The cord did not match the type used in Leonard's apartment, nor was
there any indication that the cord had been cut or removed from the cords in the maintenance
shop of the Mark Twain Apartments. Under these circumstances, it is reasonable to infer that
Leonard cut the cord from some unknown source with the intent of using it as a ligature.
Further, it appears that Leonard employed stealth and planning to subdue the victim.
Again, the evidence suggests that Leonard was able to strangle the victim by wrapping the
ligature completely around the victim's neck. There is, however, little physical evidence of
injury to the victim that suggests that he struggled with Leonard. There was some recent
bruising to the victim's head and an abrasion and small scratch on the victim's forehead. The
bruising to the victim's head was the result of an injury that was possibly sufficient to stun the
victim or even cause unconsciousness.
sciousness. The injuries to the victim could indicate that Leonard used force to preclude
resistance by the victim before strangling him.
[Headnote 33]
Finally, it took approximately four minutes for the victim to die by strangulation. This
court has previously indicated that the length of time involved in a ligature strangulation
supports an inference that a killing is willful, deliberate, and premeditated. See Leonard v.
State, 114 Nev. 1196, 1210-11, 969 P.2d 288, 297 (1998), cert. denied, 528 U.S. 828 (1999).
While a ligature strangulation may not always evidence a premeditated and deliberate murder,
the character of killing by such means provides some evidence that may support an inference
of premeditation and deliberation. See People v. Lucero, 750 P.2d 1342, 1349 (Cal. 1988).
We hold that the time involved in the instant strangulation murder was a fact that the jury
could legitimately consider, in conjunction with other facts, to support an inference of
premeditation and deliberation.
16

In sum, we conclude that the use of a ligature in the killing, the particular ligature
employed here, the evidence of other injury to the victim and the absence of defensive
injuries, and the length of time involved in the strangulation are all factors on which the jury
could reasonably rely in concluding that Leonard committed a willful, deliberate, and
premeditated killing.
Robbery, felony murder, and the robbery aggravating circumstance
Leonard argues that robbery requires a live victim. If the victim is deceased, Leonard
argues that there must be evidence that the defendant intended to use force prior to the
robbery and that the robbery was not incidental to the killing. He further claims that the jury
was not properly instructed concerning these issues. We disagree.
[Headnotes 34, 35]
The jury need not be instructed that robbery requires intent to take property from a
living person. See Leonard, 114 Nev. at 1208, 969 P.2d at 296; see also Chappell v. State,
114 Nev. 1403, 1408, 972 P.2d 838, 841 (1998), cert. denied, 528 U.S. 853 (1999). Pursuant
to Nevada's robbery statute, NRS 200.380, it is irrelevant when the intent to steal the
property is formed,"
__________

16
While courts disagree on the weight to be accorded the time involved in a strangulation killing, some courts
have accorded it great significance. See, e.g., Hounshell v. State, 486 A.2d 789, 795 (Md. Ct. Spec. App. 1985)
(indicating that the time necessary to commit a killing by strangulation affords a perpetrator a significant
opportunity for reflection and a change of heart).
is irrelevant when the intent to steal the property is formed, and it is not necessary that force
or violence involved in the robbery be committed with the specific intent to commit
robbery. Chappell, 114 Nev. at 1408, 972 P.2d at 841. Rather, a robbery may be shown
where a defendant simply takes advantage of the terrifying situation [he or she] created'
and flees with the victim's property. Id. (quoting Norman v. Sheriff, 92 Nev. 695, 697, 558
P.2d 541, 542-43 (1976)).
[Headnotes 36, 37]
Given the relevant legal standards, we are not persuaded that the jury received any
incorrect instruction that worked to Leonard's detriment.
17
Further, there is sufficient
evidence, if viewed in the light most favorable to the prosecution, from which a rational juror
could infer that Leonard killed the victim and stole his property. See Koza v. State, 100 Nev.
245, 250, 681 P.2d 44, 47 (1984) (stating review standard for sufficiency of evidence). The
victim's body was found partially nude under Leonard's bed, and the evidence shows that
Leonard killed him. Leonard was in possession of the victim's pager when he was arrested.
Further, he gave a broken necklace to Gladys Burton that was similar to a necklace commonly
worn by the victim. The jury could reasonably infer that this property had been in the victim's
possession and that Leonard took it during the events leading up to or following commission
of the murder.
Further, the jury was properly instructed concerning the robbery aggravating
circumstance and felony murder under a robbery theory, and we conclude that sufficient
evidence supports both the aggravating circumstance and the felony murder theory. The jury
was properly instructed that felony murder required a showing that the killing occurred in the
perpetration or attempted perpetration of a robbery.
XI. Remaining jury instructions
Leonard also challenges the following guilt phase instructions:
__________

17
We note, however, that the jury received one instruction providing that [a] robbery occurs when the use of
force follows the actual taking of property, so long as the use of force is accompanied by the intent to take
another's property. This instruction suggests that the intent to steal must be formed at the time that force is used,
which is unnecessary under Nevada law. It appears to be taken from an Arizona case quoted in a parenthetical in
Abeyta v. State, 113 Nev. 1070, 1078, 944 P.2d 849, 854 (1997).
The instruction did not work to Leonard's detriment. Further, we note that the jury received another instruction
that more accurately stated Nevada law: [A]lthough acts of violence and intimidation preceded the actual taking
of the property and may have been primarily intended for another purpose, it is enough to support the charge of
robbery when a person takes the property by taking advantage of the terrifying situation he created.
(1) the jurors need not agree on a theory of a liability (jury unanimity); (2) equal and exact
justice; (3) reasonable doubt; and (4) malice. Further, Leonard challenges the following
penalty phase instructions: (1) reasonable doubt; (2) anti-sympathy; and (3) the Pardons
Board's ability to commute a sentence. The reasonable doubt instructions used in this case
were consistent with NRS 175.211(1).
Jury unanimity, equal and exact justice, and reasonable doubt
It appears that Leonard failed to preserve for appeal the issues of the jury unanimity,
equal and exact justice, and reasonable doubt instructions. In any case, we do not find any
error in these instructions, let alone plain error. See Leonard, 114 Nev. at 1209, 969 P.2d at
296-97 (discussing jury unanimity and upholding instruction on equal and exact justice);
Bollinger v. State, 111 Nev. 1110, 1115, & n.2, 901 P.2d 671, 674 & n.2 (1995) (holding that
language in reasonable doubt instruction, while not ideal, was not unconstitutional where the
jury received additional instruction on the State's burden of proof and the presumption of
innocence); see also Elvik v. State, 114 Nev. 883, 897-98, 965 P.2d 281, 290-91 (1998); Bolin
v. State, 114 Nev. 503, 529-30, 960 P.2d 784, 801 (1998), cert. denied, 525 U.S. 1179 (1999).
Malice (guilt phase)
Leonard makes two primary claims challenging the malice instructions.
[Headnote 38]
First, Leonard claims that the implied malice instruction created an unconstitutional
presumption that improperly shifted the burden of proof. The instruction provided, Malice
may be implied when no considerable provocation appears, or when all the circumstances of
the killing show an abandoned and malignant heart. The instruction is nearly identical to
NRS 200.020(2); the instruction differs only in that it uses the word may instead of shall.
This court recently held that substitution of the word may for shall in the instruction is
not only permissible, but preferable. Cordova v. State, 116 Nev. 664, 666-67, 6 P.3d 481,
482-83 (2000). This court observed that use of may in the instruction eliminates the issue
of a mandatory presumption. Id. at 666, 6 P.3d at 483.
Second, Leonard also claims that the instructions were insufficient to define malice.
Leonard specifically asserts that the implied malice instruction contains language so vague
and pejorative that [it] is meaningless without further definition, and it should have been
eliminated in favor of less archaic terms which define the conscious disregard for life from
which malice may be implied."
should have been eliminated in favor of less archaic terms which define the conscious
disregard for life from which malice may be implied. Leonard notes that the California
Supreme Court has criticized similar language defining implied malice in California's own
statute. See, e.g., People v. Phillips, 414 P.2d 353, 363-64 (Cal. 1966), overruled on other
grounds by People v. Flood, 957 P.2d 869, 882 n.12 (Cal. 1998); Cal. Penal Code 188
(West 1999).
[Headnote 39]
However, the statutory language is well established in Nevada, and we conclude that
the malice instructions as a whole were sufficient. This court has characterized the statutory
language abandoned and malignant heart as archaic but essential. Keys v. State, 104 Nev.
736, 740, 766 P.2d 270, 272 (1988). This court held that similar instructions accurately
informed the jury of the distinction between express malice and implied malice. Guy v.
State, 108 Nev. 770, 777 & n.2, 839 P.2d 578, 582-83 & n.2 (1992). Further, this court has
held that language in the malice aforethought instruction is constitutional that refers to a
heart fatally bent on mischief and acts done in contradistinction to accident or mischance.
See Leonard, 114 Nev. at 1208, 969 P.2d at 296. This court concluded that [a]lthough these
phrases are not common in today's general parlance, . . . their use did not deprive appellant of
a fair trial. Id. Absent some indication that the jury was confused by the malice instructions
(including the instruction on malice aforethought and express malice), a defendant's claim
that the instructions were confusing is merely speculative. See Guy, 108 Nev. at 777, 839
P.2d at 583. Leonard has not shown that the jury was confused in the instant case.
Anti-sympathy (penalty phase)
[Headnote 40]
Leonard challenges the instruction that the jury's verdict may never be influenced by
sympathy, prejudice or public opinion but should be the product of sincere judgment and
sound discretion in accordance with these rules of law. This court has upheld such
instruction where, as here, the jury was properly instructed to consider any mitigating
evidence. See, e.g., Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04 (1996).
Pardons Board (penalty phase)
Leonard asserts that the jury was erroneously instructed about the ability of the State
Board of Pardons Commissioners to modify the sentence. The jury was instructed: Although
under certain circumstances and conditions the State Board of Pardons Commissioners has
the power to modify sentences, you are instructed that you may not speculate
instructed that you may not speculate as to whether the sentence you impose may be changed
at a later date.
[Headnote 41]
First, Leonard points out that in Sonner v. State, 114 Nev. 321, 955 P.2d 673, cert.
denied, 525 U.S. 886 (1998), this court held that henceforth the jury should not be instructed
regarding possible commutation. However, the primary reason for this decision was the 1995
enactment of NRS 213.085 that precluded the Pardons Board from commuting certain death
sentences and sentences of life without the possibility of parole to sentences that would allow
for parole. See Sonner, 114 Nev. at 326-27, 955 P.2d at 677. Leonard committed the instant
offense in January of 1995. Thus, NRS 213.085 does not apply here. See Miller v. Warden,
112 Nev. 930, 921 P.2d 882 (1996) (holding that NRS 213.085(1), which took effect July 1,
1995, is unconstitutional insofar as it purports to apply retroactively). Here, the instruction
correctly informed the jury that the Pardons Board has the power to commute Leonard's
sentence under certain circumstances.
Second, Leonard claims that the language is unconstitutional and misleading. Leonard
relies primarily on Geary v. State, 112 Nev. 1434, 930 P.2d 719 (1996), rehearing granted on
other grounds, 114 Nev. 100, 952 P.2d 431 (1998), and several federal cases. In Geary, this
court concluded that the jury might have been misled by the Pardons Board instruction into
believing that Geary could be released on parole even if he received a sentence of life without
the possibility of parole. In fact, Geary would be denied parole pursuant to the relevant parole
criteria even if his sentence were commuted. Id. at 1441-42, 930 P.2d at 724-25. Leonard
argues that, like Geary, he would be denied parole even if his sentence were commuted.
Geary presents an atypical factual scenario that is distinguishable from the instant
case. See id. at 1442, 930 P.2d at 725. In Geary counsel for both sides based their arguments
on a presumption that [Geary] could qualify for parole. Id. at 1442, 930 P.2d at 724. Further,
the jury was aware that Geary had a prior sentence of life without the possibility of parole
commuted, and that he had been released on parole. Id. at 1442, 930 P.2d at 724- 25. Neither
of these facts is present in the instant case, nor did the prosecutor argue at the closing
argument of the penalty phase that Leonard would be a future danger to the community.
Accordingly, the instant case is distinguishable from Geary and is more analogous to this
court's decision in Sonner, 114 Nev. at 325-26, 955 P.2d at 676, where this court rejected a
similar claim for relief.
In sum, after careful consideration of Leonard's claim, we conclude that he is not
entitled to relief based on the commutation instruction.
XII. Prosecutorial misconduct
[Headnote 42]
Leonard claims that the prosecutor committed misconduct in rebuttal closing
argument at the guilt phase. 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. United States v. Young, 470 U.S. 1, 11 (1985). Leonard raises four instances
of alleged misconduct.
Issue preserved for appeal
[Headnote 43]
First, Leonard complains that the prosecutor shifted the burden of proof by suggesting
that the defense had to prove that other suspects were guilty. The alleged misconduct
occurred after the prosecutor commented that a trial was a search for the truth and that the
jury should dig for the truth. The prosecutor then suggested that the defense had previously
had the opportunity to question Jesus Cintron about a glove found in Leonard's apartment that
the defense was now claiming might have belonged to him. Defense counsel objected on the
ground that the defense had no burden of proof. The prosecutor immediately clarified that the
defendant has constitutional rights and agreed that Leonard had no burden. The prosecutor
proceeded to explain that the jury had heard rumor, innuendo and gossip about Cintron and
Jerry Leonard, who were not on trial in the case.
[Headnotes 44, 45]
We conclude that the prosecutor's comments, when considered in context, do not
warrant reversal. Here, the prosecutor was arguing that the defense had failed to substantiate
claims that other individuals might have been involved in the murder. Although a prosecutor
may not normally comment on a defendant's failure to present witnesses or produce evidence,
in some instances the prosecutor may comment on a defendant's failure to substantiate a
claim. See Lisle v. State, 113 Nev. 679, 706-07, 941 P.2d 459, 477 (1997), limited on other
grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998), cert.
denied, 528 U.S. 927 (1999). Even assuming the prosecutor's remarks were improper, her
immediate clarification to the jury concerning the burden of proof remedied any impropriety
by serving the function of an adequate curative instruction. Thus, any error is harmless.
18

__________

18
Insofar as the prosecutor arguably disparaged legitimate defense tactics, we note that Leonard did not
object on this basis. We further conclude that there is no error that would warrant relief notwithstanding
Leonard's failure to object.
Remaining issues (no objection below)
Leonard did not object to the remaining three other instances of alleged prosecutorial
misconduct: (1) the prosecutor improperly referred to highly inflammatory matters that were
not relevant; (2) the prosecutor disparaged defense counsel; and (3) the prosecutor improperly
emphasized that Leonard had invoked his Fourth Amendment rights. We conclude that these
instances of alleged prosecutorial misconduct do not amount to plain error that would warrant
relief notwithstanding Leonard's failure to object.
XIII. Prior conviction aggravating circumstance
Leonard raises two claims challenging the use of his prior murder conviction as an
aggravating circumstance. We reject these contentions.
19

First, Leonard asserts that the prior conviction could not be used as an aggravating
circumstance under the former provisions of NRS 200.033(2) because he had not been
convicted of the prior offense at the time he committed the instant offense. Leonard notes that
NRS 200.033(2) was amended in 1997 to clarify that a prior conviction need not have been
entered at the time of the current offense, as long as it has been entered at any time before the
penalty hearing on the instant offense. See 1997 Nev. Stat., ch. 356, 1, at 1293. Thus, he
alleges an ex post facto violation.
[Headnote 46]
Leonard's claims lack merit because even prior to both the 1997 amendments and
commission of the instant offense this court had interpreted NRS 200.033(2) to allow for the
use of convictions that had been entered prior to the penalty phase. Emil v. State, 105 Nev.
858, 865, 784 P.2d 956, 960 (1989); Gallego v. State, 101 Nev. 782, 792-93, 711 P.2d 856,
863-64 (1985), rev'd on other grounds by Gallego v. McDaniel, 124 F.3d 1065 (9th Cir.
1997); see also Calambro v. State, 114 Nev. 106, 109-10, 952 P.2d 946, 948 (1998).
Second, Leonard claims that his prior conviction for murder is constitutionally infirm.
This claim also lacks merit. Thus far, the prior conviction has been upheld.
XIV. Constitutionality of the death penalty
Leonard asserts that the death penalty itself constitutes cruel and unusual punishment.
Leonard also challenges Nevada's death penalty scheme.
__________

19
The State claims that Leonard did not preserve these issues for appeal by proper objection. Nevertheless,
we address these issues on the merits. Pursuant to NRS 177.055(2), this court is required to determine whether
the sentence of death has been imposed under the influence of any arbitrary factor and whether the aggravating
circumstances are supported by the evidence.
penalty scheme. He claims that, as written and as applied, it does not sufficiently curtail the
sentencer's discretion, narrow the class of persons eligible for death, and otherwise ensure
that the death penalty is not imposed in an arbitrary and capricious manner.
We reject Leonard's challenges to the death penalty and to Nevada's death penalty
scheme. This court has repeatedly upheld Nevada's death penalty against similar challenges.
See, e.g., Middleton, 114 Nev. at 1116-17, 968 P.2d at 314-15; Colwell v. State, 112 Nev.
807, 814-15, 919 P.2d 403, 407-08 (1996); Ybarra v. State, 100 Nev. 167, 173-76, 679 P.2d
797, 801-03 (1984); Deutscher v. State, 95 Nev. 669, 676-77, 601 P.2d 407, 412 (1979);
Bishop v. State, 95 Nev. 511, 517-18, 597 P.2d 273, 276-77 (1979). We conclude that
Nevada's death penalty continues to withstand scrutiny. Further, we are not persuaded that the
aggravating circumstances in this case are unconstitutional.
XV. Speedy trial
[Headnote 47]
Leonard claims that he was denied his right to a speedy trial. In considering this issue,
it is necessary to consider the following factors: (1) the length of the delay; (2) the reason for
delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514, 530 (1972). We conclude that Leonard has not demonstrated error
under this test.
[Headnote 48]
Although the length of the delay is not insignificant,
20
the other three factors militate
against a determination that Leonard was denied his right to a speedy trial. First, the reasons
for most of the delay do not appear to be the fault of the State or the court. For example,
significant delay resulted from the replacement of defense counsel after Leonard's original
counsel withdrew. Many other delays occurred as the result of defense counsel's actions or
specific request. Second, Leonard's counsel did not raise the speedy trial issue in the district
court.
21
Third, and finally, Leonard has failed to demonstrate prejudice. Leonard has not
shown, for example, that any defense witnesses died or otherwise became unavailable owing
to the delay. Id. at 534. Accordingly, we conclude that Leonard was not denied his right to a
speedy trial.
__________

20
Leonard's first trial commenced more than two years after he was arrested. The second trial commenced
approximately seven months later, and the third trial commenced approximately one year after the second.

21
We recognize that Leonard personally complained to the court on at least one occasion about the delay in
the case. At that time, the court explained the reason for the delay, emphasizing the need to ensure sufficient
time for defense counsel to prepare.
XVI. Anti-gratuity statute
[Headnote 49]
Although he did not raise the issue below, Leonard now claims that the State paid
Jesus Cintron for his testimony in violation of 18 U.S.C. 201(c)(2). The statute provides, in
pertinent part, for criminal sanctions in cases where someone directly or indirectly, gives,
offers, or promises anything of value to any person, for or because of the testimony under
oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or
other proceeding, before any court. Leonard argues that exclusion of Cintron's testimony is
the appropriate remedy for a violation of the statute. We conclude that there was no error in
admitting Cintron's testimony, let alone any plain error that would warrant reversal
notwithstanding Leonard's failure to object. Preliminarily, we note that the assistance given
to Cintron in this case was arguably provided for reasons other than his testimony. Here,
Cintron received money for relocation expenses from the victim/witness assistance center of
the district attorney's office, and he received $1,000 from the Secret Witness Program of the
Las Vegas Metropolitan Police Department. The Secret Witness money was arguably
provided because of Cintron's assistance in the police investigation, and the relocation
expenses were unequivocally provided because Cintron felt threatened.
In any case, Leonard's position that Cintron's testimony should have been excluded is
at odds with persuasive authority. At the federal level, several courts have held that the
provisions do not apply to the United States or to assistant U.S. attorneys, at least where such
officials are exercising the traditional sovereign power. See, e.g., United States v. Stephenson,
183 F.3d 110, 118 (2d Cir. 1999), cert. denied, 528 U.S. 1013 (1999); United States v.
Singleton, 165 F.3d 1297, 1298-1302 (10th Cir. 1999), cert. denied, 527 U.S. 1024 (1999).
We are similarly persuaded that the statute should not apply to the type of assistance afforded
by the State in the instant case. Even assuming that the State is not exempt from the statute's
provisions for the assistance rendered here, the remedy of exclusion is unwarranted given the
absence of either statutory provision for such a remedy or a constitutional violation. See
United States v. Smith, 196 F.3d 1034, 1040 (9th Cir. 1999) (concluding that the remedy of
exclusion is not warranted assuming arguendo government violation of 18 U.S.C.
201(c)(2)), cert. denied, 529 U.S. 1028 (2000); United States v. Ware, 161 F.3d 414, 424-25
(6th Cir. 1998) (similar), cert. denied, 526 U.S. 1045 (1999).
XVII. Remaining claims
Leonard makes several other claims that he did not properly preserve for appeal: (1)
the district court should have held a hearing to resolve a temporary conflict between
Leonard's counsel and co-counsel, which was subsequently resolved; (2) the district attorney's
office should have been disqualified from prosecuting this case; (3) prospective jurors were
improperly excused for cause based on their religious beliefs; (4) the police illegally searched
Leonard's apartment, resulting in the discovery of the victim's body; (5) the State improperly
elicited evidence that Leonard had exercised his Fourth Amendment rights; (6) the State
improperly elicited evidence that Leonard had been confined at the jail; (7) the State
introduced unfounded evidence of witness fear and intimidation; (8) Leonard has been denied
meaningful appellate review because some proceedings were not recorded; and (9) his
counsel was ineffective as a matter of law at the penalty phase.
We have reviewed each of these claims and conclude that the existing record does not
reveal any plain error that would warrant relief at this juncture. We reiterate that it is
inappropriate to address Leonard's assertions of ineffective assistance of counsel at this time.
XVIII. Mandatory review
[Headnote 50]
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.
We have already discussed the validity of the aggravating circumstances in this case. We now
conclude, after an independent review of the record, that the death penalty was not the
product of passion, prejudice, or any arbitrary factor. Nor is the death penalty excessive under
the circumstances of this case. There is no compelling evidence in mitigation. Moreover,
Leonard is a violent, dangerous individual, as evidenced by the fact that the instant offense is
his second strangulation murder.
CONCLUSION
For the reasons cited above and after considering whether cumulative error warrants
reversal in this case, we conclude that Leonard is not entitled to relief.
Leonard is not entitled to relief. We affirm Leonard's conviction and sentence of death.
22

Shearing, Agosti and Leavitt, JJ., concur.
Maupin, C. J., concurring and dissenting:
I agree that Leonard's conviction should be affirmed, however, I agree with Rose, J.,
that this matter should be remanded for a new sentencing hearing.
Our criminal code enumerates four possible penalties for persons found guilty of
murder in the first degree: death, imprisonment for life without the possibility of parole,
imprisonment for life with the possibility of parole, or imprisonment for fifty years.
1
A jury
may not impose the death penalty unless it unanimously finds beyond a reasonable doubt that
at least one statutory aggravating circumstance has been proved, and finds that any mitigating
circumstance in the case fails to outweigh any aggravating circumstance(s).
2
Even when the
circumstances of the case satisfy the prerequisites for the death penalty, a jury may still
decline to impose it.
3
Because our statutory sentencing construct requires the jury to weigh
the ultimate punishment for first degree murder in a different manner from the other possible
sentences, the district court erred, in my view inadvertently, by implying or stating directly in
several instances that the jury should weigh the sentences equally.
The improper standard first appeared in the jury questionnaire: In your present state
of mind, can you, if selected as a juror, consider equally all three [sic] possible forms of
punishment and select the one that you feel is the most appropriate depending on the facts and
the law? While our law does not contemplate equal consideration, the questionnaire implies
that it does.
More references to equal consideration of the sentences occurred during voir dire
examination of the prospective jurors. By way of example, the prosecutor and defense
counsel asked several of the prospective jurors if they could give equal consideration to the
possible sentences. Also, in excusing at least two prospective jurors, the district court
specifically stated that it was doing so based upon their inability to equally consider all three
forms of punishment. Finally, the district court's preliminary comments to the second panel of
prospective jurors explained:
__________

22
The Honorable Nancy A. Becker, Justice, voluntarily recused herself from participation in the decision of
this appeal.

1
NRS 200.030(4).

2
NRS 200.030(4)(a).

3
See Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940).
I read [that] to you because as we inquire of you we will be asking you whether or not
you can consider all three [sic] forms of punishment equally, because that is very
important in this case.
The acquiescence between the district attorney and defense counsel that jurors must
be able to consider all sentences equally, combined with the district court's comments on the
matter, demonstrate that the wrong standard for excusing prospective jurors was applied in
several important instances. In reaching this conclusion, I note that there is absolutely no
evidence of bad faith. Further, it is evident that all concerned meant to convey that the jury
give fair consideration to all of the potential forms of punishment in accordance with
relevant jury instructions. However, even though the district court correctly instructed the jury
on the death penalty process prior to the deliberations, I cannot conclude that the cumulative
effect of these repeated references to equal consideration and the exclusion of juror no. 129
did not compromise the process. That Leonard's attorneys joined in creating the
misconception does not alter the fact that this jury was left with the erroneous impression that
the death penalty should be given equal consideration with the other possible penalties for
first degree murder.
Improper exclusion of jurors violates the fundamental right to an impartial
adjudicator, requiring reversal.
4
Further, the heightened degree of scrutiny required in death
penalty cases compels that the process of jury selection be in strict accordance with the
statutory scheme described above.
Individual misstatements regarding the role of the jury in the sentencing process do
not in and of themselves require reversal. But, in my view, the cumulative effect of the
comments made by all concerned necessitates reversal of this matter for a new penalty
hearing.
Rose, J., concurring and dissenting:
I respectfully dissent in part from my colleagues' opinion because I believe that the
district court committed reversible error in excusing juror no. 129 for cause. Juror no. 129
was excused because the district court found that she could not consider the death penalty
equally with the other two possible sentences. Our precedent mandates that we not only
review this issue for plain error despite Leonard's failure to lodge a proper objection, but also
that we reverse Leonard's conviction because the district court violated Leonard's
fundamental right to an impartial jury.
__________

4
See Gray v. Mississippi, 481 U.S. 648, 668 (1987).
The majority first suggests that a review of the issue is not warranted in light of
Leonard's failure to object because such failure might reflect a tactical decision by counsel
or might be an indication of [Leonard's] contemporaneous impression that the juror was
biased and properly excluded. Our prior precedent, however, clearly indicates that this type
of constitutional error should be fully reviewed on appeal even in the absence of a properly
lodged objection. See, e.g., Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234-35 (1986)
(reversing first degree murder conviction in part because unobjected-to prosecutorial
misconduct violated defendant's right to fair trial); Sullivan v. State, 115 Nev. 383, 387-88
n.3, 990 P.2d 1258, 1260 n.3 (1999) (reviewing a prosecutor's unobjected-to comments which
were contrary to a plea agreement because they may have violated defendant's due process
rights); Buff v. State, 114 Nev. 1237, 1244 n.4, 970 P.2d 564, 568 n.4 (1998) (reviewing an
unobjected-to jury instruction for plain error). In addition, this court has held that where a
life is at stake, we will consider the allegations of misconduct as if there had been compliance
with the contemporaneous objection rule. Flanagan v. State, 104 Nev. 105, 108, 754 P.2d
836, 837 (1988) overruled on other grounds by Moore v. Nevada, 503 U.S. 930 (1992).
Moreover, we should be consistent in considering unobjected-to error in both criminal
and civil cases. In the recent civil case of DeJesus v. Flick, 116 Nev. 812, 7 P.3d 459 (2000),
we held that this court would review as plain error unobjected-to attorney misconduct that
was so substantial that it appeared to improperly influence the verdict. If we are going to
examine unobjected-to argument in a civil matter concerning the rendering of a money
judgment, we should certainly examine unobjected-to error in a criminal matter where the
death penalty is concerned. Thus, I believe that our precedent clearly requires that we review
the district court's dismissal for cause of juror no. 129 notwithstanding Leonard's lack of
objection.
The majority also opines that failure to object might have been a trial strategy of
Leonard's attorney. This is sheer speculation and it is not supported by logic or the record.
What beneficial purpose would be served by letting a prospective juror, reluctant to assess the
death penalty, be excused for cause? Instead, the record establishes that this case was tried
from beginning to end on the mistaken belief that each juror had to be able to consider each
potential penalty equally. The erroneous standard was printed in the prospective juror's
questionnaire, both the prosecutor and defense counsel continuously repeated it in voir dire, it
was emphatically stated by the district court judge during voir dire, the prosecutor challenged
juror no. 129 because she could not consider each penalty equally,
not consider each penalty equally, the district court judge dismissed juror no. 129 for this
reason, and the defense attorney did not try to traverse the challenge to juror no. 129 because
he likely believed the decision was proper. Thus, the dismissal of juror no. 129 occurred
because all participants in the trial had an incorrect understanding of a fundamental rule of
law, and not because of some fanciful strategy of the defense.
The majority next concludes that even upon a review of the issue, Leonard has not
demonstrated plain error. I disagree. It is well settled that a prospective juror in a death
penalty case must be able to consider each penalty available before being qualified to sit as a
juror. See Adams v. Texas, 448 U.S. 38, 45 (1980); Walker v. State, 113 Nev. 853, 866, 944
P.2d 762, 770-71 (1997); Milligan v. State, 101 Nev. 627, 632, 708 P.2d 289, 292-93 (1985)
(applying Adams in a Nevada death penalty case). The defendant's constitutional right to an
impartial jury, however, demands that this principle not be used to empanel a jury overly
prone toward the death penalty. Thus, the rule is more precisely stated: [A] juror may not be
challenged for cause based on his views about capital punishment unless those views would
prevent or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath. Adams, 448 U.S. at 45. Importantly, there is no requirement that a
potential juror be able to consider each sentence equally, as the jury here was instructed,
and the requirement simply misstates the law. As the majority has concluded, this instruction
must not be included in future jury voir dires or questionnaires.
In this case, juror no. 129 indicated that she could consider each penalty, but that she
believed the death penalty was appropriate in only a few cases. She further indicated that she
would be more inclined to choose the other penalties available that involved substantial jail
time. By stating that the death penalty should be reserved only for rare offenders and that
death was not her preferred form of punishment, juror no. 129 did not manifest any belief that
would prevent or substantially impair her sworn duty as a juror, but rather demonstrated
that she had a better understanding of sentencing law than those jurors who affirmatively
indicated that they could consider the sentences equally and were not disqualified. As the
majority itself recognizes, the death penalty is reserved for a limited class of offenders and
need not ever be applied by the jury. Therefore, I cannot agree with the majority's conclusion
that Leonard has not shown plain error where an impermissible question was asked of a juror
and where the juror's response indicated that she merely had a conscious and emotional
concern about the death penalty. See Adams, 448 U.S. at 49 (jurors cannot be excluded simply
because they indicated that the "potentially lethal consequences of their decision would
invest their deliberations with greater seriousness
indicated that the potentially lethal consequences of their decision would invest their
deliberations with greater seriousness and gravity or would involve them emotionally). I
believe that the district court clearly violated Adams by excusing juror no. 129 for cause.
This error in excusing juror no. 129 for cause violates Leonard's constitutional right to
an impartial jury, a right so basic to a fair trial that [its] infraction can never be treated as
harmless error. Gray v. Mississippi, 481 U.S. 648, 668 (1987) (holding that an
impermissible exclusion of a juror is not subject to harmless-error analysis (quoting Chapman
v. California, 386 U.S. 18, 23 (1967))). Accordingly, Leonard's sentence must be reversed
and the matter remanded for a new penalty hearing.
____________
117 Nev. 90, 90 (2001) Pro-Max Corp. v. Feenstra
PRO-MAX CORPORATION, a Nevada Corporation, Appellant, v. PETER FEENSTRA,
SHIRLEY FEENSTRA, and JACK A. FERGUSON, Respondents.
No. 30774
JACK A. FERGUSON, Appellant, v. MARY ANN FERGUSON and PRO-MAX
CORPORATION, a Nevada Corporation; and WESLEY D. ADAMS, Respondents.
No. 30859
January 31, 2001 16 P.3d 1074
Appeal from a judgment of the district court in an action for declaratory and
injunctive relief and an order denying attorney's fees.
1
Second Judicial District Court,
Washoe County; Mills Lane, Judge.
Corporation, property owner, and one noteholder's ex-wife filed action for declaratory
relief against noteholders concerning validity of promissory notes secured by deeds of trust on
corporation's interest in real property. The district court entered judgment for noteholders.
Plaintiffs appealed. On rehearing, the supreme court held that statute extinguishing lien on
real property ten years after debt became due was not limited to bona fide purchasers.
Affirmed in part; reversed in part; and remanded.
Robison Belaustegui Sharp & Low, Reno; Newsom, Giffen & Marne, San Rafael,
California, for AppellantJRespondent Pro-Max Corporation and Respondent Mary Ann
Ferguson.
__________

1
On August 20, 1997, Docket Nos. 30774 and 30859 were consolidated for all appellate purposes.
Marne, San Rafael, California, for Appellant/Respondent Pro-Max Corporation and
Respondent Mary Ann Ferguson.
Lemons, Grundy & Eisenberg, Reno, for Respondent/Appellant Jack A. Ferguson and
Respondents Peter Feenstra and Shirley Feenstra.
Simon & Berman, Las Vegas, for Respondent Wesley D. Adams.
1. Mortgages.
Statute creating a conclusive presumption that a mortgage lien on real property was extinguished ten years after the debt became
due was not limited to bona fide purchasers. NRS 106.240.
Appellate court's review of the trial court's interpretation of a statute is de novo.
3. 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.
4. Estoppel.
The elements of estoppel are that: (1) the party to be estopped must be apprised of the true facts, (2) he must intend that his
conduct shall be acted upon or must so act that the party asserting estoppel has the right to believe it was so intended, (3) the party
asserting estoppel must be ignorant of the true state of facts, and (4) he must have relied to his detriment on the conduct of the party to
be estopped.
OPINION ON REHEARING
Per Curiam:
On September 15, 2000, this court issued an opinion in this appeal. Respondents Jack
A. Ferguson, Peter Feenstra and Shirley Feenstra timely petitioned for rehearing. In light of
the rehearing petition, we withdrew our September 15, 2000, opinion. We now conclude that
rehearing is warranted and therefore grant the petition and issue this opinion in place of our
previously withdrawn opinion.
The primary issue presented in this appeal requires us to consider the scope of NRS
106.240, which extinguishes certain real property debts ten years after they become due
absent recorded extensions, an issue of first impression. We conclude that the district court
erred when it determined that the statute is applicable only to bona fide purchasers. For this
reason, we reverse the district court's judgment that certain notes and deeds of trust are
valid and enforceable.
trict court's judgment that certain notes and deeds of trust are valid and enforceable. However,
because the district court prevented certain noteholders from presenting evidence regarding
whether Pro-Max should be estopped from asserting NRS 106.240, we remand this case to
the district court for further proceedings regarding the estoppel issue. Finally, we affirm the
district court's order denying Jack A. Ferguson's request for attorney's fees.
FACTS
The underlying dispute in this case involves a substantial piece of real property in
Verdi, Nevada (Verdi property). Pro-Max Corporation is a closely held corporation, which
has as its sole asset an eighty-percent interest in the Verdi property. Jack Ferguson (Jack)
served as president of Pro-Max from 1978 through 1996.
In 1982, Pro-Max borrowed money from seven of its shareholders
2
to secure funding
for the Verdi property.
3
Pro-Max executed promissory notes to the shareholders, secured by
deeds of trust on Pro-Max's interest in the Verdi property. The notes were executed on May
11, 1982, and became due two years later on May 14, 1984. The deeds of trust included a
standard provision that the debt would become due upon sale of the property.
4
No payment
of principal or interest was ever made by Pro-Max on any of the notes. Although the
shareholders and Pro-Max were purportedly unaware of it at the time, NRS 106.240 operates
to extinguish any debt upon real property secured by a deed of trust ten years after the debt
becomes due unless an extension is written and recorded. The notes were therefore
extinguished by operation of the statute on May 14, 1994.
Of the twenty-percent interest in the Verdi property not owned by Pro-Max, Jack
personally owned ten percent and his wife, Mary Ann Ferguson (Mary Ann), personally
owned the other ten percent. In 1990, Jack and Mary Ann commenced divorce proceedings.
The judicial proceedings concerning the divorce were complicated, contentious and ongoing
for several years after 1990. These proceedings concerned the division of the Fergusons'
marital estate.
In March 1996, at a meeting of the board of directors of Pro-Max,
__________

2
Jack Ferguson, Mary Ann Ferguson, James Ginella and Peter and Shirley Feenstra were among the
shareholders who loaned money to Pro-Max.

3
The Verdi property is not income producing but is held as an investment for the benefit of the shareholders.

4
Over the years, the shareholders loaned additional money to Pro-Max for ongoing expenses related to the
Verdi property. No new notes were executed for these subsequent loans.
Max, James Ginella was elected president in place of Jack. At the same meeting, the board of
directors agreed to sell Pro-Max's interest in the Verdi property to Wesley Adams. Sometime
during the Ferguson divorce proceedings, in 1993 or 1994, Judge Charles McGee had ordered
the Verdi property sold pursuant to the divorce settlement. In September 1996, Judge McGee
approved the sale of Pro-Max's eighty-percent interest and Mary Ann's ten percent interest in
the Verdi property to Wesley Adams.
Prior to approving the sale to Adams, Judge McGee held several hearings in the
family court to consider various alternatives and offers concerning the sale of the Verdi
property. During these hearings, attorneys for Mary Ann appeared and told Judge McGee that
counsel, in addition to representing Mary Ann, also represented Ginella in his capacity as
president of Pro-Max, and were also advising Pro-Max regarding its fiduciary obligations in
the sale. These same attorneys also assured Judge McGee that the sale of the Verdi property
to Adams would generate enough money to pay the promissory notes, that the notes would be
paid from the proceeds of the sale and that Jack would receive his fair share. Judge McGee
later testified that had he known the notes were unenforceable, he would have structured the
division of the community assets between Jack and Mary Ann Ferguson differently.
In April 1996, Jack transferred his Pro-Max notes and his ten percent interest in the
Verdi property to Peter B., Inc., of which Peter Feenstra was apparently president. Seven days
after Judge McGee approved the sale of the Verdi property to Adams, Feenstra and Peter B.,
Inc., recorded a notice of default on the deeds of trust held by them and commenced
foreclosure proceedings.
5

In December 1996, the Pro-Max board of directors purportedly became aware of NRS
106.240 and its effect of extinguishing the notes. Accordingly, the Pro-Max board of directors
approved an offer to amend and reinstate the Notes and to continue the lien of the Deeds of
Trust and waive the application of NRS 106.240 in consideration for and on the condition
that the note holders agree to the terms of the amendment. A letter delineating the offer was
sent to all of the noteholders. The relevant amendments were as follows: (1) the payment
terms were changed to coincide with Adams' payment terms; (2) the Verdi property was to be
released free and clear of any encumbrances, including the deeds of trust; (3) any costs related
to the sale of the property to Adams and approved by the board of directors were to be paid
from Adams' payments before any distributions were made to the noteholders; and (4) the
noteholders were to release all claims against each other in connection to the sale of the
Verdi property to Adams.
__________

5
The foreclosure was withdrawn on February 14, 1997.
each other in connection to the sale of the Verdi property to Adams.
All of the noteholders, except the Feenstras and Peter B., Inc., accepted Pro-Max's
offer. Thereafter, Pro-Max, Mary Ann Ferguson and Wesley Adams (hereinafter collectively
referred to as Pro-Max) commenced this action for declaratory relief concerning the
validity of the remaining notes, asserting that the notes were unenforceable by operation of
NRS 106.240.
6

DISCUSSION
NRS 106.240
[Headnote 1]
NRS 106.240 creates a conclusive presumption that a lien on real property is
extinguished ten years after the debt becomes due. Specifically, NRS 106.240 provides as
follows:
The lien heretofore or hereafter created of any mortgage or deed of trust upon any real
property, appearing of record, and not otherwise satisfied and discharged of record,
shall at the expiration of 10 years after the debt secured by the mortgage or deed of trust
according to the terms thereof or any recorded written extension thereof become wholly
due, terminate, and it shall be conclusively presumed that the debt has been regularly
satisfied and the lien discharged.
In this case, it is undisputed that no written agreements to extend the notes and deeds
of trust were ever executed or recorded. Therefore, under the plain language of the statute, the
deeds of trust were conclusively presumed to have been satisfied in 1994, which is ten years
after the notes became due and two years before Judge McGee approved the sale of the Verdi
property to Adams.
The district court determined that the legislature intended for the statute to protect
bona fide purchasers, not to let a corporation or a group of people get together and tell one of
the people that held a note, You do this, this and this within six days or you're out.' The
district court declared that, therefore, the notes were not extinguished by the statute. We
conclude that the district court erred.
[Headnotes 2, 3]
Initially, we note that our review of the district court's inter pretation of a statute is
de novo.
__________

6
As noted, Jack had previously transferred his interests in the promissory notes to Peter B., Inc. When the
lawsuit seeking to have the notes declared void was filed, Jack agreed to take the notes back, and they were
reassigned to him. The district court ordered the caption of the case amended to substitute Jack as a defendant in
place of Peter B., Inc.
pretation of a statute is de novo. State, Dep't of Mtr. Vehicles v. Frangul, 110 Nev. 46, 48,
867 P.2d 397, 398 (1994). 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. ' Erwin v. State of Nevada,
111 Nev. 1535, 1538- 39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v.
Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev.
193, 196, 209 P. 501, 502 (1922))). We conclude that the statute is clear and unambiguous.
That being the case, no further interpretation is required or permissible. Under the plain
language of the statute, the deeds of trust are conclusively presumed to have been satisfied
and the notes discharged. This conclusive presumption is plain, clear and unambiguous. No
limitation of the statute's terms to bona fide purchasers can be read into the statute.
7

Estoppel
Jack and the Feenstras did not accept Pro-Max's offer to amend and reinstate their
notes. As a result, Jack's and the Feenstras' notes were not paid because NRS 106.240
operated to extinguish their notes. However, Jack and the Feenstras argue that Pro-Max
should be estopped from asserting the statute because Pro-Max represented to the district
court in the Fergusons' divorce proceedings that the notes would be paid.
[Headnote 4]
The elements of estoppel are as follows:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting estoppel must be ignorant of
the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
NGA #2 Ltd. Liab. Co. v. Rains, 113 Nev. 1151, 1160, 946 P.2d 163, 169 (1997) (quoting
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982)).
According to Jack and the Feenstras, Pro-Max knew about NRS 106.240
__________

7
We further note that the brief legislative history of NRS 106.240 offers nothing to support the argument that
the statute was only intended to apply to bona fide purchasers. The statute was first enacted in 1917. In 1965, the
legislature made amendments to the statute, adding a procedure for extending deeds of trust through written
agreement and recordation. At that time the legislature could have added language limiting the application of the
statute to bona fide purchasers, but it did not. From this, we conclude that the legislature did not intend for the
statute to be so limited.
106.240 and its effect on the notes at the time of the Fergusons' divorce proceedings. Further,
Jack and the Feenstras contend that Pro-Max intended that its conduct at the Fergusons'
divorce proceedings be acted upon by the noteholders. Finally, Jack and the Feenstras assert
that because they were ignorant of the true state of the facts, they relied to their detriment on
the conduct of Pro-Max. Thus, Jack and the Feenstras argue that Pro-Max should be estopped
from asserting that the notes are extinguished pursuant to NRS 106.240.
Although Jack and the Feenstras asserted the affirmative defense of estoppel in their
answer, and argued the defense of estoppel in their opening statement, Jack and the Feenstras
contend that the district court denied them the opportunity to present evidence regarding the
estoppel issue at trial. Jack and the Feenstras claim that because the district court had already
decided to rule in their favor, the district court was impatient and did not want to hear
evidence regarding the estoppel issue.
In support of this contention, Jack and the Feenstras argue that they planned to call
five defense witnesses to testify at trial. Two of the witnesses, Peter Feenstra and Judge
Charles McGee, did testify. However, the accountant for Pro-Max was not permitted to
testify. Jack and the Feenstras assert that the accountant would have testified to matters
regarding the estoppel issue. Nevertheless, the district court did not hear the accountant's
testimony because [i]t's not going to be necessary for my decision in this case.
Further, the district court did not permit Jack and the Feenstras to read portions of
James Ginella's deposition into the record. Ginella is the president of Pro-Max, and Jack and
the Feenstras assert that his deposition testimony would have bolstered their estoppel
argument. However, the district court stated, I don't think I need to hear the [Ginella]
deposition. Who's your next witness and why is he going to be called? I heard all the
information I need to make a decision. Who do you want to call and why?
Finally, the district court did not permit Jack to testify. Jack and the Feenstras argue
that Jack was the most important witness to their case. However, the district court stated, I
am going to make my decision, now, without [Jack's] testimony. The district court then
rendered its decision from the bench, ruling in favor of Jack and the Feenstras. The district
court's ruling was based on its interpretation of NRS 106.240; thus, the district court did not
consider evidence on the estoppel issue, nor did it make any findings of fact regarding
estoppel.
Because the district court did not permit Jack and the Feenstras to present evidence on
the estoppel issue, we are unable to conclude whether the facts of this case warrant
application of the doctrine.
clude whether the facts of this case warrant application of the doctrine. Specifically, we do
not know if Pro-Max knew of the existence of NRS 106.240 and its effect on the notes at the
time of the Fergusons' divorce proceedings. Further, we do not know if Pro-Max intended its
conduct to be acted upon by the noteholders. Finally, we do not know if Jack and the
Feenstras were ignorant of the true state of facts, and if they relied to their detriment on the
conduct of Pro-Max. Because the district court prevented Jack and the Feenstras from
presenting evidence on the foregoing elements of estoppel, we conclude that this case should
be remanded to the district court for further proceedings regarding the estoppel issue.
CONCLUSION
We conclude that the conclusive presumption contained in NRS 106.240 clearly and
unambiguously applies without limitation to all debts secured by deeds of trust on real
property. We therefore reverse the district court's judgment that the statute only protects bona
fide purchasers and therefore does not extinguish the debt owed to Jack and the Feenstras.
However, because the district court prevented Jack and the Feenstras from presenting
evidence on the estoppel issue, we remand this case to the district court for further
proceedings regarding the estoppel issue. Finally, we affirm the district court's order denying
attorney's fees to Jack.
____________
117 Nev. 97, 97 (2001) Robinson v. State
KIRT DOUGLAS ROBINSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35473
February 5, 2001 17 P.3d 420
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
battery by a prisoner. Second Judicial District Court, Washoe County; Steven P. Elliott,
Judge.
Defendant pleaded guilty in the district court to battery by a prisoner. He appealed.
The supreme court, Leavitt, J., held that defendant, who was placed in civil protective
custody after he was found to be publicly intoxicated, was not a prisoner.
Reversed and remanded.
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender,
Washoe County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard
A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe
County, for Respondent.
Assault and Battery.
Publicly intoxicated individual, who had been placed in civil protective custody because no alcohol treatment facility was
available, was not a prisoner for purposes of offense of battery by a prisoner. NRS 193.022, 200.481(2)(f).
Before Shearing, Agosti and Leavitt, JJ.
OPINION
By the Court, Leavitt, J.:
At issue in this case is whether the term prisoner as defined in NRS 193.022 applies
to persons placed in civil protective custody. We hold that the term prisoner only applies to
individuals in custody for criminal conduct, and not to persons in civil protective custody.
Therefore, the district court erroneously convicted appellant for battery by a prisoner while he
was in the civil protective custody of the Washoe County Jail.
FACTS
In November 1999, appellant Kirt Douglas Robinson pleaded guilty to one count of
battery by a prisoner. The conviction was a result of Robinson striking three other prisoners
while under the civil protective custody of police in the Washoe County Jail. Prior to
committing the batteries, Robinson had lawfully been placed in the cell, pursuant to NRS
458.270, following a display of public drunkenness.
1
Although the batteries would normally
be classified as misdemeanors in any other setting, NRS 200.481(2)(f) provides that it is a
category B felony for a prisoner who is in lawful custody or confinement to commit a
battery.
Robinson filed a motion to strike in the lower court, asserting that the formal charge
should not have classified him as a prisoner. The district judge denied the motion, and
Robinson subsequently pleaded guilty to the charge with the stipulation that he could appeal
the court's denial of the motion to strike. The district court sentenced appellant to serve a term
of imprisonment for a minimum of nineteen (19) months and a maximum of forty-eight (48)
months.
__________

1
NRS 458.270 states in part that a person who is found in any public place under the influence of alcohol, in
such a condition that he is unable to exercise care for his own health or safety or the health or safety of others,
must be placed under civil protective custody by a peace officer.
DISCUSSION
The Nevada Legislature has made it clear that public intoxication shall no longer be
recognized as a criminal offense.
The legislature finds and declares that the handling of alcohol abusers within the
criminal justice system is ineffective, whereas treating alcohol abuse as a health
problem allows its prevention and treatment and relieves law enforcement agencies of a
large and inappropriate burden. . . . NRS 458.250 to 458.280, inclusive, are further
intended to transfer the handling of public intoxication from statutes providing criminal
sanctions, such as loitering and vagrancy, to statutes providing for civil protective
custody.
NRS 458.250.
To facilitate the handling of publicly intoxicated individuals, NRS 458.270(1)
requires peace officers to place these individuals under civil protective custody. This form of
protective custody is clearly not intended as a means of punishment for intoxicated persons.
Rather, it allows peace officers to place an intoxicated individual into civil protective custody
whenever the individual is unable to exercise care for his own health or safety or the health
or safety of others. NRS 458.270(1).
Additionally, NRS 458.270(3) requires that before an intoxicated individual can be
taken to a police detention facility, the individual must first be taken to an alcohol treatment
facility. Only if no such facility exists shall the police then take the individual to jail. See
NRS 458.270(3). Even if jail is the only place to provide civil protective custody, the police
may not detain the individual for more than 48 hours. See id. Furthermore, NRS 458.010(6)
states that [c]ivil protective custody does not have any criminal implication.
In this instance, no treatment center was available to house Robinson. As a result, the
police placed Robinson in the Washoe County Jail. Robinson does not contend that he was
unlawfully placed in the facility. To the contrary, Robinson only asserts that because no
criminal charges were pending against him at the time he was taken to jail, he should not have
been classified as a prisoner when he committed the batteries. We agree.
In Dumaine v. State, 103 Nev. 121, 125, 734 P.2d 1230, 1233 (1987), we held that a
prisoner includes anyone who is deprived of his liberty and kept under involuntary
restraint, confinement or custody. This definition of prisoner was intended to apply solely
in its criminal context. Unlike the present case, the battery that occurred in Dumaine took
place as the police officer was attempting to take the intoxicated individual into criminal
custody for drunk driving. See id. at 123, 734 P.2d at 1231.
117 Nev. 97,100 (2001) Robinson v. State
Conversely, the police took Robinson into police custody with the intent only to provide him
a place of safety during his inebriation.
We conclude that the definition of prisoner under NRS 193.022 was also meant to
only apply in the criminal setting. Although the statute defines a prisoner to include any
person held in custody under process of law, or under lawful arrest, the term is defined in the
criminal chapter of the Nevada Revised Statutes.
Furthermore, other states have limited the definition of prisoner to its criminal
context. In particular, California has defined prisoner to include any inmate of a prison,
jail, or penal or correctional facility or any lawfully arrested person who is brought into a
law enforcement facility for the purpose of being booked. Cal. Gov. Code 844 (1995).
Likewise, in Idaho, the term refers to a person who has been convicted of a crime in the state
. . . or who is convicted of and sentenced for a crime in a state other than the state of Idaho.
Idaho Code 18-101A(5) (2000). And in Washington, prisoner refers to a person either
male or female, convicted of a felony and sentenced by the superior court to a term of
confinement and treatment in a state correctional institution under the jurisdiction of the
department. Wash. Rev. Code Ann. 72.65.010 (1992).
CONCLUSION
We conclude that Robinson was not a prisoner of the Washoe County Jail, but
rather, an inebriated person not subject to the statutorial definition of NRS 193.022. If
Robinson committed the batteries in a treatment facility, he would not have been charged
with a felony. Robinson should not have been exposed to greater liability merely because he
was taken to one facility rather than the other. Accordingly, we reverse Robinson's
conviction, and remand to allow Robinson to withdraw his plea of guilty.
Shearing and Agosti, JJ., concur.
____________
117 Nev. 101, 101 (2001) Clark County Sch. Dist. v. Rolling Plains
CLARK COUNTY SCHOOL DISTRICT, Appellant, v. ROLLING PLAINS
CONSTRUCTION, INC., and RICHARDSON CONSTRUCTION COMPANY, aka
RICHARDSON CONSTRUCTION, INC., Respondents.
No. 33283
February 5, 2001 16 P.3d 1079
Appeal from an order of the district court granting a motion to confirm an arbitration
award and denying a motion to vacate the arbitration award. Eighth Judicial District Court,
Clark County; Sally L. Loehrer, Judge.
School district, which had breached contract with contractor, thus causing contractor
to breach contract with subcontractor, challenged arbitrator's order holding school district
liable for attorney fees awarded to subcontractor for contractor's breach. The district court
confirmed award. School district appealed. The supreme court held that arbitrator did not
demonstrate manifest abuse of discretion by holding school district liable for subcontractor's
attorney fees.
Affirmed.
C.W. Hoffman Jr., General Counsel, Clark County School District, Las Vegas, for
Appellant.
John Peter Lee Ltd. and Timothy P. Thomas, Las Vegas; Faegre & Benson and Brett
R. Gunnell, Denver, Colorado, for Respondent Rolling Plains Construction, Inc.
Parker Nelson & Arin, Chtd., Las Vegas, for Respondent Richardson Construction
Company.
1. Arbitration.
An arbitration award may be reviewed in order to determine whether the arbitrator's decision represents a manifest disregard of
the law. The manifest disregard standard is defined as error that is obvious and capable of being readily and instantly perceived by
the average person qualified to serve as an arbitrator, or, in other words, it is a decision that is arbitrary, capricious, or unsupported by
the agreement.
2. Arbitration.
Review of arbitration award under the manifest disregard standard does not entail plenary judicial review. To the contrary, the
standard should direct courts to focus only on arbitration awards which imply that the arbitrator was aware of clearly governing legal
principles but decided to ignore or pay no attention to those principles.
3. Arbitration.
Courts are not at liberty to set aside arbitration awards because of an arguable difference regarding the meaning or applicability
of laws.
4. Arbitration.
A district court's application of the manifest disregard standard in reviewing arbitration award is a legal
determination that supreme court reviews de novo.
reviewing arbitration award is a legal determination that supreme court reviews de novo.
5. Costs.
American Rule generally prohibits attorney fees from being awarded to the prevailing party.
6. Damages.
When a defendant's conduct causes litigation between the plaintiff and a third party, attorney fees may be recoverable as
damages caused by that conduct.
7. Arbitration.
Arbitrator did not demonstrate manifest abuse of discretion by holding school district, which had breached contract with
contractor, liable for attorney fees that contractor was required to pay to subcontractor. Contractor's breach of contract with
subcontractor was a direct result of school district's breach of contract with contractor, contract between school district and contractor
granted arbitrator authority to levy just and equitable damages, and it was foreseeable that school district's breach would cause
contractor to breach its contract with subcontractor.
8. Damages.
In order to award consequential damages, the damages claimed for the breach of contract must be foreseeable.
OPINION
Per Curiam:
In this case, Clark County School District (CCSD) breached its contract with
general contractor Richardson Construction Company (Richardson), thereby causing
Richardson to breach its contract with subcontractor Rolling Plains Construction, Inc.
(Rolling Plains). In subsequent arbitration proceedings involving all of these parties, the
arbitrator awarded Rolling Plains its attorney fees as consequential damages for Richardson's
breach of contract. The arbitrator also found that CCSD was responsible for the fees
expended by Richardson in connection with Rolling Plains' arbitration claims and other
damages. The issues presented here are whether CCSD can be held responsible for these
attorney fees because: (1) it was foreseeable that CCSD's breach would result in Richardson's
breach of its contract with Rolling Plains, and (2) attorney fees are a valid form of
consequential damages. We conclude that the arbitrator's decision was not a manifest abuse
of discretion, and so affirm the district court's order confirming the arbitration award.
FACTS
Clark County School District entered into a contract with Richardson Construction
Company whereby Richardson was to perform services as a general contractor for specific
retrofit and reconstruction work to Basic High School.
perform services as a general contractor for specific retrofit and reconstruction work to Basic
High School. Richardson then subcontracted with Rolling Plains Construction to perform the
fireproofing improvements at the school.
A controversy between the parties arose when CCSD refused to pay for additional
work it ordered Richardson to provide, including certain fireproofing performed by Rolling
Plains. Rolling Plains had already completed the work for Richardson, but reserved its right
to claim additional compensation associated with the performance of work outside the scope
of its subcontract. When the payment issue went unresolved, Rolling Plains commenced
proceedings against Richardson with the American Arbitration Association (AAA), as was
required in the contract as a prerequisite to litigation.
The arbitration demand by Rolling Plains included an attempt to enforce a subcontract
agreement which stated that the prevailing party in any dispute between Richardson-Rolling
Plains would be awarded all reasonable attorney fees, costs and expenses incurred in
enforcing or attempting to enforce any of said subcontract's provisions. Richardson then
joined CCSD as a party in the arbitration under the provisions of the CCSD-Richardson
contract.
Following the arbitration hearing, the arbitrator issued an award, opinion, and order
concluding that CCSD breached its agreement with Richardson, which in turn caused
Richardson to breach its agreement with Rolling Plains. As a result of the determination, the
arbitrator held that Rolling Plains' damage award of $168,142.09 against Richardson, which
included attorney fees, was to be paid in part by CCSD since CCSD was found to be the
cause of Richardson's breach with Rolling Plains.
1

The district court confirmed the award and this appeal followed.
DISCUSSION
In Nevada, both [c]ommon law grounds and statutory grounds exist for the review of
arbitration decisions. Graber v. Comstock Bank, 111 Nev. 1421, 1426, 905 P.2d 1112, 1115
(1995). As to statutory law, an arbitration decision can be reviewed and vacated, pursuant to
NRS 38.145, for a variety of reasons, including instances in which the arbitrator has exceeded
his power or shown a propensity for misconduct.
__________

1
Rolling Plains' damage award against Richardson was $168,142. However, the arbitrator only required
CCSD to pay $96,327 of the amount due to an agreed credit owed to CCSD by Richardson for work deleted
from Richardson's contract.
[Headnote 1]
Under common law grounds, we have held that an arbitration award may be reviewed
in order to determine whether the arbitrator's decision represents a manifest disregard of the
law. See Graber v. Comstock Bank, 111 Nev. at 1426, 905 P.2d at 1115. This court has
defined the manifest disregard standard as error that is obvious and capable of being
readily and instantly perceived by the average person qualified to serve as an arbitrator.
Graber, 111 Nev. at 1426, 905 P.2d at 1115 (quoting Williams v. Cigna Financial Advisors
Inc., 197 F.3d 752, 762 n.2 (5th Cir. 1995)) (citation omitted). Or, in other words, it is a
decision that is arbitrary, capricious, or unsupported by the agreement. Wichinsky v. Mosa,
109 Nev. 84, 89, 847 P.2d 727, 731 (1993) (citing Exber, Inc. v. Sletten Constr. Co., 92 Nev.
721, 731, 558 P.2d 517, 523 (1976)).
[Headnotes 24]
However, it should be noted that [r]eview under the manifest disregard standard does
not entail plenary judicial review. Graber, 111 Nev. at 1428, 905 P.2d at 1116 (citing City of
Boulder v. General Sales Drivers, 101 Nev. 117, 694 P.2d 498 (1985)). To the contrary, the
standard should direct courts to focus only on arbitration awards which imply that the
arbitrator was aware of clearly governing legal principles but decide[d] to ignore or pay no
attention to those principles.
2
Id. (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Bobker, 808 F.2d 930, 933 (2d Cir. 1986)). Thus, courts are not at liberty to set aside
arbitration awards because of an arguable difference regarding the meaning or applicability of
laws. Id. A district court's application of the manifest disregard standard is a legal
determination that we review de novo. Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 28
(2d. Cir. 2000).
In this instance, CCSD contends that the arbitrator's decision to hold CCSD partially
responsible for Rolling Plains' attorney fees award from Richardson was a manifest disregard
of the law, and thus, should be set aside. Specifically, CCSD argues that Nevada recognizes
the American Rule which prohibits attorney fees from being awarded to the prevailing
party absent an agreement, statute, or rule to the contrary. Because the CCSD-Richardson
agreement did not contain a fee-shifting provision, CCSD contends that there is no basis for
ordering CCSD to pay part of the award. Further, CCSD points to NRS 38.125 and AAA
Rule 43
__________

2
This court has defined clearly governing legal principles to include tenets that are well-defined, explicit,
and clearly applicable. Id. (citing Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d at 934).
Rule 43 as legal support for the award being prohibited absent an agreement between the
parties.
3

[Headnotes 5, 6]
Although CCSD is correct in stating that the American Rule generally prohibits
attorney fees from being awarded to the prevailing party, see Von Ehrensmann v. Lee, 98
Nev. 335, 647 P.2d 377 (1982), we do not agree that the rule applies in this context. To the
contrary, we have held that [i]t is appropriate in some cases to consider attorney fees as an
item of damage. American Fed. Musicians v. Reno's Riverside, 86 Nev. 695, 699, 475 P.2d
220, 222 (1970) (citing McIntosh v. Knox, 40 Nev. 403, 413, 165 P. 337, 338-39 (1917)).
More specifically, we have determined that when a defendant's conduct causes litigation
between the plaintiff and a third party, attorney fees may be recoverable as damages caused
by that conduct. See Lowden Investment Co. v. General Electric, 103 Nev. 374, 380, 741 P.2d
806, 809 (1987).
[Headnote 7]
In this instance, we conclude that the arbitrator did not demonstrate a manifest
disregard for the law. Specifically, the award of attorney fees as consequential damages did
not reach beyond the scope of the CCSD-Richardson agreement. Although the
CCSD-Richardson contract clearly prohibited any fee-shifting, the agreement only
contemplated an ordinary fee award.
4
By failing to delineate whether attorney fees could be
awarded as a measure of damages, we conclude that the parties left open the possibility that
attorney fees could be included as consequential damages. It is on this basis that we conclude
that the arbitrator's decision was appropriate under the circumstances.
Initially, we conclude that it is evident from the record that the arbitrator had
sufficient authority to render the consequential damage award. Specifically, the
CCSD-Richardson contract stated that the arbitration was to be conducted under AAA rules.
AAA Rule 43 provides that the arbitrator may grant any remedy or relief, including equitable
relief, that the arbitrator deems just and equitable and within the scope of the agreement of
the parties. By contracting to allow the arbitrator's ruling to include AAA Rule 43, we
conclude that CCSD explicitly granted the arbitrator
__________

3
NRS 38.125 states that: Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses
and fees, together with other expenses, not including counsel fees . . . shall be paid as provided in the award.
(Emphasis added.) AAA Rule 43 states that [t]he arbitrator may grant any remedy or relief, including equitable
relief, that the arbitrator deems just and equitable and within the scope of the agreement of the parties.
(Emphasis added.)

4
As a result, the arbitrator correctly denied Richardson an ordinary fee award despite the fact that it was the
prevailing party as between itself and CCSD at the arbitration.
authority to levy just and equitable damages. Thus, we conclude that the award was within
the scope of the CCSD-Richardson contract.
[Headnote 8]
Further, we conclude that the award of consequential damages was an appropriate
remedy. In order to award consequential damages, the damages claimed for the breach of
contract must be foreseeable. See Barnes v. W. U. Tel. Co., 27 Nev. 438 (1904). Under the
watershed case, Hadley v. Baxendale, 156 Eng. Rep. 145, 151 (1854), foreseeability requires
that: (1) damages for loss must fairly and reasonably be considered [as] arising naturally . . .
from such breach of contract itself, and (2) the loss must be such as may reasonably be
supposed to have been in the contemplation of both parties, at the time they made the contract
as the probable result of the breach of it.
In this instance, it was foreseeable at the commencement of the CCSD-Richardson
agreement that general contractor Richardson would subcontract with third parties to assist in
performing the work on the school. Further, it was foreseeable that those third-party contracts
would include fee-shifting provisions. Thus, we conclude that the loss was reasonably within
the contemplation of both parties, at the time they made the contract. See Hadley, 156 Eng.
Rep. at 151.
Thus, once CCSD breached its contract with Richardson, it was foreseeable that its
nonadherence to the agreement would begin a chain reaction of sortscausing Richardson to
breach its contract with its subcontractors, including Rolling Plains. Thus, we conclude that
Rolling Plains' damages arose naturally from CCSD's breach of contract with Richardson and
that the breach was a foreseeable result of CCSD's actions.
CCSD contends that because it entered the Richardson contract prior to the
Richardson-Rolling Plains agreement, it had no way of knowing of possible fee-shifting
agreements down the line. However, we conclude that this argument lacks merit. We see no
reason why CCSD could not have protected itself from foreseeable damages caused by its
own breach by bargaining for or obtaining a waiver or limitation of liability on consequential
damages. Because these protective measures were ignored, we conclude that it was not
incumbent upon Richardson to protect CCSD in the contracts Richardson entered into with its
subcontractors.
CONCLUSION
We conclude that the arbitrator's decision was not a manifest abuse of discretion.
Specifically, Nevada caselaw provides that attorney fees are an allowable form of damages
under the facts of this case;
this case; the arbitrator had authority to award those damages pursuant to the
CCSD-Richardson agreement; and the consequences of CCSD's breach of contract were
foreseeable under the circumstances. Accordingly, we affirm the order of the district court
confirming the arbitrator's award.
____________
117 Nev. 107, 107 (2001) Lubin v. Kunin
TAMAR LUBIN, Appellant, v. ISRAEL L. KUNIN, DIANA L. MOSS, JAY MOSS, JEFF
STROMBERG, DR. NEVILLE POKROY, ESTHER POKROY, and RONALD
WINER, Jointly and Severally, Respondents.
No. 32621
February 16, 2001 17 P.3d 422
Appeal from a district court order granting respondents' motion to dismiss a libel
action. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Director of private school brought defamation action against parents who distributed
handout which described child abuse lawsuit filed against director. The district court
dismissed action, and director appealed. The supreme court held that whether statements in
handout constituted fact or opinion and whether statements were defamatory was for jury.
Killeen & Associates, P.C., and Layne F. Barney, Las Vegas, for Appellant.
Law Office of V. Andrew Cass and Michael R. Hall, Las Vegas, for Respondent Jeff
Stromberg.
Lionel Sawyer & Collins and Mark A. Solomon and Kevin D. Doty, Las Vegas, for
Respondents.
To create liability for defamation, there must be: false and defamatory statement concerning another, unprivileged publication to
third party, fault amounting at least to negligence on the part of publisher, and either actionability of statement irrespective of special
harm or existence of special harm caused by publication.
Statement is defamatory when it would tend to lower subject in estimation of the community, excite derogatory opinions about
subject, and hold subject up to contempt.
In reviewing allegedly defamatory statement, words must be reviewed in their entirety and in context to determine whether they
are susceptible of defamatory meaning.
117 Nev. 107, 108 (2001) Lubin v. Kunin
Whether statement is defamatory is generally question of law. However, where statement is susceptible of different
constructions, one of which is defamatory, resolution of the ambiguity is question of fact for jury.
Handout which was distributed by parents and described child abuse lawsuit filed against director of private school and which
stated that This is not a frivolous law suit . . . These parents never envisioned that anything of this nature could . . . happen to their
child. IT DID! contained mixed type statements and was susceptible of two different interpretations, and thus, whether statements in
handout constituted fact or opinion and whether they were defamatory was for jury in defamation action brought against parents by
director.
Statements of opinion are protected speech under First Amendment and are not actionable at law. U.S. Const. amend. 1.
Test for whether statement constitutes fact or opinion, for purposes of defamation law, is whether reasonable person would be
likely to understand remark as expression of the source's opinion or as statement of existing fact.
So long as it is based on true and public information, evaluative opinion conveys publisher's judgment as to quality of another's
behavior, and as such, it is not a statement of fact for defamation purposes.
In certain contexts, the statement may be ambiguous or a mixed type, which is opinion, which gives rise to inference that the
source has based opinion on underlying, undisclosed defamatory facts.
Statement that is capable of defamatory construction is not actionable if communication is privileged.
Privileges are defenses to defamation claim, and therefore, defendant has initial burden of properly alleging privilege and then of
proving allegations at trial.
Fair report privilege was inapplicable to defamation action brought by director of a private school against parents who
distributed handout which described child abuse lawsuit filed against director and which stated that This is not a frivolous law suit . . .
These parents never envisioned that anything of this nature could . . . happen to their child. IT DID! Parents arguably went beyond
fair, accurate, and impartial reporting of child abuse complaint by presenting one-sided view of action.
Common interest privilege is conditional and 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.
Whether common interest privilege applies in defamation action is question of law for court.
117 Nev. 107, 109 (2001) Lubin v. Kunin
15. Pretrial Procedure.
Fair report and common interest privileges raised by defendants in defamation action were defenses that should not have been
considered on defendants' motion to dismiss for failure to state claim. NRCP 12(b)(5).
Before Maupin, C. J., Rose and Becker, JJ.
OPINION
Per Curiam:
SUMMARY
This case presents a defamation issue. A group of concerned parents, whose children
attended a private school, allegedly defamed the school's director by distributing a handout
that republished excerpts from a judicial complaint and commented upon the validity of the
lawsuit. The district court dismissed the director's defamation action pursuant to NRCP
12(b)(5), finding that the handout was not defamatory as a matter of law. The director filed
this timely appeal arguing that the statements in question were defamatory. We agree that the
statements could be construed as defamatory and therefore conclude that the district court
erred in dismissing this matter. Accordingly, we reverse the order of the district court and
remand this matter for further proceedings.
STATEMENT OF THE FACTS
Appellant Dr. Tamar Lubin was the director of the Hebrew Academy, a private school
in Las Vegas, Nevada. On February 27, 1998, Lubin filed a complaint for defamation and
libel against Israel L. Kunin, Diana L. Moss, Jay Moss, Jeff Stromberg, Dr. Neville Pokroy,
Esther Pokroy, and Ronald Winer, alleged members of a group called the Coalition of
Parents (hereinafter collectively Parents). According to the Parents' handouts, the group
was comprised of parents, teachers and citizens concerned with the education, safety and
care of [the] children in the Hebrew Academy. The Parents believed that Lubin's
mismanagement of the school contributed to the following: (1) high turnover of teachers; (2)
failure to institute promised foreign language and fine arts classes; (3) an inadequate library
system; (4) a less-than-nurturing environment; and (5) denial of parental input in school
matters.
In the spring of 1996, the Parents allegedly defamed Lubin when they distributed
various letters and handouts to parents, local newspapers, and public officials regarding Lubin
and the problems at the Hebrew Academy. The handout at issue in this appeal described an
April 1996 lawsuit filed against Lubin, the Hebrew Academy Board of Trustees,
117 Nev. 107, 110 (2001) Lubin v. Kunin
Hebrew Academy Board of Trustees, and the Northwest Association of Schools and Colleges,
which alleged child abuse, assault, battery, negligence, and other causes of action. The
handout included the following paragraph:
This is not a frivolous law suit there is an abundance of evidence as well as
eye-witnesses. These parents never envisioned that anything of this nature could or
would happen to their child. IT DID! It is time to protect our children.
(Emphasis in original.) Notably, the left-hand corner of the handout indicated that the
handout was from Rachael Schwartz to Holly Buchanan. According to the Parents' motion to
dismiss, Holly Buchanan is an employee of the Nevada Department of Education who was
investigating the Hebrew Academy. Apparently, the handout was distributed prior to a June
1996 meeting of the Nevada Department of Education regarding the licensure and
accreditation of the Hebrew Academy.
Lubin filed an action against the Parents alleging that the Parents' statements were
false and defamatory and that, as a result, she was damaged in her profession. In response to
Lubin's complaint alleging libel, the Parents filed a motion to dismiss under NRCP 12(b)(5),
arguing that Lubin's complaint failed to state a claim upon which relief could be granted and
that the statements made were merely nonactionable opinion or were protected by various
privileges.
Following a hearing, the district court granted the Parents' motion to dismiss without
prejudice, finding that Lubin has failed to state a claim upon which relief can be granted
because she failed to allege a false and defamatory statement of fact by the Parents
concerning Lubin. Lubin then filed this timely appeal.
DISCUSSION
[Headnote 1]
Lubin contends that the district court erred in granting the Parents' motion to dismiss.
Particularly, Lubin argues that her complaint alleged, inter alia, that the Parents had published
a false and defamatory statement concerning her, and thus, because the district court should
have accepted her allegations as true for purposes of the motion to dismiss, dismissal under
NRCP 12(b)(5) was improper.
1
After reviewing this matter under the rigorous standard of
review for dismissal under NRCP 12{b){5),
__________

1
Our standard for review of an order granting a motion to dismiss is well recognized. This court will construe
the pleadings liberally and draw every reasonable inference in favor of the non-moving party. See Vacation
Village v. Hitachi America, 110 Nev. 481, 484, 874 P.2d 744, 746 (1994). Additionally, in our review of an
order granting a motion to dismiss, we will accept all factual recitations in the complaint as true. See id. A
motion to dismiss should not be granted unless it appears beyond a doubt that the plaintiff could not prove a set
of facts that would entitle her to relief. See id.
117 Nev. 107, 111 (2001) Lubin v. Kunin
standard of review for dismissal under NRCP 12(b)(5), we conclude that the district court
erred in granting the Parents' motion to dismiss because the statements in question were
capable of a defamatory construction.
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm, or the
existence of special harm caused by the publication.
PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 619, 895 P.2d 1269, 1272 (1995) (quoting the
Restatement (Second) of Torts: Elements Stated 558 (1977)), modified on other grounds by
Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 650, 940 P.2d 134, 138 (1997).
Because the district court granted the Parents' motion to dismiss upon finding that
Lubin failed to allege a false and defamatory statement of fact, we need only analyze the first
element of defamation.
I. A false and defamatory statement
[Headnotes 24]
A statement is defamatory when 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. K-Mart Corporation v. Washington, 109 Nev. 1180, 1191, 866 P.2d 274, 281-82
(1993) (citing Las Vegas Sun v. Franklin, 74 Nev. 282, 287, 329 P.2d 867, 869 (1958)).
2
In
reviewing an allegedly defamatory statement, [t]he words must be reviewed in their entirety
and in context to determine whether they are susceptible of a defamatory meaning.
Chowdhry v. NLVH, Inc., 109 Nev. 478, 484, 851 P.2d 459, 463 (1993). Whether a statement
is defamatory is generally a question of law; however, where a statement is susceptible of
different constructions, one of which is defamatory, resolution of the ambiguity is a question
of fact for the jury.' Posadas v. City of Reno, 109 Nev. 448, 453
__________

2
Regarding the falsity of the statements in question, Lubin also alleged in her complaint that the Parents'
statements were false. The allegation is sufficient to overcome the NRCP 12(b)(5) motion with respect to this
element. Furthermore, the jury generally determines whether the statements are false. See Nevada Ind.
Broadcasting v. Allen, 99 Nev. 404, 413, 664 P.2d 337, 343 (1983).
117 Nev. 107, 112 (2001) Lubin v. Kunin
851 P.2d 438, 442 (1993) (quoting Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223,
1225-26 (1981)).
In Posadas, we held that the defamatory nature of a statement that a police officer
lied under oath was a question for the trier of fact because the statement was susceptible of
different constructions, one of which was truethat the officer admitted under oath that he
had lied to police officersand another of which was defamatorythat when the officer lied
he committed perjury, as he was under oath. 109 Nev. at 452-53, 851 P.2d at 442.
[Headnotes 5, 6]
Like the statement in Posadas, the Parents' inclusion of the phrase IT DID! in the
handout is susceptible of two interpretations: (1) that the child abuse did happen; or (2) that
the lawsuit alleging child abuse was filed. Regarding the first possible interpretation, we
conclude that it is defamatory because such a statement would clearly lower Lubin in the
estimation of the community and excite derogatory and contemptuous opinions against her.
This is especially true considering the fact that Lubin is a professional in the field of child
education. Regarding the latter interpretation, the district court correctly found that merely
publishing the fact that a lawsuit alleging child abuse was filed would not be actionable. We
conclude, however, that whether the IT DID! language is defamatory is ultimately an issue
for the trier of fact because this language is susceptible of two different interpretations, one of
which is capable of defamatory construction.
II. Statement of fact or opinion
The Parents next argue that the statement was an evaluative opinion, rather than a
defamatory statement of fact, because it merely expressed the Parents' opinion that the
underlying lawsuit was not frivolous.
[Headnotes 7, 8]
Statements of opinion are protected speech under the First Amendment of the United
States Constitution and are not actionable at law. See Nevada Ind. Broadcasting, 99 Nev. at
410, 664 P.2d at 341-42. 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. Id. at 410, 664 P.2d at 342. So long as
it is based on true and public information, an evaluative opinion conveys the publisher's
judgment as to the quality of another's behavior and, as such, it is not a statement of fact.
Berosini, 111 Nev. at 624, 895 P.2d at 1275.
117 Nev. 107, 113 (2001) Lubin v. Kunin
[Headnote 9]
In certain contexts, however, a statement may be ambiguous or a mixed type, which
is an opinion, which gives rise to the inference that the source has based the opinion on
underlying, undisclosed defamatory facts. Nevada Ind. Broadcasting, 99 Nev. at 411, 664
P.2d at 342. In Nevada Independent Broadcasting, we offered an example illustrated by the
Restatement (Second) of Torts: Expressions of Opinion Section 566 comment b (1977): it
may be actionable to state an opinion that plaintiff is a thief, if the statement is made in such a
way as to imply the existence of information which would prove plaintiff to be a thief. In
such situations, where a statement is ambiguous, the question of whether it is a fact or
evaluative opinion is left to the jury. Id. at 411, 664 P.2d at 342.
Here, the Parents' statements are more akin to the mixed-type statement discussed in
Nevada Independent Broadcasting. The Parents stated in their handout that the lawsuit was
not frivolous and was supported by abundant evidence. It is thus arguable that the Parents
were implying by their statements the existence of factual information rather than opinion that
would prove the allegations against Lubin.
Our conclusion on this issue is further supported by our holding in Miller v. Jones,
114 Nev. 1291, 970 P.2d 571 (1998). In Miller, we held that a campaign flier that included
excerpts of a newspaper article, along with the statement that [a] police detective accuses
Miller of giving false information in a report concerning cocaine found in a car Miller was
driving was susceptible of defamatory construction. Id. at 1296-98, 970 P.2d at 575-76. In so
holding, this court stated that:
The effect of the reproductions of newspaper reports in the flier is to lend the contents
of the flier an air of accuracy; the reports seem designed to indicate to the reader that
points made by the flier are not merely [the publisher's] opinion, they are independently
reported and verified facts.
Id. at 1297, 970 P.2d at 575. Like the inclusion of the newspaper reports in Miller, the
inclusion of a reference to the court pleading indicating that Lubin was being sued for child
abuse lent an air of accuracy to the Parents' later statement that this child abuse DID!
happen.
Accordingly, we conclude that the Parents' handout contains mixed-type statements.
Thus, the question of whether these statements constitute fact or opinion is one for the jury.
Because we conclude that the Parents' statements regarding the validity of the lawsuit
against Lubin are susceptible of defamatory construction, and because we conclude that the
statements may constitute an opinion which implies that it is supported by undisclosed
facts,
117 Nev. 107, 114 (2001) Lubin v. Kunin
constitute an opinion which implies that it is supported by undisclosed facts, we hold that the
district court erred in finding, as a matter of law, that the statements were not false and
defamatory. Therefore, the district court erred in granting the Parents' NRCP 12(b)(5) motion
and dismissing Lubin's claim.
3

III. Privileges
[Headnotes 10, 11]
Finally, the Parents argue that the fair report and common interest privileges protect
their statements. A statement that is capable of defamatory construction is not actionable if
the communication is privileged. We observe, however, that privileges are defenses to a
defamation claim and, therefore, the defendant has the initial burden of properly alleging the
privilege and then of proving the allegations at trial. See Simpson v. Mars Inc., 113 Nev. 188,
191, 929 P.2d 966, 968 (1997) (recognizing that the privileges raised were defenses, not part
of the prima facie case); see generally Restatement (Second) of Torts: Defenses to Actions
for Defamation Ch. 25 and Burden of Proof 613 (1977). Nevertheless, we shall consider
two privileges raised in order to guide the court below.
A. Fair report privilege
The Parents contend that they are absolutely immune from liability because their
statements refer to other judicial proceedings then in progress. We recently recognized that
the fair, accurate, and impartial reporting of judicial proceedings is privileged and
nonactionable, thus affirming the policy that Nevada citizens have a right to know what
transpires in public and official legal proceedings. See Sahara Gaming v. Culinary Workers,
115 Nev. 212, 215, 984 P.2d 164, 166 (1999). Invocation of the privilege thus requires the
district court to determine whether the Parents' statements were fair, accurate, and impartial.
See Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1435 (9th Cir. 1992) (citing California
law for the proposition that the question of whether a magazine's account is a fair and true
report is one of law, so long as "there is no dispute as to what occurred in the judicial
proceeding reported upon or as to what was contained in the report").
__________

3
Addressing the fault element of the prima facie showing of defamation, respondent Jeff Stromberg argues
without merit that Lubin is a public figure and as such that Lubin must show, by clear and convincing evidence,
that the Parents acted with actual malice. This issue was not, however, raised below, and we need not consider it
on appeal. See Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1378 951 P.2d 73, 74 (1997) (It is well
established that arguments raised for the first time on appeal need not be considered by this court.). In any
event, Lubin is not required to establish anything by any degree of evidence to overcome the motion to dismiss
under NRCP 12(b)(5); rather, she is simply required to properly allege a prima facie case of defamation.
117 Nev. 107, 115 (2001) Lubin v. Kunin
long as there is no dispute as to what occurred in the judicial proceeding reported upon or as
to what was contained in the report).
[Headnote 12]
After reviewing the handout in question, we observe that the Parents arguably went
beyond fair, accurate, and impartial reporting of the child abuse complaint by presenting a
one-sided view of the action. While Sahara Gaming allows a party to report preliminary
judicial proceedings from a fair and neutral stance, a party may not don itself with the judge's
mantle, crack the gavel, and publish a verdict through its fair report. See Sahara Gaming,
115 Nev. at 215, 984 P.2d at 166 (Opinions must be left to the editorial pages or editorial
segments of television broadcasts.). Accordingly, the fair report privilege may be determined
to be inapplicable here. Cf. Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262,
271-72 (7th Cir. 1983) (holding that the fair report privilege does not apply to a reporter's
summary of a government report where the summary unfairly portrayed the gist of the report
in a way that a jury could conclude that the summary carried a greater sting and was
therefore unfair); Street v. National Broadcasting Co., 645 F.2d 1227, 1233 (6th Cir. 1981)
(concluding that a movie purporting to quote and paraphrase a trial is not fair and accurate
where [t]he element of balance and neutrality is missing).
B. Common interest privilege
[Headnotes 13, 14]
The Parents also assert that their statements are protected by the common interest
privilege. The common interest privilege is conditional and 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. Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 62, 657
P.2d 101, 105 (1983); see also Bank of America Nevada v. Bourdeau, 115 Nev. 263, 266-67,
982 P.2d 474, 476 (1999). Whether the common interest privilege applies is a question of law
for the court. See Circus Circus Hotels, 99 Nev. at 62, 657 P.2d at 105. At the NRCP 12(b)(5)
stage, however, the Parents have not alleged the privilege by answer, let alone established
facts to show that the privilege applies. If the district court determines that the privilege is
applicable, the action for defamation will be presented to the jury only if there is sufficient
evidence for the jury reasonably to infer that the publication was made with malice in fact.
Id.
117 Nev. 107, 116 (2001) Lubin v. Kunin
CONCLUSION
[Headnote 15]
We conclude that the Parents' statements regarding Lubin are capable of a defamatory
construction and might not be an evaluative opinion. Consequently, an issue of fact exists as
to whether the statements actually constitute defamation. Therefore, the district court erred in
dismissing Lubin's complaint under NRCP 12(b)(5). Furthermore, the privileges raised by the
Parents are defenses that should not be considered on an NRCP 12(b)(5) challenge but may or
may not be applicable to the case when properly raised and fully presented to the district
court. Accordingly, we reverse the district court's order and remand this matter for further
proceedings.
____________
117 Nev. 116, 116 (2001) Jackson v. State
HARRY ANTHONY JACKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35132
February 16, 2001 17 P.3d 998
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
burglary and robbery. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Defendant was convicted in the district court of burglary and robbery. Defendant
appealed. The supreme court held that: (1) change of appearance instruction was warranted,
and (2) evidence was sufficient to support convictions.
Affirmed.
Morgan D. Harris, Public Defender, and Kedric A. Bassett and Lori C. Teicher,
Deputy Public Defenders, Clark County, for Appellant.
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
District court has broad discretion to settle jury instructions and decide evidentiary issues.
2. Criminal Law.
Supreme court will review a district court's decision to give a particular instruction for an abuse of discretion or judicial error.
3. Criminal Law.
Abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason.
4. Criminal Law.
Flight instructions are valid only if there is evidence sufficient to support a chain of unbroken inferences from the defendant's
behavior to the defendant's guilt of the crime charged.
5. Criminal Law.
Change of appearance instruction was warranted in prosecution for burglary and robbery, based on evidence that defendant
shaved off his facial hair between robbery and his participation in lineup and rearranged his hair while being transported to lineup,
despite defendant's contention that he did not know he was being taken to lineup at time he rearranged his hair. Defendant, not police,
requested the lineup at issue, regular lineup procedure was to notify defendants of physical lineups, and reasonable juror could have
concluded that defendant attempted to alter his appearance because he was aware that he was being taken to lineup.
6. Criminal Law.
Fact that defendant's attempt to change his appearance from that he had at time of robbery was made several months after
robbery, while he was on his way to a lineup, did not preclude giving of change of appearance instruction at trial, despite defendant's
contention that his change of appearance could not be said to evidence consciousness of guilt because of length of time between
robbery and lineup. Defendant changed his appearance after he was accused of crime and taken to lineup where he hoped not to be
identified as perpetrator, and instruction itself implicitly contemplated application to changes of appearance before in-person
identifications.
7. Burglary; Robbery.
Evidence was sufficient to support defendant's convictions of burglary and robbery. Victim testified and identified defendant,
surveillance video showed perpetrator carrying orange-handled scissors, defendant was carrying orange-handled scissors at time of his
arrest, defendant was arrested only four blocks from scene of robbery, victim's failure to identify defendant at lineup was attributable to
defendant's deliberate attempt to change his appearance immediately prior to lineup, victim was able to identify defendant from photo
lineup, at preliminary hearing, and at trial, and jury viewed entire incident on surveillance video.
8. Robbery.
Fact that robbery defendant had only nine cents on his person at time of his arrest did not render evidence insufficient to support
his conviction, where defendant was arrested approximately two months after robbery. Jury could reasonably have inferred that
defendant had spent proceeds of robbery or deposited them in the bank.
Before Young, Rose and Becker, JJ.
OPINION
Per Curiam:
Appellant Harry Anthony Jackson (Jackson) was convicted by a jury for the August
15, 1998, robbery of a Las Vegas area 7-Eleven convenience store. Jackson appeals, arguing
the following: (1) the trial court improperly instructed the jury regarding Jackson's
intentional change of his appearance before a physical line-up;
Jackson's intentional change of his appearance before a physical line-up; and (2) insufficient
evidence supported the jury's verdict.
For the reasons discussed herein, we conclude that the district court did not abuse its
discretion in submitting the change of appearance instruction to the jury. We further conclude
that the jury had sufficient evidence to support its finding of Jackson's guilt.
FACTS
William Perry (Perry) was a 7-Eleven convenience store clerk working the
graveyard shift (11 p.m. to 7 a.m.) on the morning of August 15, 1998. At approximately 5:15
a.m., Jackson entered the store and asked Perry to exchange ten pennies for two nickels.
When Perry obliged Jackson's request, Jackson reached across the counter, placed his hands
in the register, and attempted to prevent Perry from closing the register. A struggle between
the two men ensued. Jackson pulled the register onto the floor, took the paper bills from the
register, and fled the store on
foot.
Several officers from the Las Vegas Metropolitan Police Department (LVMPD)
responded to Perry's activation of the store alarm and his 911 call. Officer Timothy Purney
was the first officer to respond to the 7-Eleven and was responsible for taking Perry's
statement.
Perry described the person who robbed him as a black male, with a goatee and a
beard, approximately five feet ten inches in height and having a medium build. Perry also
indicated in his statement what the individual was wearing and that he had an orange-handled
pair of scissors protruding from his pocket.
Officer Purney also reviewed a video surveillance tape of the scene and broadcast a
description of the suspect over his radio. Officer Purney then received a call from another
patrol unit that had stopped someone matching the description a few blocks away. Officer
Purney transported Perry to identify that individual. Perry informed the officers that the
individual was not the person who had robbed him.
On August 18, 1998, Officer Hector Sandoval and his partner, Officer Doreen Walton,
stopped a pedestrian matching the physical description of the robber four blocks from the
7-Eleven. Police identified the individual as Jackson. Officer Sandoval testified that as part of
the stop, he conducted a weapons pat-down search of Jackson's person where he located a
knife and a pair of orange-handled scissors. The officers took two Polaroid pictures of
Jackson, confiscated the knife and the scissors, and released him. The officers then forwarded
the pictures along with a memo indicating that the photos matched the physical description of
the robbery suspect to Detective Keith Blasko,
bery suspect to Detective Keith Blasko, who had been assigned to the case.
Detective Blasko compared still photos from the video surveillance camera to the
Polaroids taken by Officers Sandoval and Walton. On August 25, 1998, Detective Blasko
arranged a photo line-up using the Polaroids of Jackson and five other similar-looking
individuals and presented them to Perry at his work. Detective Blasko testified that Perry was
able to identify Jackson as the perpetrator from the photos without hesitation.
On October 5, 1998, Detective Blasko arranged a physical lineup at Jackson's request.
Detective Blasko testified that when Jackson appeared for the physical line-up, he had no
facial hair, unlike during his photo line-up. Detective Blasko further testified that he was
reluctant to continue with the physical line-up because all the other individuals chosen to
participate in the line-up had facial hair. Nevertheless, the line-up was conducted. Perry was
unable to identify Jackson as the individual who had robbed him.
Officer David Summers testified that he was responsible for transporting Jackson
from his cell to the physical line-up. Officer Summers further testified that while he was
transporting Jackson to the line-up, Jackson began pulling his hair in a real vigorous way
making his hairstyle go from curly and compressed to sticking straight up. Officer
Summers also testified that he found Jackson's behavior very peculiar and he therefore
reported the behavior to his superior and wrote about it in his report.
Perry testified that he was unable to identify Jackson at the physical line-up because
his appearance was different. Perry testified that Jackson appeared taller because his hair was
combed straight up. Perry made an in-court identification of Jackson at both the preliminary
hearing and at trial.
Mark Washington, a crime scene analyst, testified that he was called to the scene of
the robbery on the morning of August 15, 1998, to dust for fingerprints. Washington testified
that he was unable to retrieve any fingerprints matching Jackson's. Washington further
testified that it was not unusual that he was unable to retrieve any fingerprints from the
7-Eleven counter or cash register because their surfaces were not conducive to obtaining
prints.
On August 17, 1999, the jury returned a verdict of guilty of one count each of burglary
and robbery. The court sentenced Jackson to concurrent terms of 24 to 60 months and 40 to
180 months in prison.
DISCUSSION
Jackson argues that the district court erred in giving a change of appearance
instruction. Jackson further argues that the jury should not have been allowed to infer
Jackson's guilt
should not have been allowed to infer Jackson's guilt from his alleged attempt to change his
appearance immediately prior to a physical line-up because he did not know he was being
taken to the line-up. Jackson also argues that the change of appearance occurred several
months after the actual robbery and therefore is not indicative of a guilty conscience. The
State argues that there was more than enough evidence from which the jury could infer
Jackson's consciousness of guilt. We conclude that Jackson's argument lacks merit.
[Headnotes 13]
The district court has broad discretion to settle jury instructions and decide evidentiary
issues.
1
As such, this court will review a district court's decision to give a particular
instruction for an abuse of discretion or judicial error.
2
An abuse of discretion occurs if the
district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason.
3

In this case, the district court gave the following jury instruction regarding change of
appearance:
INSTRUCTION NO. 17
A Defendant's intentional change of his appearance immediately after the commission
of a crime or after he is accused of a crime that has been committed, is not, of course,
sufficient in itself to establish his guilt, but may be considered by the jury in the light of
all other evidence in the case in determining guilt or innocence.
Whether or not evidence of a change of appearance shows a consciousness of guilt
and the significance to be attached to any evidence, are matters exclusively within the
province of the jury.
The State submitted this instruction at trial, and Jackson made a timely objection.
Both parties rely heavily on United States v. Perkins, 937 F.2d 1397 (9th Cir. 1991).
In Perkins, the United States Court of Appeals for the Ninth Circuit affirmed the conviction
of the defendant bank robber in spite of an erroneous jury instruction concerning change of
appearance. In reaching its decision, the court held:
__________

1
See Greene v. State, 113 Nev. 157, 931 P.2d 54 (1997) receded from on other grounds by Byford v. State,
116 Nev. 215, 994 P.2d 700 (2000).

2
See Howard v. State, 102 Nev. 572, 578, 729 P.2d 1341, 1345 (1986); see also Quillen v. State, 112 Nev.
1369, 1381, 929 P.2d 893, 901 (1996) (stating in dicta that decisions on whether to give or decline proposed
jury instructions reviewed for abuse of discretion).

3
See State, Dep't Mtr. Veh. v. Root, 113 Nev. 942, 947 944 P.2d 784, 787 (1997).
A change of appearance instruction contemplates some independent evidence indicating
that the defendant himself actually changed his appearance. Thus, when a defendant is
known shortly after the commission of a crime to have cut his hair, shaved off facial
hair, or changed his hair color, the jury can consider this as evidence of consciousness
of guilt and consider it in light of the other evidence in deciding whether the defendant
is guilty.
4

[Headnote 4]
Flight instructions are valid only if there is evidence sufficient to support a chain of
unbroken inferences from the defendant's behavior to the defendant's guilt of the crime
charged.
5

[Headnote 5]
Jackson first argues that he was unaware that he was being taken to a physical line-up
and, therefore, consciousness of guilt could not be inferred. We find that this argument lacks
merit.
First, Jackson, not the State, requested the line-up. Furthermore, Detective Blasko
testified that defendants are told when physical line-ups will take place and know in advance
that someone will be looking at their appearance and trying to pick the defendant out of a
group. Finally, we conclude that a reasonable juror could conclude from the evidence that the
defendant was aware that he was being taken to a physical line-up and that is why he
attempted to alter his appearance.
[Headnote 6]
Jackson further argues that the change of appearance instruction was given in error
because the instruction is intended to be given in instances where the individual changes his
or her appearance immediately after the crime. Here, the change of appearance occurred
almost two months later and thus it did not evidence a consciousness of guilt on Jackson's
part. We disagree.
First, the instruction itself contemplates two instances when such an instruction is
appropriate: either immediately after the commission of a crime or after he is accused of a
crime. Here, Jackson changed his appearance after he was accused of the crime, was held to
answer for the crime, and was taken to a lineup where Jackson hoped not to be identified as
the perpetrator of the crime. Furthermore, this is not a case where the defendant changed his
appearance to avoid arrest, but rather Jackson changed his appearance to avoid being
identified.
6

__________

4
Id. at 1403.

5
United States v. Feldman, 788 F.2d 544, 555 (9th Cir. 1986).

6
We caution the district court that jury instructions should be crafted with an eye toward the particular facts
of each case and should not simply be lifted
Second, [a]nother inference available from a change in appearance by someone who
has been called to appear in a lineup is, simply, that the change reflects an awareness of guilt
and fear of identification.
7
We conclude that the instruction implicitly contemplates
application to cases involving changes of appearance before line-ups and in-person
identifications. Therefore, the district court was well within its discretion in submitting the
instruction to the jury.
Finally, Jackson argues that Perkins stands for the proposition that in order to decide
that the defendant changed his appearance, it is necessary to decide that the defendant is in
fact the robber.
8
Viewed in context, the quotation cited by Jackson is relevant to a very
specific factual inquiry present in Perkins, but not present in the case at bar. In Perkins, the
Ninth Circuit concluded that the change of appearance instruction was inappropriate because
the evidence merely provided support for the inference that the bank robber may have been
wearing a disguise, not that defendant changed his appearance.
9

Accordingly, we hold that the district court did not abuse its discretion in giving the
change of appearance instruction.
Jackson next contends that the evidence presented at trial was insufficient to support
the jury's finding of guilt. The State contends that it presented sufficient evidence to support
the jury's verdict. We agree with the State.
The standard of review for sufficiency of the evidence in a criminal case is whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, after viewing the evidence in the light most favorable to the prosecution. A
reviewing court will not disturb a verdict on appeal if it is supported by substantial evidence.
10

__________
from form books, other cases, and the like. Here, the part of the jury instruction referring to the defendant's
attempt to change his appearance immediately after the commission of [the] crime was not relevant to the facts
of this case; and as such, it was superfluous. For the purpose of clarity, and in the aid of judicial economy, we
would caution the district court to carefully tailor future instructions to the unique facts of the case and to avoid
unnecessary language.

7
United States v. McKinley, 485 F.2d 1059, 1061 (D.C. Cir. 1973); see also District of Columbia v. M.M.,
407 A.2d 698, 700 (D.C. 1979) (robbery suspects who switched their jackets while being driven in a police car
to a showup thereby evidencing guilt).

8
Perkins, 937 F.2d at 1403.

9
Id. In Perkins, the court ultimately concluded that the change of appearance instruction was not appropriate,
but that it amounted to harmless error.

10
Domingues v. State, 112 Nev. 683, 693, 917 P.2d 1364, 1371 (1996) (citations omitted); see also
Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937 (1978).
[Headnote 7]
Specifically, Jackson argues the following: (1) Jackson was found with
orange-handled scissors three days after the 7-Eleven robbery, (2) Perry did not identify him
at the physical line-up, (3) Jackson had only nine cents on his person when arrested
approximately two months after the robbery, and (4) Perry's photo identification was weak.
We conclude that Jackson's arguments are without merit.
The jury could reasonably infer from the evidence presented that Jackson was guilty
of the burglary and robbery for which he was convicted. Moreover, it is the jury's function,
not that of the court, to assess the weight of the evidence and determine the credibility of
witnesses.
11

First, implicit within Jackson's argument is that the change of appearance instruction
should not have been given. This argument has been addressed above. We conclude that the
jury could have relied entirely upon Perry's testimony and disregarded the disputed
instruction. Perry testified that he was able to identify Jackson from a photo line-up, at a
preliminary hearing, and at the actual trial. Moreover, the jury viewed the entire incident on a
surveillance video and could judge for themselves whether Jackson was the perpetrator or
not.
Jackson also argues that the orange-handled scissors are insufficient evidence to
warrant a conviction. Standing alone, certainly this evidence would be insufficient; however,
Jackson's argument ignores the other evidence the jury was able to consider, including: (1) the
videotape showing the robber with orange-handled scissors, (2) the close proximity in which
Jackson was stopped and the scissors were confiscated relative to the 7-Eleven that had been
robbed (only four blocks from the 7-Eleven), and (3) Perry's repeated identifications of
Jackson as the perpetrator.
Jackson further argues Perry's inability to identify him at the physical line-up proves
the jury lacked sufficient evidence upon which to convict. Again, Jackson's argument ignores
the fact that Perry did identify him on several occasions. Moreover, the jury could have
reasonably concluded that Perry's inability to identify Jackson at the physical line-up was due
to Jackson's intentional attempt to change his appearance immediately prior to the line-up.
[Headnote 8]
Finally, Jackson argues that he had only nine cents on his person when he was
arrested approximately two months later. This argument is not plausible.
__________

11
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also Lay v. State, 110 Nev. 1189, 1192,
886 P.2d 448, 450 (1994) ([I]t is exclusively within the province of the trier of fact to weigh evidence and pass
on the credibility of witnesses and their testimony.).
argument is not plausible. While Jackson was not arrested with the fruits of the robbery on his
person, the jury nevertheless could have reasonably concluded that he spent the proceeds of
the robbery or had deposited them in the bank.
After a careful review, we conclude that a jury could reasonably infer from the
evidence presented that Jackson was guilty of the offenses for which he was convicted and
those findings will not be disturbed on appeal.
CONCLUSION
For the foregoing reasons, we conclude that the district court did not abuse its
discretion in submitting the change of appearance instruction to the jury. We further conclude
that the jury had sufficient evidence to support its finding of Jackson's guilt. Accordingly, we
affirm Jackson's judgment of conviction.
____________
117 Nev. 124, 124 (2001) Garcia v. State
ARTURO A. GARCIA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34168
February 16, 2001 17 P.3d 994
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
driving and/or being in actual physical control of a vehicle while under the influence of
intoxicating liquor, two counts of leaving the scene of an accident, one count of operating a
motor vehicle without security, and one count of unlawful open container in a motor vehicle.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Defendant foreign national was convicted in the district court of driving and/or being
in actual physical control of vehicle while under influence of intoxicating liquor, leaving
scene of accident, operating motor vehicle without security, and unlawful open container in
motor vehicle. Defendant appealed. The supreme court, Rose, J., held that suppression of
evidence was not available remedy for arresting authorities' failure to inform defendant of his
consular notification rights under Vienna Convention on Consular Relations.
Affirmed.
Morgan D. Harris, Public Defender, and Gary H. Lieberman, Deputy Public
Defender, Clark County, for Appellant.
Attorney, and James Tufteland and Brian S.
Rutledge, Chief Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law; Treaties.
Suppression of evidence was not available remedy for arresting authorities' failure to inform defendant, a foreign national, of his
consular notification rights under Vienna Convention on Consular Relations. Convention revealed no express mention of remedy of
suppression, and there was nothing in text suggesting that purpose for Convention's Article 36, governing consular notification rights,
was to provide rights similar to those guaranteed in Miranda.
2. Criminal Law.
Dismissal is an extreme remedy used only where there has been irreparable prejudice to the defendant's case.
3. Criminal Law.
The determination of whether the Vienna Convention on Consular Relations contemplates suppression of evidence as a remedy
for a violation is a question of law, which supreme court reviews de novo.
4. Criminal Law.
Historically, the application of the exclusionary rule has typically been reserved for those cases involving the violation of
fundamental constitutional rights.
5. Treaties.
The Supremacy Clause does not convert violations of treaty provisions into violations of constitutional rights. U.S. Const. art. 6,
2.
Absent an underlying constitutional right, the exclusionary rule is an inappropriate sanction for a treaty violation unless the
treaty expressly provides for that remedy.
Violations of Vienna Convention on Consular Relations do not warrant evidence suppression or case dismissal. Rather, the only
remedies are diplomatic or political or exist between states under international law.
OPINION
By the Court, Rose, J.:
SUMMARY
This case presents the issue of whether a foreign national who was not informed of his
consular notification rights after being arrested as required by Article 36 of the Vienna
Convention on Consular Relations (Vienna Convention) may suppress his post-arrest
statements. Based on the express provisions of the treaty and the State Department's
interpretation of the treaty, we conclude that an Article 36 violation is not of such
fundamental or constitutional importance that application of the exclusionary rule is
warranted.
FACTS
On July 26, 1998, several witnesses saw Arturo Andrade Garcia (Garcia), a citizen
of Mexico, race his automobile down a North Las Vegas street and crash into another vehicle,
severely injuring its two occupants. After the accident, witnesses saw Garcia and another
Hispanic male crawl from the passenger side of the vehicle and flee. An officer called to the
scene found Garcia walking through a nearby parking lot. In order to confirm his identity as
the missing driver, the officer asked Garcia several preliminary questions to which Garcia
gave inconsistent answers. Garcia was eventually arrested and read his rights under Miranda.
1
A blood sample revealed that he was intoxicated at the time of the accident. While he was
in custody officers conducted two additional interviews with Garcia, during which Garcia
made additional inconsistent and incriminating statements.
The authorities, however, never informed Garcia of his rights as a foreign national or
informed the Mexican consulate of his arrest as required by the Vienna Convention. Based on
this violation, Garcia moved to suppress all the evidence obtained from him, including his
statements and blood samples. The district court denied Garcia's motion and the case
proceeded to trial.
Based in part on the investigating officers' testimony about Garcia's post-arrest
statements, the jury convicted Garcia on multiple charges arising out of the accident.
DISCUSSION
[Headnotes 1, 2]
Garcia contends that the officers violated the Vienna Convention, a treaty signed and
ratified by the United States, by not telling him that he had the right to see and communicate
with a Mexican consular representative upon his being arrested. Further, Garcia claims that
Vienna Convention violations should be treated like Miranda violations requiring
suppression of statements made after the violation.
2

Although there is an initial question as to whether the defendant has standing to
enforce his rights under the Vienna Convention,
__________

1
See Miranda v. Arizona, 384 U.S. 436 (1966).

2
Garcia also suggests that dismissal is an appropriate remedy for a Vienna Convention violation. Dismissal,
however, is an extreme remedy used only where there has been irreparable prejudice to the defendant's case. See
State v. Babayan, 106 Nev. 155, 173, 787 P.2d 805, 818 (1990) ([D]ismissal with prejudice is warranted when
the evidence against a defendant is irrevocably tainted or the defendant's case on the merits is prejudiced to the
extent that notions of due process and fundamental fairness would preclude reindictment.' (quoting United
States v. Lawson, 502 F. Supp. 158, 172 (D. Md. 1980))). In this case, we conclude that there was no irreparable
harm or prejudice to Garcia that would prevent a second prosecution. Accordingly, Garcia's argument lacks
merit.
dant has standing to enforce his rights under the Vienna Convention, we need not address this
issue because we ultimately conclude that even if standing exists, Garcia is not entitled to the
remedy for the treaty violation. See Breard v. Greene, 523 U.S. 371, 376 (1998) (commenting
that the Vienna Convention arguably creates individually enforceable rights); United States
v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (noting that regardless of whether individual rights are
created by the Vienna Convention, an appellant's claims must fail if the requested remedy of
suppression or dismissal is not available for violations).
[Headnote 3]
The determination of whether the Vienna Convention contemplates suppression of
evidence as a remedy for a violation is a question of law, which this court reviews de novo.
See Paige v. State, 116 Nev. 206, 208, 995 P.2d 1020, 1021 (2000) (questions of law are
subject to de novo review); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000) (proper
interpretation of a treaty is a question of law reviewed de novo).
The Vienna Convention is a multilateral treaty negotiated in 1963 to which both
Mexico and the United States are parties. See Vienna Convention, April 24, 1963, 21 U.S.T.
77. Upon ratification in 1969, the treaty became the supreme law of the land under Article 6,
Clause 2 of the United States Constitution. See U.S. Const. art. VI, cl. 2. Article 36 of the
treaty provides that a foreign national who is arrested or committed to prison or to custody
pending trial or is detained in any other manner has the right to have his foreign consulate
notified and to communicate therewith.
3
Vienna Convention, 21 U.S.T. at 101. Importantly,
Article 36 also requires that the arresting authorities shall inform the person concerned
without delay of [these] rights. Id.
[Headnote 4]
Historically, the application of the exclusionary rule has typically been reserved for
those cases involving the violation of fundamental constitutional rights.
__________

3
Article 36 provides in part:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending
State:
. . . .
(b) if he [the detained foreign national] so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if, within its consular district, a national
of that State is arrested or committed to prison or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular post by the person arrested, in prison, custody or
detention shall also be forwarded by the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this sub-paragraph.
21 U.S.T. at 100-01.
damental constitutional rights. See Elkins v. United States, 364 U.S. 206, 217 (1960) ([The
exclusionary rule's] purpose is to deterto compel respect for the constitutional guaranty in
the only effectively available wayby removing the incentive to disregard it.); Mapp v.
Ohio, 367 U.S. 643 (1961) (applying exclusionary rule to states for purposes of Fourth
Amendment violations); Miranda v. Arizona, 384 U.S. 436 (1966) (applying exclusionary
rule to states for purposes of Fifth Amendment violations); see also NRS 48.025 (providing
that evidence obtained in violation of the Constitution is inadmissible). Thus, the issue here is
whether the consular notification rights conferred upon Garcia by the Vienna Convention are
of such a fundamental nature that suppression is warranted.
[Headnotes 5, 6]
Initially, we note that the Supremacy Clause does not convert violations of treaty
provisions . . . into violations of constitutional rights. Murphy v. Netherland, 116 F.3d 97,
100 (4th Cir. 1997). Absent an underlying constitutional right, the exclusionary rule is an
inappropriate sanction . . . unless the treaty expressly provides for that remedy. Page, 232
F.3d at 540.
Our examination of the provisions of the Vienna Convention, however, reveals no
express mention of the remedy of suppression. See Li, 206 F.3d at 62-63; Page, 232 F.3d at
540. Moreover, there is nothing in the text suggesting that the purpose for Article 36 was to
provide rights similar to those guaranteed in Miranda. As the Ninth Circuit recently observed,
the Vienna Convention: (1) does not link the required consular notification in any way to the
commencement of police interrogation; (2) does not require law enforcement officials to
cease interrogation once the arrestee invokes his right; and (3) was drafted three years before
the Miranda decision. United States v. Lombera-Camorlinga, 206 F.3d 882, 886 (9th Cir.
2000). Moreover, the Ninth Circuit noted that the right to counsel and the right against
self-incrimination are uniquely American rights that are by no means universally recognized
or enforced. Id.
[Headnote 7]
We are also persuaded by the State Department's interpretation of the Vienna
Convention. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999)
(Respect is ordinarily due the reasonable views of the Executive Branch concerning the
meaning of an international treaty.). The State Department has rejected the proposition that
Vienna Convention violations warrant evidence suppression or case dismissal, and instead
has concluded that the only remedies are diplomatic or political or exist between states under
international law. See Li, 206 F.3d at 63 (citing Department of State Answer to the
Questions Posed by the First Circuit in United States v. Nai Fook Li).
Department of State Answer to the Questions Posed by the First Circuit in United States v.
Nai Fook Li).
We also note that this reasoning has been adopted by the majority of federal and state
courts considering the issue. See, e.g., Page, 232 F.3d at 541; United States v. Chanthadara,
230 F.3d 1237, 1255-56 (10th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d
616, 622 (7th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1195-96 (11th
Cir. 2000); Lombera-Camorlinga, 206 F.3d at 888; Li, 206 F.3d at 66; People v. Villagomez,
730 N.E.2d 1173, 1184 (Ill. App. Ct. 2000); State v. Rosas, 17 P.3d 379, 386 (Kan. Ct. App.
2000); State v. Martinez-Lazo, 999 P.2d 1275, 1278-79 (Wash. Ct. App. 2000).
Garcia also contends that violation of the Vienna Convention is structural error
requiring automatic reversal of his conviction. Structural error, however, results from a
constitutional deprivation that so infects the entire framework of the trial that the result is no
longer reliable. See Arizona v. Fulminante, 499 U.S. 279, 309-11 (1991). As discussed above,
a Vienna Convention violation is not of the constitutional dimension required for structural
error.
CONCLUSION
We conclude that the suppression of evidence is not an available remedy for a
violation of a defendant's notification rights under the Vienna Convention. We also conclude
that a Vienna Convention violation does not amount to structural error warranting automatic
reversal. Accordingly, we affirm the district court's order denying Garcia's motion to suppress
and affirm his conviction in all other respects.
4

Young and Becker, JJ., concur.
__________

4
Garcia raises numerous other arguments on appeal, including issues surrounding: (1) the jurisdiction of the
district court; (2) alleged errors with his indictment and the notice it gave as to the State's theory of the case; (3)
the pre-trial denial of his writ of habeas corpus; (4) the district court's disallowing him to argue certain theories
before the jury; (5) the admission of evidence in violation of Miranda; (6) the introduction of several witnesses'
in-court identifications; (7) the admission of various witnesses' testimony and of physical evidence in violation
of the Nevada rules of evidence; (8) the admission of improper commentary on post-arrest silence; (9) the
occurrence of several instances of prosecutorial misconduct; and (10) the inclusion of allegedly improper jury
instructions. We have carefully reviewed each of Garcia's contentions and conclude that they all lack merit.
____________
117 Nev. 130, 130 (2001) Mangarella v. State
MICHAEL ATTILIO MANGARELLA, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 35212
February 16, 2001 17 P.3d 989
Appeal from a judgment of conviction, pursuant to an Alford plea, of one count of
lewdness with a minor. Eighth Judicial District Court, Clark County; Michael L. Douglas,
Judge.
Defendant was convicted in the district court of lewdness with minor. Defendant
appealed, challenging constitutionality of statute that imposes mandatory conditions of
probation on individuals sentenced to probation after having been convicted of certain sexual
offenses. The supreme court held that: (1) statute's polygraph requirement is limited to
questions relating to defendant's use of controlled substances; (2) in issue of first impression,
statute's polygraph requirement does not violate probationer's protection against
self-incrimination; and (3) statute is not unconstitutionally vague on ground that it does not
define what type of residence, work, and curfew are appropriate.
Affirmed.
Morgan D. Harris, Public Defender, and Bita Khamsi, Deputy Public Defender, Clark
County, for Appellant.
Respondent.
Polygraph requirement of statute that imposes mandatory conditions of probation on individuals sentenced to probation after
having been convicted of certain sexual offenses is limited to questions relating to defendant's use of controlled substances. NRS
176A.410(1)(e).
2. Statutes.
Statutes should be given their plain meaning and must be construed as a whole and not be read in a way that would render words
or phrases superfluous or make a provision nugatory.
3. Statutes.
There is a presumption that every word, phrase, and provision in a statute has meaning.
4. Statutes.
While courts normally review ambiguous statutes in light of legislative intent and public policy, different rules of statutory
construction apply to penal statutes.
5. Statutes.
Generally speaking, courts narrowly construe ambiguous provisions of penal statutes.
6. Statutes.
The rules of statutory interpretation that apply to penal statutes require that provisions which negatively impact a
defendant must be strictly construed, while provisions which positively impact a defendant are to be given
a more liberal construction.
require that provisions which negatively impact a defendant must be strictly construed, while provisions which positively impact a
defendant are to be given a more liberal construction.
7. Criminal Law.
Polygraph requirement of statute that imposes mandatory conditions of probation on individuals sentenced to probation after
having been convicted of certain sexual offenses does not violate right against self-incrimination, as statute allows valid assertion of
that right if probationer encounters situation where he is asked for incriminating statements regarding crimes for which he has not been
convicted. U.S. Const. amend. 5; NRS 176A.410(1)(e).
Whenever possible, courts must interpret statutes so as to avoid conflicts with the federal or state constitutions.
9. Criminal Law.
A person is privileged not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal proceedings. U.S. Const. amend. 5.
10. Criminal Law.
Persons who have been convicted of crimes lose their Fifth Amendment protection against self-incrimination only as to the facts
and circumstances of the crime for which they have been convicted. The privilege is still applicable to questions relating to any other
activity. U.S. Const. amend. 5.
11. Criminal Law.
The Fifth Amendment protection against self-incrimination is available for convicted offenders who have been granted
probation. U.S. Const. amend. 5.
A defendant's probation may not be revoked simply because he or she has asserted the privilege against self-incrimination in
response to questions from a probation officer. U.S. Const. amend. 5.
A state may require that a probationer truthfully answer questions posed by probation officers or other law enforcement
personnel and impose sanctions if questions are not answered truthfully, but a state may not revoke probation because the probationer
validly asserts the privilege against self-incrimination. U.S. Const. amend. 5.
Statute that imposes mandatory conditions of probation on individuals sentenced to probation after having been convicted of
certain sexual offenses is not unconstitutionally vague on ground that it does not define what type of residence, work, and curfew are
appropriate. Supervising probation officer must set requirements that reasonably relate to purpose of statute and which ensure that
defendant is not living or working in circumstances that would undermine his rehabilitation or provide him with increased access to
potential victims, and issue of propriety of curfew, residence, or work restrictions could be raised before court in any revocation
proceedings. NRS 176A.410.
OPINION
Per Curiam:
In this appeal, Michael Attilio Mangarella challenges the constitutionality of NRS
176A.410, which imposes mandatory conditions of probation on individuals sentenced to
probation after having been convicted of certain sexual offenses. Mangarella contends that (1)
the statute's polygraph requirement is overbroad, thereby infringing upon his privilege against
self-incrimination, and (2) the statute is unconstitutionally vague because it does not
adequately define residence, work, and curfew requirements.
We conclude that because NRS 176A.410 does not allow an unbridled examination of
the probationer, the statute is not unconstitutionally overbroad. Further, we hold that NRS
176A.410 is not unconstitutionally vague. Accordingly, we affirm the district court's
judgment of conviction.
FACTS
On September 2, 1999, Mangarella pleaded guilty to one count of lewdness with a
minor pursuant to North Carolina v. Alford.
1
The district court sentenced Mangarella to
serve a minimum of 36 months to a maximum of 120 months in the Nevada State Prison.
Mangarella's sentence was suspended and he was placed on probation for a term not to
exceed five years. The district court, over Mangarella's objection, imposed the probation
conditions required by NRS 176A.410. NRS 176A.410(1) provides, in relevant part, that:
Except as otherwise provided in subsection 2, if a defendant is convicted of a sexual
offense and the court grants probation or suspends the sentence, the court shall, in
addition to any other condition ordered pursuant to NRS 176A.400, order as a condition
of probation or suspension of sentence that the defendant:
(a) Reside at a location only if it has been approved by the parole and probation
officer assigned to the defendant;
(b) Accept a position of employment only if it has been approved by the parole and
probation officer assigned to the defendant;
(c) Abide by any curfew imposed by the parole and probation officer assigned to the
defendant;
. . . .
(e) Submit to periodic tests to determine whether the defendant is using a controlled
substance and submit to periodic polygraphic examinations,
__________

1
400 U.S. 25, 37 (1970).
odic polygraphic examinations, as requested by the parole and probation officer
assigned to the defendant[.]
DISCUSSION
Mangarella challenges the constitutionality of NRS 176A.410 on three separate
grounds. First, Mangarella contends that the provision in the statute relating to polygraph
examinations is overbroad because it would permit a probation officer to ask questions about
topics unrelated to a defendant's probation. Next, Mangarella argues that requiring a
probationer to submit to polygraph examinations violates his Fifth Amendment privilege
against self-incrimination. Finally, Mangarella asserts that the failure of the statute to specify
guidelines for what constitutes appropriate employment, curfews or residences results in
unconstitutional vagueness.
I. Whether NRS 176A.410(1)(e) is unconstitutionally overbroad because the polygraph
requirement does not specify the scope of questioning
[Headnote 1]
NRS 176A.410(1)(e) states that, as a condition of probation, the defendant shall
[s]ubmit to periodic tests to determine whether the defendant is using a controlled substance
and submit to periodic polygraph examinations, as requested by the parole and probation
officer assigned to the defendant.
[Headnotes 2, 3]
Statutes should be given their plain meaning and must be construed as a whole and
not be read in a way that would render words or phrases superfluous or make a provision
nugatory.
2
In addition, there is a presumption that every word, phrase, and provision in the
enactment has meaning.
3

The parties suggest three possible interpretations of the polygraph subsection. We
address these interpretations from least to most expansive, starting with the State's
interpretations.
First, the State asserts that the subsection authorizes polygraph testing to monitor
controlled substance usage. In light of the placement of the polygraph testing condition in the
same subsection as the requirement that the defendant submit to testing for drug use, it is
plausible that the legislature intended for the probation officer to only use polygraph testing
to monitor drug usage.
The State also argues that the subsection allows questioning regarding compliance
with any condition of probation.
__________

2
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 502, 797 P.2d 946, 949 (1990).

3
Id. at 502-03, 797 P.2d at 949.
regarding compliance with any condition of probation. The subsection is part of the required
probation conditions for sex offenders. Therefore, it is reasonable to assume that the
legislature intended that probation officers use polygraph testing to monitor the probationer's
compliance with all of his or her conditions of probation.
Finally, Mangarella proposes a third interpretation. Mangarella argues that because
NRS 176A.410(1)(e) sets forth no parameters to the polygraph questioning, a probation
officer may ask questions on any subject that has no reasonable relation to the probationer's
offense. Mangarella reads the subsection as authorizing two separate tests: controlled
substance and polygraph. This interpretation is also reasonable.
[Headnote 4]
Because NRS 176A.410(1)(e) is subject to more than one reasonable interpretation,
the statute is ambiguous as to the scope of questioning permitted in polygraph examinations.
4
While we normally review ambiguous statutes in light of legislative intent and public policy,
different rules of statutory construction apply to penal statutes.
[Headnotes 5, 6]
Generally speaking, we narrowly construe ambiguous provisions of penal statutes.
5
Moreover, the rules of statutory interpretation that apply to penal statutes require that
provisions which negatively impact a defendant must be strictly construed, while provisions
which positively impact a defendant are to be given a more liberal construction.
6
Applying
these rules to NRS 176A.410(1)(e), we hold that the scope of the polygraph examination
must be limited to questions relating to the use of controlled substances by the defendant.
Thus, the statute is not unconstitutionally overbroad, as it does not permit a probation officer
to conduct a polygraph examination on any issue.
II. Constitutionality under the Fifth Amendment
[Headnotes 7, 8]
Mangarella also contends that NRS 176A.410(1)(e) is unconstitutional because it
would require defendants to answer questions that could tend to incriminate themselves in
violation of the Fifth Amendment of the United States Constitution. Whenever possible,
__________

4
See McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986) (citing Robert E. v. Justice
Court, 99 Nev. 443, 664 P.2d 957 (1983)).

5
Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982).

6
State v. Wheeler, 23 Nev. 143, 152, 44 P. 430, 431-32 (1896).
possible, we must interpret statutes so as to avoid conflicts with the federal or state
constitutions.
7

[Headnote 9]
The Fifth Amendment provides, in part, that no person shall be compelled in any
criminal case to be a witness against himself.
8
The United States Supreme Court has held
that this prohibition is not limited to circumstances where a defendant refuses to testify
against himself at a criminal trial. A person is privileged not to answer official questions put
to him in any other proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.
9

[Headnotes 1013]
Persons who have been convicted of crimes only lose their Fifth Amendment
protections as to the facts and circumstances of the crime for which they have been convicted.
The privilege is still applicable to questions relating to any other activity.
10
The protection is
therefore available for convicted offenders who have been granted probation. A defendant's
probation may not be revoked simply because he or she has asserted the privilege against
self-incrimination in response to questions from a probation officer. A state may require that
a probationer truthfully answer questions posed by probation officers or other law
enforcement personnel and impose sanctions if questions are not answered truthfully, but a
state may not revoke probation because the probationer validly asserts the privilege.
11

We have not had the opportunity to evaluate the constitutionality of requiring
submission to polygraph examinations as a condition of probation. It is a matter of first
impression in Nevada. Mangarella argues that compelling a probationer to answer questions
in a polygraph violates the privilege against self-incrimination. We disagree.
Mangarella cites to State v. Eccles,
12
in support of his argument. In Eccles, the
sentencing court required that, as a condition of probation, the defendant submit to polygraph
questioning and waive his Fifth Amendment privilege against self-incrimination. The Arizona
Supreme Court, however, struck the waiver condition pursuant to Murphy. The court
removed the waiver condition and stated,
__________

7
See Summitt v. State, 101 Nev. 159, 161, 697 P.2d 1374, 1376 (1985) (quoting State v. Woodbury, 17 Nev.
337, 356, 30 P. 1006, 1012 (1883)).

8
U.S. Const. amend. V.

9
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

10
See Baxter v. Palmigiano, 425 U.S. 308, 316 (1976).

11
Minnesota v. Murphy, 465 U.S. 420, 438 (1984).

12
877 P.2d 799 (Ariz. 1994).
and stated, The condition thus sanitized would read: as a critical part of the Sexual Offender
Treatment Program,' defendant must agree to answer[ ] truthfully, any questions [asked by]
the probation officer, counselors, polygraph examiners, or any other agent of the Probation
Department's treatment programs.'
13

Mangarella fails to recognize that the constitutional violation in Eccles was the
requirement that the defendant waive his Fifth Amendment privilege, not the requirement that
he submit to polygraph examinations. Nothing in Murphy or Eccles can be read to prohibit a
state from requiring a probationer to submit to a polygraph examination. Moreover, we do not
interpret NRS 176A.410(1)(e) as requiring a waiver of the Fifth Amendment privilege against
self-incrimination.
Unlike the statute at issue in Eccles, NRS 176A.410(1)(e) is silent as to waiver. In
light of the constitutional privilege against self-incrimination, we interpret the statute as
allowing a valid assertion of the privilege against self-incrimination if the probationer
encounters a situation where he is asked for incriminating statements regarding crimes for
which he has not been convicted.
Because we do not interpret NRS 176A.410(1)(e) as requiring a waiver of the
privilege against self-incrimination, the statute is not unconstitutional.
III. Whether NRS 176A.410 is unconstitutionally vague because it does not define what type
of residence, work, and curfew are appropriate
[Headnote 14]
Mangarella contends that NRS 176A.410 is unconstitutionally vague because it does
not provide adequate guidelines to a probation officer of what are appropriate or
inappropriate places of residence, places of work, or hours for curfew. A probation officer
would then have the discretion to impose conditions that are arbitrary, capricious or
discriminatory.
Mangarella relies on State of Nevada v. Father Richard,
14
where this court
determined:
A vague law is one which fails to provide persons of ordinary intelligence with fair
notice of what conduct is prohibited and also fails to provide law enforcement officials
with adequate guidelines to prevent discriminatory enforcement.
Mangarella contends that NRS 176A.410 violates Father Richard because it sets no
standards for determining what places of residence, places of work, and curfews are
prohibited.
__________

13
Id. at 801.

14
108 Nev. 626, 629, 836 P.2d 622, 624 (1992).
of residence, places of work, and curfews are prohibited. This would leave the probationer
subject to harassment or unfair restrictions. For example, the probation officer may refuse to
grant permission for a defendant to work at a casino because of the probation officer's
personal belief that gambling is wrong. In another example, the probation officer might
require the defendant to work in one section of town and live in a completely different area
just for the purpose of making it difficult for the defendant to get to work.
Constitutional vagueness is determined by the terms of the statute in question and
Mangarella cites no authority for the proposition that a statute is vague simply because it
gives a broad grant of authority. The provisions relating to residence, employment and curfew
contained in NRS 176A.410 cannot be read in a vacuum. These requirements must be read in
conjunction with the fact that the restrictions are imposed upon individuals convicted of
sexual offenses. Therefore, the supervising probation officer must set requirements that
reasonably relate to the purpose of the statute.
Residence, work and curfew restrictions are imposed to ensure that the defendant is
not living or working in circumstances that would undermine his rehabilitation or provide
him with increased access to potential victims. They must be reasonably related to
rehabilitation or the health, safety or welfare of the community.
15

In assessing the constitutional issues, we are also mindful of the additional protections
that are available to a probationer to ensure that the provisions of the statute will not be used
for improper purposes. If a probationer believes that he or she is being improperly treated, the
probationer can request review of the restrictions by other officials in the department of
parole and probation or the sentencing court. Moreover, the probation officer cannot
unilaterally revoke a defendant's probation. Thus, the issue of the propriety of the curfew,
residence or work restrictions could also be raised before a court in any revocation
proceedings.
Accordingly, because a person of common intelligence need not guess as to the
statute's meaning and the statute must be read to further the special needs inherent in
supervising sexual offenders, we hold that NRS 176A.410(1)(a)-(c) is not unconstitutionally
vague.
CONCLUSION
We hold that NRS 176A.410 is neither unconstitutionally vague, nor overbroad.
__________

15
See Seim v. State, 95 Nev. 89, 93, 590 P.2d 1152, 1154 (1979); NRS 176A.400.
vague, nor overbroad. Accordingly, we affirm the district court's judgment of conviction.
____________
117 Nev. 138, 138 (2001) Koger v. State
SHAUNTAIE DENISE KOGER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35285
February 16, 2001 17 P.3d 428
Appeal from a judgment of conviction pursuant to a jury verdict of one count each of
conspiracy to commit robbery, burglary while in possession of a firearm, and robbery with the
use of a deadly weapon. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
Defendant was convicted in the district court of conspiracy to commit robbery,
burglary while in possession of a firearm, and robbery with the use of a deadly weapon.
Defendant appealed. The supreme court held that: (1) defendant knowingly and voluntarily
waived her Miranda rights prior to her second interview with police, and (2) original
Miranda warnings given defendant were not rendered stale by passage of twelve days
between advisement and subsequent interview.
Affirmed.
Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender,
Clark County, for Appellant.
Respondent.
1. Criminal Law.
Fifth Amendment privilege against self-incrimination requires that a suspect's statements made during custodial interrogation
not be admitted at trial if the police failed to first provide a Miranda warning. U.S. Const. amend. 5.
2. Criminal Law.
In order to admit a defendant's statements made during custodial interrogation, the defendant must knowingly and voluntarily
waive the Miranda rights.
3. Criminal Law.
Supreme court, upon a defendant's challenge to the admissibility of his confession on Miranda grounds, reviews the facts and
circumstances of each particular case, weighing the totality of circumstances to determine whether the Miranda warnings were
properly given and whether the defendant waived his Miranda rights.
117 Nev. 138, 139 (2001) Koger v. State
4. Criminal Law.
Defendant knowingly and voluntarily waived her Miranda rights prior to her second interview with police, where during that
interview she responded that she kind of understood her rights as given during her first interview, was again advised of her rights,
responded affirmatively when asked whether she understood them at that time, and made no further attempt to stop interview or
otherwise invoke or indicate misunderstanding of her Miranda rights.
5. Criminal Law.
Original Miranda warnings given defendant were not rendered stale by passage of twelve days between initial advisement and
interview and second interview, under totality of the circumstances, despite fact that the two interviews were conducted by different
officers and defendant gave inconsistent answers in the two interviews. Interviews were conducted in the same place, second officer
inquired whether defendant had been advised of her Miranda rights before proceeding with interview, and defendant responded that
she remembered and understood her rights.
6. Criminal Law.
Most relevant factor in analyzing whether a former Miranda admonition has diminished is the amount of time elapsed between
the first reading and the subsequent interview.
OPINION
Per Curiam:
According to the testimony of witnesses as well as her own inculpatory statements,
Shauntaie Denise Koger took part in the planning and commission of an armed robbery by
acting as a lookout and getaway driver. A jury convicted Koger of conspiracy to commit
robbery, burglary while in possession of a firearm, and robbery with the use of a deadly
weapon. On appeal, Koger contends that the district court erred in admitting her statements
given to the police because she had not been properly advised of her Miranda rights. We
disagree and conclude that Koger was properly advised of her Miranda rights and that she
knowingly and voluntarily gave inculpatory statements to the police.
FACTS
On the morning of April 21, 1999, Koger, Ramein Ethridge, and two other men
traveled to the corporate office of Bianca Shoes in two separate vehicles. Ethridge and one of
the other men entered the office where they robbed an armed courier at gunpoint, taking his
gun and a bag of cash deposits. The two men fled the office, jumped into a white sports utility
vehicle, and sped out of the parking lot with Koger driving close behind in a small blue car.
117 Nev. 138, 140 (2001) Koger v. State
Using license plate information and a description of the driver of the blue car
provided by witnesses, the police were able to locate Koger and identify her as a suspect.
During the course of their investigation, the police questioned Koger on three different
occasions. The first interview occurred on April 22, 1999, when Detectives Harrison Mayo
and Stephen Popp questioned Koger at Treasure Island, her place of employment.
Before questioning, Detective Popp admonished Koger of her Miranda rights, reading
them from a card. Koger then answered the officers' questions. Koger told the officers that
she was at home all day on the day of the robbery and that she had given her car to an
individual named Jody in order to have its brakes fixed. Koger was, however, unable to give
the officers Jody's last name, telephone number, or address. Koger also stated that she did not
know where Bianca Shoes was located and denied any knowledge of the robbery. The
detectives explained to Koger that she was not under arrest, but asked her to voluntarily
accompany them to their office for further questioning. Koger complied.
At his office that same day, Detective Mayo conducted a second interview of Koger.
Prior to questioning, Detective Mayo again admonished Koger of her Miranda rights. Then,
referring to their first interview, Detective Mayo inquired whether Koger had understood her
rights the first time. Koger responded, kind of. Detective Mayo asked what she meant by
kind of and followed up by asking, Do you understand them now? Koger responded,
Yes, I do. At that time, Koger was also given a Miranda waiver form, which she read and
signed.
After further investigation, Detective Mayo deemed it necessary to interview Koger
again. On May 4, 1999, twelve days after the first interview, Sergeant Lori Crickett
interviewed Koger at the Las Vegas Metropolitan Police Department offices. Sergeant
Crickett did not advise Koger again of her Miranda rights because, as Sergeant Crickett
testified, Detective Popp informed her that Koger had been previously advised of her rights.
Furthermore, Koger expressly told Sergeant Crickett that she had indeed been so advised.
Contrary to her previous answers to the detectives, Koger now explained to Sergeant
Crickett that, on the day of the robbery, Koger was at Tommy Rockers, a restaurant located in
the same complex as Bianca's. She also admitted that she knew of the planning of the robbery
and knew those involved but would not give their names. Then, later in the interview, Koger
admitted that she had agreed to take part of the proceeds of the robbery in exchange for her
participation as a getaway driver. Koger also admitted that she had followed the white sports
utility vehicle on the day of the robbery as it left Bianca's and that she knew those riding in
the vehicle.
117 Nev. 138, 141 (2001) Koger v. State
Based on Koger's inconsistent and inculpatory statements, the testimony of
co-conspirator Ethridge, and the testimony of other witnesses, the jury convicted Koger of
conspiracy to commit robbery, burglary while in possession of a firearm, and robbery with
use of a deadly weapon. This appeal followed.
DISCUSSION
Koger asserts that she did not knowingly and voluntarily waive her Miranda rights
and that the statements she made during her interviews with Detective Mayo and Sergeant
Crickett should not have been admitted at trial.
[Headnotes 13]
The Fifth Amendment privilege against self-incrimination requires that a suspect's
statements made during custodial interrogation not be admitted at trial if the police failed to
first provide a Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); State v.
Taylor, 114 Nev. 1071, 1081, 968 P.2d 315, 323 (1998). In order to admit statements made
during custodial interrogation, the defendant must knowingly and voluntarily waive the
Miranda rights. See Miranda, 384 U.S. at 479; Echavarria v. State, 108 Nev. 734, 742, 839
P.2d 589, 595 (1992). We review the facts and circumstances of each particular case
weighing the totality of circumstances to determine whether the Miranda warnings were
properly given and whether the defendant waived his Miranda rights. See Wyrick v. Fields,
459 U.S. 42, 48 (1982); Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994).
[Headnote 4]
Koger first claims that she did not understand her rights as given by Detective Mayo
during the second interview and, therefore, that she did not waive her rights voluntarily.
During that interview Koger responded that she kind of understood her rights as given
during the first interview at Treasure Island. Prior to further questioning, Detective Mayo
again advised Koger of her rights and inquired whether she understood them at that time.
Koger then responded, Yes, I do. Thereupon, Detective Mayo began the interview. The
record shows no further indication of Koger attempting to stop the interview or otherwise
invoking or misunderstanding her Miranda rights. In light of these facts, we conclude that
Koger knowingly and voluntarily waived her Miranda rights before answering Detective
Mayo, and thus the trial court properly admitted her statements.
[Headnote 5]
Koger next argues that she did not waive her Miranda rights voluntarily prior to the
third interview with Sergeant Crickett on May 4, 1999,
117 Nev. 138, 142 (2001) Koger v. State
May 4, 1999, in which Koger admitted to taking part in planning and being present at the
scene of the armed robbery. Koger's argument is based on the fact that, although Sergeant
Crickett reminded Koger of the previous Miranda admonition, Koger could not have
remembered her rights because the admonition had been given twelve days previous.
The issue before us is, in essence, whether the original warnings have become
diluted or stale. State v. Beaulieu, 359 A.2d 689, 693 (R.I. 1976), abrogated on other
grounds by State v. Lamoureux, 623 A.2d 9, 14 (R.I. 1993). We addressed this issue once
before in Taylor v. State, 96 Nev. 385, 386, 609 P.2d 1238, 1239 (1980), in which this Court
stated that [w]here the accused has been fully and fairly apprised of his Miranda rights, there
is no requirement that the warnings be repeated each time the questioning is commenced.
Taylor, however, is factually distinct because it addressed a three-hour lapse of time between
the Miranda admonition and the subsequent interview. Moreover, Taylor did not discuss
relevant factors other than time that should be considered when weighing the totality of the
circumstances as required in a Miranda analysis.
Faced with this issue, the Supreme Court of Rhode Island outlined various factors to
consider:
the time elapsed between the warnings and the interrogation which elicited the
damaging response; whether the warnings and interrogations were conducted in the
same or in different locales; whether the warnings and/or initial interrogation were
conducted by the same person or persons who conducted the suspect interrogation; the
extent to which the statements made by the accused in the later interrogation differ in
any substantial respect from those made at the former; the apparent emotional, physical
and intellectual state of the accused at the later questioning.
Beaulieu, 359 A.2d at 693.
[Headnote 6]
Certainly, the most relevant factor in analyzing whether a former Miranda admonition
has diminished is the amount of time elapsed between the first reading and the subsequent
interview. Most courts addressing the time factor have considered instances involving only a
few hours. See, e.g., United States v. Frankson, 83 F.3d 79 (4th Cir. 1996) (two and one-half
hours); Evans v. McCotter, 790 F.2d 1232 (5th Cir. 1986) (approximately three hours);
Baskin v. Clark, 956 F.2d 142 (7th Cir. 1992) (thirty minutes); Patton v. Thieret, 791 F.2d
543 (7th Cir. 1986) (forty minutes); U.S. ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977)
(nine hours); U.S. v. Boyd, 180 F.3d 967 (8th Cir. 1999) (one and one-half or two hours);
117 Nev. 138, 143 (2001) Koger v. State
one-half or two hours); People of Territory of Guam v. Dela Pena, 72 F.3d 767 (9th Cir.
1995) (approximately fifteen hours); Ballard v. Johnson, 821 F.2d 568 (11th Cir. 1987) (three
to four hours).
Other courts have addressed time periods of one day or more. See, e.g., United States
v. Andaverde, 64 F.3d 1305 (9th Cir. 1995) (one day); Puplampu v. United States, 422 F.2d
870 (9th Cir. 1970) (two days); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968) (three
days). The outer limit extends to one week as discussed in Martin v. Wainwright, 770 F.2d
918 (11th Cir. 1985),
1
andunder certain circumstancestwo weeks as discussed in Biddy
v. Diamond, 516 F.2d 118 (5th Cir. 1975).
In the above cases, the courts determined that statements made following the time
interval were covered by the previous Miranda warnings and that the defendants could not
successfully challenge the voluntariness of the statements based solely on the passage of time.
We are not aware of any cases in which a court determined that the intervening time period
was too long to invalidate the prior Miranda warnings.
The case at hand requires deliberation, however, because twelve days passed between
Koger's April 22 interview with Detective Mayo, in which she was apprised of her Miranda
rights, and her May 4 interview with Sergeant Crickett, in which Koger made further
inconsistent and incriminating statements. Twelve days extends to the outer limit of the
elapsed time allowed by courts previously facing this issue. Arguably, this case lies within the
parameters of Biddy, which allowed an interim period of fourteen days. But in Biddy, the
Fifth Circuit determined that the defendant knew of her Miranda rights because she had
exercised those rights at various times during the two-week period. See id. at 123.
Specifically, defendant Biddy had requested the presence of counsel twice and opted to
remain silent during certain interviews, and was thus particularly familiar with her rights. See
id. at 120-21. In contrast to Biddy, there is no evidence that Koger exercised her Miranda
rights before her interview with Sergeant Crickett. Moreover, unlike defendant Biddy, Koger
did not have contact with the police during the interim period.
Thus, the longest period allowed in the cases fairly analogous to the instant matter is
one week as discussed in Martin. See Martin, 770 F.2d at 930. In Martin, the Eleventh Circuit
determined that defendant Martin had been fully warned, and knowingly and intelligently
waived his Miranda rights during a July 4 interrogation. Id. Before his confession seven
days later on July 11, Martin indicated that he still understood those rights. Id.
__________

1
Opinion modified on other grounds by Martin v. Wainright, 781 F.2d 185 (11th Cir. 1986).
117 Nev. 138, 144 (2001) Koger v. State
Thus, the court concluded that additional Miranda warnings on July 11 would have been
needlessly repetitious and that the confession was not obtained in violation of Miranda.
Id. At 930-31.
Considering the totality of the circumstances surrounding Koger's May 4 interview in
light of the factors outlined above, we first note that the interviews were conducted in the
same place, a factor favoring the State's argument that she remembered her rights sufficiently.
On the other hand, the same person did not conduct the interviews. Additionally, Koger's
answers given to Sergeant Crickett were not consistent with the answers she gave Detective
Mayo. While this fact tends to show that Koger was then willing to cooperate, it may also
support the conclusion that she was unfamiliar with her rights and felt compelled to comply.
Finally, we have no testimony regarding the apparent physical, mental, or emotional state of
Koger during the interview with Sergeant Crickett.
Two additional factors are relevant to the case at hand: the degree to which the
defendant was reminded of her rights in the subsequent interrogation before questioning and
the degree to which the defendant indicated she remembered and understood those rights
prior to questioning. Considering these additional factors, we note that Sergeant Crickett
inquired whether Koger had been advised of her Miranda rights before proceeding with the
interview. In response, Koger indicated that she remembered and understood her rights.
Considering this, we conclude that there was no need for Sergeant Crickett to fully advise
Koger of her Miranda rights once again.
2

CONCLUSION
Weighing the totality of circumstances, we conclude that the police did not fail to
properly admonish Koger by relying on a Miranda admonition twelve days old when the
police reminded Koger of her rights and Koger acknowledged that she had been so advised.
While twelve days may be too long under different circumstances, based on the facts before
us, we conclude that Koger knowingly and voluntarily waived her rights.
__________

2
Koger raises three additional instances of error arguing the following: (1) that the district court abused its
discretion by denying her motion for a continuance; (2) that the district court abused its discretion by allowing
Ethridge to testify when the State failed to previously endorse him as a witness; and (3) that there was not
substantial evidence to support the convictions. We have reviewed the record and conclude that they lack merit.
____________
117 Nev. 145, 145 (2001) Michel v. Dist. Ct.
HERBERT L. MICHEL, JR., a Professional Law Corporation, 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 YOLANDA B. CERVANTES; PREFERRED CHIROPRACTIC;
and DIAGNOSTIC IMAGING OF SOUTHERN NEVADA, Real Parties in
Interest.
No. 34082
February 22, 2001 17 P.3d 1003
Petition for writ of mandamus or prohibition directing the district court to discharge
petitioner from an interpleader action or to dismiss an answer and counterclaim.
After deducting his fees from arbitration award and placing remaining funds in
interpleader, attorney sought to be discharged from interpleader action. The district court
refused motion for discharge. Attorney filed petition for writ of mandamus or prohibition.
The supreme court held that: (1) attorney lien takes priority over medical provider lien, but
(2) attorney's request for discharge was premature.
Petition denied.
[Rehearing denied April 5, 2001]
Your Legal Power and Herbert L. Michel, Jr., Las Vegas, for Petitioner.
Beckley, Singleton, Jemison, Cobeaga & List and Beau Sterling and Daniel F.
Polsenberg, Las Vegas; Ronald J. Israel, Las Vegas, for Real Party in Interest Diagnostic
Imaging of Southern Nevada.
Robert M. Ebinger, Las Vegas, for Real Party in Interest Preferred Chiropractic.
Yolanda B. Cervantes, Las Vegas, in Proper Person, Real Party in Interest.
1. Mandamus.
Petitions for extraordinary relief are addressed to the sound discretion of supreme court and may only be issued when there is no
plain, speedy, and adequate remedy at law.
2. Judgment.
It is well within the discretion of the district court to set aside an entry of default judgment. NRCP 60.
3. Judgment.
Faulty service of process provided good cause to set aside default judgment. NRCP 60.
4. Attorney and Client.
Attorney liens have priority over medical provider liens and are not subject to distribution on a pro-rata basis. NRS 108.600(2).
There are two types of liens an attorney may hold to ensure that clients pay their attorney fees: (1) a special or charging lien on
the judgment or settlement the attorney has obtained for the client; and (2) a general or retaining lien that entitles an attorney, if
discharged by the client, to retain the client's papers, property or money until a court, at the request of the client, requires the attorney
to deliver the retained items upon the client's furnishing of payment or security for the attorney fees. NRS 18.015.
6. Interpleader.
When an attorney holds funds in trust for the client and two or more parties claim interest in the funds, an interpleader action is
an appropriate procedure for determining the respective rights of those interested. NRCP 22.
7. Interpleader.
In interpleader action in which attorney holds funds in trust for client and two or more parties claim interest in funds, in order to
conclusively determine the respective rights of all interested parties as to the entire amount in dispute, the disputed funds must be
tendered to the court in their entirety. NRCP 22.
8. Interpleader.
In interpleader action in which attorney holds funds for client and two or more parties claim interest in funds, in order to enforce
attorney lien, court must make certain findings and conclusions before distribution, including: whether the attorney may utilize statute
governing lien for attorney fees to obtain the fees claimed; whether the amount claimed by the lien stems from a judgment or
settlement; whether the lien is enforceable; whether the attorney lien has been properly perfected; whether there are any setoffs
reducing the net amount subject to the attorney lien; in extraordinary circumstances, whether equitable factors might affect the net
judgment or the priority of the attorney lien; and finally, from the net amount subject to the attorney lien, the court should calculate the
amount the attorney is due based upon the fee which has been agreed upon by the attorney and client. NRS 18.015.
OPINION
Per Curiam:
This case arose when petitioner, an attorney, deducted his fees from an arbitration
award, placed the remaining funds in interpleader, naming his client and certain medical
service providers holding liens to the award as defendants, and then sought to be discharged
from the action. The district court refused the petitioner's motion for discharge. Petitioner
now seeks an extraordinary writ directing the district court to discharge him from the action.
Although we decide that an attorney lien takes priority over a medical provider lien when an
award is insufficient to pay all liens against the award,
over a medical provider lien when an award is insufficient to pay all liens against the award,
we conclude that a writ is not appropriate because the petitioner's request for discharge is
premature.
FACTS
On April 7, 1996, Yolanda B. Cervantes and three other members of her family were
injured in an automobile accident. Thereafter, Cervantes hired attorney Herbert L. Michel to
file a personal injury action on her behalf. Although not supplied in the record, Michel
apparently had a contingency fee agreement with Cervantes in which Cervantes agreed to pay
Michel forty percent of any amounts recovered.
The defendant in Cervantes' personal injury action did not contest liability, and the
parties proceeded to arbitration to resolve the issue of damages. Cervantes claimed that the
accident caused soft tissue injuries and the death of the fetus she was carrying at the time of
the accident. The arbitrator awarded Cervantes $14,705.00 in total damages for her soft tissue
injuries, but did not compensate her for medical bills associated with the loss of the fetus
because the arbitrator determined that the accident did not cause the loss.
Cervantes had incurred medical bills in the amount of $28,346.26 in treating her
injuries. Thus, her arbitration award was insufficient to pay the liens of all of her medical
providers. Michel and the medical providers were unable to agree on a pro-rata share of the
arbitration award. Consequently, Michel deducted attorney fees and costs totaling $6,511.73
and interpleaded the remaining $8,193.27, naming Cervantes and the medical service
providers as the defendants. Michel then sought to be discharged from the interpleader action.
Diagnostic Imaging of Southern Nevada (DIS), one of the interpleaded defendants,
failed to file a timely answer in the interpleader action. Consequently, the district court
entered default judgment against it in December 1998. Thereafter, in February 1999, DIS
filed a motion to set aside the default judgment and a motion nunc pro tunc to file an answer.
The motion claimed that, according to NRCP 55(c), there was excusable neglect and good
cause to set aside the default judgment for faulty service of process. The district court granted
DIS's motions.
In its answer and counterclaim, DIS argued that Michel should disgorge his attorney
fees since all liens were on an equal footing and requested that all parties to the interpleader
action be given a pro-rata share of the total settlement.
On February 19, 1999, the district court denied Michel's motion for discharge from
the interpleader action. Michel filed a motion for reconsideration of the district court's
refusal to discharge him.
motion for reconsideration of the district court's refusal to discharge him. Michel also filed a
motion to strike DIS's untimely answer and counterclaim. The district court denied both
motions.
Michel then filed this petition for extraordinary relief contending that the district court
exceeded its jurisdiction by refusing to discharge him from the interpleader action and by
refusing to strike DIS's counterclaim.
DISCUSSION
[Headnotes 13]
An extraordinary writ may issue to arrest the proceedings of the district court when
such proceedings exceed the district court's jurisdiction or to compel the court to perform an
act that the law requires as a duty resulting from an office, trust, or station. See NRS 34.320
(writ of prohibition); NRS 34.160 (writ of mandamus). Petitions for extraordinary relief are
addressed to the sound discretion of this court and may only be issued when there is no plain,
speedy, and adequate remedy at law. See Harvey L. Lerer, Inc. v. District Court, 111 Nev.
1165, 901 P.2d 643 (1995). Michel argues that the district court exceeded its jurisdiction by
failing to discharge him from the interpleader action because he has no right, title, or interest
whatsoever in the litigation. Michel contends that his attorney lien had absolute priority over
the liens of the medical providers, and therefore, his interest in the interpleader action
dissolved when he deducted his attorney fees before depositing the remaining proceeds with
the district court.
1

To determine whether the district court has exceeded its jurisdiction or is otherwise
required by law to discharge Michel from the action, we must first consider whether attorney
liens are, in fact, given priority over other liens. Because we conclude that attorney liens
enjoy priority, we must also consider the procedure for perfecting and, ultimately, enforcing
the lien.
__________

1
In the alternative, Michel argues that, if he is required to remain in the interpleader action, the district court
exceeded its jurisdiction by allowing DIS's answer and counterclaim. Michel petitions this court to issue an
extraordinary writ ordering the district court to reinstate the order of default judgment and to strike Diagnostic
Imaging's answer and counterclaim. Without deciding whether an extraordinary writ would be Michel's only
adequate remedy for the alleged error, we conclude that it is well within the discretion of the district court to set
aside an entry of default judgment according to NRCP 60. See BASF Corp., Inmont Div. v. Jafbros, Inc., 105
Nev. 142, 144, 771 P.2d 161, 162 (1989). The record supports the district court's finding of good cause to set
aside the default judgment based on faulty service of process. Michel offers no overriding challenge to the
district court's conclusion. Therefore, we cannot say that the district court has exceeded its jurisdiction.
A. Priority of attorney liens
[Headnotes 4, 5]
NRS 18.015 provides an attorney with a lien for attorney fees against any settlement
or judgment obtained:
2

1. An attorney at law shall have a lien upon any claim, demand or cause of action,
including any claim for unliquidated damages, which has been placed in his hands by a
client for suit or collection, or upon which a suit or other action has been instituted. The
lien is for the amount of any fee which has been agreed upon by the attorney and client .
. . .
. . . .
3. The lien attaches to any verdict, judgment or decree entered and to any money or
property which is recovered on account of the suit or other action, from the time of
service of the notices required by this section.
Although NRS 18.015 does not directly address the issue of priority of attorney liens,
Michel argues that this court held that attorney liens are superior to other types of liens, citing
Muije v. A North Las Vegas Cab Co., 106 Nev. 664, 799 P.2d 559 (1990). In Muije, this court
held that an equitable offset took priority over a perfected attorney lien because the attorney
lien attached solely to the net judgment after the offset was taken. See id. at 667, 799 P.2d at
561. In so concluding, this court then observed that, [o]nce a net judgment is determined,
then the attorney lien is superior to any later lien asserted against that judgment. See id.
In Cetenko v. United California Bank, 638 P.2d 1299, 1301 (Cal. 1982), cited with
approval by this court in Muije, the California Supreme Court explained the policy rationale
for holding an attorney lien superior to that of a judgment creditor when the funds from the
judgment are insufficient to satisfy all liens:
[P]ersons with meritorious claims might well be deprived of legal representation
because of their inability to pay legal fees or to assure that such fees will be paid out of
the sum recovered in the latest lawsuit. Such a result would be detrimental not only to
prospective litigants, but to their creditors as well.
__________

2
In Nevada, there are two types of liens an attorney may hold to ensure that clients pay their attorney fees:
(1) a special or charging lien on the judgment or settlement the attorney has obtained for the client, NRS
18.015(1); and (2) a general or retaining lien that entitles an attorney, if discharged by the client, to retain the
client's papers, property or money until a court, at the request of the client, requires the attorney to deliver the
retained items upon the client's furnishing of payment or security for the attorney fees. Figliuzzi v. Eighth
Judicial District Court, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995) (citations omitted). Compliance with NRS
18.015(1) is required for the first. See id.
mental not only to prospective litigants, but to their creditors as well.
Id. at 1304.
DIS counters that public policy actually favors giving higher or equal priority to
medical service provider liens. DIS is concerned that, if medical provider liens are not given
priority or equal treatment, it would not be long before doctors would cease to perform their
services until they were paid. Nicolletti v. Lizzoli, 177 Cal. Rptr. 685, 689 (Ct. App. 1981)
(affirming lower court's priority determination in favor of medical service providers over a
statutory judgment creditor based primarily on the time the liens were created). DIS argues
further that medical provider liens serve a vital public purpose of promoting the health and
well being of the community by allowing assistance to people without the ability to pay,
promoting health care to the poor, and encouraging the adequate and prompt treatment of
accident victims. See In re Estate of Cooper, 532 N.E.2d 236, 239 (Ill. 1988) (determining
how to enforce a hospital's lien under the Illinois Hospital Lien Act where the settlement is
paid through an annuity).
Although enforcing medical provider liens undoubtedly serves an important public
policy interest, DIS fails to cite any authority that actually gives priority to medical service
provider liens over attorney liens. Indeed, the weight of authority holds to the
contraryattorney liens come first. See Hanna Paint Mfg. Co. v. Rodey, 298 F.2d 371 (10th
Cir. 1962); Cetenko, 638 P.2d at 1299; Harlow v. Lloyd, 809 P.2d 1228 (Kan. Ct. App. 1991);
Barnes v. Verry, 191 N.W. 589 (Minn. 1923); Chattanooga Sewer Pipe Works v. Dumler,
120 So. 450 (Miss. 1929).
In addition to the authority above, we note that NRS 108.600(2) gives attorney liens
priority over hospital liens: No [hospital] lien shall apply or be allowed against any sum
incurred by the injured party for necessary attorney fees, costs and expenses incurred by the
injured party in securing a settlement, compromise or recovering damages by an action at
law. While DIS argues that hospital liens are distinguishable from medical service provider
liens because hospitals treat the seriously injured, the distinction is de minimis. In any event,
NRS 108.600(2) represents the general policy that attorney liens take priority over those of
medical service providers.
Based on the rationale discussed in Cetenko and the policy embodied in NRS
108.600(2), we conclude that attorney liens have priority over medical provider liens and that
attorney liens are not subject to distribution on a pro-rata basis.
3
Accordingly, we must next
determine whether the district court exceeded its jurisdiction or is otherwise required by
law to discharge Michel from the interpleader action.
__________

3
Because we conclude that attorney liens enjoy priority over medical service providers liens, we need not
address the parties' contentions regarding the common fund doctrine.
we must next determine whether the district court exceeded its jurisdiction or is otherwise
required by law to discharge Michel from the interpleader action.
B. Procedure for enforcing an attorney lien under NRS 18.015
Michel argues that he correctly calculated his attorney fees and costs according to his
agreement with Cervantes, and therefore the district court must discharge him from the
action. DIS counters that Michel must remain a party to the action and disgorge the amount
he held back from Cervantes' award so the court can make the appropriate distribution.
[Headnotes 6, 7]
In situations such as this, when an attorney holds funds in trust for the client and two
or more parties claim interest in the funds, an interpleader action is an appropriate procedure
for determining the respective rights of those interested. See NRCP 22 (allowing interpleader
when the plaintiff in the interpleader action is or may be exposed to double or multiple
liability).
4
First, we note that in order to conclusively determine the respective rights of all
interested parties as to the entire amount in dispute, the disputed funds must be tendered to
the court in their entirety. Simple logic dictates that interpleader cannot protect the
interpleading plaintiff from liability arising out of disputed funds that were not covered by the
adjudication.
[Headnote 8]
Once the funds have been submitted for judicial distribution, in order to enforce the
attorney lien under NRS 18.015, the court must make certain findings and conclusions before
distribution. Its findings should include the following:
Whether the attorney may utilize NRS 18.015 to obtain the fees claimed. See Harvey
L. Lerer, Inc. v. District Court, 111 Nev. 1165, 1168, 901 P.2d 643, 646 (1995)
(concluding that NRS 18.015 is inapplicable to purely inter-attorney disputes
__________

4
Our previous opinions cited a common law rule of interpleader that limited the right to interplead to
stakeholders claiming no interest in the disputed property or funds. See, e.g., Farmers Ins. v. Civil Serv. Emp.
Ins., 94 Nev. 733, 734, 587 P.2d 420, 421 (1978). We recognize, however, that an exception emerged at
common law allowing actions in the nature of interpleader, which allowed the stakeholder to claim an interest, as
distinguished from strict interpleader, which did not. See John Hancock Mut. Life Ins. Co. v. Kegan, 22 F.Supp.
326, 329 (D. Md. 1938). But under the modern approach promulgated in part by the federal interpleader rule,
which was adopted in Nevada as NRCP 22, the stakeholder may claim an interest in the property or funds
submitted for adjudication, and the common law distinction between the types of interpleader actions is
abolished. See FRCP 22 advisory committee's notes.
putes . . . which are not predicated on an attorney/client fee agreement);
Whether the amount claimed by the lien stems from a judgment or settlement. See
NRS 18.015(1); see also Figliuzzi, 111 Nev. at 342, 890 P.2d at 801 (recognizing that
an attorney cannot use NRS 18.015 to enforce an attorney lien if the attorney has not
obtained a settlement or judgment for the client);
Whether the lien is enforceable: some are not. See, e.g., Van Cleave v. Osborne,
Jenkins & Gamboa, 108 Nev. 885, 887, 840 P.2d 589, 591 (1992) (concluding that a
firm's attorney lien was unenforceable against its former client's settlement after the
firm entered into a consent judgment with the former client in a malpractice dispute);
Whether the attorney lien has been properly perfected according to NRS 18.015(2),
which provides that [a]n attorney perfects his lien by serving notice in writing, in
person or by certified mail, return receipt requested, upon his client and upon the party
against whom his client has a cause of action, claiming the lien and stating the interest
which he has in any cause of action;
Whether there are any setoffs reducing the net amount subject to the attorney lien. See
Muije v. North Las Vegas Cab, 106 Nev. 664, 799 P.2d 559 (1990) (concluding that a
defendant's setoff was superior to an attorney lien where the district court had awarded
the defendant an amount for having offered to settle for more than the plaintiff's jury
verdict under NRS 17.115(4)(b));
In extraordinary circumstances, whether equitable factors might affect the net
judgment or the priority of the attorney lien. See, e.g., Rios v. Mireles, 937 P.2d 840
(Colo. Ct. App. 1996) (concluding that, under Colorado's attorney lien statute, a child
support garnishment has priority over an attorney lien); and
Finally, from the net amount subject to the attorney lien, the court should calculate the
amount the attorney is due based upon the fee which has been agreed upon by the
attorney and client. NRS 18.015(1). If the court finds that no agreement governed the
attorney/client relationship, then the lien is for a reasonable fee. Id.
After calculating the amount due to the attorney under the lien, the court may then
distribute to the attorney his or her share and discharge the attorney from the interpleader
action.
5

__________

5
The parties have neither raised nor briefed the issue of whether Michel has a contractual, fiduciary, or ethical
duty to continue to represent Cervantes' interests if the district court discharges him after resolving the attorney
lien dispute. Accordingly, we need not address the issue.
Here, although Michel has undertaken some of the steps necessary to enforce his
attorney lien, many issues remain to be resolved before he can be discharged. For instance,
although Michel has interpleaded the parties in interest, he has not submitted the disputed
amount in full for adjudication. Furthermore, although we conclude that Michel's attorney
liens have priority over medical service provider defendant's liens, the record indicates that
the district court has not had the opportunity to make findings regarding the additional
considerations above. Accordingly, we conclude that Michel's request to be discharged from
the action is premature.
CONCLUSION
We conclude that an attorney lien enjoys priority over a medical service provider lien.
Nevertheless, because certain issues remain unresolved regarding the enforcement of Michel's
lien, we decline to issue the extraordinary relief requested.
____________
117 Nev. 153, 153 (2001) Johnson v. State
RICHARD CHRISTOPHER JOHNSON, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 32100
February 23, 2001 17 P.3d 1008
Appeal from a judgment of conviction pursuant to a jury verdict of second-degree
murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; John
S. McGroarty, Judge.
Defendant was convicted in the district court of second-degree murder with the use of
a deadly weapon. He appealed. The supreme court held that: (1) defendant had the absolute
right to prohibit defense counsel from interposing an insanity defense, (2) defendant may not
have been capable of voluntarily deciding to represent himself, and (3) defendant's due
process rights were not violated by loss of eight-plex tape showing shooting.
David M. Schieck, Las Vegas, for Appellant.
Attorney, and James Tufteland and William T. Koot, Chief Deputy District Attorneys, Clark
1. Criminal Law.
Claims regarding legal representation provided to an accused at trial are generally more appropriately raised in the first instance
in a postconviction proceeding where the district court can conduct an evidentiary hearing to review and resolve factual uncertainties.
2. Criminal Law; Mental Health.
If a defendant is mentally competent to stand trial, the defendant has the absolute right to prohibit defense counsel from
interposing an insanity defense. Alternatively, if a defendant is not mentally competent to make that decision, then the defendant is not
competent to stand trial in the first instance.
3. Criminal Law.
The forced imposition of the insanity defense over the express objections of the defendant is structural error requiring reversal.
4. Mental Health.
A defendant who lacks the mental capacity to waive the right to counsel is per force incompetent to stand trial. U.S. Const.
amend. 6.
5. Criminal Law.
Assuming a defendant has been properly found to be competent to stand trial and to waive counsel, the next inquiry is whether
the defendant's waiver is knowing, voluntary, and intelligent. U.S. Const. amend. 6.
6. Criminal Law.
Defendant who had been found competent to stand trial could not be precluded from waiving his right to counsel, in absence of
some indication that defendant's attempt to waive counsel was not knowing, intelligent, and voluntary, or that some other factor
warranted denial of right to self-representation. U.S. Const. amend. 6.
7. Criminal Law.
Defendant's right to self-representation was not violated when trial court found that defendant's waiver of right to counsel was
not voluntary, based on expert testimony that if defendant continued to act as his own counsel, there was a substantial likelihood that
the fluctuating intensity of his delusional belief system would have eventually led either to his inability to abide by rules of procedure
and courtroom protocol, or to complete loss of his mental competency to proceed, thereby necessitating declaration of a mistrial. U.S.
Const. amend. 6.
8. Criminal Law.
A trial court will not necessarily violate defendant's right to self-representation if it bases its decision to deny a defendant the
right to self-representation on a factually supported and well-documented finding that there is a substantial likelihood that continued
self-representation will eventually render a competent defendant incompetent to continue standing trial, or unable to abide by rules of
procedure or courtroom protocol. U.S. Const. amend. 6.
To establish a due process violation based upon the State's failure to gather evidence, a defendant must show: (1) that the State
failed to gather evidence that is constitutionally material, i.e., that raises a reasonable probability of a different result if it had been
available to the defense; and (2) that the failure to gather the evidence was the result of gross negligence or a bad faith attempt to
prejudice the defendant's case. U.S. Const. amend. 14.
Murder defendant's due process rights were not violated by loss of eight-plex tape of shooting, despite defendant's allegation that
eight-plex tape would have shown that victim was the initial aggressor. All taped portions of the killing were transferred onto standard
videotape presented at trial, numerous eyewitnesses testified that defendant shot victim without provocation, and there was no showing
that State acted negligently or in bad faith. U.S. Const. amend. 14.
Before Maupin, C. J., Shearing and Becker, JJ.
OPINION
1

Per Curiam:
Richard Christopher Johnson appeals his conviction, pursuant to a jury verdict, of
second-degree murder with the use of a deadly weapon. Johnson contends that: (1) his
court-appointed trial counsel violated his Sixth Amendment
2
rights; (2) the district court
violated his Sixth Amendment rights by refusing to allow him to represent himself; and (3)
the district court erred in concluding that he was not entitled to a new trial based on the
State's alleged failure to preserve videotape evidence.
In accord with a majority of jurisdictions that have addressed similar issues, we
conclude that Johnson's counsel below improperly interposed an insanity defense against
Johnson's wishes. Therefore, we reverse Johnson's conviction and remand this matter for
further proceedings.
On April 8, 1995, Johnson shot and killed George Hightower outside Caesar's Palace
Hotel and Casino in Las Vegas. Several eyewitnesses, including a Los Angeles police officer,
identified Johnson as the shooter. One witness took numerous still photographs and eight
surveillance cameras recorded the incident on videotape.
Immediately after the incident, an officer of the Las Vegas Metropolitan Police
Department (LVMPD) asked Caesar's security investigator Robert Lambright to turn over
the surveillance tapes. Lambright later testified that he copied the relevant portions of an
eight-plex tape onto a single tape, that the original eight-plex tape was misplaced, but that all
the taped portions of the murder contained in the eight-plex tape were transferred to a
standard VCR tape later presented at trial.
__________

1
This Corrected Opinion is issued in place of the opinion filed January 31, 2001.

2
See U.S. Const. amend. VI.
Following its initial investigation, the State charged Johnson with murder with the use
of a deadly weapon and counsel was appointed to represent him. Counsel's investigation
revealed that Johnson had a history of bizarre behavior. For example, Johnson had previously
contacted an LVMPD officer complaining that there was a conspiracy in the community and
that members of an Oakland cult type situation were after him. Johnson told the officer that
he had sent letters to various public and police agencies requesting that they investigate the
conspiracy. Johnson had also sent letters to President Clinton, Mrs. Clinton, and members of
Congress warning them of a dangerous Oakland gang. He also claimed that Hightower may
have been involved in the conspiracy and had killed people in Oakland.
Due to this unusual behavior, Johnson's first public defender arranged a psychiatric
examination. One of the initial examining experts, Dr. Rockenbeck, diagnosed Johnson as
having symptoms of a serious delusional disorder that interfered with his ability to function
socially, as well as in the trial process. Although Dr. Rockenbeck's assessment indicated that
Johnson understood the charges against him and trial procedure, his preliminary diagnosis
raised questions about whether Johnson was able to accept the assistance of any attorney who
did not embrace Johnson's delusional beliefs. Accordingly, on October 6, 1995, the district
court remanded Johnson to the state mental health facility at Lakes Crossing for a thorough
sanity commission evaluation of his competence to stand trial.
3

At Lakes Crossing, three psychiatrists, Dr. Howle, Dr. Tanenbaum, and Dr. Rich, all
found Johnson to be competent to stand trial and to assist in his defense. Based on these
findings, Johnson's new court-appointed public defender in the proceedings below withdrew
his request for a full sanity commission competency hearing and specifically indicated on the
record that he was satisfied beyond a reasonable doubt that [Johnson] was competent to
proceed to trial. Thereafter, Johnson was arraigned and pleaded not guilty. The district court
also permitted his counsel to enter a plea of not guilty by reason of insanity on Johnson's
behalf.
In response to his counsel's entry of the insanity plea, Johnson renewed an earlier
proper person motion to remove his counsel and to represent himself. On September 18,
1996, the district court conducted an extensive Faretta
4
canvas. The court fully explained,
and Johnson acknowledged that he understood, the dangers of self-representation, as well as
the elements of the crime with which he was charged.
__________

3
See NRS 178.400-.465.

4
See Faretta v. California, 422 U.S. 806 (1975); see also SCR 253.
with which he was charged. The court's canvas further established that Johnson understood
that he was charged with first-degree murder, meaning premeditated, deliberate murder with
malice, that a conviction of first-degree murder might result in life imprisonment, and that
his possible defenses included not guilty by reason of insanity and self-defense.
The transcript of the Faretta canvas also reflects, however, that Johnson's primary
motivation for wanting to represent himself was his counsel's insistence on presenting an
insanity defense. For example, Johnson expressed his dissatisfaction with counsel based on
their differences regarding the insanity issue:
I'd like to have a defensive counsel, notno one from the public defender's office.
Based on the incompetency issue, based on our differences, our conflict of interests. I
would like to have someone other than the public defender's office.
With respect to his relationship with counsel, Johnson further stated: I think we have a legal
conflict based on the not guilty by reason of insanity issue your honor.
Moreover, due to this conflict, defense counsel explained that if the court permitted
Johnson to represent himself, counsel felt he could not ethically act as standby counsel.
Specifically, counsel noted that Johnson adamantly denied he was insane, and if Johnson
were to act as his own counsel, counsel was certain that Johnson would withdraw the insanity
defense. Under those circumstances, counsel argued, he could not ethically serve as backup
counsel because I know that a not guilty by reason of insanity defense has to be put forth,
and he [Johnson] won't let me do it.
5

At the conclusion of this hearing, the district court ruled that Johnson had passed the
test of the Faretta canvas and could represent himself. Despite counsel's objections, the
court appointed him to act as standby counsel. Nonetheless, the court expressed willingness
to further consider counsel's suggestion of a creative solution to his perceived ethical
dilemma. Specifically, counsel suggested that if the court appointed him as Johnson's
co-counsel, he could assert an insanity defense while Johnson continued to act on his own
behalf in presenting other matters, such as his claim of self-defense. Counsel argued that the
defense of not guilty by reason of insanity was completely consistent with Johnson's theory
of self-defense. On October 2, 1996, the district court revisited the issue, modified its earlier
decision by adopting counsel's "co-counsel" solution,
__________

5
Although the issue is not specifically addressed by the parties to this appeal, we note that we are unaware of
any ethical or other legal proscription that would have prevented counsel from serving as standby counsel under
the circumstances presented.
decision by adopting counsel's co-counsel solution, and ordered counsel to serve as
Johnson's co-counsel for the purpose of presenting an insanity defense. After the district court
announced this decision, Johnson placed his objections to the ruling on the record:
Johnson: That's a total conflict of interest. I mean, weweI feel there's no reason to
even use the term insanity in the defense. I feel
The Court: [Defense counsel] has an ethical obligation to do what he has to do. And
you, sir, [have] the right to represent yourself
Johnson: Yes.
The Court: on the charges, and that's what I'm doing. I'm letting you represent
yourself on the charges, sir. Now, [defense counsel] will serve a dual function. He will
serve as standby counsel for your personal defense. He will serve as counsel for the not
guilty by reason of insanity defense, if, in fact, that becomes viable during the course of
these proceedings. I don't know how I can explain myself any further than that. That's
what I'm going to do. Okay?
Johnson: If that's what you're gonna' do, I can't argue with that. All I can do is make a
motion again to dismiss counsel.
At another pretrial hearing on October 11, 1996, concerns resurfaced respecting
Johnson's delusional belief system, his competence to proceed to trial, and his competence to
represent himself as co-counsel. Specifically, the prosecutor voiced his increasing concern
that Johnson might be laboring under some sort of delusion, either intentionally or
unintentionally, and requested the court to appoint some professionals to examine Johnson:
I do think that the court should appoint some professionals to examine Mr. Johnson. . . .
I personally have come to the conclusion now, that although he is competent to assist
counsel, that he is not competentmy personal opinionhe's not competent to
represent himself.
Subsequently, on October 25, 1996, the district court ordered Johnson returned to the Lakes
Crossing facility for another sanity commission evaluation.
On February 19, 1997, the district court conducted an evidentiary hearing on the
competency issue. Defense counsel and the prosecutor extensively questioned Dr. Howle,
prosecutor extensively questioned Dr. Howle, Dr. Rich, and Dr. Tanenbaum regarding their
further findings. Again, the doctors all agreed that Johnson understood the proceedings
against him and that he was mentally competent to stand trial. Although Dr. Howle and Dr.
Tanenbaum diagnosed Johnson as suffering from a delusional disorder, they concluded that
his condition did not necessarily render him incompetent to stand trial. Dr. Howle testified,
however, that Johnson's competency was more fluid than static, and that he may be more
competent on one day than another. Dr. Howle also conceded that a trial was a stressful
situation and that Johnson's mental stability would certainly be subject to question during
trial. The doctor noted parenthetically, I have heard of cases where an individual was
evaluated daily to determine if they were competent on that particular day. In discussing the
effect of Johnson's delusional condition on his continued competence and ability to assist
counsel throughout trial, Dr. Tanenbaum testified that it was a very difficult question, and
that he could not guarantee Johnson's continued ability to do so.
On March 19, 1997, after hearing oral argument from counsel and reviewing the
psychiatric reports, the district court revoked its order allowing Johnson to represent himself
as co-counsel, and ordered defense counsel to serve as the sole counsel for the defense. The
district court first found that Johnson was competent to stand trial. The district court further
indicated, however, that Johnson's competency was becoming more and more tenuous as
the trial date approached, and that Johnson's interests would best be served by leaving the
presentation of the claims of self-defense and insanity solely up to his counsel:
Because during the course of this trial there may come a time when [defense counsel]
will have to put on a defense adverse to your own particular personal beliefs, but in
what he feels is a required proffer of defense, such as not guilty by reason of insanity, if
it comes to that point. Right now, as you indicated, or as you heard [defense counsel]
express his plans to put up a self-defense argument, which is exactly what you've been
talking about all along. But if it becomes necessary, [defense counsel] has indicated he
wants to have the ability to interpose any other defense, i.e. not guilty by reason of
insanity, if he thinks it's appropriate at the time.
I also agree with counsel for both the State and the defense, that as this case . . . closer
approaches trial, as reflected in the notes of the doctors who examined you, the
psychiatrists, they've said that your competency has become less tenuousor became
more tenuous, I should say, the closer we approach trial. They have made thethey
made that observation in their examination of you.
that observation in their examination of you. They made that statement.
Therefore, I think to protect your interest . . . I'm going to have [defense counsel]
designated as the sole attorney representing your interest at this time.
Defense counsel thereafter represented Johnson throughout the trial and presented a
claim of self-defense, as well as a defense of not guilty by reason of insanity. The jury found
Johnson guilty of second-degree murder with the use of a deadly weapon. Following the
verdict, Johnson filed a timely motion for a new trial based, in part, on the State's failure to
produce the original eight-plex Caesar's videotape. The district court denied the motion and
sentenced Johnson to serve two consecutive terms of life in the Nevada State Prison with the
possibility of parole. This appeal followed.
DISCUSSION
Defense counsel's assertion of the insanity defense
Johnson contends that the actions of his trial counsel deprived him of his Sixth
Amendment right to the meaningful assistance of counsel. The main thrust of Johnson's
contention is that his counsel's actions at trial undermined the claim of self-defense that
Johnson wanted to present. In the context of this contention, however, Johnson emphasizes
that his counsel interposed an insanity defense against Johnson's express objections.
Although we do not directly address the precise ineffective assistance of counsel
claim posed by Johnson, i.e., that counsel undermined Johnson's claim of self-defense, we do
conclude that trial counsel's presentation of the insanity defense against Johnson's express
objections was per se improper. We further conclude that such an error is not subject to
harmless error analysis because it is a structural defect affecting the framework within which
the trial proceeds, rather than simply an error in the trial process itself.
6
Therefore, we
conclude, the assertion of the insanity defense under these circumstances constitutes
reversible error.
[Headnote 1]
We note initially that claims regarding legal representation provided to an accused at
trial are generally more appropriately raised in the first instance in a post-conviction
proceeding where the district court can conduct an evidentiary hearing to review and
resolve factual uncertainties.
__________

6
See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see also State v. Bean, 762 A.2d 1259, 1268 (Vt.
2000) (holding that the forced imposition of the insanity defense over a defendant's objection is structural
error and grounds for reversal of the conviction) (citing Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky.
1994); Treece v. State, 547 A.2d 1054, 1063 (Md. 1988); State v. Jones, 664 P.2d 1216, 1223 (Wash. 1983)).
raised in the first instance in a post-conviction proceeding where the district court can
conduct an evidentiary hearing to review and resolve factual uncertainties.
7
In the instant
case, however, there is no factual dispute over whether trial counsel presented the insanity
defense against Johnson's wishes. As the State's answering brief observes, the record is clear
that Johnson did not want to proceed with an insanity defense. Thus, the issue presented is
purely one of law, and an evidentiary hearing below would be of little value.
Further, the record reflects that Johnson asserted his right to self-representation
mainly because of the conflict of interests arising out of his differences with his counsel
over the insanity defense. Thus, the issue of whether trial counsel improperly asserted the
defense against Johnson's wishes is closely intertwined with Johnson's additional contention
on appeal that the district court erroneously deprived him of his Sixth Amendment right to
represent himself. We also emphasize that Johnson is represented on appeal by counsel other
than trial counsel. Therefore, appellate counsel has no conflict of interests with respect to
presentation of issues involving the effective assistance of trial counsel.
Accordingly, we conclude that the policy concerns underlying this court's reluctance
to review most Sixth Amendment ineffective assistance of counsel claims on direct appeal are
not implicated here. We have therefore elected to address the merits of this issue on direct
appeal.
8

In State v. Bean, the Vermont Supreme Court recently addressed a similar fact pattern
and characterized the issue presented as: whether the decision to raise an insanity defense is
one involving the objectives of representation, left to the client, or the means of
representation, properly exercised by the lawyer.
9
Although we have never directly
addressed this precise issue, in Raquepaw v. State we recognized that certain fundamental
decisions can only be made by the accused:
The accused has the ultimate authority to make certain fundamental decisions
regarding the case, such as whether to plead guilty, waive a jury, testify on one's own
behalf, or take an appeal.
__________

7
See Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981).

8
Cf. Jones v. State, 110 Nev. 730, 877 P.2d 1052 (1994) (concluding that a post-conviction evidentiary
hearing on a claim of ineffective assistance was not necessary where counsel's actions were a matter of record,
not disputed, and per se improper); see also Bean, 762 A.2d at 1266-68 (where record evidence established clear
disagreement between counsel and defendant on interposition of insanity defense, the court reached the merits of
the issue on direct appeal rather than deferring matter for post-conviction hearing).

9
Bean, 762 A.2d at 1265.
take an appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). An attorney may not speak
for a client on these decisions without consultation. See Johnson v. Duckworth, 793
F.2d 898 (7th Cir. 1986), cert. denied, 479 U.S. 937 (1986). Counsel cannot waive
these basic trial rights over a client's objection. The right of confrontation is such a right
and cannot be waived over objection. Don v. Nix, 886 F.2d 203, 207 (8th Cir. 1989).
10

Similarly, in Faretta, the United States Supreme Court recognized that [t]he right to
defend is given directly to the accused; for it is he who suffers the consequences if the
defense fails.
11
The Court further emphasized that:
It is the defendant . . . who must be free personally to decide whether in his particular
case counsel is to his advantage. And although he may conduct his own defense
ultimately to his own detriment, his choice must be honored out of that respect for the
individual which is the lifeblood of the law.
12

In Commonwealth v. Federici, after reiterating that under Faretta a defendant's choice
to waive counsel must be honored, the Massachusetts Supreme Judicial Court continued:
[w]e see no reason to afford lesser protection to the defendant's choice not to label himself
criminally insane' where the defendant has been found competent and has been fully advised
beforehand of the consequences of his actions by both defense counsel and the judge.
13
The
Massachusetts court also noted that [t]he majority of States honor a competent defendant's
choice to forgo a defense strategy that asserts, in any way, that he or she was not guilty of the
crime charged by reason of insanityeven over defense counsel's objections.
14

__________

10
See Raquepaw v. State, 108 Nev. 1020, 1022-23, 843 P.2d 364, 366 (1992), overruled on other grounds
by DeRosa v. Dist. Ct., 115 Nev. 225, 985 P.2d 157 (1999).

11
Faretta, 422 U.S. at 819-20.

12
Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-351 (Brennan, J., concurring)).

13
See Commonwealth v. Federici, 696 N.E.2d 111, 115 (Mass. 1998).

14
Id. at 115 n.4 (citing United States v. Marble, 940 F.2d 1543, 1547-48 (D.C. Cir. 1991) (court must honor
competent defendant's decision not to raise insanity defense); People v. Geddes, 1 Cal. Rptr. 2d 886 (Ct. App.
1991) (defense based on insanity is a personal decision for competent defendant despite defense counsel's
disagreement); State v. Lowenfield, 495 So. 2d 1245, 1252 (La. 1985) (counsel must acquiesce to competent
defendant's informed decision to forgo insanity defense); Treece v. State, 547 A.2d 1054 (Md. 1988) (defense
counsel must honor competent defendant's choice); State v. Khan, 417 A.2d 585 (N.J. Super. Ct. App. Div.
1980) (competent defendant permitted to forgo defense based on insanity); State v. Jones,
Our review of the relevant authorities cited in Federici and Bean reveals that three
fundamental concerns are frequently noted in support of the conclusion that the final authority
to assert or forgo a defense of insanity ultimately resides with the defendant personally. First,
the insanity defense is essentially a plea of not guilty by reason of insanity, and as such, it
should be entered only by the defendant personally or by counsel after the defendant has
consented.
15
Second, an acquittal on the basis of insanity may result in long-term
institutionalization, and the consequences of a choice between a possible commitment to a
mental health institution or to prison are so grave and personal that a competent defendant
should have the right to make his or her own decision as to whether to interpose that plea.
16
Third, the social stigmatization that may attach to an assertion or adjudication of insanity also
weighs in favor of leaving the final decision of whether to assert an insanity defense to the
competent defendant and not to counsel.
17

[Headnotes 2, 3]
Although we acknowledge the minority position on this issue, we conclude that the
minority view does not give sufficient consideration to these concerns or properly distinguish
between the objectives of representation, which should be left to the client, and the means of
representation, which remain within counsel's control.
18
In our view, the majority rule is the
better reasoned position. Accordingly, we adopt the view of the majority of jurisdictions and
hold that if a defendant is mentally competent to stand trial, as the district court found in this
case, the defendant has the absolute right to prohibit defense counsel from interposing an
insanity defense. Alternatively, if a defendant is not mentally competent to make that
decision, then the defendant is not competent to stand trial in the first instance.
19
Moreover,
we agree that the forced imposition of the insanity defense over the express objections of the
defendant is structural error requiring reversal.
20

__________
664 P.2d 1216 (Wash. 1983) (respect for defendant's autonomy requires that competent defendant determine
whether to assert plea); see also Bean, 762A.2d at 1267 (citing additional cases supporting majority view).

15
See Bean, 762 A.2d at 1266 (the decision of what pleas to enter must be made by the defendant after full
consultation with counsel) (citing 1 American Bar Ass'n Standards for Criminal Justice 4-5.2(a)(i) (2d ed.
1980)).

16
See Treece, 547 A.2d at 1060.

17
Id. at 1059-60.

18
The State's answering brief cites a case that is representative of the minority rule. See People v. Anderson,
641 N.E.2d 591 (Ill. Ct. App. 1994).

19
See, e.g., Godinez v. Moran, 509 U.S. 389, 400-01 (1993) (stating that the standards of competency to
stand trial and waive counsel are identical).

20
See Bean, 762 A.2d at 1268.
Therefore, because trial counsel in the instant case asserted the insanity defense against
Johnson's express objections, we reverse the conviction and remand this matter for further
proceedings.
The right to waive counsel
Johnson also contends that, under Faretta, the district court erroneously ruled that he
could not represent himself at trial. Although our resolution of the issue discussed above
renders it unnecessary to address this contention, for the benefit of the trial court, we briefly
discuss the parameters of a defendant's entitlement to self-representation in the event a similar
question arises again on remand.
[Headnote 4]
We begin by reiterating that under the holdings of Faretta and Godinez v. Moran, a
defendant who lacks the mental capacity to waive the right to counsel is per force
incompetent to stand trial.
21
Although we are not entirely convinced that there are no
qualitative distinctions between mental competency to stand trial and to represent oneself, we
are not free to ignore United States Supreme Court precedent on a federal constitutional
question.
[Headnote 5]
Assuming a defendant has been properly found to be competent to stand trial and to
waive counsel, the next inquiry is whether the defendant's waiver is knowing, voluntary and
intelligent.
22
As we noted in Tanksley v. State, the Faretta canvas is intended to address this
aspect of the waiver by apprising the defendant fully of the risks of self-representation and of
the nature of the charged crime so that the defendant's decision is made with a clear
comprehension of the attendant risks.
23

[Headnote 6]
In the instant case, the district court expressly found that Johnson was competent to
stand trial. Thus, in the absence of some indication that Johnson's attempt to waive counsel
was not knowing, intelligent and voluntary, or that some other factor warranted denial of the
right to self-representation under this court's holding in Tanksley, the district court could not
properly preclude Johnson from waiving his right to counsel.
[Headnote 7]
Our review of the canvas reveals that Johnson's waiver of counsel was knowing and
intelligent.
__________

21
See Godinez, 509 U.S. at 400-01 (holding that the standards of mental competency to stand trial and waive
counsel are identical; but the waiver of counsel must also be knowing, intelligent, and voluntary).

22
Id.

23
See Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997) (quoting Graves v. State, 112 Nev.
118, 124, 912 P.2d 234, 238 (1996)).
sel was knowing and intelligent. Johnson's responses evinced his clear understanding of the
disadvantages of self-representation, including the risks and complexities of the particular
case. The issue of whether Johnson's attempted waiver of counsel was voluntary, however, is
not so clear. As the facts set forth above indicate, trial counsel's insistence on presenting the
insanity defense over Johnson's objections appears to have been a primary, if not the sole,
motivation for Johnson's assertion of his right to represent himself. Thus, because as we have
held today, defense counsel must honor a competent defendant's choice regarding the defense
of insanity, Johnson's assertion of the right to represent himself may not have been entirely
voluntary.
24
In other words, Johnson's decision to assert his right to represent himself was
arguably coerced by counsel's and the district court's decisions to go forward with the insanity
defense against Johnson's express objections.
But more importantly, what takes this case out of the simple formula (mandating that
mental competence to stand trial necessarily constitutes mental competence to waive counsel)
is the expert testimony that, while Johnson was competent to stand trial and to validly waive
counsel at the time of the canvas and just prior to trial, his mental condition and stability were
fluid and changeable. Dr. Howle testified, for example, that Johnson's mental stability was
more fluid than static, that he may be more competent on one day than another, and that
Johnson's mental stability would certainly be subject to question during trial. In discussing
the effect of Johnson's delusional condition on his continued competence and ability to assist
counsel throughout trial, Dr. Tanenbaum testified that it was a very difficult question, and
that he could not guarantee Johnson's continued ability to do so. Thus, the district court's
decision to deny Johnson the right to proceed as his own counsel appears to have been
premised, at least in part, on this testimony indicating that as the trial date approached,
Johnson's mental competence was becoming more and more tenuous.
[Headnote 8]
In our view, and under this court's holding in Tanksley, the district court properly
denied Johnson his Faretta rights in these circumstances. More specifically, Tanksley held
that a defendant may be denied the right to self-representation where the request is untimely,
equivocal, made for the purpose of delay, or would result in disruption of the judicial
proceeding
__________

24
See Godinez, 509 U.S. at 401 n.12 (the purpose of the inquiry under Faretta into whether a defendant's
waiver of the right to counsel is knowing and voluntary is to determine whether the defendant actually does
understand the significance and consequences of a particular decision and whether the decision is uncoerced)
(emphases added).
result in disruption of the judicial proceeding.
25
As a logical extension of the Tanksley line
of cases, we conclude that a district court will not necessarily violate Faretta or Godinez if it
bases its decision to deny a defendant the right to self-representation on a factually supported
and well-documented finding that there is a substantial likelihood that continued
self-representation will eventually render a competent defendant incompetent to continue
standing trial, or unable to abide by rules of procedure or courtroom protocol.
26

For example, the expert testimony in this case indicated that if Johnson continued to
represent himself during trial, he might well succumb to the added stress of
self-representation and deteriorate to the point where it would become necessary to
continuously disrupt the proceedings to monitor his present mental abilities and
competence. Based on this testimony and the district court's own observations of Johnson's
increasingly tenuous condition, the court could have found that if it permitted Johnson to
continue to act as his own counsel, there was a substantial likelihood that the fluctuating
intensity of his delusional belief system would have eventually led either to his inability to
abide by rules of procedure and courtroom protocol, or to a complete loss of his mental
competency to proceed, thereby necessitating declaration of a mistrial.
27

The case of Savage v. Estelle, which was cited with approval in Tanksley, supports
this conclusion. In Savage, the court held that a defendant whose severe speech impediment
made him unable to communicate effectively with the jury was properly denied his Faretta
rights.
28
The court interpreted the United States Supreme Court's holding in McKaskle v.
Wiggins as permitting denials of the Faretta right to an accused who is unable to abide by
rules of courtroom procedure, just as the right may be denied to those who are unwilling so to
do.
29
In theory, if a physical impairment can warrant a restriction on one's Faretta rights
because the impairment renders a defendant unable to abide by rules of procedure or protocol,
then a mental impairment, which does not vitiate mental competence to stand trial or waive
counsel,
__________

25
Tanksley, 113 Nev. at 1001, 946 P.2d at 150; see also Lyons v. State, 106 Nev. 438, 443-44, 796 P.2d 210,
213 (1990).

26
See, e.g., Savage v. Estelle, 924 F.2d 1459, 1463 (9th Cir. 1990) (a partial denial of the right to
self-representation is permissible if an accused does not knowingly and intelligently forgo[ ] his right to
counsel or is not able and willing to abide by rules of procedure and courtroom protocol) (quoting McKaskle
v. Wiggins, 465 U.S. 168, 173 (1984)).

27
See, e.g., Tanksley, 113 Nev. at 1001, 946 P.2d at 150 (citing Savage, 924 F.2d at 1464; McKaskle, 465
U.S. at 173; United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989)).

28
Savage, 924 F.2d at 1464-67.

29
Id. at 1466.
tal competence to stand trial or waive counsel, may similarly render a defendant unable to
abide by rules of procedure or protocol.
We acknowledge that a fine line may separate the defendant who is mentally
competent to proceed to trial from one who is unable or unwilling to abide by rules of
procedure or protocol due to a mental impairment. Nonetheless, we are persuaded that, where
the evidence clearly supports such a finding, the trial courts may properly deny the Faretta
right to defendants whose mental impairments do not render them incapable of standing trial,
but do affect their abilities and perceptions to such an extent that they are ultimately
disruptive to the trial process and unable to adhere to rules of procedure or protocol.
The denial of the motion for new trial
Johnson argues the district court erred in denying his motion for a new trial because
the State failed to preserve exculpatory evidence, namely the eight-plex Caesar's videotape.
The State never had possession or control of the eight-plex tape. Thus, this issue is more
properly addressed as a failure to gather the evidence.
30

[Headnote 9]
To establish a due process violation based upon the State's failure to gather evidence,
a defendant must show: (1) that the State failed to gather evidence that is constitutionally
material, i.e., that raises a reasonable probability of a different result if it had been available
to the defense; and (2) that the failure to gather the evidence was the result of gross
negligence or a bad faith attempt to prejudice the defendant's case.
31
We conclude that
Johnson failed to establish a due process violation, and that, therefore, the district court did
not abuse its discretion in denying the motion.
32

[Headnote 10]
First, Johnson has failed to demonstrate that the tape was constitutionally material to
his defense. Although he contends that the eight-plex tape would have shown that Hightower
was the initial aggressor, the record does not support this contention. Numerous
eyewitnesses testified at trial that Johnson shot Hightower without provocation.
__________

30
See Steese v. State, 114 Nev. 479, 491, 960 P.2d 321, 329 (1998) (where police never had control of the
evidence, the issue involved a failure to gather evidence, not a failure to preserve evidence); Daniels v. State,
114 Nev. 261, 266-67, 956 P.2d 111, 115 (1998) (distinguishing legal analyses applicable to a failure to
preserve and a failure to gather evidence).

31
See Steese, 114 Nev. at 491, 960 P.2d at 329 (citing Daniels, 114 Nev. at 267, 956 P.2d at 115; State v.
Ware, 881 P.2d 679, 685 (N.M. 1994)).

32
See Lightford v. State, 91 Nev. 482, 483, 538 P.2d 585, 586 (1975) (the district court's ruling on a motion
for new trial will not be disturbed on appeal absent an abuse of discretion).
eyewitnesses testified at trial that Johnson shot Hightower without provocation. Additionally,
Lambright testified that he viewed the entire eight-plex tape, and at the request of the
LVMPD, he copied the relevant portions of the tape. Lambright verified that all the taped
portions of the killing were transferred onto the standard VCR tape presented at trial.
Accordingly, Johnson has failed to demonstrate a reasonable probability of a different result
even if the eight-plex tape had been gathered by the police and made available to the defense.
Second, Johnson has not established that the State's failure to obtain the eight-plex
tape was the result of negligence, gross negligence, or bad faith. As noted, immediately after
the murder, an LVMPD officer asked Lambright to provide any surveillance tapes showing
the killing. Lambright complied and transferred the relevant portions to a standard VCR tape
because the eight-plex tape could not be viewed on a standard VCR. Thus, even assuming
that the eight-plex tape was material, the record does not show that the State acted negligently
or in bad faith. Accordingly, we conclude that the district court did not abuse its discretion in
denying the motion for a new trial.
CONCLUSION
Because defense counsel in the proceedings below interposed an insanity defense
against Johnson's express objections, we reverse and remand this matter for further
proceedings. On remand, the district court will no doubt revisit whether Johnson's delusional
belief system renders him incompetent to stand trial. Assuming that Johnson is competent to
stand trial, he may not be compelled against his wishes to assert the defense of insanity.
Further, unless Johnson is found to be incompetent to stand trial, or the fluctuating intensity
of his delusional condition proves substantially likely to disrupt the trial or render him unable
to abide by court procedures or protocol, any request for self-representation should be granted
if the requisite Faretta canvas discloses that his decision is knowing, intelligent and voluntary
and that he has made his decision with a clear comprehension of the attendant risks. We reject
Johnson's contention that the district court erred in denying the motion for a new trial.
____________
117 Nev. 169, 169 (2001) Rogers v. Heller
AL ROGERS, an Individual, and PENNY ROGERS, an Individual, both dba BIG AL'S
GOOD TIME PIZZA AND STUFF, a Sole Proprietorship; JOHN PESHEK, dba PIP
PRINTING, a Sole Proprietorship; HOWARD ZINK, dba MR. ROY
PRODUCTIONS, a Sole Proprietorship; WESLEY FLETCHER, dba FLETCHER
ROOFING & SIDING, a Sole Proprietorship; RONALD TROMBLY, dba RON
TROMBLY CONSTRUCTION, INC., a Sole Proprietorship; SHELLY SWANSON,
dba SWANSON AND SON LAWN SERVICE, a Sole Proprietorship; MERL
SCHNEIDER, dba DAIRY QUEEN 1, a Sole Proprietorship; RAY TOMALAS, dba
R.L. TOMALAS CUSTOM CABINETS, a Sole Proprietorship; DARYL REEDY, an
Individual Doing Business as a Sole Proprietorship; STEVE BROWN, an Individual;
THE CARSON CIGAR COMPANY, INC., a Nevada Corporation; KAY
MEDRANO, RAY AND KAY, INC., a Nevada Corporation; LYNN GARD, an
Individual; BACK TO THE GRIND, INC., a Nevada Corporation; JAMES L.
CARPENTER, an Individual; ANDY JENSEN, an Individual; ANTHONY P.
DIEHL, an Individual; JEFF SLIGAR, an Individual; CARL J. DERICCO, an
Individual; THE TOWN BARBERS, a Nevada Limited Liability Corporation;
CARSON CITY CHAMBER OF COMMERCE, a Nevada Corporation; DAYTON
AREA CHAMBER OF COMMERCE, a Nevada Corporation; DOUGLAS COUNTY
CHAMBER OF COMMERCE, a Nevada Corporation; ELKO COUNTY CHAMBER
OF COMMERCE, a Nevada Corporation; GREATER RENO-SPARKS CHAMBER
OF COMMERCE, a Nevada Corporation; GREATER LAS VEGAS CHAMBER OF
COMMERCE, a Nevada Corporation; ASSOCIATED GENERAL CONTRACTORS
OF AMERICA, a Nevada Not-For-Profit Corporation; NEVADA ASSOCIATION
OF EMPLOYERS, a Nevada Not-For-Profit Corporation; and NEVADA
TAXPAYER'S ASSOCIATION, a Nevada Not-For-Profit Corporation, Appellants, v.
DEAN HELLER, in His Official Capacity as SECRETARY OF STATE OF THE
STATE OF NEVADA; and NEVADA STATE EDUCATION ASSOCIATION, a
Nevada Non-Profit Cooperative Corporation, Respondents.
No. 37189
February 27, 2001 18 P.3d 1034
Appeal from an order of the district court denying appellants' complaint, which
challenged the legal sufficiency of an initiative petition.
petition. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Numerous business entities filed complaint seeking declaratory and injunctive relief
from initiative that sought to raise funds and increase state funding for public elementary and
secondary schools. The district court denied complaint. Challengers appealed. The supreme
court held that initiative violated constitutional threshold-funding requirement.
Reversed.
Rose, J., dissented.
McMullen Strategic Group and Samuel P. McMullen, Reno, for Appellants.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP, Reno, for
Appellants.
Frankie Sue Del Papa, Attorney General, and Kateri M. Cavin, Deputy Attorney
General, Carson City, for Respondent Secretary of State.
Dyer Lawrence Cooney & Penrose, Carson City, for Respondent Nevada State
Education Association.
Schreck Brignone & Godfrey and Todd L. Bice and Michael V. Infuso, Las Vegas, for
Amicus Curiae Nevada Resort Association.
Sinai Schroeder Mooney Boetsch & Bradley, Reno, for Amicus Curiae Nevada
Parent-Teacher Association.
Brenda J. Erdoes, Legislative Counsel, Carson City, for Amicus Curiae Legislative
Commission.
Allison MacKenzie Hartman Soumbeniotis & Russell, Carson City, for Amici Curiae
Nevada Manufacturers Association, Nevada Cattleman's Association, Nevada Motor
Transport Association and Retail Association of Nevada.
McCracken Stemerman Bowen & Holsberry, Las Vegas, for Amici Curiae Nevada
State AFL-CIO & Culinary Workers Union Local 226.
1. Statutes.
If an initiative does not comply with constitutional provision prohibiting proposal of any statute making an appropriation or
requiring an expenditure without providing for raising necessary revenue, then the initiative is void. Const. art. 19, 2(1), 6.
Court must give a constitutional provision its plain meaning unless the language is ambiguous.
Rules of construction that apply to statutes should also be applied to constitutional provisions.
4. Schools; Statutes.
Initiative that would have required Legislature to set aside amount of basic education support guarantees each biennium so that
state's share would equal at least fifty percent of state's total projected revenues violated constitutional threshold-funding requirement.
Proposed tax of four percent under initiative was insufficient to cover initiative's required fifty-percent-of-revenue appropriation.
Const. art. 19, 2(1), 6.
5. Statutes.
Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative
enactments where it is possible to strike only the unconstitutional portions.
6. Statutes.
Initiative that would have required Legislature to set aside amount of basic education support guarantees each biennium so that
state's share would equal at least fifty percent of state's total projected revenues, which violated constitutional threshold-funding
requirement by proposing tax of only four percent, could not be validated by severing constitutionally infirm appropriation requirement
from remainder of initiative. Appropriation requirement was a central component of initiative. Const. art. 19, 2(1), 6.
OPINION
Per Curiam:
In this appeal, we are asked to address the propriety of an initiative petition
(Initiative) that seeks to raise funds and increase state funding for Nevada's public
elementary and secondary schools by enacting a new chapter in NRS Title 32 and by
amending various provisions of Nevada's statutes. Because the Initiative requires a new
legislative appropriation without also raising a sufficient tax, it lacks sufficient funding, a
threshold requirement under the Nevada Constitution. The Initiative's failure to comply with
the Nevada Constitution's threshold funding renders it void. Further, as the Initiative is void,
the Secretary of State's transmittal of the Initiative to the Legislature was ineffective, and the
Legislature is barred from taking further action on it.
The Initiative
In April 2000, respondent Nevada State Education Association (NSEA) filed the
Initiative with respondent Nevada Secretary of State.
of State. The Initiative is entitled Nevada Tax Fairness and Quality School Funding
Accountability Act, and would amend the Nevada Revised Statutes by adding a new chapter
to Title 32, Revenue and Taxation, and amending various statutes, basically for the purpose
of increasing funding to Nevada's public schools, grades K-12. The Initiative was circulated
for signatures and signed by more than 63,000 voters throughout the state. Thereafter, various
county clerks and registrars of voters verified the signatures on the Initiative documents. On
September 25, 2000, the Secretary of State certified that the Initiative had qualified for
submission to the Nevada Legislature.
On October 2, 2000, appellants, numerous business entities, filed a complaint in the
district court pursuant to NRS 295.061. The complaint sought declaratory and injunctive
relief, or in the alternative, writ relief in the form of mandamus or prohibition. The complaint
raised two general challenges to the Initiative: (1) constitutional deficiencies in the substance
of the Initiative, and (2) procedural deficiencies in the Initiative's qualification process. NSEA
opposed the complaint.
Following a five-day trial, the district court issued an order denying the relief
requested by appellants. The district court determined that the Initiative should be read to
mean that the tax raised is intended to supplement the general amount of funding the schools
presently receive from all sources, and thus the Initiative is not clearly unconstitutional. This
appeal followed.
Background on the initiative process
Nevada's Constitution expressly empowers the people to propose, by initiative
petition, statutes and amendments to statutes;
1
it requires the Secretary of State to transmit a
certified initiative petition to the Legislature as soon as the Legislature convenes.
2
Thereafter, the Legislature must enact or reject the proposed initiative petition without change
or amendment within forty days.
3
If the Legislature fails to act within the forty days, or
rejects the initiative petition, then the Secretary of State must submit the initiative petition to
the electorate for a vote at the next general election.
4
If approved, the Legislature cannot
amend, annul, repeal, set aside or suspend the law within three years after it takes effect.
5

__________

1
Nev. Const. art. 19, 2(1).

2

3
Id.

4
Id.

5
Id.
The Initiative's funding
[Headnote 1]
Nevada Constitution article 19, section 2(1) provides that the initiative process is
subject to the limitations of [article 19, section 6]. Article 19, section 6, in turn, does not
permit the proposal of any statute or statutory amendment which makes an appropriation or
otherwise requires the expenditure of money, unless such statute or amendment also imposes
a sufficient tax, not prohibited by the constitution, or otherwise constitutionally provides for
raising the necessary revenue. Section 6 applies to all proposed initiatives, without
exception, and does not permit any initiative that fails to comply with the stated conditions.
Consequently, section 6 is a threshold content restriction, under which we must address the
Initiative's validity.
6
If the Initiative does not comply with section 6, then the Initiative is
void.
7
Thus, we must first determine if the Initiative makes an appropriation or requires an
expenditure of money. Simply stated, an appropriation is the setting aside of funds, and an
expenditure of money is the payment of funds.
8

Historically, Nevada's Legislature has provided for the general support of schools
every year. In 1873, a state school fund was established, and interest accrued from the
revenue raised from selling land was divided among Nevada's elementary and secondary
schools.
9
In 1912, the state distributive school account was established, with funds
distributed to schools semiannually.
10
Since then, the Legislature has resolved that state
financial aid to public schools,
__________

6
See Caine v. Robbins, 61 Nev. 416, 420, 131 P.2d 516, 517 (1942) (determining that an initiative that
lacked an enabling clausea threshold constitutional requirementrenders the initiative void); see also James
D. Gordon, III, and David B. Magleby, Pre-election Judicial Review of Initiatives and Referendums, 64 Notre
Dame L. Rev. 298, 313-14 (1989); John F. Cooper, The Citizen Initiative Petition to Amend State Constitutions:
A Concept Whose Time Has Passed, or a Vigorous Component of Participatory Democracy at the State Level?,
28 N.M. L. Rev. 227, 241 (1998).

7
See Caine, 61 Nev. at 420, 131 P.2d at 517.

8
See Black's Law Dictionary 101 (6th ed. 1990) (defining appropriation as the act of appropriating or
setting apart; . . . designating the use or application of a fund); id. at 577 (defining expenditure as the
[s]pending or payment of money; the act of expending, disbursing, or laying out of money); see also McAlpine
v. University of Alaska, 762 P.2d 81, 88 (Alaska 1988) (noting that a typical appropriation involves setting aside
money); Hunt v. Callaghan, 257 P. 648, 649 (Ariz. 1927) (defining an appropriation as the setting aside from
the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of
the government are authorized to use that money, and no more, for that object, and no other) (quotation
omitted).

9
See NV Compiled Laws, 3320.

10
See NV Compiled Laws, 3375.
public schools, grades K-12, is intended to provide each child in Nevada with a reasonably
equal education opportunity.
11
To accomplish this objective, the Legislature establishes
basic support guarantees for all school districts.
12
These guarantees are based upon a set
and equal amount of funding for each student in all school districts. Both state and local
revenues contribute to the total basic support guarantees for all districts.
13
After the
Legislature determines how much money each local school district can apply toward its total
per-student basic support guarantees, the state makes up the difference between the amount of
the district's total basic support guarantees and the district's available local funding.
14
This
arrangement is known as the Nevada Plan, and the state's share, the total amount of its
contribution for all districts, is drawn from the state distributive school account.
15
Based on
the Nevada Plan, the Legislature approves a budget for the state distributive school account
for the state's portion of overall education funding.
Section 53 of the Initiative would require the Legislature to set the amount of the
basic support guarantees each biennium so that the state's share equals at least fifty percent of
the state's total projected revenues:
1. For making the apportionments of the state distributive school account in the state
general fund required by the provisions of this Title, the basic support guarantee per
pupil for each school district and the basic support guarantee for each special education
program unit maintained and operated during at least 9 months of a school year [ ] must
be established by law for each school year. For each year of the biennium, the basic
support guarantees must be established in such amounts so that collectively, after
deducting local money available for public schools, they represent not less than 50
percent of the projected revenue of the state for that year.
2. As used in this section:
(a) Local money available for public schools means the sum of the amounts
referred to in paragraphs {a) and {b) of subsection 1 of NRS 3S7.1235.
__________

11
See NRS 387.121.

12
NRS 387.122.

13
See NRS 387.121.

14
See id.; NRS 387.1235. If a school district's available local revenues exceed the amount of basic support,
no appropriation will be made by the state to that school district. See NRS 387.124.

15
NRS 387.121. The record shows that the state distributive school account derives its funding from the
general fund appropriation under the state budget, from annual slot tax revenues, investment income, mineral
land lease revenues, out-of-state sales tax, and estate tax revenues. See also NRS 387.030.
sum of the amounts referred to in paragraphs (a) and (b) of subsection 1 of NRS
387.1235.
(b) Projected revenue of the state means the amount of revenue to be collected by
the state during each year of the biennium, as estimated by the economic forum
pursuant to NRS 353.228.
3. All money received pursuant to sections 5 to 44, inclusive, of this measure must be
appropriated and expended only for the purposes provided for in section 14 of this
measure, and must be used only to supplement sources of funding for education
existing on the effective date of this measure and not as a substitute for existing funding
for education. No money in the quality schools trust account in the state distributive
school account may be used to supplant any state or local general fund [money for] any
purpose.
16

To help pay for this fifty-percent amount, the Initiative proposes to levy a four-percent
tax on the Nevada taxable income of each business operating in Nevada to the extent the
income exceeds $50,000.00 annually. The Initiative also provides that the amount raised from
the four-percent tax would only supplement the state's sources of funding for education and is
not intended as a substitute for existing education funding. Moreover, the Initiative provides
that the revenue from the four-percent tax would only be available to fund education.
The Initiative proposes fundamental changes to the budget for Nevada's public
elementary and secondary schools. Under the Initiative, the amount of funding allocated for
the state's share of the school districts' basic support guarantees cannot be less than fifty
percent of the state's total projected revenues for each year of a given biennium. It requires
the basic support guarantees to be set in an amount so that they equal half of the state's
projected general fund revenue after deducting local money available for public schools.
Accordingly, the Initiative calls for an appropriation and an expenditure: it requires the
Legislature to appropriate and spend a specific amount of money for a specified purpose for
all future biennia. Additionally, since the Initiative sets the appropriation amount at a
minimum of fifty percent of the state's total revenues, it prevents the Legislature from setting
or diminishing the amount of funding.
Although NSEA argues that the Initiative's plain language provides that it is meant to
augment, and not supplant, existing funding, NSEA fails to recognize that the Legislature is
under no continuing obligation to fund education in any particular amount.
__________

16
Initiative, section 53(1)-(3) (emphasis in subsections 2 and 3 omitted except for must be appropriated).
Currently, the Legislature decides what amount to appropriate for public education each
biennium, based in part on a determination of the basic support guarantees, and in part on
local funding for public schools. Even if the Legislature has a perpetual duty to fund
education, because of its traditional role in funding education and its promise to pay any
needed portion of the basic support guarantees, the Legislature is not required to continue
funding education at any particular level. A necessary appropriation or expenditure in any set
amount or percentage is a new requirement that otherwise does not exist. Thus, although the
Initiative is intended to supplement current education funding, by requiring the state's share of
the basic support guarantees to be an amount that is at least half of the state's total projected
general revenue, the Initiative requires a new appropriation and expenditure in at least the
fifty-percent amount for each biennium. The entire amount is a new requirement, since
otherwise the Legislature has broad discretion in determining education funding.
[Headnotes 2, 3]
Therefore, since the Initiative requires a new appropriation and expenditure, we must
decide whether the proposed four-percent tax under the Initiative covers the required amount.
We have not previously considered what funding is necessary when an initiative requires an
appropriation or the expenditure of money. Nevada Constitution article 19, section 6 states
that the initiative must impose a sufficient tax . . . or otherwise constitutionally provide[ ] for
raising the necessary revenue. We must give this provision its plain meaning unless the
language is ambiguous.
17
Here, the language at issue is clearthe Initiative must create
enough tax or revenue to cover its required appropriation and expenditure.
[Headnote 4]
Although proposed taxes and revenues are subject to projections and may not be
calculable to a certainty, the proposed tax here is clearly insufficient to cover the Initiative's
required fifty-percent-of-revenue appropriation. NSEA's Director of Research testified that
the four-percent tax proposed under the Initiative could generate approximately $270,000,000
annually. This amount would arguably be sufficient to fund an increase between the average
percentage of the state's overall revenues spent on education in the past,
__________

17
See McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986). A majority of courts apply
the rules of statutory construction when interpreting constitutional provisions. See, e.g., State Bd. of Equalization
v. Bd. of Supervisors, 164 Cal. Rptr. 739 (Ct. App. 1980); Westerberg v. Andrus, 757 P.2d 664 (Idaho 1988);
Butte-Silver Bow Local Gov't. v. State, 768 P.2d 327 (Mont. 1989); Com'n on Medical Competency v. Racek,
527 N.W.2d 262, 266 (N.D. 1995). We agree that the rules of construction that apply to statutes should also be
applied to constitutional provisions.
percentage of the state's overall revenues spent on education in the past, and the Initiative's
fifty-percent-of-revenues requirement, but only if the Legislature, in its discretion, kept
education funding the same. This amount, in and of itself, falls far short of the total
fifty-percent requirement.
18
Consequently, the Initiative fails the threshold-funding
requirement of article 19, section 6.
Severability
NSEA asks that if the Initiative's appropriation requirement is constitutionally infirm,
we sever that provision and allow the rest of the Initiative to proceed.
19
According to NSEA,
the invalid provision can be stricken because the Initiative's drafters intended that the tax
revenues raised should supplement existing education funding, and severing section 53 would
accomplish this goal.
[Headnotes 5, 6]
Severability is a judicial doctrine recognizing the obligation of the judiciary to
uphold the constitutionality of legislative enactments where it is possible to strike only the
unconstitutional portions.
20
We have previously recognized the doctrine,
21
and, as our
dissenting colleague notes, NRS 0.020 deals expressly with severability. This statutory
provision, however, relates specifically to provisions of the Nevada Revised Statutes, laws
that have been formally adopted. Although severance may be appropriate with respect to the
Nevada Revised Statutes, we decline to sever an initiative petition's central component that
has been signed by thousands of voters.
22
Initiative petitions must be kept substantively
intact; otherwise, the people's voice would be obstructed. As the California Court of Appeals
observed nearly a century ago:
__________

18
The state's revenue for fiscal years 1999-2000 was estimated at approximately $1.5 billion annually.

19
Section 55 of the Initiative sets forth a severability clause:
If any provision of this measure or its application to any person or circumstance is held invalid, that
invalidity shall not affect any other provision or application of this measure that can be given effect
without the invalid provision or application. As used in this section, provision includes any section,
subsection, paragraph, subparagraph, sentence, phrase or word of this measure.

20
Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999).

21
Brewery Arts Ctr. v. State Bd. Examiners, 108 Nev. 1050, 843 P.2d 369 (1992); County of Clark v. City of
Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976).

22
In Nevada Judges Association v. Lau, 112 Nev. 51, 910 P.2d 898 (1996), we severed an initiative petition
that proposed a constitutional amendment and ordered it presented as two questions instead of one. In that case,
however, our decision to sever the initiative petition into two questions did not change the petition's substance.
Here is a power granted unto the people, to propose their own laws for adoption,
provided certain legal procedure be followed to properly place said laws before the
voters. Assume, if you please, that certain features are included in such proposed laws
or in connection therewith, which appealed to the voter, and in fact served as the
controlling influence inducing him to sign the petition. Has he not the right to assume,
and should not the law protect him in the assumption, that he will have the opportunity
and right to vote for the matters which he has petitioned for? . . . In fact, is not the
whole theory of initiative legislation based upon the security that the legislation
proposed and petitioned for by the people shall be voted upon at the polls by them
without interference, revision, or mutilation by any official or set of officials?
23

We agree that initiative legislation is not subject to judicial tamperingthe substance of an
initiative petition should reflect the unadulterated will of the people and should proceed, if at
all, as originally proposed and signed. For this reason, our constitution prevents the
Legislature from changing or amending a proposed initiative petition that is under
consideration. Like the Legislature, we are not in a position to know whether an initiative's
drafters and signers would want an initiative to proceed without a primary component of the
proposal. Consequently, in this case, we decline to sever section 53 from the Initiative.
Appellants have raised other issues with respect to the Initiative's constitutionality and
procedural compliance, but we need not address these issues. Since the Initiative fails to
comply with article 19, section 6 of the Nevada Constitution, it is void. Accordingly, we
reverse the order of the district court. Further, as we have determined that the Initiative is
void, the Secretary of State's transmittal of the Initiative to the Legislature was ineffective.
Although the Legislature is barred from taking further action on the void Initiative, nothing in
this opinion is to be construed as precluding the Legislature from considering or adopting the
same or similar legislation as it may deem appropriate.
24

Rose, J., dissenting:
I dissent because our intervention in the initiative petition process at this time is
premature and not appropriate. But even if intervention were appropriate,
__________

23
Bennett v. Drullard, 149 P. 368, 370 (Cal. Ct. App. 1915).

24
The Honorable A. William Maupin, Chief Justice, and The Honorable Nancy A. Becker, Justice, did not
participate in the decision of this appeal.
In light of the nature and urgency of this matter, we suspend NRAP 41(a) and direct the clerk of this court to
issue the remittitur forthwith.
intervention were appropriate, I believe that the basic business tax proposal is severable from
the provision that would require the Legislature to spend on education at least fifty percent of
the state's revenue.
Our case law instructs us that we should not intervene at this early stage of the
initiative petition process unless the petition would constitute a plain and palpable' violation
of the . . . Constitution and would inevitably be futile and nugatory and incapable of being
made operative under any conditions or circumstances.'
1
The rationale behind the rule is
simple: the initiative process should continue and not be derailed by judicial intervention
unless the petition proposal is clearly and obviously unconstitutional.
2
The business tax
petition is certainly not that. It presents close legal issues with few helpful precedents to aid
us.
In oral argument, Justice Cliff Young insightfully inquired: Why should we get
involved at all? Why shouldn't we wait until the initiative petition process has run its
course? First impressions are almost always valid when buttressed by the law. Abstaining
from action at this time is the legal and thoughtful thing to do and constitutes a preferred
conservative approach to judicial involvement in the initiative petition process.
The majority believes that the petition's requirement that the Legislature maintain
educational spending at present levels runs afoul of article 19, section 6 of the Nevada
Constitution. I doubt that it does. The proposal requires the Legislature to spend at least fifty
percent of the state's budget on education. The majority of funds for this expense are already
raised by the state when the Legislature convenes every other year. At trial, the petition's
proponents introduced evidence that the petition's tax would raise sufficient revenue to bring
this funding to the fifty-percent level. Additionally, because the petition simply requires the
Legislature to spend at least fifty percent of state revenues, funding is available; the revenues
to comply with the mandatory minimum spending requirement are already on hand, and thus
there is no need to identify a revenue source. It appears that the majority is objecting to the
reduction of legislative discretion to spend money as it wishes, rather than to the lack of
sufficient available revenues.
__________

1
Stumpf v. Lau, 108 Nev. 826, 831, 839 P.2d 120, 123 (1992) (quoting Caine v. Robbins, 61 Nev. 416,
425,131 P.2d 516, 520 (1942)).

2
This court explained its wait-and-see policy in Las Vegas Chamber of Commerce v. Del Papa, 106 Nev.
910, 917, 802 P.2d 1280, 1281-82 (1990): First, a measure that initially appears unconstitutional may be
implemented in a constitutional manner. Second, even if an initiative measure is unconstitutional, there is great
political utility in allowing the people to vote on the measure. Such a vote communicates clearly to the
representative branches of government the popular sentiment on a particular issue or issues.
While a legitimate concern, curbing legislative discretion does not violate this constitutional
provision if sufficient revenues are available to comply, as they are in this case.
The initiative process is a power reserved by the people.
3
Accordingly, liberal
construction of a proposed initiative is called for, and any doubts should reasonably be
resolved by the court in favor of this reserve power.
The exercise of initiative and referendum is one of the most precious rights of our
democratic process. Since under our theory of government all the power of government
resides in the people, the power of initiative is commonly referred to as a reserve
power and it has long been our judicial policy to apply a liberal construction to this
power wherever it is challenged in order that the right be not improperly annulled. If
doubts can reasonably be resolved in favor of the use of this reserve power, our courts
will preserve it.
4

As I read the majority opinion, any initiative petition that requires the Legislature to
fund any project without identifying an independent revenue source will be unconstitutional.
This holding gives a strict construction to an initiative petition that should instead be liberally
interpreted to preserve the will of the petitioners if at all possible.
I also note that the opponents to the petition did not challenge the constitutionality of
the provision that requires a minimum mandatory percentage of the state budget to be spent
on education until oral argument before this court. The argument was not made before the
district court, and the district court judge was not given a chance to rule on the issue. The
district court was faced solely with determining whether the proposed tax would bring the
state's prior education funding to the fifty-percent level. Further, the argument was not even
made in the appellants' briefs to this court. A legal argument not made in district court is
deemed waived and cannot be raised on appeal.
5
Therefore, the opponents to the petition
should be precluded from relief on this issue if we follow our precedents regarding appellate
review. This is yet another reason why we should not be entertaining this argument against
the petition at this time.
But even if we are going to rule on the validity of the petition at this early date and
conclude that the provision requiring mandatory spending on education is unconstitutional,
the provision is clearly severable from the business tax proposition for the following
reasons:
__________

3
Nev. Const. art. 19, 2.

4
Mervynne v. Acker, 11 Cal. Rptr. 340, 344 (Ct. App. 1961) (citations omitted).

5
See Dermody v. City of Reno, 113 Nev. 207, 210 931 P.2d 1354, 1357, (1997); Powers v. Powers, 105 Nev.
514, 516, 779 P.2d 91, 92 (1989).
clearly severable from the business tax proposition for the following reasons:
1. The petition itself requests that if any section is invalid, then the remaining valid
portions be placed on the ballot. There can be little doubt of the individual signers' intent
when the signed petition requests severance of any invalid section.
2. The petition sponsors requested at oral argument that if the mandatory education
spending proposal was ruled invalid, the business tax proposal alone be placed on the ballot. I
do not see how the majority cannot discern the intent of the sponsors and petition signers
when the drafters expressly request severance.
3. NRS 0.020(1) unequivocally states that the invalid portion of an initiative petition
shall not affect the remaining provisions if the other valid provisions can be given effect.
Nevada law thus directs that the valid portions of an initiative petition should survive and be
placed on the ballot.
4. The business tax is the primary part of the initiative. The obvious intent of the
petition is to supplement existing funding for education. This proposal can stand alone, just as
it has in other states.
Many states have severed an invalid portion of an initiative petition after it was
enacted into law.
6
One state has severed the invalid portion of an initiative petition before it
went to the voters.
7
Indeed, the Nevada Supreme Court has gone so far as to modify the
language of an initiative petition to meet a constitutional challenge before it went to the
voters.
8
In another case, this court severed judges from other elected officials in the term
limits proposal that was voted on in 1996.
9
If the mandatory educational spending provision
is invalid, this court has the power and obligation,
__________

6
See, e.g., Citizens Clean Elections Commission v. Myers, 1 P.3d 706 (Ariz. 2000) (severing provision of
electorate-adopted initiative that unconstitutionally expanded the scope of judicial appointments and violated
doctrine of separation of powers); U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349 (Ark. 1994) (severing
unconstitutional amendment as to federal legislative candidates); Legislature v. Eu, 816 P.2d 1309 (Cal. 1991)
(severing unconstitutional portion of citizen-initiated term-limit legislation); Ray v. Mortham, 742 So. 2d 1276
(Fla. 1999) (severing portion of citizen-initiative legislation that attempted to impose term-limits on federal
legislators); Simpson v. Cenarrusa, 944 P.2d 1372 (Idaho 1997) (severing citizen-initiative legislation that
attempted to impose term limits on federal legislators); State v. Shumway, 607 P.2d 191 (Or. Ct. App. 1980)
(severing legislative amendment that established 25-year minimum incarceration period for persons convicted of
murder).

7
See McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

8
See Choose Life Campaign 90' v. Del Papa, 106 Nev. 802, 804, 801 P.2d 1384, 1385 (1990).

9
See Nevada Judges Ass'n v. Lau, 112 Nev. 51, 60, 910 P.2d 898, 904 (1996).
obligation, pursuant to NRS 0.020(1), to declare the business tax proposal severable from the
mandatory spending requirement and permit the business tax proposal to go forward in the
initiative process.
The business tax proposal, standing alone, certainly appears to be constitutional. It
will raise substantial sums if its hefty four-percent tax on business profits over $50,000 is
ever levied. Therefore, the business tax proposal standing alone is not in violation of article
19, section 6 of the Nevada Constitution because it would merely mandate that any funds
raised be allocated to Nevada's public primary and secondary schools.
If we are true to the law, we should eschew ruling on the initiative petition's validity at
this early stage. These close legal issues will still be there if the petition proposal is enacted
into law. For this reason, I dissent from the majority.
____________
117 Nev. 182, 182 (2001) Woosley v. State Farm Ins. Co.
KAREN L. WOOSLEY, as Guardian ad Litem of ZACHARY C. ADAMS, a Minor Child;
and DOROTHY B. ADAMS, Individually, as Guardian ad Litem of WHITNEY
ADAMS, a Minor, and on Behalf of the ESTATE OF DOUGLAS ADAMS,
Deceased, Appellants, v. STATE FARM INSURANCE COMPANY, Respondent.
No. 33647
March 6, 2001 18 P.3d 317
Appeal from a judgment following a jury verdict and from a district court order
denying appellants' motion for a new trial in an action for breach of contract to recover
uninsured motorist benefits. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Guardian ad litem and personal representative of insured's estate brought action to
recover uninsured motorist (UM) benefits for collision with stopped truck after swerving to
miss ladder. The district court refused to give a res ipsa loquitur instruction without a
reference to contributory negligence and entered judgment on jury verdict for the insurer.
Plaintiffs appealed. The supreme court, Shearing, J., held that: (1) plaintiff's negligence
precludes application of res ipsa loquitur only if it is greater than the defendant's negligence,
overruling Bialer v. St. Mary's Hospital, 83 Nev. 241, 427 P.2d 957 (1967); and (2) evidence
created a jury question on the application of res ipsa loquitur.
[Rehearing denied July 17, 2001]
Curtis B. Coulter, Reno, for Appellant Woosley.
Leverty & Associates and Matthew L. Sharp, Reno, for Appellant Adams.
Burton Bartlett & Glogovac, Reno, for Respondent.
The supreme court reviews a denial of a motion for new trial for abuse of discretion and will not disturb the district court's
decision on appeal absent palpable abuse.
2. Trial.
A party is entitled to an instruction on every theory that is supported by the evidence, and it is error to refuse such an instruction
when the law applies to the facts of the case.
3. Negligence.
Res ipsa loquitur is an exception to the general negligence rule, and it permits a party to infer negligence, as opposed to
affirmatively proving it, when certain elements are met.
4. Negligence.
The doctrine of res ipsa loquitur requires the defendant to have superior knowledge of or be in a better position to explain the
accident.
5. Negligence.
Once the elements of res ipsa loquitur are met, the burden shifts to the defendant to show that something other than its
negligence caused the accident.
6. Negligence.
Whether sufficient evidence supports an inference of negligence under res ipsa loquitur is a question for the jury. However, the
district court must first determine whether sufficient evidence has been adduced at trial to support the consideration of a res ipsa
loquitur instruction and therefore whether the instruction should be given.
7. Negligence.
A plaintiff's negligence precludes application of res ipsa loquitur only if it is greater than the defendant's negligence. Barring a
plaintiff from using res ipsa loquitur in a comparative negligence case contravenes the comparative negligence statute, and the doctrine
thus may apply as long as the plaintiff's negligence is not greater than that of the defendant; overruling Bialer v. St. Mary's Hospital,
83 Nev. 241, 427 P.2d 957 (1967). NRS 41.141.
8. Negligence.
If comparative negligence is not an issue, a sample instruction to consider on res ipsa loquitur requires determinations whether
the accident or injury ordinarily does not occur in the absence of someone's negligence and was caused by an agency or instrumentality
which was within the exclusive control of the defendant and which was not mishandled or otherwise changed after the defendant
relinquished control.
9. Negligence.
In a suit raising an issue of res ipsa loquitur in the absence of comparative negligence, the district court should also provide an
instruction relating to proximate cause.
10. Negligence.
If comparative negligence is an issue, a sample instruction to consider on res ipsa loquitur requires a determination with respect
to the
negligence of one party, i.e., whether the accident or injury ordinarily does not occur in the absence of someone's negligence and was
caused by an agency or instrumentality which was within the exclusive control of the defendant and which was not mishandled or
otherwise changed after the defendant relinquished control.
11. Negligence.
In a suit raising an issue of res ipsa loquitur and comparative negligence, the proximate cause instruction should address the
appropriate weighing, according to the statutory comparative negligence scheme, that the jury should give to each respective party's
negligence. NRS 41.141.
12. Automobiles.
Evidence in automobile accident suit, alleging that negligence of unknown driver caused another driver's collision with stopped
truck after swerving to miss ladder in road, created a jury question on the application of res ipsa loquitur. The plaintiffs showed that the
unknown driver had exclusive control of the ladder, that ladders did not normally fall off moving vehicles into traffic absent a negligent
act or omission, and that swerving driver's negligence was not greater than that of the unknown driver. NRS 41.141.
OPINION
This is an appeal from a judgment following a jury verdict and the district court's
denial of a motion for a new trial in an action for breach of contract to collect uninsured
motorist benefits. Douglas Adams was killed in a car accident caused in part by the alleged
negligence of an unknown driver. Adams' automobile insurance policy permitted his family
(appellants) to apply for uninsured motorist benefits under the policy. Respondent, State Farm
Insurance Company (State Farm), denied appellants' application for uninsured motorist
benefits pursuant to the policy, and appellants filed an action for breach of contract. A jury
returned a verdict for State Farm, and the district court entered judgment in accordance with
the verdict. The district court subsequently entered an order denying appellants' motion for a
new trial.
Appellants appeal, claiming the district court erred in entering the judgment and
abused its discretion by denying the motion for a new trial in light of its failure to give a res
ipsa loquitur instruction and a mistaken and erroneous comparative negligence instruction.
We conclude that the evidence adduced at trial did not support the proffered res ipsa loquitur
instruction in light of the evidence of Adams' comparative negligence. However, res ipsa
loquitur as adapted in accordance with the current comparative negligence scheme should
have been considered by the jury. We therefore remand this case to the district court for
further proceedings consistent with this opinion.
therefore remand this case to the district court for further proceedings consistent with this
opinion.
FACTS
On May 20, 1994, Douglas Adams was killed in an automobile accident on Highway
395 in Reno when he swerved to avoid a ladder that had fallen in the middle of his lane and
collided with a utility truck stopped in the emergency lane. Pursuant to Adams' State Farm
automobile insurance policy, appellants filed a claim to collect uninsured motorist benefits,
asserting that Adams' death was caused by the negligence of an unknown driver (John Doe)
who had dropped the ladder. State Farm refused to pay the benefits.
Appellants filed a complaint against State Farm for breach of contract, bad faith,
breach of the implied covenant of good faith and fair dealing and unfair trade practices.
1
The
parties agreed to dismiss the breach of the implied covenant of good faith and fair dealing
claim without prejudice. Judge Peter I. Breen severed and stayed the bad faith claim and other
extra-contractual claims, and the parties proceeded to trial on the breach of contract claim
only.
At trial, appellants argued that they were entitled to uninsured motorist benefits under
Adams' policy because the accident was substantially caused by the negligence of John Doe
when he dropped the ladder in the middle of the highway lane.
2
State Farm countered that
appellants were not entitled to the coverage because Adams' contributory negligence
exceeded that of John Doe, therefore barring the claim for uninsured motorist benefits.
3
Appellants put forth evidence implying the negligence of John Doe and attempted to rely on
the doctrine of res ipsa loquitur in support of their claim of negligence against John Doe. To
prevail on their breach of contract claim and recover uninsured motorist benefits, appellants
had to prove the uninsured motorist was negligent and that negligence caused Adams' death.
At trial, witnesses testified about the events leading up to the accident. Adams was
driving southbound in the left lane on Highway 395 in Reno,
__________

1
Appellants also sued the owner of the utility truck stopped in the emergency lane, Washoe Keystone, and its
driver, Dennis Collins, alleging that Collins negligently stopped on the shoulder of the highway and caused
Adams' accident. The parties settled these claims during trial. Karen Woosley, in her representative capacity,
initially sued each party separately from the other appellants, but the district court consolidated her claims with
those of the other appellants.

2
Although John Doe is not necessarily an uninsured motorist under NRS 690B.020(3)(f), the parties did not
litigate this issue. But State Farm's insurance policy implied that John Doe was included under the policy as an
uninsured motorist because he was an unknown driver.

3
See NRS 41.141.
Highway 395 in Reno, maintaining a speed of approximately fifty-five to sixty-five miles per
hour with the flow of traffic. He encountered a ladder lying in the left lane, extending
partially into the left emergency lane, and a Washoe Keystone utility truck parked in that
emergency lane. Approaching the ladder, he swerved to the left into the emergency lane to
avoid the ladder, noticed the truck blocking his path, and swerved back to the right. He was
unable to avoid the ladder or the truck, and collided with the ladder, the rear end of the truck
and finally the cement median. Adams died as a result of the accident; Adams' passenger, his
son Zachary, survived.
Witnesses testified that Adams was speeding slightly that day. They also testified to
the presence of another car in the adjacent right lane, although they disagreed whether Adams
could have moved to the right to avoid the ladder. Further testimony indicated that numerous
drivers before Adams had seen the ladder in the road previously and had either braked or
changed lanes to avoid it, without incident. Police Officer Jerry Seevers testified that the
primary cause of the accident was the ladder in the road. He further stated that the ladder was
visible from a slight distance, that it could be driven over, and that Adams' failure to stay in
his lane was an additional cause of the accident. Appellants conceded at trial that Adams may
have been partially negligent, and State Farm argued that Adams' speeding and inappropriate
swerving caused the accident.
John Menges testified that he observed an F-250 Ford pickup truck traveling
southbound in the left lane on Highway 395 a few minutes before the accident. The truck had
a ladder attached to the roof that was not securely fastened. Menges observed the ladder fall
off the truck into the left lane, its location when Adams came across it. Menges followed the
driver (John Doe), flagged him over at the South Virginia Street exit, and informed him that
the ladder had fallen from his truck. Menges testified that John Doe asked whether the ladder
had caused an accident, to which Menges responded no. Menges also told him to return to
get the ladder. Menges last observed John Doe turning towards McCarran Boulevard, as if to
return to Highway 395. Menges could not remember the Ford's license plate number and only
recalled that the truck had silver lettering from a roofing company on the side. Neither the
Nevada Highway Patrol nor Adams' wife located John Doe or his truck.
At the close of evidence, appellants requested a jury instruction on res ipsa loquitur.
The proposed instruction read:
On the issue of negligence, one of the questions for you to decide in this case is
whether the accident occurred under the following conditions:
First, that it is the kind of accident that ordinarily does not occur in the absence of
someone's negligence;
Second, that it was caused by an agency or instrumentality over which John Doe had
the exclusive right of control originally, and which was not mishandled or otherwise
changed after John Doe relinquished control; and
Third, that the accident was not due to any voluntary action or contribution on the part
of the plaintiffs which was the responsible cause of his injury in that plaintiffs are not in
a position to know what specific conduct caused the accident, whereas the one in
charge of the instrumentality may reasonably be expected to know and be able to
explain how the accident was caused, or at least be able to show that no failure of duty
on his part was a cause.
If you should find all these conditions to exist, you are instructed as follows:
You must find from the happening of the accident involved in this case that a cause of
the occurrence was some negligent conduct on the part of John Doe.
The district court denied the instruction, concluding that because Adams was contributorily
negligent, he failed to meet the requirements of the third element, and accordingly a res ipsa
loquitur instruction was unsupported by the evidence. Appellants objected.
When the district court judge read the remaining instructions to the jury, he included
several instructions stating that appellants needed to prove the negligence of John Doe, and
that the jury could weigh the comparative negligence of John Doe and Adams in apportioning
liability and damages. However, the district court stated in its instruction on comparative
negligence that the jury should consider whether Adams' negligence was greater than or less
than that of the defendant, which in this case was State Farm, and not that of John Doe. The
instruction provided:
Comparative negligence is negligence on the part of the decedent which, cooperating
to some degree with negligence of another, helps in proximately causing the death.
The plaintiffs may not recover damages if the decedent's comparative negligence
contributed more to his death than the negligence of the defendant. However, if the
decedent was negligent, the plaintiffs may still recover a reduced sum, so long as the
decedent's comparative negligence was not greater than the negligence of the
defendant.
(Emphasis added.) Appellants failed to object to this misstatement in the instruction.
In closing arguments, both parties argued the comparative negligence of John Doe and
Adams. Additionally, the special verdict form the jury received required the jury to
apportion the relative fault between John Doe and Adams.
form the jury received required the jury to apportion the relative fault between John Doe and
Adams. Nowhere was State Farm mentioned by name as being a negligent party.
The jury returned a verdict for State Farm, and the court entered a judgment based on
this verdict. Appellants subsequently filed a motion for new trial alleging that: (1) the district
court erred in failing to give the res ipsa loquitur instruction in light of Nevada's comparative
negligence statute; and (2) the district court committed reversible error by misstating the
negligent parties in the comparative negligence instruction. The district court denied the
motion, stating that because Adams was contributorily negligent, he was ineligible to invoke
the res ipsa loquitur doctrine under the third element. Further, the district court concluded that
both the instructions taken as a whole, together with counsel's arguments, clearly explained
which parties' negligent acts were to be considered and that there was no danger of jury
misunderstanding or confusion. This timely appeal followed.
DISCUSSION
[Headnotes 1, 2]
A new trial may be granted if there was an error of law at trial that was objected to by
the party making the motion.
4
We review a denial of a motion for new trial for abuse of
discretion, and we will not disturb the district court's decision on appeal absent palpable
abuse.
5
A party is entitled to an instruction on every theory that is supported by the evidence,
and it is error to refuse such an instruction when the law applies to the facts of the case.
6

Res ipsa loquitur instruction
[Headnotes 36]
Res ipsa loquitur is an exception to the general negligence rule, and it permits a party
to infer negligence, as opposed to affirmatively proving it, when certain elements are met.
7
In order for the doctrine to apply, traditionally a party must show:
(1) the event must be of a kind which ordinarily does not occur in the absence of
someone's negligence; (2) the event must be caused by an agency or instrumentality
within the exclusive control of the defendant; and (3) the event must not have been due
to any voluntary action or contribution on the part of the plaintiff.
__________

4
NRCP 59(a)(7).

5
Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978).

6
Johnson v. Egtedar, 112 Nev. 428, 432, 915 P.2d 271, 273 (1996); see also Village Development Co. v.
Filice, 90 Nev. 305, 312, 526 P.2d 83, 87 (1974).

7
Davies v. Butler, 95 Nev. 763, 776-77, 602 P.2d 605, 613 (1979).
have been due to any voluntary action or contribution on the part of the plaintiff.
8

Nevada has incorporated these three elements into its pattern jury instructions.
9
Nevada also
requires the defendant to have superior knowledge of or be in a better position to explain the
accident for res ipsa loquitur to apply.
10
Once the elements of res ipsa loquitur are met, the
burden shifts to the defendant to show that something other than its negligence caused the
accident.
11
Whether sufficient evidence supports an inference of negligence under res ipsa
loquitur is a question for the jury; however, the district court must first determine whether
sufficient evidence has been adduced at trial to support the consideration of a res ipsa loquitur
instruction and therefore whether the instruction should be given.
12

[Headnote 7]
Appellants argue that the third element should be revised in accordance with
contemporary comparative negligence law and NRS 41.141. We agree. The district court
concluded that because Adams was contributorily negligent, appellants failed to meet the
third element of res ipsa loquitur and therefore did not merit the instruction. We conclude that
such an interpretation conflicts with our established law concerning comparative negligence.
Accordingly, we take this opportunity to revise the third element of res ipsa loquitur to
comport with our comparative negligence statute at NRS 41.141.
Although Nevada used to recognize the complete bar of a plaintiff's recovery under
the theory of contributory negligence, NRS 41.141 replaced this harsh rule. The statute
permits a plaintiff to recover as long as his or her comparative negligence is not greater than
that of the defendant or defendants.
__________

8
Bialer v. St. Mary's Hospital, 83 Nev. 241, 243, 427 P.2d 957, 958 (1967).

9
Nev. J.I. 4.18-4.19.

10
Otis Elevator Co. v. Reid, 101 Nev. 515, 519, 706 P.2d 1378, 1380 (1985). State Farm argues that because
it is not in any position to explain the cause of the accident, res ipsa loquitur is inapplicable. Upon review of the
record, we conclude that appellants asserted the res ipsa loquitur doctrine to circumstantially prove John Doe's
negligence, not that of State Farm. Because John Doe is an unknown motorist, State Farm became a party to the
action by virtue of the insurance policy. Res ipsa loquitur was merely raised to explain John Doe's negligence
and is not asserted against State Farm, and thus State Farm's lack of knowledge does not preclude the use of the
doctrine. Thus, for purposes of the doctrine, John Doe is the defendant whose conduct is at issue.

11
American Elevator Co. v. Briscoe, 93 Nev. 665, 669, 572 P.2d 534, 537 (1977).

12
Johnson, 112 Nev. at 434, 915 P.2d at 274; see also Nyberg v. Kirby, 65 Nev. 42, 78, 188 P.2d 1006,
1022-23 (1948).
than that of the defendant or defendants. NRS 41.141 provides, in pertinent part:
1. In any action to recover damages for death or injury to persons or for injury to
property in which comparative negligence is asserted as a defense, the comparative
negligence of the plaintiff or his decedent does not bar a recovery if that negligence was
not greater than the negligence or gross negligence of the parties to the action against
whom recovery is sought.
2. In those cases, the judge shall instruct the jury that:
(a) The plaintiff may not recover if his comparative negligence or that of his decedent
is greater than the negligence of the defendant or the combined negligence of multiple
defendants.
[T]he purpose of the comparative negligence statute [is] to eradicate the harsh effect of a
plaintiff's contributory negligence whenever such negligence is not greater than that of the
source against which recovery is sought.
13

We have previously stated that the comparative negligence statute renders certain
common law complete defenses inapplicable. Specifically, we have recognized that the
comparative negligence statute subsumes the doctrines of assumption of the risk and last clear
chance.
14
In these cases, we acknowledged that a plaintiff may still proceed in the underlying
negligence suit, and the common law defenses cannot bar the suit, provided that the plaintiff's
negligence does not exceed that of the defendant.
15
Otherwise, these doctrines would subvert
the principles of comparative negligence and would compel results inconsistent with the plain
language of NRS 41.141.
Likewise, other jurisdictions have reached similar conclusions with respect to the
effect of comparative negligence statutes on the third element of res ipsa loquitur. Many
jurisdictions have concluded that if that jurisdiction has incorporated comparative negligence
into its statutes or common law, a plaintiff's negligence does not bar the use of res ipsa
loquitur.
16
In fact, many jurisdictions have entirely eliminated the third element of res
ipsa loquitur as a result of comparative negligence,
__________

13
Mizushima v. Sunset Ranch, 103 Nev. 259, 263, 737 P.2d 1158, 1160-61 (1987).

14
Mizushima, 103 Nev. at 263, 737 P.2d at 1160-61 (assumption of the risk); Davies, 95 Nev. at 776, 602
P.2d at 613 (last clear chance).

15
Id.

16
See, e.g., Cox v. May Dep't Store Co., 903 P.2d 1119, 1124 (Ariz. Ct. App. 1995) (Ariz. Rev. Stat.
12-2501-2509); Emerick v. Raleigh Hills Hosp.-Newport Beach, 184 Cal. Rptr. 92 (Ct. App. 1982);
Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo. 1980) (Colo. Rev. Stat. 13-21-111); Tipton v.
Texaco, Inc., 712 P.2d 1351 (N.M. 1985); Cramer v. Mengerhausen, 550 P.2d 740 (Or. 1976); Tinder v.
Nordstrom, Inc., 929 P.2d
tions have entirely eliminated the third element of res ipsa loquitur as a result of comparative
negligence, rendering the res ipsa loquitur test a two-part analysis.
17
Still other jurisdictions
have modified the third element to reflect the rules of comparative negligence within that
jurisdiction to permit res ipsa loquitur to apply when the defendant's negligence is greater
than that of the plaintiff.
18
This modified approach permits res ipsa loquitur to apply,
although there is some evidence of comparative negligence, when the plaintiff produces
evidence showing that the defendant's negligence was a substantial factor in causing the
plaintiff's injury.
19

To completely bar plaintiffs from the use of res ipsa loquitur in situations where
comparative negligence applies contravenes the express language of NRS 41.141.
Accordingly, we conclude that NRS 41.141 operates to subsume the third element of res ipsa
loquitur. From this point forward, the third element of res ipsa loquitur is revised to provide
that the doctrine may apply as long as the plaintiff's negligence is not greater than that of the
defendant. On this point, we expressly overrule the test for res ipsa loquitur as stated in Bialer
v. St. Mary's Hospital
20
in favor of the one stated in this opinion. The doctrine of res ipsa
loquitur is to henceforth reflect the impact of comparative negligence and NRS 41.141.
Accordingly, we set forth the following sample instructions for consideration by the
district courts in cases where res ipsa loquitur is appropriately considered by the jury based on
the evidence adduced by the parties. Because the act to which the inference of negligence is
attributed under res ipsa loquitur differs when comparative negligence exists, we set forth two
alternatives
__________
1209 (Wash. Ct. App. 1997); see also Prosser & Keeton, Law on Torts 39 at 254 (5th ed. 1984). But see Otis
Elevator Co. v. Chambliss, 511 So. 2d 412, 414 n.5 (Fla. Dist. Ct. App. 1987) (recognizing that many states
have incorporated comparative negligence into res ipsa loquitur but declining to reach issue under Florida law);
Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155 (N.D. 1985) (same under North Dakota law).

17
See, e.g., Bradshaw v. Freightliner Corp., 937 F.2d 197 (5th Cir. 1991) (applying Texas law); Cox, 903
P.2d at 1124; Montgomery Elevator, 619 P.2d at 70 (eliminating third element and modifying to explain effect
of comparative negligence on jury's consideration); Dyback v. Weber, 500 N.E.2d 8 (Ill. 1986); Tinder, 929 P.2d
at 1213; Turk v. H.C. Prange Co., 119 N.W.2d 365, 372 (Wis. 1963).

18
See, e.g., Emerick, 184 Cal. Rptr. at 98; Giles v. City of New Haven, 636 A.2d 1335 (Conn. 1996); Frans
v. Gausman, 6 P.3d 432 (Kan. Ct. App. 2000); Tipton, 712 P.2d at 1359; Kloos v. Ohio Dep't of Rehab. and
Corr., 610 N.E.2d 643 (Ohio Ct. Cl. 1989); Cramer, 550 P.2d at 744; Cyr v. Green Mountain Power Corp., 485
A.2d 1265 (Vt. 1984); Foster v. City of Keyser, 501 S.E.2d 165 (W. Va. 1997).

19
Cramer, 550 P.2d at 744 (citing Turk, 119 N.W.2d 365).

20
83 Nev. at 243, 427 P.2d at 958.
tivesone for circumstances when there is no comparative negligence evident, and the other
for instances when there is some evidence to suggest comparative negligence. We caution the
district courts that the following proposed instructions should not necessarily be used
verbatim, but rather should be used as a guide and tailored to fit the individual facts of each
case.
[Headnotes 8, 9]
For cases when there is no evidence adduced of comparative negligence, the sample
instruction to consider is:
On the issue of negligence, one of the questions for you to decide in this case is
whether the accident or injury occurred under the following conditions.
First, that it is the kind of accident or injury which ordinarily does not occur in the
absence of someone's negligence; and
Second, that it was caused by an agency or instrumentality within the exclusive
control of [the allegedly negligent party's name], and which was not mishandled or
otherwise changed after [the allegedly negligent party's name] relinquished control.
The district court should also provide an instruction relating to proximate cause as follows:
From the happening of the accident or injury involved in this case, you may, but are
not required to, draw an inference that the proximate cause of that accident or injury
was some negligent conduct by [the allegedly negligent party's name].
However, you shall not find that a proximate cause of the accident or injury was some
negligent conduct on the part of [the allegedly negligent party's name] unless you
believe, after weighing all the evidence in the case, and drawing such inferences
therefrom as you believe are warranted, that it is more probable than not that the
accident or injury was caused by some negligent conduct on the part of [the allegedly
negligent party's name].
[Headnote 10]
If, on the other hand, one of the parties has adduced sufficient evidence of
comparative negligence to warrant the jury's consideration of that doctrine, the following
sample instruction should be considered:
On the issue of the negligence of [the allegedly negligent party's name], one of the
questions for you to decide in this case
case is whether the event or occurrence attributed to [the allegedly negligent party's
name] which is alleged to have caused the accident or injury occurred under the
following conditions.
First, that it is the kind of event or occurrence which ordinarily does not occur in the
absence of someone's negligence; and
Second, that that event or occurrence was caused by an agency or instrumentality
within the exclusive control of [the allegedly negligent party's name], and which was
not mishandled or otherwise changed after [the allegedly negligent party's name]
relinquished control.
[Headnote 11]
Again, the district court should then instruct the jury on the causal link between that
negligence and the accident or injury as follows. Since comparative negligence is alleged to
have occurred when this sample instruction is considered, the proximate cause instruction
should address the appropriate weighing, according to our statutory comparative negligence
scheme, the jury should give to each respective party's negligence.
From the happening of the event or occurrence attributed to [the allegedly negligent
party's name], you may, but are not required to, infer that an ultimate cause of the
resulting accident or injury was some negligent conduct by [the allegedly negligent
party's name].
However, you shall not find that a proximate cause of the resulting accident or injury
was some negligent conduct on the part of [the allegedly negligent party's name] unless
you believe, after weighing all the evidence in the case and drawing such inferences
therefrom as you believe are warranted, that it is more probable than not that the
accident or injury was ultimately caused by some negligent conduct on the part of [the
allegedly negligent party's name].
The plaintiff[s] may not recover damages if the [plaintiff's or decedent's] comparative
negligence contributed more to the accident or injury than [the allegedly negligent
party's name] comparative negligence. However, if the [plaintiff or decedent] was
negligent, the plaintiffs may still recover so long as the [plaintiff's or decedent's]
comparative negligence was not greater than that of [the allegedly negligent party's
name].
[Headnote 12]
Here, in light of this revised test, appellants set forth evidence sufficient to warrant the
consideration of the new res ipsa loquitur instruction addressing comparative negligence.
instruction addressing comparative negligence. Appellants demonstrated that John Doe was
in exclusive control of the ladder and that ladders do not normally fall off moving vehicles
into traffic absent a negligent act or omission. Accordingly, because appellants also set forth
evidence that Adams' negligence was not greater than that of John Doe, we conclude that
appellants produced sufficient evidence for the jury to consider the application of res ipsa
loquitur.
Because appellants were required to prove the negligence of the uninsured driver in
order to recover uninsured motorist benefits under the State Farm insurance policy, res ipsa
loquitur provided a viable means to do so. Appellants adduced evidence at trial inferring John
Doe's negligence. We conclude that the jury should have been allowed to consider the theory
of res ipsa loquitur. We hereby reverse the district court's judgment and order and remand for
21

Comparative negligence instruction
We conclude that the comparative negligence jury instruction was erroneous because
it misstated the appropriate parties' respective negligence for the jury's consideration.
However, because we reverse the district court's judgment on the grounds of the failure to
instruct on res ipsa loquitur, we need not analyze appellants' second claim of error further.
CONCLUSION
In light of the revised instruction we provide today, we reverse the district court's
judgment and denial of the motion for a new trial. Further, our decision clarifies that the
comparative negligence standard articulated in NRS 41.141 is incorporated into the doctrine
of res ipsa loquitur so that the doctrine comports with modern comparative negligence law.
We therefore reverse the district court's judgment and order and remand for further
proceedings.
Maupin, C. J., Young, Agosti, Rose, Leavitt and Becker, JJ., concur.
__________

21
State Farm also argues that appellants reframed the applicability of res ipsa loquitur on appeal by stating
that the event to which the doctrine applied was the ladder falling from John Doe's truck and being left in Adams'
travel lane. State Farm contends that appellants never raised this specific argument at trial and therefore are
barred from appellate review of the issue. We conclude that appellants sufficiently raised the applicability of res
ipsa loquitur to preserve the issue for our review.
____________
117 Nev. 195, 195 (2001) University System v. DR Partners
UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, JANE NICHOLS,
Chancellor, THALIA M. DONDERO, HOWARD ROSENBERG, MARK ALDEN,
JILL DERBY, DOROTHY GALLAGHER, DOUGLAS HILL, THOMAS E.
KIRKPATRICK, DAVID L. PHILLIPS, DOUGLAS SEASTRAND, STEVE
SISOLAK, and TOM WIESNER, in Their Official Capacities, Appellants, v. DR
PARTNERS, a Nevada General Partnership, dba LAS VEGAS REVIEW JOURNAL,
Respondent.
No. 36984
March 9, 2001 18 P.3d 1042
Appeal from a district court order granting an injunction, enjoining appellants from
interviewing applicants for the position of community college president in a closed session.
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Newspaper sought injunction prohibiting search committee from holding closed
meeting to interview applicants for position of community college president. The district
court issued preliminary and permanent injunction. University and Community College
System (UCCSN) appealed. The supreme court, Rose, J., held that community college
president was not a public officer, and thus open meeting did not prohibit interviews of
applicants for that position from being held in closed session.
Reversed.
Maupin, C. J., with whom Young and Leavitt, JJ., joined, dissented.
Thomas J. Ray, General Counsel, and Kwasi Nyamekye, Associate General Counsel,
University and Community College System of Nevada, Las Vegas; Brooke Ann Nielsen,
Associate General Counsel, University and Community College System of Nevada, Reno, for
Appellants.
Campbell & Williams, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
Statutory definition of public officer provided in chapter governing public officers and employees controls the definition of
public officer for purposes of open meeting law. NRS 241.010 et seq., 281.005(1).
2. Colleges and Universities.
Community college president was not a public officer, and thus open meeting law did not prohibit interviews of applicants for
that position from being held in closed session. Position was not created by state constitution, statute, or charter or ordinance of a
political subdivision of the state,
the state, and president was wholly subordinate and responsible to Board of Regents. NRS 241.010 et seq., 281.005(1).
3. Statutes.
Opinions of the Attorney General are not binding legal authority.
OPINION
The question presented by this appeal is whether the office of community college
president is a public office. A presidential search committee wants to interview applicants for
the presidency in a closed meeting, but Nevada's open meeting law, NRS chapter 241,
prohibits a public body from discussing a public officer's appointment in a closed session.
The open meeting law does not define public office or public officer, so the parties and
the district court turned to the statutory definition provided in NRS chapter 281, which
governs public officers and employees generally. NRS 281.005(1) defines public officer to
include any person appointed to a position that (a) is established by state constitution or
statute, or by charter or ordinance of a state political subdivision, and (b) involves the
continuous exercise of a public power, trust or duty as part of regular and permanent
government administration. The district court concluded that the community college president
is a public officer under this definition.
We agree that NRS 281.005(1) may be used to define who is a public officer within
the context of the open meeting law. Nevertheless, we conclude that the community college
president is not a public officer because (1) the position was not created by law, but rather by
Nevada's state university Board of Regents, and (2) the president does not regularly exercise
sovereign governmental functions set by law, but only implements policies set by the Board
of Regents. Therefore, the open meeting law does not prohibit closed applicant interviews.
FACTS
The position of president of the Community College of Southern Nevada (CCSN)
became vacant in January 2000. The Board of Regents formed a Presidential Search
Committee, consisting of five Board members, to conduct a nationwide search and
recommend to the Board a short list of qualified candidates for the position. The Committee
narrowed the field to six applicants, scheduled interviews to be held during a joint meeting of
the Committee and the Board on September 2S and 29, 2000, and flew in the five
out-of-state candidates.
Committee and the Board on September 28 and 29, 2000, and flew in the five out-of-state
candidates.
In compliance with the open meeting law, the Committee published its agenda for the
two-day joint meeting. The agenda noted that the Committee would hold a closed session to
discuss the character, alleged misconduct, professional competence, or physical or mental
health of the applicants for the position of the CCSN President. The Committee planned to
use the closed session to interview the six applicants. According to the agenda, the
Committee would then return to open session to discuss the applicants, select finalists and
schedule further activities for the finalists.
On September 27, 2000, DR Partners, a Nevada general partnership doing business as
the Las Vegas Review Journal (the Newspaper), filed a complaint for emergency injunctive
and declaratory relief, challenging the legality of the scheduled closed-door interview session.
The Newspaper's complaint, which named as defendants the University and Community
College System of Nevada (UCCSN) and the chancellor and eleven regents in their official
capacities (collectively, the University), alleged that the Committee could not close the
interview session because NRS 241.030(3)(e) prohibits a closed meeting for the discussion of
the appointment of any person to public office, and the position of CCSN president is a public
office. The complaint noted that the open meeting law does not define public office, but the
Attorney General in the Nevada Open Meeting Law Manual has opined that NRS
241.030(3)(e) encompasses: (1) all elected public officers; and (2) all persons appointed to
positions created by law whose duties are specifically set forth in law and who are made
responsible by law for the direction, supervision and control of their agencies.
1

With its complaint, the Newspaper also sought a temporary restraining order and
preliminary injunction to stop the Committee from holding the closed-door session set for the
next morning. The district court heard the parties' arguments in chambers, granted the
application for a temporary restraining order and set the injunctive relief motion for hearing
on September 29, 2000. On September 28, 2000, the University filed an opposition to the
preliminary injunction application, arguing that the community college president is not a
public officer as defined by NRS 281.005(1). That same day, the Newspaper filed a
supplemental memorandum in support of its application for a preliminary injunction, arguing
that the community college president is a public officer as defined by NRS 281.005(1).
__________

1
Frankie Sue Del Papa, Nevada Open Meeting Law Manual 9.05, at 55 (7th ed. 1998) (citing 75-193 Op.
Att'y Gen. (1975)).
During the hearing on September 29, 2000, the parties and the court applied the
definition of public officer provided by NRS 281.005(1):
public officer means a person elected or appointed to a position which:
(a) Is established by the constitution or a statute of this state, or by a charter or
ordinance of a political subdivision of this state; and
(b) Involves the continuous exercise, as part of the regular and permanent
administration of the government, of a public power, trust or duty.
The parties and the court acknowledged during the hearing that this definition is statutorily
limited to chapter 281, but they did not consider any other statutory or dictionary definitions
of public office or public officer. They also did not discuss the Attorney General's
opinion that NRS 241.030(3)(e) encompasses persons appointed to positions created by law,
whose duties are set by law and who are held legally responsible for the direction,
supervision, and control of their agencies. The parties and the court primarily discussed
whether the bylaws establishing the position of community college president are sufficiently
analogous to a political subdivision's charter to satisfy the first part of the statutory definition,
and reviewed and discussed case law interpreting the criteria contained in the second part of
the definition.
Ultimately, the district court decided that the delegation of authority, public power,
trust, and duties evidenced in the Nevada Statutes and the [University] System's governing
documents render the President of CCSN a public officer. The district court granted a
preliminary and permanent injunction prohibiting the Committee from holding a closed
session to discuss the character, alleged misconduct, professional competence, or physical or
mental health of the Applicants for the position of the CCSN President. The applicants
returned to their homes without being interviewed.
The University appeals.
STANDARD OF REVIEW
There are no disputed facts; the district court granted the preliminary and permanent
injunction based on its interpretation of NRS 241.030(3)(e) and NRS 281.005(1). The
interpretation of a statute is a question of law, which we review de novo.
2

DISCUSSION
The state open meeting law, NRS chapter 241, requires all meetings of public bodies
to be open and public, except as otherwise provided by specific statute.
__________

2
See, e.g., Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).
wise provided by specific statute.
3
NRS 241.030, which contains exceptions to the general
open meeting requirement, provides in pertinent part:
1. . . . nothing contained in this chapter prevents a public body from holding a closed
meeting to consider the character, alleged misconduct, professional competence, or
physical or mental health of a person.
. . . .
3. This chapter does not:
. . . .
(e) Permit a closed meeting for the discussion of the appointment of any person to
public office or as a member of a public body.
These provisions seem to conflict in situations like the present one, when a public
body would like to consider sensitive matters concerning job applicants in private even
though they intend to make their final selection in public; however, in 1989 we harmonized
these two sections in City Council of Reno v. Reno Newspapers.
4
In that case, we construed
the statute to permit closed meetings for the purposes specified in subsection (1) except when
there is any discussion about appointment of a public officer, in which case subsection (3)(e)
strictly prohibits closure of the meeting.
5
The parties agree that if the community college
president is a public officer, the Committee's proposed closed-door session would violate the
open meeting law.
In this case, as in City Council of Reno, the parties used the NRS 281.005(1) statutory
definition of public officer to resolve the issue because NRS chapter 241 does not define
public office or public officer. The first question before us, therefore, is whether NRS
281.005(1) defines who is a public officer within the context of the open meeting law. We
conclude that it does.
Applicability of NRS 281.005(1) to NRS chapter 241
[Headnote 1]
The Legislature enacted the general open meeting law, codified as NRS chapter 241,
in 1960.
6
A provision of the original law, codified as NRS 241.030, specified that nothing in
it was to be construed to prevent closed executive sessions to consider the appointment,
employment or dismissal of a public officer or employee or to hear complaints or charges
brought against such officer or employee,"
__________

3
NRS 241.020(1).

4
105 Nev. 886, 784 P.2d 974 (1989).

5
Id. at 892, 784 P.2d at 978.

6
1960 Nev. Stat., ch. 23, at 25.
employee or to hear complaints or charges brought against such officer or employee, unless
the officer or employee requested a public hearing.
7
The Act did not define public officer.
This court had by then, however, considered the nature of a public office and the
criteria that distinguished a public officer from an employee. In State ex rel. Mathews v.
Murray,
8
we noted that there was a considerable body of authority on the subject, with many
criteria used in the analysis, but that the authorities uniformly appeared to agree upon one
point: A public office is distinguishable from other forms of employment in that its holder
has by the sovereign been invested with some portion of the sovereign functions of
government. We also noted that the court had previously, in defining a public office, quoted
a treatise as follows:
The right, authority and duty conferred by law by which, for a given period, either
fixed by law or through the pleasure of the creating power of government, an individual
is invested with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The warrant to exercise powers is
conferred, not by contract, but by law.
9

We then held that the director of the Public Service Commission Drivers License Division
was not a public officer because the position was created by the agency administrator and not
by law, and his duties also were specified by the administrator and not by law.
10

Before Mathews, we had considered the nature of a public office in State ex rel.
Kendall v. Cole.
11
The Kendall opinion gathered many additional definitions of public office
and public officer from a wide variety of authorities. We noted in Kendall that a great many
courts had held that to be a public officer one must be charged by law with duties involving
an exercise of some part of the sovereign power of the state.
12
After considering the
authorities and their many definitions, we held that the position occupied by the
superintendent of Nevada exhibits at the Panama-Pacific exposition was not a public office.
We stated:
__________

7
Id. 4, at 25-26.

8
70 Nev. 116, 120-21, 258 P.2d 982, 984 (1953).

9
Id. at 121, 258 P.2d at 984 (quoting State ex rel. Kendall v. Cole, 38 Nev. 215, 221, 148 P. 551, 552 (1915)
(quoting Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers
44 (1903))).

10
Id. at 123, 258 P.2d at 985.

11
38 Nev. 215, 148 P. 551 (1915).

12
Id. at 224, 148 P. at 553.
None of the sovereign power of the state is intrusted to him. His compensation, period
of employment, and the details of his duties, are all matters of contract with the board
of directors. For, while the act says the board may employ superintendents, directors,
clerks, and other persons for the purpose of carrying out the provisions of the act, and
for the further purpose of cooperating and advising with the exposition commissioner,
it is apparent that the board had the authority to contract as to what the specific duty of
each employee should be, otherwise there would be a corps of advisers, and none to
execute.
13

To these judicial definitions of public office and public officer, which were
controlling when the open meeting law was adopted, the Legislature added a new definition.
In 1967 the Legislature enacted NRS 281.005(1), defining public officer as the term is used
in NRS chapter 281, which contains general provisions applicable to public officers and
employees.
14

The Legislature's statutory definition of a public officer incorporates the
fundamental criteria we applied in Mathews and Kendall, and is in harmony with those cases,
as we subsequently confirmed in Mullen v. Clark County.
15
NRS 281.005(1)(a), which
specifies that the position must be established by state constitution or statute, or by a charter
or ordinance of a political subdivision of the state, encompasses the fundamental principle
that a public office is created by law. NRS 281.005(1)(b), which specifies that the position
must involve the continuous exercise of a public power, trust or duty, and that this exercise of
public responsibility must be part of regular and permanent government administration,
encompasses the fundamental principle that a public officer's duties are fixed by law and
involve an exercise of the state's sovereign power.
Thus, because NRS 281.005(1) is in harmony with the judicial definitions used in
contexts broader than NRS chapter 281, we conclude that it may generally be used to
determine who is a public officer, absent a stated legislative preference for the use of some
other definition in a particular context.
[Headnote 2]
Having concluded that NRS 281.005(1) applies, we next must decide whether the
community college president is a public officer within this definition. As noted, the
definition has two parts. The first part, NRS 281.005(1)(a), specifies that the position must be
created by state constitution or statute,
__________

13
Id. at 232-33, 148 P. at 556.

14
1967 Nev. Stat., ch. 523, 444, at 1471.

15
89 Nev. 308, 311, 511 P.2d 1036, 1037 (1973).
be created by state constitution or statute, or by a charter or ordinance of a political
subdivision of the state. The second part, NRS 281.005(1)(b), specifies that the position must
involve the continuous exercise of a public power, trust or duty, and that this exercise of
public responsibility must be part of regular and permanent government administration. We
will address these two subsections separately.
NRS 281.005(1)(a)
The University contends that the community college president is not a public officer
under the first section of the statute because the position was not created by state constitution
or statute, or by a charter or ordinance of a political subdivision of the state, but rather by the
Board of Regents in its bylaws.
The Newspaper argued to the district court that the presidents are public officers
under this section because (1) a state statute, NRS 396.230, provides that [t]he board of
regents shall prescribe the duties of the chancellor and such other officers of the system as the
board deems appropriate[,] (2) UCCSN is a political subdivision of the state, and (3) its
governing documents (UCCSN Code, Bylaws of the Board of Regents and College Bylaws)
are tantamount to a charter. In its brief to this court, the Newspaper argues for the first time
that the governing documents have the force and effect of a statute,
16
and because they
contain provisions establishing the community college president as a University officer, the
position is essentially a public office established by a state statute.
The Newspaper's arguments are not persuasive. First, with respect to its district court
argument, the Newspaper does not explain how NRS 396.230 establishes any public office.
Certainly, the statute does not do so explicitly.
17
Instead, the statute is but one of several
enacted by the Legislature in compliance with its constitutional mandate to prescribe and
define the Board's duties. Similar statutes are NRS 396.110, which directs the Board to
prescribe rules for its own government and for the government of the system;
__________

16
See State ex rel. Richardson v. Board of Regents, 70 Nev. 144, 150, 261 P.2d 515, 518 (1953) (holding
Board cannot ignore the rules it adopts under the delegation of authority to prescribe rules for its governance and
the governance of the university because such rules have the force and effect of statute); see also Board of
Regents v. Oakley, 97 Nev. 605, 608, 637 P.2d 1199, 1201 (1981) (acknowledging that the Richardson court
had concluded that a provision of the University of Nevada System Code has the force of law, but noting the
effect of the conclusion was to bind the Board to regulations it had previously established).

17
Compare NRS 396.230, which directs the Board to prescribe the duties of the chancellor and such other
officers of the system as the board deems appropriate, with NRS 396.210(1), which directs the Board to
appoint a chancellor of the system after consultation with the faculty.
scribe rules for its own government and for the government of the system; NRS 396.300,
which directs the Board to prescribe rules for reports of officers and teachers; and NRS
396.380, which designates the Board members as sole trustees to receive and disburse the
system's money and directs the Board to control all expenditures. While the position of
chancellor was created by a statute,
18
the position of community college president was
created not by any statute, but administratively by the Board, and the Board can as easily
abolish the position or substitute another for it.
The Newspaper's new argument that the position was created by the equivalent of a
state statute, because the Board's rules and regulations have the force and effect of statute or
law, lacks merit. The cases cited by the Newspaper as support for this new argument, State ex
rel. Richardson v. Board of Regents,
19
and Board of Regents v. Oakley,
20
do not support it.
They make it clear that the Board is bound by the regulations it adopts under a statutory
delegation of authority, but Oakley expressly rejects an intimation that the Board's own
regulations are equal in status and dignity to legislative enactments (in other words, statutes).
21

[Headnote 3]
Second, the Newspaper does not explain how UCCSN qualifies as a political
subdivision of the state with the authority to establish a public office by charter or ordinance.
The Newspaper cites two opinions of the Attorney General in support of its assertion that
UCCSN is such an entity. One of those opinions states that the University of Nevada is a
State-owned institution . . . and it is a department of the State for educational purposes
deemed governmental in character.
22
The other opinion states that the University of Nevada
is a public corporate body, a legal entity or body politic created by law, whose purposes
can only be carried forward by its activity in a corporate capacity.
23
Opinions of the
Attorney General are not binding legal authority in any event,
24
but these two opinions do
not even support the Newspaper's assertion. Neither state-owned institutions, nor state
departments,
__________

18
NRS 396.210.

19
70 Nev. 144, 261 P.2d 515 (1953).

20
97 Nev. 605, 637 P.2d 1199 (1981).

21
See Oakley, 97 Nev. at 608, 637 P.2d at 1201; Richardson, 70 Nev. at 150, 261 P.2d at 518.

22
49-806 Op. Att'y Gen. 276 (1949) (discussing the University's potential liability for injuries sustained by
students or visitors).

23
55-29 Op. Att'y Gen. 102, 103 (1955) (discussing the use of the University's corporate name by another
educational corporation).

24
See Goldman v. Bryan, 106 Nev. 30, 42, 787 P.2d 372, 380 (1990).
departments, nor public corporations are synonymous with political subdivisions of the state.
25

A public office is created by law, and laws are created by governments. As Kendall
succinctly put it nearly a century ago:
An office does not spring into existence spontaneously. It is brought into existence,
either under the terms of the constitution, by legislative enactment, or by some
municipal body, pursuant to authority delegated to it. All public offices must originally
have been created by the sovereign as the foundation of government.
26

NRS 281.005(1)(a) incorporates this concept by specifying that a public officer holds a
position established by state constitution or statute, or by a political subdivision's charter or
ordinance. The statute simply identifies different kinds of laws, which are enacted by
different governmental bodies. It seems plain that political subdivisions within the meaning
of NRS 281.005(1)(a) are local government entities such as counties or cities or towns. This
interpretation of the phrase fits best with the statute's use of the terms constitution,
statute, charter and ordinance, which are the laws enacted by state and local
government entities for their own government.
27

Third, because UCCSN is not a political subdivision within the meaning of NRS
281.005(1), it is irrelevant that UCCSN's governing documents could constitute a charter.
The only kind of charter the statute is concerned with is that of a political subdivision of the
state.
The Newspaper has not established that the position of community college president
meets the first statutory requisite of a public officer: namely, that the position was created by
state constitution or statute, or by a charter or ordinance of a political subdivision of the state
(in other words, by law). Although our analysis could end here, we take this opportunity to
also consider whether the position of community college president meets the remaining
statutory requisites of a public officer: namely, that the position involves "the continuous
exercise,
__________

25
There are two statutes that define the Board and the University as political subdivisions, but the Newspaper
has not cited them, and we see no reason to apply them outside the specialized context of securities law. For
purposes of the University Securities Law (NRS 396.809 through 396.885), NRS 396.813 defines the Board of
Regents as a political subdivision of this state, and NRS 396.838 defines the state university as a political
subdivision of this state.

26
38 Nev. at 219, 148 P. at 552 (quoting 3 Cruise's Dig. p. 109, 5).

27
See, e.g., Nev. Const. art. 8, 8, which allows cities and towns to frame, adopt and amend charters for their
own government, and NRS chapter 267, which provides that an incorporated city may frame and adopt a charter
implementing a commission form of government.
position involves the continuous exercise, as part of the regular and permanent
administration of the government, of a public power, trust or duty[,] as required by NRS
281.005(1)(b).
NRS 281.005(1)(b)
The University contends that the community college president is not a public officer
under the second section of the statute because the president is wholly subordinate to the
Board of Regents and the chancellor, does not formulate policies but must implement the
Board's policies, and can spend public money only according to a budget set by the Board. In
addition, the president's duties are established by the Board, and not by law. In other words,
the president has not been entrusted by law with any of the sovereign functions of the
government.
The Newspaper asserts that the mere fact that a position is subordinate does not mean
it cannot be a public office and cites as an obvious example the chancellor, who is
subordinate to the Board and who the University concedes is a public officer. The Newspaper
contends that the community college president does satisfy this section because the president,
as chief administrative officer of CCSN, oversees a $65 million budget, can hire and fire
personnel, and is responsible for 35,000 students and faculty members. In addition, NRS
396.323(1) gives the presidents of all the branches, as well as the Board and the chancellor,
the power to issue subpoenas, and the Newspaper asserts that this is a public power. The
Newspaper contends that these important functions all make the president a public officer
within the meaning of NRS 281.005(1)(b).
Again, the Newspaper's arguments are not persuasive. The community college
president holds an important position, but the sovereign functions of higher education repose
in the Board of Regents, and to a lesser degree in the chancellor, and not at all in the
community college president. The Board has been entrusted by the constitution with the
control and management of the University,
28
and the Board's duties, including the duties of
appointing a chancellor, setting the chancellor's salary and prescribing the chancellor's duties,
have been established by the Legislature.
29
The Board was not required by either the
constitution or the Legislature to establish the position of community college president; the
Board was free to adopt whatever structure it deemed appropriate to carry out its duties in
managing and controlling the University, and it remains free to change that structure. In other
words, the Board remains responsible to the public for duties established by law, and the
community college president is only responsible to the Board for duties established by the
Board.
__________

28
Nev. Const. art. 11, 4 and 7.

29
NRS 396.210; NRS 396.220; NRS 396.230.
for duties established by law, and the community college president is only responsible to the
Board for duties established by the Board.
Because the president is wholly subordinate and responsible to the Board, and can
only implement policies established by the Board, we conclude that the community college
president does not meet the statutory requisites of a public officer set forth in NRS
281.005(1)(b). Although the position is imbued with the public power to issue subpoenas, the
exercise of that power is not continuous, and it is not part of regular and permanent
government administration; instead, the community college president's subpoena power is
limited to disciplinary matters within the university system.
Finally, the Newspaper has requested that we award it fees and costs under NRS
241.037(2) if we affirm the district court's decision. We deny the request. Apart from the fact
that we are reversing the district court's decision, we note that the Newspaper did not invoke
the statute in the district court. While the statute grants the district court authority to award
fees and costs, the Newspaper cites no authority for such an award by this court.
CONCLUSION
We conclude that NRS 281.005(1) is properly used to determine who is a public
officer for purposes of the open meeting law. Adherence to this definition should provide
reasonable certainty in deciding which provisions of the open meeting law apply in a
particular situation.
We further conclude that the office of community college president is not a public
office. The position was not created by law, and it has not been charged by law with duties
involving an exercise of the state's sovereign power. Therefore, the Committee is not
prohibited from interviewing applicants for the position in a closed session. Accordingly, we
reverse the district court's order.
Shearing, Agosti and Becker, JJ., concur.
Maupin, C. J., with whom Young and Leavitt, JJ., join, dissenting:
I agree that NRS 281.005(1) defines who is a public officer within the context of the
open meeting law; however, I believe that the community college president satisfies the
statutory criteria.
Under NRS 281.005(1), the community college president is a public officer if the
position:
(a) Is established by the constitution or a statute of this state, or by a charter or
ordinance of a political subdivision of this state; and
(b) Involves the continuous exercise, as part of the regular and permanent
administration of the government, of a public power, trust or duty.
NRS 281.005(1)(a)
In my opinion, the University system and its governing Board comprise a political
subdivision of the state. Indeed, the majority concedes that they have been so-defined by the
Legislature, in NRS chapter 396, which governs the state's institutions of higher education.
1
The Board's governing documents, including the bylaws that establish the position of
community college president and prescribe its duties, are the laws under which the University
system operates. These documents serve the same purpose as a municipal body's charter, and
I consider them to be sufficiently analogous to conclude that the position at issue meets the
first statutory requisite of a public officer: the community college presidency was established
by law.
NRS 281.005(1)(b)
In my opinion, the position also meets the remaining statutory requisites of a public
officer; the community college president has been entrusted by law with a significant part of
the state's sovereign functions of higher education. As the majority acknowledges, the
president of CCSN oversees a $65 million budget, hires and fires personnel, supervises
35,000 students and faculty members, and issues subpoenas in disciplinary proceedings
instituted to enforce the University system's laws. In other words, the position involves the
continuous exercise of a public power, trust or duty, and this exercise of public responsibility
is part of regular and permanent government administration.
I believe that this interpretation of NRS 281.005(1) is reasonable, and that it promotes
the legislative purpose underlying the open meeting law: namely, that public bodies deliberate
openly and act openly.
2
Because the community college president is a public officer, the
Committee should be prohibited from holding a closed session to interview candidates for
possible appointment to this public office. Thus, I would affirm the district court's order.
__________

1
NRS 396.838 (defining University as the University and Community College System of Nevada, . . . a
political subdivision of this state); NRS 396.813 (defining Board as the board of regents, and stating that it
is a political subdivision of this state).

2
NRS 241.010; McKay v. Bd. of Supervisors, 102 Nev. 644, 651, 730 P.2d 438, 443 (1986).
____________
117 Nev. 208, 208 (2001) Dahya v. Dist. Ct.
AMYN S. DAHYA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE CONNIE J. STEINHEIMER, District Judge, Respondents, and
CASMYN CORPORATION, a Colorado Corporation, Real Party in Interest.
No. 36224
March 14, 2001 19 P.3d 239
Original petition for a writ of prohibition challenging a district court order denying a
motion to quash for lack of proper service of process.
Corporation filed complaint against its former president, alleging breach of fiduciary
duty and fraudulent use of corporation's expense accounts. The district court denied
president's motion to quash service. President petitioned for writ of prohibition. The supreme
court, Leavitt, J., held that: (1) Hague Convention prohibited service in any manner not
specifically allowed by the receiving state, and (2) personal service by an attorney on
president, a Spanish resident, was void.
Petition granted.
Rose, J., with whom Maupin, C. J., agreed, dissented.
Woodburn & Wedge and Stephen S. Kent, Reno, for Petitioner.
Jones Vargas and Gregory A. Brower, Reno, for Real Party in Interest.
1. Prohibition.
The supreme court may issue a writ of prohibition to arrest the proceedings of a trial court exercising its judicial functions, when
such proceedings are in excess of the jurisdiction of the trial court.
2. Prohibition.
A petition for a writ of prohibition is addressed to the sound discretion of the supreme court.
3. Prohibition.
A writ of prohibition is the appropriate vehicle to challenge a trial court's refusal to quash service of process.
4. Process; Treaties.
The Hague Convention is designed to provide a mechanism by which a plaintiff authorized to serve process under the laws of its
country can effect service that will give appropriate notice to the party being served and will not be objectionable to the country in
which the party is served. Fed. R. Civ. P. 4 note; Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, Art. 1 et seq.
5. Process.
Because both Spain and the United States were signatory states to the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, service on Spanish resident had to have been
effected strictly according to the procedures set forth under the Hague Convention's guidelines.
Extrajudicial Documents in Civil or Commercial Matters, service on Spanish resident had to have been effected strictly according to
the procedures set forth under the Hague Convention's guidelines. Fed. R. Civ. P. 4 note; Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters, Art. 1 et seq.
6. Process.
Any failure to comply with the Hague Convention's service methods would have the effect of nullifying the attempted service.
Fed. R. Civ. P. 4 note; Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters, Art. 1 et seq.
7. Process.
The service provisions of the Hague Convention take precedence over any conflicting Nevada procedural rules. U.S. Const. art.
6, cl. 2; Fed. R. Civ. P. 4 note; Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, Art. 1 et seq.
8. Treaties.
Treaties are the supreme law of the land, and are binding upon the several states. U.S. Const. art. 6, cl. 2.
9. Treaties.
The Hague Convention is recognized with status equivalent to a treaty. Fed. R. Civ. P. 4 note; Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Art. 1 et seq.
The Hague Convention prohibits service in any manner not specifically allowed by the receiving state. Fed. R. Civ. P. 4 note;
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Art. 1 et seq.
The Hague Convention was adopted with clear and delineated guidelines for the sole purpose of creating uniformity when
effecting service abroad. Fed. R. Civ. P. 4 note; Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, Art. 1 et seq.
12. Process.
Personal service by an attorney on Spanish resident was void, as Spanish law required personal service to be performed by an
authorized marshall or a judicial officer.
Supreme court's determination on an issue of foreign law is treated as ruling on a question of law, and thus, foreign law should
be argued and briefed in the same manner as domestic law, and as with domestic law, judges should use both their own research and
the evidence submitted by the parties to determine foreign law.
14. Process.
Regardless of Spanish resident's status as a non-citizen defendant, the laws of Spain should control personal service on him as if
he were a Spanish national.
OPINION
In the case underlying this petition, petitioner Amyn Dahya was served process by a
Spanish attorney at his home in Tenerife, Spain, pursuant to a legal action that was
commenced in Nevada. Dahya subsequently appeared in the Second Judicial District Court
seeking to quash service of process. His motion was denied. As a result, Dahya now petitions
this court for a writ of prohibition. The issues presented before us are twofold: Did the service
on Dahya conform with the Hague Convention as that document relates to service abroad;
and if not, did that service comply with Spanish civil procedure? We conclude that the
service failed to comply in either respect, and as a result, we grant the petition.
FACTS
Petitioner Dahya is a naturalized Canadian citizen now residing in Spain. Dahya
resided in Reno, Nevada, from 1991-96, and continues to own property in the state. Until
1998, Dahya was the president and CEO of Casmyn Corporation (Casmyn), a now
bankrupt Colorado corporation that maintained an office in Sparks, Nevada, from 1993-96.
In January 2000, Casmyn filed a complaint against Dahya in Nevada's Second Judicial
District Court, alleging, among other things, breach of fiduciary duty and fraudulent use of
the corporation's expense accounts during his time as president of the company.
Subsequently, Spanish attorney Jose Luis de San Pio personally served Dahya with process at
Dahya's residence in Tenerife, Spain.
However, no Spanish court authorized San Pio to serve Dahya at the residence. As a
result, Dahya filed a motion in the Nevada court alleging that the service did not comply with
the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters
1
(hereinafter Hague Convention), and that the service failed
to satisfy Spanish procedural laws. The district court denied this motion.
Dahya now seeks extraordinary relief and asks us to prohibit the district court from
exercising jurisdiction in this matter.
__________

1
See 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163, reprinted in 28 U.S.C., Fed. R. Civ. P. 4.
DISCUSSION
[Headnotes 13]
This court may issue a writ of prohibition to arrest the proceedings of a district court
exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the
district court.
2
A petition for a writ of prohibition is addressed to the sound discretion of this
court.
3
Further, a writ of prohibition is the appropriate vehicle to challenge a district court's
refusal to quash service of process.
4

Here, Dahya contends that the district court misapplied both the Hague Convention
and Spanish civil procedure, and that the court therefore erred in denying his motion to quash
service of process. We agree.
[Headnotes 49]
Stated simply, the Hague Convention is designed to provide a mechanism by which a
plaintiff authorized to serve process under the laws of its country can effect service that will
give appropriate notice to the party being served and will not be objectionable to the country
in which the party is served.
5
The Hague Convention applies in all cases, in civil or
commercial matters, where there is occasion to transmit a judicial or extrajudicial document
for service abroad.
6
Because both Spain and the United States are signatory states to the
Hague Convention, the service on Dahya must have been effected strictly according to the
procedures set forth under the Hague Convention's guidelines.
7
Thus, any failure to comply
with the Hague Convention's service methods would have the effect of nullifying the
attempted service.
8

__________

2
NRS 34.320.

3
Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

4
Trump v. District Court, 109 Nev. 687, 692, 857 P.2d 740, 743 (1993) (citations omitted).

5
DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir. 1981).

6
Hague Convention Art. 1.

7
Teknekron Management, Inc. v. Quante Fernmeldetechnik GmbH, 115 F.R.D. 175, 176 (D. Nev. 1987)
(citing Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir. 1983)).

8
See Griggs Group Limited v. Filanto Spa, 920 F. Supp. 1100, 1102 (D. Nev. 1996) (citations omitted). The
service provisions of the Hague Convention take precedence over any conflicting Nevada procedural rules. The
second clause of Article VI of the United States Constitution establishes that treaties are the supreme law of the
land, and are binding upon the several states. The Hague Convention is recognized with status equivalent to a
treaty. See Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 882 (Ala. 1983); Dr. Ing H. F.
Porsche A.G. v. Superior Court, 177 Cal. Rptr. 155 (Ct. App. 1981). Thus, when state service of process
procedures have
Three liberal methods of service are permitted under the Hague Convention. First,
service may go through the central authority of the receiving country.
9
Second, service may
go through diplomatic or consular agents that the receiving country considers
nonobjectionable.
10
And third, service may be done by any method permitted by the
internal law of the receiving country.
11

In the instant case, Casmyn bypassed service through both the Spanish Central
Authority and diplomatic channels. However, the district court determined that Casmyn's
personal service on Dahya by a Spanish attorney was proper because it complied with
Convention Article 19. Article 19 provides that [t]o the extent that the internal law of a
contracting state permits methods of transmission, other than those provided for in the
preceding Articles, of documents coming from abroad, for service within its territory, the
present Convention shall not affect such provisions. (Emphasis added.)
[Headnote 10]
The term permits has been subject to varying interpretations. One view suggests that
the term should be broadly construed to allow for any form of service not specifically
prohibited or objected to by the foreign country.
12
Conversely, a second interpretation
suggests that the term should be narrowly construed to only allow for those alternative service
methods specifically authorized by foreign law.
13

In following the former interpretation, the district court held that the Hague
Convention permitted the type of service effected by Casmyn because the means used were
reasonably calculated to give notice pursuant to the Nevada long-arm statute,
14
and
because Spain failed to raise any objection to the service method.
__________
been found to be in direct conflict with the Hague Convention, courts have been compelled to recognize the
supremacy of the Convention's provisions. See generally Ackermann v. Levine, 788 F.2d 830, 840-41 (2d Cir.
1986).

9
See Hague Convention Art. 5. In Spain, the designated central authority is the Ministry of Justice in Madrid.
See Hague Convention at Annex n.19.

10
See Hague Convention Art. 8-11.

11
See Hague Convention Art. 19.

12
See Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273 (S.D. Fla. 1999); see also DeJames v.
Magnificence Carriers, Inc., 654 F.2d 280, 288 (D.N.J. 1981) (Rule 4's service methods may be used as long as
the nation receiving service has not objected to them.); Lemme v. Wine of Japan Import, Inc., 631 F. Supp. 456,
464 (E.D.N.Y. 1986).

13
See Brian Raley, A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, The United
Kingdom and The United States, 10 Ariz. J. Int'l & Comp. L. 301, 307 (1993); Gary A. Magnarini, Service of
Process Abroad Under the Hague Convention, 71 Marq. L. Rev. 649, 681-82 (1988).

14
NRS 14.065.
This determination was in error.
Our inquiry into the language of Article 19 is twofold in nature: Does the Hague
Convention permit alternative methods of service beyond those prescribed by the Hague
Convention articles; and if not, did the particular service method used in this instance
comport with Spanish internal law?
15

As to the first inquiry, although this court is mindful of recent federal authority cited
by the district court in support of its determination,
16
we nonetheless conclude that the term
permits under Article 19 should not be so broadly defined.
[Headnote 11]
Specifically, the Hague Convention was adopted with clear and delineated guidelines
for the sole purpose of creating uniformity when effecting service abroad.
17
Thus, rather than
relying on the procedural service of process mechanisms espoused by fifty separate states in
this country, and countless nations abroad, the Hague Convention sought to avoid the hidden
pitfalls that inevitably closed courtroom doors to unwary foreign litigants by adopting a
uniform set of service rules.
18
With this background in mind, we conclude that an
interpretation of permits which would allow for service by any means not particularly
objected to by the foreign state would be discordant with the drafters' intent.
Foremost, a broad interpretation would not promote uniformity or alleviate confusion
as the drafters intended. Rather, it would force signatory states to once again embrace a
multifarious set of service methods that contradict both the state's internal laws and the
Convention. Further, we conclude that a broad interpretation would unduly impinge upon
foreign state sovereignty. The absolutionist formulation of the nation as a clearly defined
territorial sovereign has long since been recognized in this country.
19
Thus, a foreign state
should be afforded the autonomy to select service methods commensurate with its own
internal laws and the Hague Convention without having to object to all other methods not
specifically proscribed.
In addition, we note that language in other articles of the Hague Convention suggest
that the term permits was never intended to allow all forms of service not objected to. For
example, Article 11 states that the Hague Convention does not prohibit two contracting states
from agreeing to permit, for the purpose of service of judicial documents, channels of
transmission other than those provided for in the preceding articles."
__________

15
See Banco Latino, 53 F. Supp. 2d at 1279.

16
See id.

17
See Hague Convention at Preamble.

18
See S. Rep. No. 2392, 85th Cong., 2d Sess. (1958).

19
See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).
vice of judicial documents, channels of transmission other than those provided for in the
preceding articles. (Emphasis added.) Yet it is readily apparent that the agreement would
be unnecessary if a contracting nation were already required to authorize all service methods
not specifically proscribed.
Likewise, the terms object or oppose are used in precise places in the Hague
Convention to denote when a contracting state has the ability to limit the scope of the Hague
Convention by refusing to accept service in the given manner.
20
In these specific articles, a
contracting state must object or service may transpire accordingly. However, no similar
language requiring formal objection is found in Article 19. Therefore, the requirement of a
formal objection does not appear to be present under Article 19. As a result, we conclude that
the district court erred in holding that a specific objectionmandatory under other Hague
Convention articlesshould likewise be required under Article 19.
[Headnotes 12, 13]
Having concluded that Article 19 prohibits service in any manner not specifically
allowed by the receiving foreign state, we must determine whether service was effected in
accordance with the receiving nation's internal law. In this regard, both parties submitted
affidavits from Spanish counsel setting forth the relevant provisions under that country's law
for determining whether Spanish courts permit service in the matter effected by Casmyn.
21
Although neither side disputes that personal service is allowed in Spain,
22
the affidavits
conflict as to whether foreign service can be performed by a private individual on a resident
who is not a Spanish national.
__________

20
As an example, Articles 8 and 10 discuss the ability to forward judicial materials through diplomatic
channels, and through postal channels. Article 8 specifically states that [a]ny State may declare that it is
opposed to such service. (Emphasis added.) Likewise, Article 10 states that documents may be sent through the
mail [p]rovided the State of destination does not object. (Emphasis added.) Further, Article 21 notes that
[e]ach contracting State shall similarly inform the Ministry, where appropriate, of(a) opposition to the use of
methods of transmission pursuant to articles 8 and 10. (Emphasis added.)

21
Once an issue of foreign law has been properly raised, this court may make a determination of that law, and
subsequently may consider any relevant material or source, including testimony, whether or not submitted by a
party or admissible under Rule 43. NRCP 44.1. Further, this court's determination is treated as ruling on a
question of law. See id. Thus, foreign law should be argued and briefed in the same manner as domestic law, and
as with domestic law, judges should use both their own research and the evidence submitted by the parties to
determine foreign law. See Ackermann, 788 F.2d at 838.

22
Clearly, under Spain's internal law service is permitted in four ways: By means of personal service; by
certificate; by publication; and by certified mail with return receipt. See Spanish Civil Procedure Act of 1881.
The affidavit from Jose Luis de San Pio, Casmyn's process server, states that Spanish
law does not prohibit personal service of a foreign summons and complaint by a private
individual such as myself. San Pio's affidavit, however, cites no Spanish law permitting
foreign service by a private individual on a non-Spanish defendant. Rather, he states that
because Spanish law is silent on the matter, this method of service is therefore proper.
23

In opposition, the affidavit of Maria Victoria Gonzalez Echeverria, a Spanish attorney
retained to support Dahya's motion to quash, states that service is a judicial act under Spanish
law that must be performed by judicial authority regardless of the circumstances. Specifically,
Echeverria notes that the Ley de Enjuiciamiento Civil (Spanish civil procedure, hereafter
LEJ) requires that notification be performed under strict guidelines in order to establish
fundamental rights of actual legal guarantee of notification, establish effective protection of
the Court, due process, etc.
24
Thus, judicial authorities are the only ones that can notify the
parties.
25
Because San Pio had no such authority, Echeverria contends that Spanish courts
will not recognize San Pio's personal service of petitioner Dahya. We agree.
[Headnote 14]
We conclude that regardless of Dahya's status as a non-citizen defendant, the laws of
Spain should control personal service on him as if he were a Spanish national.
26
Under
Spanish law, personal service must be specifically performed by an authorized marshall or
judicial officer.
27
Any method of service not in accord with Spanish civil
procedureincluding unauthorized serviceis deemed void.
28
Therefore, although San Pio,
an attorney, performed service in this instance, San Pio is not a marshall or judicial officer
authorized to perform such a function. As a result, the service on Dahya was not in
accordance with Spain's procedural requirements and was ineffective.
CONCLUSION
As service on Dahya did not comport with the Hague Convention or Spanish law, the
district court never acquired jurisdiction over Dahya.
__________

23
Likewise, the Banco Latino court stated that because Spanish law did not expressly proscribe notice
through personal service by a private individual involving foreign litigation, such service must be permitted. See
53 F. Supp. 2d at 1280.

24
LEJ 261.

25
Id.

26
See Grand Entertainment Group v. Star Media Sales, 988 F.2d 476, 490 (3d Cir. 1993).

27
LEJ 266.

28
LEJ 279.
diction over Dahya. Accordingly, we grant the petition and direct the clerk of this court to
issue a writ of prohibition restraining the district court from exercising jurisdiction over
Dahya based on the defective service.
Young, Shearing, Agosti and Becker, JJ., concur.
Rose, J., with whom Maupin, C. J., agrees, dissenting:
I dissent because I believe the district court correctly ruled that service of process was
properly effected upon Mr. Dahya in Tenerife, Spain, and it was not in violation of the service
abroad provisions of the Hague Convention. In the case of Banco Latino, S.A.C.A. v. Gomez
Lopez, 53 F. Supp. 2d 1273 (S.D. Fla. 1999), the defendant was served outside the United
States in a manner similar to service in this case. In refusing to quash service, the federal
district court concluded that various service methods can be used in foreign countries without
violating the Hague Convention as long as the nation receiving service has not objected to
them. See id. at 1280.
This standard seems reasonable. The object of service of process is to give notice of a
pending legal action. It is often difficult to do this in a neighboring state, let alone a foreign
nation where the law may be unwritten, unclear, or subject to arbitrary interpretation.
Construing the Hague Convention's service of process provisions liberally permits service of
process in a foreign nation in a manner that is not prohibited, and actually notifies the person
served. This is the approach taken by the Banco Latino case and I believe it is the better
precedent to follow. Accordingly, I believe Dahya was properly served, and I would deny the
petition.
____________
117 Nev. 216, 216 (2001) Borgerson v. Scanlon
DENNIS BLAKE BORGERSON, Appellant, v. PATRICIA SCANLON, Individually and
Doing Business as THE WATER HOLE BAR, Respondent.
No. 33332
March 14, 2001 19 P.3d 236
Appeal from a district court order granting summary judgment for respondent and
denying appellant's motion to retax costs in a personal injury action. Second Judicial District
Court, Washoe County; Janet J. Berry, Judge.
Police officer brought personal injury action against mother of suspect, alleging he
was injured when he fell while chasing fleeing suspect. The district court granted mother's
motion for summary judgment.
mary judgment. Officer appealed. The supreme court held that Firefighter's Rule barred claim
in the absence of evidence that mother negligently interfered with suspect's arrest.
Affirmed.
William Patterson Cashill, Reno, for Appellant.
Vannah Costello Canepa Riedy & Rubino and Denise M. Cooper, Las Vegas, for
Respondent.
On appeal, court reviews orders of summary judgment de novo and considers the record in the light most favorable to the
non-prevailing party.
2. Judgment.
If a reasonable jury could find for the non-moving party, summary judgment is inappropriate.
3. Judgment.
A trial court cannot make findings concerning the credibility of witnesses or weight of evidence in order to resolve a motion for
summary judgment.
4. Negligence.
Common law Firefighter's Rule's bar against recovery is statutorily limited to instances where the negligent act complained of is
the same act which requires that peace officer's presence at the scene. NRS 41.139.
5. Negligence.
Firefighter's Rule does not preclude an officer from seeking recovery when the negligent act which caused his injury is
unforeseeable or is an independent and intervening act. NRS 41.139.
6. Negligence.
In the absence of evidence that suspect's mother in any way negligently interfered with suspect's arrest, Firefighter's Rule barred
police officer's tort claim against mother after he fell while chasing fleeing suspect, as pursuing suspect was a reasonable extension of
officer's official duties when responding to 911 call to family reunion at the family's bar. Police officer could reasonably expect that a
suspect might attempt to flee, particularly when that person was intoxicated, violent, and left unattended. NRS 41.139.
7. Parent and Child.
Mother of suspect was not vicariously liable for suspect's negligent acts while he was being arrested based on any duty, where
case did not involve motor vehicle ownership or negligent entrustment of motor vehicles to a minor child, and in any event there was
no evidence that mother had any modicum of control over her twenty-nine-year-old son.
8. Costs.
Appellate court strictly construes statutes awarding costs.
Appellate court reviews a trial court's award of costs for abuse of discretion.
When evidence on which a trial court's judgment rests is not properly included in the record on appeal, it is
assumed that the record supports the trial court's findings.
erly included in the record on appeal, it is assumed that the record supports the trial court's findings.
Appellate court would affirm trial court's award of costs to defendant, as neither party submitted documentation for costs in the
record on appeal.
OPINION
Per Curiam:
This case involves an interpretation of the Firefighter's Rule, codified at NRS 41.139,
in the context of a district court order granting summary judgment for respondent Patricia
Scanlon, both individually and doing business as The Water Hole Bar, in a personal injury
action for the injuries appellant Dennis Blake Borgerson sustained while chasing a fleeing
suspect. Because we conclude that the district court did not err in granting summary
judgment, we affirm the judgment of the district court.
FACTS
On June 17, 1995, Robert and Patricia Scanlon were holding a family reunion at their
family-owned bar, The Water Hole Bar, in Mineral County. Their son, David, arrived at the
reunion that afternoon drunk and violent. When David tried to order a drink from Robert and
Robert refused, David began yelling and hit a door and a mirror. Robert asked David to leave,
which he refused to do. Robert then called 911 to summon the Mineral County Sheriff's
Department to the scene to arrest David for disturbing the peace.
Officers Borgerson and Karl Snarr responded to that call. After speaking with Patricia,
Robert and David, Borgerson then saw David running across a field behind the bar.
Borgerson chased David in order to arrest him and fell while climbing a fence, sustaining leg
injuries.
Borgerson filed a complaint against the Scanlons, claiming that they negligently
interfered with David's arrest. In support of this contention, Borgerson stated at his deposition
that Robert interfered by yelling and insisting that David be arrested, thereby creating a
disturbance that allowed David to escape. Borgerson also stated that Patricia interfered by
both insisting David not be arrested and counseling David to flee when she was in an adjacent
trailer with him. The basis for this allegation was Patricia's statement during her deposition
that she told David in the trailer:
David, he wants you off the property, look at you, you're drunk. Snarr stated at his
deposition that he did not hear Patricia say anything to David. Borgerson did not provide any
other support for his allegations at his deposition.
Patricia and Robert moved for summary judgment on the basis that the Firefighter's
Rule precluded Borgerson's recovery since he sustained his injury in the course and scope of
his official duties. The district court granted the Scanlons' motion for summary judgment,
concluding that there was no evidence that either Patricia or Robert instigated David's flight.
In addition, Patricia filed a motion for costs pursuant to NRS 18.005 and 18.050.
Borgerson filed a motion to retax costs, claiming that many of Patricia's costs were
unreasonable and unverified. The district court reduced some costs, denied some costs, and
ultimately awarded $14,209.26 to Patricia. This appeal followed.
DISCUSSION
Borgerson's main contention is that the district court erred by granting summary
judgment because there are material disputes of fact as to whether Patricia and Robert
negligently interfered with a lawful detention. Because such interference would constitute an
independent act outside the scope of Borgerson's official duties, he contends the Firefighter's
Rule, as codified in NRS 41.139,
1
would not preclude his recovery.
[Headnotes 13]
On appeal, we review orders of summary judgment de novo and consider the record in
the light most favorable to the non-prevailing party.
2
Summary judgment is appropriate
when the record, viewed in the light most favorable to the non-moving party, indicates
there is no genuine issue of material fact and the party is entitled to judgment as a matter
of law.
__________

1
NRS 41.139 provides in pertinent part:
1. Except as otherwise provided in subsection 2, a peace officer, fireman or emergency medical
attendant may bring and maintain an action for damages for personal injury caused by the willful act of
another, or by another's lack of ordinary care or skill in the management of his property, if the conduct
causing the injury:
(a) Occurred after the person who caused the injury knew or should have known of the presence of the
peace officer, fireman or emergency medical attendant;
(b) Was intended to injure the peace officer, fireman or emergency medical attendant;
(c) Violated a statute, ordinance or regulation:
(1) Intended to protect the peace officer, fireman or emergency medical attendant; or
(2) Prohibiting resistance to or requiring compliance with an order of a peace officer or fire
fighter; or
(d) Was arson.

2
Auckenthaler v. Grundmeyer, 110 Nev. 682, 684, 877 P.2d 1039, 1040 (1994).
viewed in the light most favorable to the non-moving party, indicates there is no genuine
issue of material fact and the party is entitled to judgment as a matter of law.
3
If a reasonable
jury could find for the non-moving party, summary judgment is inappropriate.
4
Furthermore,
a district court cannot make findings concerning the credibility of witnesses or weight of
evidence in order to resolve a motion for summary judgment.
5

At common law, the Firefighter's Rule bars a public safety officer from recovering
damages in a negligence action for injuries received as a result of a risk occurring within the
scope of his official duties.
6
Such officers, in accepting the salary and fringe benefits
offered for the job, assume all normal risks inherent in the employment as a matter of law and
thus may not recover from one who negligently creates such a risk.
7

[Headnotes 4, 5]
Its legislative history reveals that NRS 41.139 limits
8
the common law rule's bar
against recovery to instances where the negligent act complained of is the same act which
requires that peace officer's presence at the scene.
9
The statute itself was meant to narrow
the firefighter's rule to allow recovery by public servants where recovery was not previously
allowed.
10
Moreover, we determined in Moody v. Manny's Auto Repair that this rule does
not preclude an officer from seeking recovery when the negligent act which caused his injury
is unforeseeable or is an independent and intervening act.
11
We have also determined that
actions which constitute an independent act include: (1) a third party independently erecting a
barrier in a driveway, causing an accident during a traffic stop;
12
and (2) a third party's
failure to warn the police that vicious dogs were on his property when the police
responded to an alarm.
__________

3
NRCP 56(c); see Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985).

4
Oehler v. Humana, Inc., 105 Nev. 348, 350, 775 P.2d 1271, 1272 (1989).

5
Hidden Wells Ranch v. Strip Realty, 83 Nev. 143, 145, 425 P.2d 599, 601 (1967).

6
See Steelman v. Lind, 97 Nev. 425, 427, 634 P.2d 666, 667 (1981), superceded by statute as explained in
Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994).

7
Id. at 427-28, 634 P.2d at 667.

8
This statute was intended to limit the common law Firefighter's Rule and not to be a statement of the rule in
its entirety. Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994), superceded by
statute as explained in Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994).

9
See Moody, 110 Nev. at 328, 871 P.2d at 940.

10
Id.

11
Id. at 324, 871 P.2d at 938.

12
Id. at 328, 871 P.2d at 940.
that vicious dogs were on his property when the police responded to an alarm.
13

[Headnote 6]
Upon our review of the record, we conclude that the district court correctly
determined that there was no evidence supporting Borgerson's contention that Patricia and
Robert in any way negligently interfered with David's arrest. Moreover, pursuing a suspect is
a reasonable extension of an officer's official duties when responding to a 911 call. A police
officer may reasonably expect that a suspect may attempt to flee, particularly when that
person is intoxicated, violent and left unattended. We agree, therefore, with the district court
that on the basis of the undisputed evidence, the Firefighter's Rule bars Borgerson's tort
claim.
[Headnote 7]
Borgerson also argues that Patricia is vicariously liable for David's acts because of her
duty under the parent-child relationship. This court has only recognized the vicarious liability
of a parent for a child's acts in cases of motor vehicle ownership
14
or negligent entrustment
of motor vehicles
15
when the child is a minor. Furthermore, there is no evidence that Patricia
had any modicum of control over her twenty-nine-year-old son.
[Headnotes 811]
Borgerson next argues that the district court abused its discretion by awarding
unreasonable costs to Patricia. We disagree. This court strictly construes statutes awarding
costs, and we review a district court's award of costs for abuse of discretion.
16
Moreover,
[w]hen evidence on which a district court's judgment rests is not properly included in the
record on appeal, it is assumed that the record supports the lower court's findings.
17
Because neither party submitted documentation for costs in the record on appeal, we affirm
the district court's award of costs.
CONCLUSION
Because we conclude that there is no evidence that Patricia or Robert negligently
interfered with David's arrest and that a suspect's flight is a reasonable and foreseeable
component of a peace officer's official duties, we affirm the district court's order granting
summary judgment.
__________

13
Wiley v. Redd, 110 Nev. 1310, 1314, 885 P.2d 592, 595 (1994).

14
NRS 41.440; see also Barr v. Gaines, 103 Nev. 548, 746 P.2d 634 (1987).

15
See Zugel v. Miller, 100 Nev. 525, 688 P.2d 310 (1984).

16
Bergmann v. Boyce, 109 Nev. 670, 679, 856 P.2d 560, 566 (1993).

17
Raishbrook v. Estate of Bayley, 90 Nev. 415, 416, 528 P.2d 1331, 1331 (1974).
officer's official duties, we affirm the district court's order granting summary judgment.
Noting no abuse of discretion, we also affirm the district court's order denying Borgerson's
motion to retax costs.
____________
117 Nev. 222, 222 (2001) Banegas v. SIIS
ANNABELLE BANEGAS for ROBERT BANEGAS (DECEASED), Appellant, v. STATE
INDUSTRIAL INSURANCE SYSTEM, a State Agency; and REECO, By and
Through Its Successor, BECHTEL NEVADA CORPORATION, Respondents.
No. 29833
March 16, 2001 19 P.3d 245
Appeal from an order of the district court denying a petition for judicial review.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Unmarried cohabitant of deceased worker applied for death benefits from State
Industrial Insurance System (SIIS). After SIIS denied application, the district court denied
cohabitant's petition for judicial review. Cohabitant appealed. The supreme court, Becker, J.,
held that Legislature did not intend to provide death benefits to dependents who did not have
legally recognizable relationship with deceased worker.
Affirmed.
Maupin, C. J., with whom Shearing and Rose, JJ., agreed, dissented.
Craig P. Kenny & Associates, Las Vegas, for Appellant.
Shirley D. Lindsey, Associate General Counsel, Employers Insurance Company of
Nevada, Las Vegas, for Respondent SIIS.
Frank P. Sullivan, Deputy Managing Counsel, Bechtel Nevada Corporation, Las
Vegas, for Respondent REECO.
The supreme court reviews questions of law de novo.
2. Statutes.
A reviewing court may undertake independent review of the administrative construction of a statute.
3. 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.
4. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is ambiguous.
5. Statutes.
When a statute is ambiguous, the Legislature's intent is the controlling factor in statutory interpretation, and the statute should be
construed consistently with what reason and public policy would indicate the Legislature intended.
The power conferred upon the Legislature to make laws cannot be delegated to any other body or authority. Const. art. 3, 1.
The Legislature may authorize administrative agencies to make rules and regulations supplementing legislation if the power
given is prescribed in terms sufficiently definite to serve as a guide in exercising that power.
8. Workers' Compensation.
Phrase in all other cases in statute relating to amount and duration of death benefits was not catchall category for factual
dependents, and thus unmarried cohabitant who was financially dependent on worker who died from work-related illness was not
entitled to death benefits, as Legislature only contemplated providing death benefits to persons in legally recognized relationship with
deceased employee. All dependents described in other subsections had legally recognized relationships to deceased employee, and titles
attached to former version of statute suggested that Legislature intended phrase in all other cases to mean all cases where question of
fact existed concerning extent of dependency among class of beneficiaries specified within chapter. NRS 616C.505(8).
9. Statutes.
Words within a statute must not be read in isolation, and statutes must be construed to give meaning to all of their parts and
language within the context of the purpose of the legislation.
10. Statutes.
The title of a statute may be considered in determining legislative intent.
11. Statutes.
The subject matter of a statute and the policy to be effectuated may be used in statutory construction.
OPINION
By the Court, Becker, J.:
Appellant Annabelle Banegas was an unmarried cohabitant of decedent Robert
Banegas at the time of his death in 1994. During the period of their cohabitation, Annabelle
relied on Robert for substantially all of her financial support, including all living expenses
other than the cost of housing. After Robert's work-related death, Annabelle applied for death
benefits from the State Industrial Insurance System (SIIS) as a dependent of Robert. SIIS
denied Annabelle's claim on the basis that she was not a legal dependent of Robert at the
time of his death. SIIS's denial was upheld by an appeals officer, and the district court
subsequently denied Annabelle's petition for judicial review.
denied Annabelle's petition for judicial review. On appeal, Annabelle contends that she
should not have been denied death benefits because NRS 616C.505(8) (cf. NRS 616.615(8))
provides benefits for factual dependents regardless of their legal relationship to the deceased
employee.
1
We disagree and affirm the order of the district court denying the petition for
judicial review.
FACTS
Robert and Annabelle were married on April 2, 1955. They divorced on August 4,
1981. The divorce decree made no provision for Annabelle's support but did distribute the
community property. Robert and Annabelle eventually reconciled and began cohabitating
sometime in 1990, but never remarried. From 1990 until Robert's death in 1994, they lived in
Annabelle's house with Robert providing substantially all of Annabelle's financial support.
Specifically, Robert paid for all of the living expenses other than the cost of housing.
Robert had been an employee of Reynolds Electric Systems Company (REECO) for
approximately twenty-six years, working almost exclusively in tunnel areas. On January 4,
1994, Robert died from a lung disease which was related to his work for REECO.
Following Robert's death, Annabelle applied for death benefits from SIIS as a
dependent of Robert. SIIS denied Annabelle's claim based upon its reading of NRS 616C.505
that death benefits were payable only to designated dependents related by blood or marriage.
Annabelle appealed SIIS's decision, asserting that subsection 8 of NRS 616C.505 is a catchall
category providing death benefits to factual dependents regardless of any legal relationship to
the deceased employee. The appeals officer upheld SIIS's claim denial after concluding that
Annabelle was not entitled to death benefits under NRS 616C.505 because she was not
Robert's legal dependent at the time of his death. Similarly, the district court denied
Annabelle's petition for judicial review after concluding that there was substantial evidence to
support the appeals officer's decision.
DISCUSSION
[Headnotes 1, 2]
The facts of this case are not in dispute. The question before this court is whether the
appeals officer properly interpreted the workers' compensation statutes applicable to this case.
Questions of law are reviewed de novo. SIIS v. United Exposition Services
__________

1
The Legislative Counsel Bureau, pursuant to its administrative authority, renumbered NRS 616.615 as NRS
616C.505 in 1995.
Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993). [A] reviewing court may undertake
independent review of the administrative construction of a statute. American Int'l Vacations
v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983).
NRS 616C.505 provides, in descending order of entitlement, that the surviving
spouse, minor children, or parents or siblings of a deceased employee are entitled to receive
death benefits if an injury arising out of and in the course of employment causes the
employee's death. See NRS 616C.505(2)-(6). Additionally, subsection 8 provides:
In all other cases involving a question of total or partial dependency:
(a) The extent of the dependency must be determined in accordance with the facts
existing at the time of the injury.
(b) If the deceased employee leaves dependents only partially dependent upon his
earnings for support at the time of the injury causing his death, the monthly
compensation to be paid must be equal to the same proportion of the monthly payments
for the benefit of persons totally dependent as the amount contributed by the deceased
employee to the partial dependents bears to the average monthly wage of the deceased
employee at the time of the injury resulting in his death.
(c) The duration of compensation to partial dependents must be fixed in accordance
with the facts shown, but may not exceed compensation for 100 months.
NRS 616C.505(8).
[Headnotes 3, 4]
Annabelle, SIIS, and REECO all suggest distinct constructions of NRS 616C.505(8).
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. See City Council of
Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989). However, if a
statute is susceptible to more than one natural or honest interpretation, it is ambiguous. See
Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990). We
conclude that the language of NRS 616C.505(8) is ambiguous.
[Headnote 5]
When a statute is ambiguous, the Legislature's intent is the controlling factor in
statutory interpretation, and the statute should be construed consistently with what reason and
public policy would indicate the Legislature intended. Robert E. v. Justice Court, 99 Nev.
443, 445, 664 P.2d 957, 959 (1983).
In this case, the legislative history does not provide extensive insight into the intent
behind NRS 616C.505(8) because, although a complete revision of the industrial insurance
statutes was adopted in 1947 and amendments to various sections of the statutes have been
enacted during every regular legislative session since 1913, NRS 616C.505 remains largely
unchanged since the original industrial insurance statutes were adopted in 1913. In fact,
committee minutes for NRS 616C.505 are virtually nonexistent.
2
Mindful of the limited
legislative history, we address the parties' interpretations of NRS 616C.505(8) in turn.
First, Annabelle contends that the Legislature intended NRS 616C.505(8) as a catchall
category providing death benefits to any person who is factually dependent upon the deceased
at the time of injury. Annabelle suggests that NRS 616C.505 allows payment of death
benefits in descending order of entitlement first to persons who share a legally recognized
relationship to and are conclusively presumed dependent on the deceased employee, then to
persons who share a legally recognized relationship to and were in fact dependent on the
deceased employee, and finally to persons who share no legally recognized relationship to but
were in fact dependent on the deceased employee. Specifically, Annabelle contends that the
introductory phrase of subsection 8 of NRS 616C.505, in all other cases, indicates that the
Legislature intended to provide death benefits to persons who are totally or partially
financially dependent on the deceased employee at the time of the accident or injury causing
death regardless of their legal relationship to the deceased employee. Thus, Annabelle
contends that she is entitled to death benefits under NRS 616C.505(8) because it is
undisputed that she was in fact dependent on Robert for substantially all of her financial
support at the time of his death.
At first glance, the phrase in all other cases suggests that subsection 8 is a catchall
category for factual dependents. However, this construction of NRS 616C.505(8) would
produce an unreasonable result. See General Motors v. Jackson, 111 Nev. 1026, 1029, 900
P.2d 345, 348 (1995) (statutory interpretation should avoid absurd or unreaonable results).
Specifically, if subsection 8(a) is interpreted as a catchall category providing benefits for
factual dependents regardless of any legally recognized relationship to the deceased
employee, the subsection constitutes an incomplete expression of the Legislature's intent in
that it fails to express either the amount of or the period during which benefits will be paid
to subsection S{a) dependents.
__________

2
Over the last century, most revisions to NRS 616C.505 involved increases in the allowed amount of
payment to dependents. See 1949 Nev. Stat., ch. 323, 59, at 662-65; 1973 Nev. Stat., ch. 389, 6, at 533-35.
In 1991, the Legislature ceased using the terms widow and widower and replaced them with the term
surviving spouse. See 1991 Nev. Stat., ch. 307, 2, at 804-05.
to express either the amount of or the period during which benefits will be paid to subsection
8(a) dependents.
[Headnotes 6, 7]
One of the settled maxims in constitutional law is that the power conferred upon the
Legislature to make laws cannot be delegated to any other body or authority. See Nev. Const.
art. 3, 1. However, the Legislature may authorize administrative agencies to make rules and
regulations supplementing legislation if the power given is prescribed in terms sufficiently
definite to serve as a guide in exercising that power. See Sheriff v. Luqman, 101 Nev. 149,
153-54, 697 P.2d 107, 110-11 (1985).
Within the industrial insurance statutes, guidelines setting forth the amount of and
duration of death benefits appear only in NRS 616C.505 and relate exclusively to specified
dependents. Provisions for the allowed amount and duration of payments for surviving
spouses, dependent children, and wholly dependent parents and children of the deceased
employee are specified in subsections 2-6 of NRS 616C.505. Subsections 8(b)-(c), however,
express the amount of and the period during which benefits will be paid to partial dependents.
See NRS 616C.505(8)(b), (c). As a result, under Annabelle's construction of NRS
616C.505(8), SIIS would have sole discretion to determine the amount and duration of death
benefits payable to the catchall category of beneficiaries.
To read NRS 616C.505(8)(a) to broaden the class of dependents to include any
individual who is factually dependent upon the deceased employee, in the absence of any
legislative guidelines to aid SIIS in administering payments to such unspecified dependents,
would constitute an invalid delegation of legislative power which would compromise the
constitutionality of the statute. Luqman, 101 Nev. at 153-54, 697 P.2d at 110-11; see also
City of Las Vegas v. Mack, 87 Nev. 105, 481 P.2d 396 (1971) (statute's delegation to county
commissioners not unconstitutional because sufficient guidelines are in place). We decline to
assume the Legislature intended a construction of the statute that would compromise its
constitutionality. See Sun City Summerlin v. State, Dep't Tax., 113 Nev. 835, 944 P.2d 234
(1997); Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975).
Next, SIIS contends that NRS 616C.505(8) provides a category for dependents legally
entitled to support by the deceased employee. SIIS suggests that the Legislature intended to
limit the definition of dependents under NRS 616C.505 to persons related to the deceased
employee by blood or marriage, i.e., surviving spouses, dependent children, and dependent
parents or siblings of the deceased employee. SIIS contends that subsection 8 provides it with
discretion to determine total and/or partial dependency within the class of dependents related
by blood or marriage and to apportion death benefits among former spouses, minor
children in the custody of someone other than a surviving spouse, and adult children who
are incapable of self-support due to a mental or physical handicap.
to apportion death benefits among former spouses, minor children in the custody of someone
other than a surviving spouse, and adult children who are incapable of self-support due to a
mental or physical handicap.
We are not persuaded by SIIS's construction of NRS 616C.505(8) because the
instances that SIIS suggests the Legislature intended subsection 8 to address are covered
elsewhere within the industrial insurance statutes. Specifically, death benefits for minor
children of the deceased employee are provided for in NRS 616C.505(3)-(5) regardless of
who has custody of the children, and NRS 616C.505(12) provides death benefits for adult
children of the deceased employee. Additionally, NRS 616C.505(9) gives SIIS discretion to
apportion benefits between surviving spouses and minor children. Finally, NRS 616C.070
defines those who are conclusively presumed to be totally dependent on the deceased
employee and includes natural and adopted minor children, adult children physically or
mentally incapacitated from wage earning, and stepchildren and stepparents when factual
dependency is shown. Thus, the instances described by SIIS are covered by other sections or
subsections within the industrial insurance statutes, and reading NRS 616C.505(8) as urged
by SIIS would nullify the limits on death benefits imposed by the other sections and
subsections within the chapter. Such an interpretation would be contrary to established rules
of statutory construction. See Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472
P.2d 530, 533 (1970) (no part of a statute should be rendered nugatory, nor any language
turned to mere surplusage, if such consequences can properly be avoided).
Finally, REECO contends that NRS 616C.505(8) narrowly provides death benefits to
partially dependent parents or siblings when there is no surviving spouse or dependent
children and no wholly dependent parents or siblings. REECO suggests that the Legislature
intended subsection 8 to qualify subsection 6 by providing death benefits for partially
dependent parents or siblings and that the phrase in all other cases means all cases
involving partial dependents. Based on our review of the entire statutory scheme regarding
survivor benefits, we agree that the Legislature intended NRS 616C.505(8) to relate only to
partial dependency rather than to create an unspecified class of beneficiaries consisting of
factual dependents.
[Headnote 8]
The intent of the Legislature may be discerned by reviewing the statute or the chapter
as a whole. See Thomas v. State, 88 Nev. 382, 384, 498 P.2d 1314, 1315 (1972). NRS
616C.505 enumerates as dependents various classes of persons, standing in certain
relationships to the deceased employee, in descending order of entitlement to death
benefits.
entitlement to death benefits. Specifically, NRS 616C.505(2)-(5) and (12)-(13) provide death
benefits to a surviving spouse and/or surviving minor children. When these subsections are
considered together with NRS 616C.070, it is evident that the dependency of these designated
beneficiaries is to be conclusively presumed.
3
In addition, NRS 616C.505(6) provides death
benefits to wholly dependent parents or siblings of the deceased worker, with dependency for
these designated beneficiaries a question of fact in each instance. Provisions are made in
these subsections for payment to the designated beneficiaries of varying specified percentages
of the deceased employee's average monthly wage for varying specified periods. See NRS
616C.505(2)-(6). The chapter also provides that stepparents and stepchildren may be regarded
as parents and children if factual dependency is shown. See NRS 616C.070(1).
Thus, all of the dependent persons described in the subsections of NRS 616C.505 and
NRS 616C.070 have legally recognized relationships to the deceased employee.
4
These
subsections, when considered together with NRS 616C.035, which requires proof on an
application for death benefits of a relationship entitling a person to compensation, suggest
that the Legislature only contemplated providing death benefits to persons in a legally
recognized relationship with the deceased employee.
[Headnote 9]
Additionally, words within a statute must not be read in isolation, and statutes must be
construed to give meaning to all of their parts and language within the context of the purpose
of the legislation. See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d
102, 105 (1983). In NRS 616C.505(8), the phrase in all other cases appears in an
introductory sentence immediately preceding NRS 616C.505(8)(a), which provides that the
extent of the dependency is determined as of the date of injury. NRS 616C.070(2) provides
that questions as to who constitutes a dependent and the extent of the dependency is
determined as of the date of injury, and NRS 616C.505(13) provides that a surviving
spouse is either a husband or wife who was married to the employee at the date of death.
When NRS 616C.505(8)(a) is considered together with NRS 616C.070(2) and NRS
616C.505(13), it appears that subsection 8(a) merely specifies the date total or partial
dependency is determined.
__________

3
NRS 616C.070(1) provides that natural, posthumous or adopted children are conclusively presumed to be
totally dependent on the deceased employee for purposes of receiving compensation if there is no surviving
spouse.

4
See, e.g., NRS 616C.505(13) (defining surviving spouse), NRS 616C.070 (defining those conclusively
presumed dependent upon deceased employee), and NRS Chapter 134 (recognizing the relationships between a
decedent and his or her parents and siblings).
date total or partial dependency is determined. Additionally, when subsection 8(a) is read in
conjunction with subsections 8(b)-(c), which relate only to partial dependency, the reasonable
interpretation is that subsection 8 as a whole relates only to partial dependency.
[Headnote 10]
The title of a statute may also be considered in determining legislative intent. See A
Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971).
Former versions of NRS 616C.505, including subsection 8, contained titles which offer some
insight into the legislative intent. For example, the 1947 version of subsection 8 (subsection 7
in 1947) bears the title Partial dependency and provides, in part:
(7) In all other cases, questions of total or partial dependency shall be determined in
accordance with the facts as the facts may be at the time of the injury. . . .
See 1947 Nev. Stat., ch. 168, 59, at 587. Additionally, the 1967 version of NRS
616C.505(8) bears the title Questions of total or partial dependency. See 1967 Nev. Stat.,
ch. 221, 1, at 687. The language of subsection 7 remained the same as the 1947 version. See
1967 Nev. Stat., ch. 221, 1, at 687. In 1991, the title Questions of total or partial
dependency was removed, the section was recodified as subsection 8 instead of subsection 7,
and the word involving was added to the text of subsection 8. See 1991 Nev. Stat., ch. 307,
2, at 806. The 1991 amendment reflects the current version of this subsection. See NRS
616C.505(8)(a).
A title is typically prefixed to a statute or a subsection in the form of a descriptive
heading or a brief summary of the contents of the statute or subsection. See Random House
Webster's College Dictionary 1350 (2d ed. 1997); Black's Law Dictionary 1032 (6th ed.
1991). Given this definition, the titles previously utilized by the Legislature to describe prior
versions of subsection 8, and the context in which the phrase in all other cases is used, we
cannot interpret subsection 8 so broadly as to provide a catchall category for factual
dependents regardless of any legally recognized relationship to the deceased employee. The
titles attached to former versions of NRS 616C.505 and its subsections suggest that the
Legislature intended the phrase in all other cases in subsection 8(a) to mean all cases where
a question of fact exists concerning the extent of the dependency among the class of
beneficiaries specified within the chapter. Additionally, the replacement in 1991 of the title
Questions of total or partial dependency with the word involving immediately following
the phrase in all other cases within subsection 8(a) does not suggest that the Legislature
intended to broaden the application of subsection S by removing the title.
suggest that the Legislature intended to broaden the application of subsection 8 by removing
the title. Instead, the Legislature made minor technical changes to NRS 616C.505 (cf. NRS
616.615) that year, including removing the titles from all of the subsections and incorporating
their language into the text of the subsections. See 1991 Nev. Stat., ch. 307, 2, at 804-06.
[Headnote 11]
Finally, the subject matter of the statute and the policy to be effectuated may be used
in statutory construction. See Welfare Div. v. Washoe Co. Welfare Dep't., 88 Nev. 635, 638,
503 P.2d 457, 459 (1972). Nevada was one of the first states to enact workers' compensation
laws with the primary purpose of providing economic assistance to persons who suffer
disability or death as a result of their employment. See SIIS v. Lodge, 107 Nev. 867, 871, 822
P.2d 664, 666 (1991). Historically, this court liberally construed workers' compensation laws
to grant benefits rather than deny them. See id.
However, in 1993, the Legislature adopted a new legislative declaration for the
industrial insurance statutes that repudiates the application of common law principles and
requires statutes governing workers' compensation to be interpreted according to their plain
meaning. See NRS 616A.010 (substituted in 1995 recodification for NRS 616.012).
Specifically, NRS 616A.010 provides:
Legislative declarations: Statutory construction; repudiation of common law; basis of
provisions; balanced interpretation required.
The legislature hereby determines and declares that:
1. The provisions of chapters 616A to 617, inclusive, of NRS must be interpreted and
construed to ensure the quick and efficient payment of compensation to injured and
disabled employees at a reasonable cost to the employers who are subject to the
provisions of those chapters;
2. A claim for compensation filed pursuant to the provisions of chapters 616A to
616D, inclusive, or chapter 617 of NRS must be decided on its merit and not according
to the principle of common law that requires statutes governing workers' compensation
to be liberally construed because they are remedial in nature;
3. The provisions of chapters 616A to 617, inclusive, of NRS are based on a
renunciation of the rights and defenses of employers and employees recognized at
common law; and
4. For the accomplishment of these purposes, the provisions of chapters 616A to 617,
inclusive, of NRS must not be interpreted or construed broadly or liberally in favor of
an injured or disabled employee or his dependents, or in such a manner as to favor the
rights and interests of an employer over the rights and interests of an injured or
disabled employee or his dependents.
manner as to favor the rights and interests of an employer over the rights and interests
of an injured or disabled employee or his dependents.
NRS 616A.010. The minutes from the hearings before both the Assembly Committee on
Labor and Management and the Senate Committee on Commerce and Labor indicate that the
Legislature enacted NRS 616A.010 based upon the perception that the courts were construing
various sections of the industrial insurance statutes too liberally and contrary to the plain
meaning of the statutes.
5
Viewed in light of NRS 616A.010, we conclude that NRS
616C.505(8) can only be interpreted to relate to partial dependency for those who are not
conclusively presumed to be totally dependent on, but who have a legally recognized
relationship to, the deceased employee.
Additionally, the enactment of NRS 616A.010 refutes Annabelle's alternative
contention that the Legislature intended expansive definitions of the dependents specified in
NRS 616C.505. In particular, Annabelle cites several cases from other jurisdictions in which
the courts discussed the remedial purpose of workers' compensation laws and applied a
common law liberal construction of them in holding that the definition of the term wife or
spouse for purposes of death benefit eligibility under the applicable workers' compensation
statutes included putative or common law wives.
6

Prior to 1993, it is conceivable that this court similarly could have liberally construed
NRS 616C.505(2) and concluded that, because their relationship bore a resemblance to that of
a married couple, Annabelle was Robert's wife and was entitled to death benefits as a
surviving spouse. However, the Legislature's adoption of NRS 616A.010 in 1993, a year
before Robert's death, clearly prohibits Annabelle from being included in the definition of
surviving spouse based on an analysis similar to that applied in West, Burgess, or Dawson
because the Nevada Legislature expressly repudiated the liberal construction of the industrial
insurance statutes with the adoption of NRS 616A.010. Moreover, the Legislature adopted
subsection 13 of NRS 616C.505 in 1993, which clearly defines "surviving spouse" as a
"surviving husband or wife who was married to the employee at the time of the
employee's death."
__________

5
See Hearing on S.B. 316 Before the Senate Commerce and Labor Comm., 67th Leg. (Nev., February 3,
1993), and Hearing on S.B. 316 Before the Assembly Labor and Management Comm., 67th Leg. (Nev., April
20, 1993).

6
See Burgess v. Lindley, 504 P.2d 1023, 1025 (Alaska 1972) (first wife qualified for benefits as surviving
wife under liberal humanitarian purpose of statute); West v. Barton-Malow Co., 230 N.W.2d 545, 546-47
(Mich. 1975) (live-in girlfriend was eligible dependent under expansive meaning of statute); Dawson v. Hatfield
Wire & Cable Co., 280 A.2d 173, 175-76 (N.J. 1971) (woman with good faith belief that she was married
qualified as a dependent widow).
which clearly defines surviving spouse as a surviving husband or wife who was married to
the employee at the time of the employee's death. When Robert died in 1994, he and
Annabelle were not married. Thus, Annabelle is not Robert's surviving spouse for purposes of
receiving death benefits pursuant to NRS 616C.505(2).
CONCLUSION
We conclude that the Legislature intended NRS 616C.505 to provide death benefits in
descending order of entitlement to specified dependents standing in certain legally recognized
relationships to the deceased employee. This determination leads to the further conclusion
that the Legislature intended NRS 616C.505(8) to provide death benefits for those who are
not conclusively presumed to be totally dependent, but who have a legally recognized
relationship to, and are partially dependent upon, the deceased employee when there is no
surviving spouse or dependent children and no wholly dependent parents or siblings.
Accordingly, we affirm the order of the district court denying the petition for judicial review.
Young, Agosti and Leavitt, JJ., concur.
Maupin, C. J., with whom Shearing and Rose, JJ., agree, dissenting:
This case is one of pure statutory construction. If the Nevada workers' compensation
death benefit provision at issue here is unambiguous, it is our responsibility to interpret it in
accordance with its plain meaning. Only when an ambiguity has been identified are we
permitted to resort to other rules of statutory construction.
1
Because I believe NRS 616C.505
is not ambiguous, I do not agree that the omission of certain constraints on claims for
dependent benefits under NRS 616C.505 mandates that we affirm the decision made by the
district court.
It is tempting to draw an analogy to the Nevada wrongful death statute.
2
NRS 41.085
restricts wrongful death tort claim eligibility to persons eligible to inherit under our laws of
intestate succession, i.e., legal heirs. However, NRS 616C.505, our workers' compensation
death benefit provision, is not as restrictive as the wrongful death statute in its enumeration of
persons eligible to pursue claims.
The full 66 2/3 percent benefit payable under NRS 616C.505 is payable first to the
surviving spouse until death or remarriage,
__________

1
See City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989).

2
See NRS 41.085.
is payable first to the surviving spouse until death or remarriage,
3
then to the surviving
children equally until each reaches the age of eighteen years,
4
and then to wholly dependent
parents and siblings in defined percentages.
5
It is only then that subsection eight of NRS
616C.505 comes into play requiring that, [i]n all other cases involving a question of total or
partial dependency[,] (a) [t]he extent of the dependency must be determined. Thus, in my
view, NRS 616C.505(8) expressly provides that other non-enumerated factual dependencies
can be considered for death benefit eligibility.
In such cases, however, a threshold determination of total or partial dependency must
be made. If the non-enumerated dependency is partial, the formula for compensation is set
forth in subsection (b) of NRS 616C.505(8). If the dependency is total, the benefits must not
exceed 66 2/3 percent of the decedent's average monthly wage.
6
Although no set time frame
for payment of total dependency death benefits under NRS 616C.505(8) is set forth, it is
evident that such benefits would terminate on the death of the claimant or the termination of
disability. Termination of disability would include death, recovery or rehabilitation from the
disability, or remarriage, consistent with the enumerated dependencies.
I would note parenthetically that the claimant in this case cannot meet the
requirements as a surviving spouse, having been divorced and not remarried in compliance
with Nevada laws governing marriage at the time of the demise of Mr. Banegas.
7
Thus, this
claimant's only ground for recovery of workers' compensation death benefits must be in the
context of non-enumerated dependencies under NRS 616C.505(8).
I recognize that NRS 616A.010 legislatively abrogated the common law rule, which
required liberal interpretation of our workers' compensation statutory scheme. However,
given my conclusion that NRS 616C.505 unambiguously provides for total dependency
benefits for non-enumerated dependents, NRS 616A.010 is not implicated by the construction
sought by appellant. I would therefore reverse and remand for a calculation of death benefits
in accord with the views expressed above.
__________

3
See NRS 616C.505(2).

4
See NRS 616C.505(3) and (5).

5
See NRS 616C.505(6) and (7).

6
See NRS 616C.505(7).

7
See NRS 616C.505(13).
____________
117 Nev. 235, 235 (2001) Mineral County v. State, Dep't of Conserv.
MINERAL COUNTY, a Political Subdivision of the State of Nevada; and THE WALKER
LAKE WORKING GROUP, Petitioners, v. STATE OF NEVADA, DEPARTMENT
OF CONSERVATION AND NATURAL RESOURCES, an Agency of the State of
Nevada; PETER MORROS, Director of the Department of Conservation and Natural
Resources; R. MICHAEL TURNIPSEED, State Engineer; WALKER RIVER
IRRIGATION DISTRICT, a Nevada Irrigation District; LYON COUNTY and THE
CITY OF YERINGTON, Political Subdivisions of the State of Nevada, Respondents.
No. 36352
April 11, 2001 20 P.3d 800
Original petition for a writ of mandamus and a writ of prohibition challenging
respondents' management and appropriation of water flows in the Walker River Basin.
County and private not-for-profit organization petitioned for writ of prohibition to
prevent State and Department of Conservation and Natural Resources from granting
additional rights to withdraw surface water or groundwater from river system and a writ of
mandamus challenging State and Department's public trust obligations in managing and
appropriating water flows into lake. The supreme court, Young, J., held that federal decree
court, which had continuing involvement in monitoring of river for more than eighty years,
was proper forum in which to resolve dispute.
Petitions denied.
Campbell & Stone, Reno; Western Environmental Law Center and Marc David Fink
and Michael Dana Axline, Eugene, Oregon, for Petitioners.
Frankie Sue Del Papa, Attorney General, and Paul G. Taggart and William J. Frey,
Deputies Attorney General, Carson City, for Respondents State of Nevada, Department of
Conservation and Natural Resources; Peter Morros, Director of Department of Conservation
and Natural Resources; and R. Michael Turnipseed, State Engineer.
George N. Benesch, Reno, for Respondent Lyon County.
Brooke Shaw Plimpton Zumpft, Minden, for Respondent City of Yerington.
Woodburn & Wedge and Gordon H. DePaoli, Reno, for Respondent Walker River
Irrigation District.
Mackedon & McCormick, Fallon, for Amicus Curiae City of Fallon.
Allison MacKenzie Hartman Soumbeniotis & Russell and Karen A. Peterson and
Christopher F. MacKenzie, Carson City, for Amicus Curiae Humboldt River Basin Water
Authority.
Stanley H. Brown, Jr., Reno; Herum Crabtree Brown and Jeanne Zolezzi, Jennifer L.
Spaletta and James Belford Brown, Stockton, California, for Amicus Curiae Town of Walker
Lake.
1. Mandamus.
Writ of mandamus is available to compel performance of an act by inferior state tribunal, corporation, board, or person, but
the action being compelled must be one already required by law. NRS 34.160.
2. Mandamus.
Generally, mandamus will not issue if petitioner has a plain, speedy, and adequate remedy in the ordinary course of law. NRS
34.160.
3. Mandamus.
Where circumstances reveal urgency or strong necessity, supreme court may grant extraordinary relief in form of writ of
mandamus. NRS 34.160.
4. Mandamus.
Where important issue of law needs clarification and public policy is served by supreme court's invocation of its original
jurisdiction, court's consideration of petition for extraordinary relief may be justified. NRS 34.160.
5. Mandamus.
Mandamus is an extraordinary remedy which will not lie to control discretionary action, unless discretion is manifestly abused
or is exercised arbitrarily or capriciously. NRS 34.160.
6. Mandamus.
Even when mandamus is available as a remedy, supreme court is not compelled to issue the writ because it is purely
discretionary. NRS 34.160.
7. Prohibition.
Writ of prohibition does not serve to correct errors; rather, its purpose is to prevent courts from transcending the limits of their
jurisdiction in the exercise of judicial power. NRS 34.320.
8. Prohibition.
Writ of prohibition is extraordinary remedy that is reserved to sound discretion of issuing court. NRS 34.320.
9. Prohibition.
While writ of prohibition is most often used to restrain courts or judicial tribunals, it can also be used to restrain persons in other
classes who are exercising or attempting to exercise judicial or quasi-judicial functions beyond their powers. NRS 34.320.
10. Waters and Water Courses.
State law treats water rights as real property.
11. Courts.
General rule is that the first court, whether state or federal, which assumes jurisdiction over real property is entitled to maintain
continuing and exclusive jurisdiction over that property.
12. Courts.
Federal decree court, which had continuing involvement in monitoring of river for more than eighty years in connection with
litigation concerning water rights on river system, was proper forum for redress that county and private not-for-profit organization
requested via petition seeking writ of prohibition to prevent State and Department of Conservation and Natural Resources from
granting additional rights to withdraw surface water or groundwater from river system and a writ of mandamus challenging State and
Department's public trust obligations in managing and appropriating water flows into lake. NRS 34.160, 34.320.
OPINION
This is an original proceeding brought by Mineral County and the Walker Lake
Working Group (collectively Petitioners) against the State of Nevada, the Nevada
Department of Conservation and Natural Resources and its Director, and the State Engineer
(collectively Respondents). During the pendency of the briefing schedule in this case,
Walker River Irrigation District (WRID), Lyon County, and the City of Yerington
successfully moved to intervene. The petition seeks a writ of prohibition to prevent
Respondents from granting additional rights to withdraw surface water or groundwater from
the Walker River system and a writ of mandamus challenging Respondents' public trust
obligations in managing and appropriating water flows into Walker Lake.
Petitioners seek the issuance of the writs to prevent Respondents from taking future
actions that threaten to decrease future water flows into Walker Lake. They also seek a review
of current and past water allocation decisions by the State Engineer that affect water
appropriation in the Walker River Basin.
We conclude that issuance of the writs would not be proper because substantially
similar litigation is pending in a more appropriate forum. Accordingly, we deny the petitions.
The Walker River Basin
The Walker River Basin covers an area that consists of approximately 4,050 square
miles. The entire basin stretches in a northeasterly direction from its origins in the
southwestern elevations of the Sierra Nevada Mountains to the basin's terminus, Walker
Lake. Between the headwaters of the Walker River in Mono County, California, and its
terminus at Walker Lake in Mineral County, Nevada, the Walker River Basin includes
portions of Nevada's Douglas, Lyon, and Churchill Counties.
Nevada's Douglas, Lyon, and Churchill Counties. Approximately twenty-five percent of the
Walker River Basin lies within California, and this portion of the basin accounts for the
majority of the precipitation. This section of the basin is also the primary source of the basin's
surface water flows. On the other hand, the vast majority of consumptive water use within the
basin, including evapotranspiration and evaporation from surface waters, takes place in
Nevada. The basin's principal agricultural water use occurs in Bridgeport and Antelope
Valleys in Mono County, California, and Smith and Mason Valleys in Lyon County, Nevada.
The Walker River system consists of two forks, the West Walker River and the East
Walker River. The West Walker River has its origins below the divide that separates the
Walker River Basin from Yosemite National Park. From its origin, the West Walker River
flows north through Leavitt Meadow and into Antelope Valley. Before reaching Nevada,
water from the West Walker River is partially diverted into Topaz Reservoir for water
storage.
1

The second fork, the East Walker River, is fed by waters in the high Sierras north of
Mono Lake. Water draining from Virginia Lakes flows north and joins with water from
Green, Robinson, Summers, and Buckeye Creeks. These flows contribute to Bridgeport
Reservoir.
2

The confluence of these two forks is located approximately seven miles upstream
from the city of Yerington, Nevada, at the south end of Mason Valley. The merged forks of
the West and East Walker Rivers flow northerly and then turn south as they enter the Walker
River Paiute Indian Reservation (Reservation). Here, the Walker River flows through
Campbell Valley and enters Weber Reservoir. From Weber Reservoir, the Walker River
continues south for approximately twenty-one miles before entering Walker Lake.
3

Walker Lake is a remnant of the Pleistocene Lake Lahontan that covered much of
northern Nevada. As the climate dried, Lake Lahontan receded and many closed valleys
became isolated dry lakebeds. However, several major rivers draining from the eastern slopes
of the Sierras continued to support lakes and wetlands in some of these closed valleys,
including present day Walker Lake.
__________

1
Topaz Reservoir, which straddles the California/Nevada border, was constructed in 1922 by WRID. WRID,
which was organized by irrigation users in Smith and Mason Valleys in 1919, provides surface and storage water
rights for approximately 80,000 acres of agricultural land located primarily in Smith and Mason Valleys in Lyon
County, Nevada.

2
Bridgeport Reservoir was constructed in 1923 by WRID for the purpose of providing water storage for
downstream irrigators.

3
Weber Reservoir was constructed on the Reservation by the United States for the benefit of the Walker
River Paiute Indian Tribe (Tribe). This is the only reservoir on the main stem of the Walker River.
slopes of the Sierras continued to support lakes and wetlands in some of these closed valleys,
including present day Walker Lake.
4

Walker Lake is a terminal lake, meaning there is no outflow from the lake and all
surface runoff terminates in the lake. Walker Lake is approximately thirteen miles long, just
over five miles wide, approximately ninety feet deep, and contains approximately two million
acre-feet of water. The shores of Walker Lake are almost entirely devoid of major riparian
plant growth due in part to the extreme fluctuations in highly variable lake levels.
The waters of Walker Lake are characterized by high concentrations of total dissolved
solids (TDS), consisting mainly of salts; high temperatures; low dissolved oxygen; and the
presence of hydrogen sulfide. The lake also tends to support large blooms of planktonic
blue-green algae which, when combined with the high TDS concentrations and low dissolved
oxygen, create an inhospitable environment for fish species in the lake.
The causes of Walker Lake's present water deficit are disputed by the parties. Due to
the highly variable hydrology of the Walker River Basin, Walker River has rarely produced
average inflows to Walker Lake. The confusion over the data is understandable, given the
various reports and data relied upon by the parties. What is confirmed is that Walker Lake
currently has less water than it had when initial recordings were taken in 1882. As of March
1996, Walker Lake had only fifty percent of its 1882 surface area and twenty-eight percent of
its 1882 volume. The ultimate cause of the decline is potentially attributable to a number of
factors, including, but not limited to, overconsumption, declining precipitation levels, and
natural lake recession over time.
In November 1994, Public Resource Associates, a public interest organization
concerned with the protection of Walker Lake's fragile environment, prepared a report on
Walker Lake describing the then current status of the lake and its various wildlife. The report
indicated that Walker Lake supports a fragile balance of algae, zooplankton, small
crustaceans, insects, and three endemic fish species: the tui chub, Lahontan cutthroat trout,
and Tahoe sucker. Walker Lake is also an important habitat for a wide variety of migratory
birds, including American white pelicans, common loons, snowy plovers, long-billed
curlews, double crested cormorants, white-faced ibis, gulls, herons, terns, grebes, avocets,
and many others.
Legal history and current proceedings
Walker River and its tributaries in the Walker River Basin have been the object of
litigation for nearly one hundred years. In 1902, Miller & Lux, a cattle and land company,
brought an action in the United States District Court for the District of Nevada against
Thomas Rickey and others to enjoin interference with Miller & Lux's use of the Walker
River.
__________

4
See D. K. Grayson, The Desert's Past: A Natural Prehistory of the Great Basin (Smithsonian Institution
Press, 1993).
1902, Miller & Lux, a cattle and land company, brought an action in the United States
District Court for the District of Nevada against Thomas Rickey and others to enjoin
interference with Miller & Lux's use of the Walker River. In October 1904, Rickey Land &
Cattle Co. began two actions in a California state court against Miller & Lux to establish its
prior right to waters on the East and West Walker Rivers.
5
In 1906, Miller & Lux and other
defendants sought to enjoin the proceedings in the California actions on the grounds that the
United States District Court for the District of Nevada had acquired prior jurisdiction. The
United States Supreme Court agreed, and prosecutions of the California actions were
enjoined.
6
The United States District Court entered a final decree in 1919.
7

In 1924, the United States brought an action in the United States District Court for the
District of Nevada seeking to establish a water right for the Reservation
8
and to settle all
water rights on the Walker River system. The action was commenced to adjudicate the
surface water rights of all users of the river basin, but did not concern groundwater rights.
This litigation resulted in the entry of Walker River Decree C-125 (Decree) in 1936.
9

On appeal, the United States Court of Appeals for the Ninth Circuit accepted the
report of the special master with respect to the quantity of water reserved to the Tribe. The
Decree was subsequently amended to conform to the ruling of the court.
10

The Decree formalized the ownership of surface water rights from the Walker River
that had been acquired pursuant to Nevada's doctrine of prior appropriation; it did not address
groundwater rights. The Decree created the Walker River Commission and the United States
Board of Water Commissioners, which were appointed by the court to administer the Decree.
__________

5
See Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258 (1910); Miller & Lux v. Rickey, 146 F. 574 (D.
Nev. 1906); Miller & Lux v. Rickey, 127 F. 573 (D. Nev. 1904).

6
See Rickey Land & Cattle, 218 U.S. at 258.

7
See Pacific Livestock Company v. Thomas Rickey, No. 731, Final Decree (D. Nev. 1919).

8
The Reservation is home to the Tribe. The Tribe's name for itself is Agai Dicutta, which means Trout
Eater, or Numu, which means the People. The Tribe has occupied the area north of and surrounding Walker
Lake, which they called Agai Pah, which means Trout Lake. See Alice E. Walker, Walker River Basin Panel,
Nevada Water Law Conference, October 19-20, 2000.

9
See United States v. Walker River Irr. Dist., 11 F. Supp. 158, 159 (D. Nev. 1935).

10
See United States v. Walker River Irr. Dist., 104 F.2d 334, 339-40 (9th Cir. 1939).
Decree's pending litigation in C-125
In September 1987, the Tribe sought permission to intervene in the Decree Court's
pending action to establish rules and regulations concerning applications to change the
allocation of water rights subject to the Decree. The motion was granted on March 2, 1988; as
a result, the Nevada State Engineer is now required to review change applications, subject to
court approval.
In 1991, the California State Water Resources Control Board (CSWRCB) issued
restrictions placed on water licenses held by WRID requiring it to maintain minimum flows
and pools in its reservoirs. As a result of the decision by CSWRCB, WRID filed a petition for
declaratory and injunctive relief in the Decree Court. That petition was referred to as Sub-part
C-125-A.
The Tribe served an answer, counterclaim, and cross-claim in response to WRID's
Sub-part A petition. The United States then filed a motion for leave to file a counterclaim,
which the Decree Court designated as Sub-part C-125-B. The counterclaims seek recognition
of a right to store water in Weber Reservoir for use on lands of the Reservation and an
implied federal reserved water right to use water on lands added to the Reservation in 1936.
Sub-part B is still pending in the Decree Court.
On October 25, 1994, Mineral County filed a motion to intervene in the Decree
litigation, which the Decree Court designated as Sub-part C-125-C. Mineral County's
proposed intervention seeks reallocation of the waters of the Walker River. Mineral County
claims that the actions of the CSWRCB began the death of Walker Lake and without
reallocation Walker Lake will be irreparably degraded.
In its prayer for relief, Mineral County asks that the Decree Court reopen and modify
the Decree, and that the court (1) recognize the rights of Mineral County to have minimum
levels in Walker Lake, (2) order the State of Nevada to grant a certificate to Mineral County
for the benefit of Walker Lake, and (3) recognize that minimum flows are necessary to
maintain Walker Lake as a beneficial use and in the public interest and required under the
doctrine of maintenance of the public trust.
Mineral County's motion to intervene, which was filed approximately six years ago, is
still pending before the Decree Court awaiting service upon the interested parties by Mineral
County.
Current procedural posture and parties
Petitioners Mineral County and the Walker Lake Working Group filed this original
writ proceeding on June 26, 2000. Mineral County is a political subdivision of the State of
Nevada. Walker Lake Working Group is a private, not for profit 501(c)(3) organization that
uses Walker Lake for fishing, birding, recreation, and for the enjoyment of its scenic
beauty.
ation, and for the enjoyment of its scenic beauty. Petitioners complain that Respondents have
abrogated their duty to protect and maintain Walker Lake for the benefit of the public and, in
doing so, have repudiated their public trust duties.
On July 17, 2000, this court ordered Respondents to file an answer, including points
and authorities, against issuance of the writ. Respondents are the State of Nevada,
Department of Conservation and Natural Resources; Peter Morros, Director of the
Department of Conservation and Natural Resources; and R. Michael Turnipseed, State
Engineer.
11
Respondents answered on October 3, 2000.
On October 3, 2000, WRID, Lyon County, and the City of Yerington moved to
intervene. WRID was formed in 1919 pursuant to Nevada's Irrigation District Act, enacted the
same year. WRID owns, operates, and holds water rights for two reservoirs within the Walker
River Basin. Lyon County and the City of Yerington are political subdivisions of the State of
Nevada. The motion was granted by this court on November 1, 2000.
On October 13, 2000, Humboldt River Basin Water Authority (HRBWA) and the
City of Fallon filed motions to participate as amicus curiae. HRBWA is a legal entity created
by NRS Chapter 277 to ensure the quality and availability of water supplies within the
Humboldt River Basin for the mutual benefit of its member counties. The City of Fallon is a
political subdivision of the State of Nevada. Their motions were granted on October 18, 2000,
and briefs were subsequently filed on their behalf.
On November 13, 2000, the Town of Walker Lake moved to participate as amicus
curiae. The Town of Walker Lake is a political subdivision of the State of Nevada. The Town
of Walker Lake's motion was granted by this court on November 21, 2000.
On November 14, 2000, Petitioners moved the court for permission to reply.
Petitioners' motion was granted on November 21, 2000.
DISCUSSION
[Headnotes 14]
A writ of mandamus is available to compel the performance of an act by an inferior
state tribunal, corporation, board, or person,
12
but the action being compelled must be one
already required by law.
__________

11
Since the filing of the petition, Peter Morros has retired from state service. Also, R. Michael Turnipseed has
become the Director of the Department of Conservation and Natural Resources, and Hugh Ricci is now the State
Engineer.

12
See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).
required by law.
13
This court has original jurisdiction to issue writs of mandamus under
Nevada Constitution Article 6, Section 4.
14
Generally, mandamus will not issue if petitioner
has a plain, speedy, and adequate remedy in the ordinary course of law.
15
However, where
circumstances reveal urgency or strong necessity, this court may grant extraordinary relief.
16
Moreover, 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.
17

[Headnotes 5, 6]
Mandamus is an extraordinary remedy which will not lie to control discretionary
action, unless discretion is manifestly abused or is exercised arbitrarily or capriciously.
18
Even when mandamus is available as a remedy, we are not compelled to issue the writ
because it is purely discretionary.
19

[Headnote 7]
NRS 34.320 defines the writ of prohibition as the counterpart of the writ of mandate.
It arrests the proceedings of any tribunal, corporation, board or person exercising judicial
functions, when such proceedings are without or in excess of the jurisdiction of such tribunal,
corporation, board or person. Like the writ of mandamus, it does not serve to correct errors;
rather, its purpose is to prevent courts from transcending the limits of their jurisdiction in the
exercise of judicial power.
20

[Headnotes 8, 9]
The writ of prohibition is also an extraordinary remedy that is reserved to the sound
discretion of the issuing court.
21
The writ may be issued only when there is no plain, speedy,
and adequate remedy at law available.
22
While a writ of prohibition is most often used to
restrain courts or judicial tribunals, it can also be used to restrain persons in other classes
who are exercising or attempting to exercise judicial or quasi-judicial functions beyond
their powers.
__________

13
State of Nevada v. Gracey, 11 Nev. 223, 233 (1876).

14
See Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993).

15
See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209 (2000).

16
Falcke v. Douglas County, 116 Nev. 583, 586, 3 P.3d 661, 662-63 (2000).

17
Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998).

18
Round Hill, 97 Nev. at 603-04, 637 P.2d at 536 (citation omitted).

19
State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 361, 662 P.2d 1338, 1340 (1983).

20
See State v. Down Et Al., 58 Nev. 54, 57, 68 P.2d 567, 568 (1937).

21
See Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991); Walcott v. Wells, 21 Nev. 47,
24 P. 367 (1890).

22
NRS 34.330.
often used to restrain courts or judicial tribunals, it can also be used to restrain persons in
other classes who are exercising or attempting to exercise judicial or quasi-judicial functions
beyond their powers.
23

Respondents contend that substantially similar litigation, involving nearly identical
parties, is currently pending in the United States District Court for the District of Nevada.
24
Respondents also argue that the Decree Court has exclusive jurisdiction to resolve water
disputes involving water in the Walker River system and that the language of the Decree
Court supports continuing and exclusive jurisdiction.
25

Petitioners contend that the Decree Court retains exclusive jurisdiction only over
private appropriators of the water and that the Decree Court did not address issues relating to
the applicability of the public trust doctrine in Nevada. Petitioners argue, therefore, that this
court may properly consider their request for relief and issue the writs.
We conclude that the federal court is the proper forum in which to resolve this
dispute.
[Headnotes 10, 11]
The United States Supreme Court has held that the adjudication of water rights is
properly classified as an in rem proceeding.
26
Nevada law treats water rights as real property.
27
The general rule is that the first court, whether state or federal, which assumes jurisdiction
over real property is entitled to maintain continuing and exclusive jurisdiction over that
property.
28

The Ninth Circuit, in United States v. Alpine Land & Reservoir Company,
29
recently
addressed a Decree Court's continuing and exclusive jurisdiction over previously
adjudicated water rights.
__________

23
See State v. Stevens, 34 Nev. 146, 116 P. 605 (1911).

24
As previously discussed, litigation to determine the respective rights to use surface water of the Walker
River has been ongoing since 1926. A final decree and order was entered in 1936 and amended by the Ninth
Circuit in 1940.

25
The April 14, 1986, Decree provides, in relevant part:
This decree shall be deemed to determine all of the rights of the parties to this suit and their successors in
interests in and to the waters of Walker River and its tributaries.
The Court retains jurisdiction of this cause for the purpose of changing the duty of water or for correcting
or modifying this decree; also for regulatory purposes, including a change of the place of use of any water
user.

26
See Nevada v. United States, 463 U.S. 110, 143-44 (1983).

27
See Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535, 537 (1949).

28
See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922); Bergeron v. Loeb, 100 Nev. 54, 58, 675
P.2d 397, 400 (1984).

29
174 F.3d 1007, 1013 (9th Cir. 1999).
exclusive jurisdiction over previously adjudicated water rights. In Alpine Land, the court held
that the United States District Court's jurisdiction over the waters adjudicated in a previous
water decree were exclusive because of the complex and comprehensive nature of the
previous adjudication.
30
The court further indicated that to construe these Decrees so that
the district court does not retain exclusive jurisdiction would render the retention of
jurisdiction a nullity.
31
The court, quoting Flanagan v. Arnaiz,
32
went on to say:
The reason why exclusivity is inferred is that it would make no sense for the district
court to retain jurisdiction to interpret and apply its own judgment to the future conduct
contemplated by the judgment, yet have a state court construing what the federal court
meant in the judgment. Such an arrangement would potentially frustrate the federal
district court's purpose.
Alpine Land.
33

Finally, the United States Supreme Court has recognized that actions seeking the
allocation of water essentially involve the disposition of property and are best conducted in
unified proceedings.
34

[Headnote 12]
We conclude that the Decree Court, which has had continuing involvement in the
monitoring of the Walker River for more than eighty years, is the proper forum for the redress
that Petitioners seek.
35
Moreover, because the Decree involves the allocation of interstate
waters between California and Nevada, we believe that a consistent and controlling
interpretation by a federal court of competent jurisdiction is more appropriate. In addition, the
absence of several interested parties, including the Tribe and the United States, makes the
adjudication of water rights among those parties problematic because this court lacks
jurisdiction over all the necessary parties.
__________

30
Id.

31
Id.

32
143 F.3d 540, 545 (9th Cir. 1998).

33
174 F.3d at 1013.

34
Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800, 819 (1976) (treating pending state court action as
a proceeding in rem).

35
Petitioners contend that the federal court is ill-suited to address the scope of the public trust doctrine in
Nevada. In addition, Petitioners argue that if their motion to intervene in the federal court is eventually granted,
they will seek to have this court decide the scope of the public trust doctrine pursuant to the federal abstention
doctrine. If the federal court reviews this question, it can certify a question regarding the public trust doctrine
pursuant to NRAP 5; therefore, the issue need not necessarily be addressed via the extraordinary remedy of a
writ.
parties problematic because this court lacks jurisdiction over all the necessary parties.
CONCLUSION
We conclude that Petitioners have not met their burden of demonstrating that
extraordinary writ relief is warranted in this case. Because issuance of the writs is not
appropriate, we leave for another day the remaining issues. Accordingly, we deny the
petitions.
Maupin, C. J., Agosti, Leavitt and Becker, JJ., concur.
Rose, J., with whom Shearing, J., agrees, concurring:
I concur in the majority opinion and its conclusion that the federal decree court is the
proper forum to consider the specific relief requested by the petitioners. As we defer to the
federal district court, however, I believe that we should affirmatively address the existence
and role of the public trust doctrine in the State of Nevada.
In its most fundamental terms, the public trust doctrine provides that, as a matter of
federal law, all of a state's navigable waterways are held in trust by the state for the benefit of
the people and that a state official's control of those waters is forever subject to that trust.
1
The trust stems from the fact that when Nevada joined the union in 1864, it obtained from the
federal government title to all land below the high water mark under the equal footing
doctrine of the Statehood Clause of the United States Constitution.
2
The title obtained,
however, was not absolute. Instead, as the United States Supreme Court explains:
[The title] is a title different in character from that which the state holds in lands
intended for sale. . . . It is a title held in trust for the people of the state, that they may
enjoy the navigation of the waters, carry on commerce over them, and have liberty of
fishing therein, freed from the obstruction or interference of private parties.
3

Although the original objectives of the public trust were to protect the public's rights
in navigation, commerce, and fishing, the trust has evolved to encompass additional public
valuesincluding recreational and ecological uses.
__________

1
See Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892).

2
See Act of March 21, 1864, ch. 36, 13 Stat. 30; see also Pollard's Lessee v. Hagan, 44 U.S. 212, 230 (1845)
(holding that the land under navigable waters was not granted by the Constitution to the United States, but was
reserved to the states, respectively, and that new states have the same rights, jurisdiction, and sovereignty over
the soil under navigable water as the original states).

3
Illinois Central, 146 U.S. at 452.
trust has evolved to encompass additional public valuesincluding recreational and
ecological uses.
4
Additionally, although the original scope of the public trust reached only
navigable water, the trust has evolved to encompass non-navigable tributaries that feed
navigable bodies of water.
5
This extension of the doctrine is natural and necessary where, as
here, the navigable water's existence is wholly dependent on tributaries that appear to be
over-appropriated.
In light of the foregoing authorities, the existence of the public trust doctrine in
Nevada appears to be beyond debate. As NRS 533.025 unambiguously states, [t]he water of
all sources of water supply within the boundaries of the state whether above or beneath the
surface of the ground, belongs to the public. This court has itself recognized that this public
ownership of water is the most fundamental tenet of Nevada water law.
6
Additionally, we
have noted that those holding vested water rights do not own or acquire title to water, but
merely enjoy a right to the beneficial use of the water.
7
This right, however, is forever
subject to the public trust, which at all times forms the outer boundaries of permissible
government action with respect to public trust resources.
8
In this manner, then, the public
trust doctrine operates simultaneously with the system of prior appropriation.
All parties are understandably concerned about the economic impact the lack of water
in Walker River or Walker Lake would have on them or their communities. Hawthorne
residents are concerned about the loss of a fabulous recreational site, the Paiute Reservation is
concerned about keeping sufficient water in Weber Reservoir, and the Mason Valley
ranchers are worried about sufficient irrigation water for their crops.
__________

4
See Illinois Central, 146 U.S. at 460 ([The governing of the public trust] must vary with varying
circumstances. The legislation which may be needed one day for the [waterway in question] may be different
from the legislation that may be required at another day.); National Audubon Society v. Superior Court, 658
P.2d 709, 719 (Cal. 1983) ( In administering the trust the state is not burdened with an outmoded classification
favoring one mode of utilization over another.' (quoting Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971))); In
the Matter of Water Use Permit Applications, 9 P.3d 409, 447 (Haw. 2000) (The public trust, by its very
nature, does not remain fixed for all time, but must conform to changing needs and circumstances.).

5
See National Audubon, 658 P.2d at 721 (We conclude that the public trust doctrine, as recognized and
developed in California decisions, protects navigable waters from harm caused by diversion of nonnavigable
tributaries.).

6
Desert Irrigation, Ltd. v. State of Nevada, 113 Nev. 1049, 1059, 944 P.2d 835, 842 (1997).

7
See id.

8
Kootenai Envtl. Alliance, Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1095 (Idaho 1983).
Reservoir, and the Mason Valley ranchers are worried about sufficient irrigation water for
their crops. While the issue today focuses on insufficient water flowing into Walker Lake,
which itself is arguably the first actual appropriation, each appropriator may in the future
have to worry about his or her water allocation not being sustained as the upstream use
continues to absorb a vast majority of the water.
A better approach would be to determine if all appropriators can be accommodated by
a plan that will save the essentials of everyone's water needs. This, of course, is what we hope
will happen in federal district court. However, a substantial diminution in any natural
resource adversely impacts all of us, whether we are water appropriators or not. It is not just
the water appropriators who have a vested interest in the water from the Walker River, but
every citizen of Nevada as well. It is this water that will dictate whether Walker Lake
survives in its present state or becomes a dry lake bed. The stakes at issue go well beyond
those who are economically interested in the water from Walker River. The public expects
this unique natural resource to be preserved and for all of us to always be able to marvel at
this massive glittering body of water lying majestically in the midst of a dry mountainous
desert. Chief Seattle wisely observed over a century ago:
This we know:
The Earth does not belong to Man,
Man belongs to the Earth.
All things are connected,
like the blood which unites one family.
We do not weave the web of life,
We are but a strand in the web of life.
What we do to the web we do to ourselves.
If the current law governing the water engineer does not clearly direct the engineer to
continuously consider in the course of his work the public's interest in Nevada's natural water
resources, then the law is deficient. It is then appropriate, if not our constitutional duty, to
expressly reaffirm the engineer's continuing responsibility as a public trustee to allocate and
supervise water rights so that the appropriations do not substantially impair the public
interest in the lands and waters remaining.
9
[T]he public trust is more than an affirmation
of state power to use public property for public purposes. It is an affirmation of the duty of
the state to protect the people's common heritage of streams, lakes, marshlands and tidelands,
surrendering that right of protection only in rare cases when the abandonment of that right
is consistent with the purposes of the trust.
__________

9
Illinois Central, 146 U.S. at 452.
tection only in rare cases when the abandonment of that right is consistent with the purposes
of the trust.
10
Our dwindling natural resources deserve no less.
____________
117 Nev. 249, 249 (2001) EICON v. State Bd. of Exam'rs
EMPLOYERS INSURANCE COMPANY OF NEVADA, a Nevada Mutual Insurance
Company, Petitioner, v. STATE BOARD OF EXAMINERS, Respondent.
No. 37281
April 12, 2001 21 P.3d 628
Original petition for writ of mandamus challenging the State Board of Examiners'
refusal to review the merits of a lease-purchase agreement between petitioner Employers
Insurance Company of Nevada and the State Department of Administration Buildings &
Grounds Division.
Lessor filed petition for writ of mandamus challenging refusal of State Board of
Examiners to review merits of lease-purchase agreement between lessor and State
Department of Administration Buildings & Grounds Division. The supreme court held that
lease-purchase agreement did not violate debt provisions of Nevada Constitution, overruling
State ex rel. Nevada Building Authority v. Hancock, 86 Nev. 310, 468 P.2d 333 (1970).
Petition granted.
Frank W. Daykin, Carson City, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Brett Kandt, Senior Deputy Attorney
General, Carson City, for Respondent.
1. Mandamus.
A writ of mandamus is available to compel the performance of an act by an inferior state tribunal, corporation, board, or person
or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
2. Courts.
Supreme court has original jurisdiction to issue writs of mandamus. Const. art. 6, 4.
3. Mandamus.
Generally, mandamus will not issue if petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
4. Mandamus.
Mandamus is an extraordinary remedy, and it is within supreme court's discretion to determine if a petition will be considered.
__________

10
National Audubon, 658 P.2d at 723.
5. Mandamus.
When circumstances reveal urgency or strong necessity or an important issue of law needs clarification and public policy is
served by supreme court's invocation of its original jurisdiction, court may consider a petition for extraordinary relief, even if
alternative remedies may be available.
6. Mandamus.
Petition for writ of mandamus was an appropriate vehicle by which to challenge decision of Board of Examiners not to review
the lease agreement involving State Department of Administration Buildings & Grounds Division. Petition presented legal issues that
implicated Nevada Constitution and public policy issues of the state.
7. States.
For purposes of Nevada Constitution, a public debt is created when an obligation binds future legislatures to successive
appropriations. Const. art. 9, 3.
8. States.
An agreement to expend monies from currently appropriated funds does not implicate public debt provision of Nevada
Constitution. Const. art. 9, 3.
9. States.
Lease-purchase agreement for office building used by State Department of Administration Buildings & Grounds Division did
not constitute public debt in contravention of Nevada Constitution, where agreement contained express nonappropriation clause and
provided that in event of nonappropriation of sufficient funds by legislature, lessor/seller could retake the office space; overruling State
ex rel. Nevada Building Authority v. Hancock, 86 Nev. 310, 468 P.2d 333 (1970). Const. art. 9, 3.
10. States.
As a general rule, lease-purchase agreements will be upheld under public debt provision of Nevada Constitution where the
lease (1) contains a nonappropriation clause, (2) limits recourse to the leased property, and (3) does not create a long-term obligation
binding on future legislatures. Const. art. 9, 3.
11. States.
Lease-purchase agreement for office building used by State Department of Administration Buildings & Grounds Division did
not result in lending of state's credit in violation of Nevada Constitution, where state was liable under terms of lease only for lease
payments for which legislature had made appropriations. Const. art. 8, 9.
OPINION
Per Curiam:
This is an original petition for writ of mandamus challenging the decision of the State
Board of Examiners (Board) not to review the merits of a lease-purchase agreement
(agreement) between petitioner Employers Insurance Company of Nevada {"EICON") and
the State Department of Administration Buildings & Grounds Division {"Division"), based
on the Board's belief that the agreement is unconstitutional.
(EICON) and the State Department of Administration Buildings & Grounds Division
(Division), based on the Board's belief that the agreement is unconstitutional.
We conclude that the agreement does not create debt or lend the state's credit in
violation of the Nevada Constitution and that the petition should be granted.
FACTS
In October 2000, EICON executed a twenty-year lease-purchase agreement with the
Division for an office building in Carson City to house the State Department of Conservation
and Natural Resources (the Department).
Under the terms of the agreement, EICON proposes to lease an office building it owns
located at 504 East Musser, Carson City, to the Division for use by the Department, which
will make the lease payments under the agreement.
Section 3(b) of the agreement provides that the agreement terminates after twenty
years unless the agreement terminates sooner by operation of its nonappropriation clause, by
an event of default, or by the exercise of the purchase option under section 22(a).
Section 7(a)(v) of the agreement provides that the Department will request an
appropriation from the legislature for each fiscal year to pay the lease payments and that the
Division will support such a request.
Section 6 of the agreement is the nonappropriation clause. This section provides that
the agreement terminates in any fiscal year for which the legislature chooses not to
appropriate sufficient money to meet the lease payment terms. This section also provides that
in the event of nonappropriation, the state and its agencies have no legal obligation to make
further lease payments and that EICON has the right to retake the property.
Section 24(a) of the agreement contains a nonacceleration clause under which EICON
has no right under any circumstances to accelerate the maturities of the Base Rent payments
or to otherwise declare any Base Rent not then past due or in default to be immediately due
and payable.
Section 35(a) of the agreement provides that the state's legal obligations under the
agreement are subject to the legislature lawfully making an appropriation for the Department
to pay the amount needed to fulfill the obligation and are binding upon [the state] only to the
extent such an appropriation is made.
Section 22(a) of the agreement gives the state an option to purchase the property. The
state may exercise its option during the term of the lease or after the Department has made all
lease payments. If the Department makes all the lease payments under the agreement, the
state shall be deemed to have exercised its option and the state is not required to make any
additional payments to receive title to the property.
and the state is not required to make any additional payments to receive title to the property.
EICON expects to assign its right to receive the lease payments from the Department
to a third-party trustee. Such an assignment will be made in order to facilitate the issuance of
Certificates [of Participation under section 21(c)] in the Base Rents payable hereunder, and
[the state] agrees to reasonably cooperate with the Lessor in any such Certificate offering.
Under this arrangement, the trustee will collect the lease payments from the Department and
then distribute the proceeds from the payments, in proportional shares, to the holders of the
certificates of participation.
Section 28 of the agreement provides that [n]othing contained in this Lease shall be
deemed or construed by the parties or by any third person to create the relationship of
principal and agent or of partnership or of joint venture or of any association between the
Lessor and [the state].
The Division submitted the agreement to the Board for review and approval for the
first time in November 2000. The board declined to review or approve the agreement because
of its concern over the constitutionality of the agreement. After declining approval on
November 1, 2000, the Board then sought and obtained an opinion from the Attorney
General's office explaining Nevada law with respect to the agreement.
After receiving the Attorney General's formal written opinion, which concludes that
the agreement would create a debt in violation of Nevada Constitution Article 9, Section 3
and would result in the lending of the state's credit in violation of Article 8, Section 9, the
Board declined to review the merits of the agreement for a second time on December 22,
2000.
EICON then filed this original petition for a writ of mandamus challenging the
Board's refusal to review the merits of the agreement.
DISCUSSION
[Headnotes 15]
A writ of mandamus is available to compel the performance of an act by an inferior
state tribunal, corporation, board, or person
1
or to control an arbitrary or capricious exercise
of discretion.
2
This court has original jurisdiction to issue writs of mandamus under the
3

__________

1
See NRS 34.160.

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

3
See Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993).
Generally, mandamus will not issue if petitioner has a plain, speedy, and adequate remedy in
the ordinary course of law.
4
Further, mandamus is an extraordinary remedy, and it is within
this court's discretion to determine if a petition will be considered.
5
When circumstances
reveal urgency or strong necessity or an important issue of law needs clarification and public
policy is served by this court's invocation of its original jurisdiction, we may consider a
petition for extraordinary relief, even if alternative remedies may be available.
6

[Headnote 6]
Here, the petition presents legal issues that implicate the Nevada Constitution and the
public policy of this state. Therefore, a writ petition is an appropriate vehicle by which to
challenge the Board's decision not to review the lease agreement.
7

In addition, we conclude that the Board is required to review the merits of the
agreement under NRS 331.110 governing the lease of offices for state purposes outside of
existing state office buildings. NRS 331.110 provides in relevant part that no such lease may
extend beyond the term of 1 year unless it is reviewed and approved by a majority of the
members of the state board of examiners. (Emphasis added.) Because the Board has decided,
based on the Attorney General's opinion letter, not to review the merits of the agreement,
mandamus is an appropriate remedy to compel performance of a duty required of the Board
by Nevada law.
8

The Board argues that review of the agreement is a purely discretionary activity; the
Board has already reviewed the agreement twice; and therefore, mandamus is not appropriate.
We conclude, however, that the Board's review was based on an incorrect analysis of the
scope of Nevada's constitutional debt limitations, and thus, the Board manifestly abused its
discretion. A writ of mandamus is therefore appropriate.
__________

4
See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209 (2000).

5

6
Falcke v. Douglas County, 116 Nev. 583, 586, 3 P.3d 661, 662-63 (2000); Business Computer Rentals v.
State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998).

7
See, e.g., Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982) (recognizing that
although mandamus is not appropriate in the face of effective alternative remedies, extraordinary relief may be
granted where the circumstances reveal urgency or a strong necessity); see also Marlette Lake Co. v. Sawyer, 79
Nev. 334, 383 P.2d 369 (1963) (granting writ of mandamus in proceeding that challenged legislative
authorization of state's water rights purchase that would exceed the constitutional debt limitation).

8
See Round Hill, 97 Nev. at 603-04, 637 P.2d at 536.
Debt creation under Article 9, Section 3 of the Nevada Constitution
The primary issue presented in this petition is whether the lease-purchase agreement
constitutes public debt and therefore falls within the ambit of Article 9, Section 3.
Article 9, Section 3 of the Nevada Constitution states, in relevant part:
State indebtedness: Limitations and exceptions. The state may contract public
debts; but such debts shall never, in the aggregate, exclusive of interest, exceed the sum
of two percent of the assessed valuation of the state . . . except for the purpose of
defraying extraordinary expenses, as hereinafter mentioned.
[Headnotes 7, 8]
A public debt for these purposes is created when an obligation binds future
legislatures to successive appropriations. An agreement to expend monies from currently
appropriated funds does not implicate Article 9, Section 3 of the Nevada Constitution. As the
Oregon Supreme Court explained in Constitutionality of Chapter 280, Oregon Laws 1975,
9
constitutional debt limitations were enacted primarily as a response to heavy borrowing by
many states prior to 1840. These states financed internal and banking improvements; and
after the depression of 1837, many defaulted on their obligations. States entering the union
after 1840 (including Nevada) invariably included debt limitations in their constitutions. Such
control over debt creation precluded carelessly imposed tax liabilities.
10

There are two principal decisions of this court that are relevant to the current dispute;
each is discussed in turn below.
In State ex rel. Nevada Building Authority v. Hancock,
11
this court considered
whether a statutory financing scheme that used legislative appropriations to pay rent on state
buildings, where the rent was used to pay off bonds sold to finance the buildings'
construction, constituted public debt. Specifically, the legislature created the Nevada
Building Authority (the Authority) and directed it to build facilities for state use. The
Authority then declared, by resolution, its intention to construct buildings and athletic
facilities on the University of Nevada campuses. The Authority's resolution explained that
bonds would be issued to pay for the construction, and that payment on these bonds would be
made solely from the Authority's income,
__________

9
554 P.2d 126, 128-29 (Or. 1976).

10
See Bowmar, The Anachronism Called Debt Limitation, 52 Iowa L. Rev. 863, 873 (1967).

11
86 Nev. 310, 468 P.2d 333 (1970).
made solely from the Authority's income, which would be derived from fees and rent for the
use of the buildings and facilities. The state would pay these fees and rent since it would use
the constructed facilities. Additionally, the resolution provided that the bonds would not
constitute an obligation of the State of Nevada.
12

The Hancock court determined that this scheme created public debt in contravention
of the Nevada Constitution. Additionally, the Hancock court determined that the Authority
was, in effect, a state agency and was therefore not an entity separate from the state.
13

In concluding that the scheme violated the Nevada Constitution's debt limitation
provision, the Hancock court rejected the recognized exceptions to the constitutional
proscription.
14
Specifically, the court determined that
realism demands that the indebtedness [for rent and fees] is immediately created for the
aggregate amount required by the period of the pledge. Were the State to pledge its
taxing power as security for the bonds payable in the future, such a pledge would fall
squarely within art. 9, 3. Surely, a pledge to make future appropriations for rent out of
tax revenues must be similarly treated. A present debt is created by such a legislative
pledge. To view the matter otherwise would exalt form over substance and impair the
integrity of our constitutional government.
. . . [S]uccessive biennial appropriations for rent until the bonds issued . . . are fully
retired must be considered in the same light as a legislative pledge to make future
appropriations for the same purpose. It is inconceivable that the legislature would
default in either instance since the good faith of Nevada would not allow it.
15

__________

12
Id. at 312, 468 P.2d at 335. We note that at the time Hancock was decided, the constitutional limitation on
public debt was one percent of the state's assessed value. The available, unused debt amount was $1,369,277.00,
and the project contemplated by the legislature was estimated to cost $5,600,000.00. This amount obviously
would have exceeded the available debt limit. Hancock, 86 Nev. at 312, 468 P.2d at 335.

13
Id. at 314, 468 P.2d at 336.

14
These exceptions are the special fund exception, where revenues are derived from a nongovernmental
source, the earned installment doctrine, where executory contracts exist, and the current revenue doctrine,
where expenses are payable only out of current revenue. Hancock, 86 Nev. at 316, 468 P.2d at 337-38; see State
of Nevada v. Parkinson, 5 Nev. 17 (1869) (concluding that expenses payable from current revenue are not public
debt under the constitution).

15
Hancock, 86 Nev. at 316-17, 468 P.2d at 337-38.
We decline to extend the realism rationale of the Hancock decision, and it is
expressly overruled by our holding today. Instead, we adopt the sound reasoning of a majority
of our sister states which have concluded that lease-purchase agreements, such as the one at
issue here, do not violate constitutional debt limitations.
16
Our decision today is entirely
consistent with our more recent pronouncement in Business Computer Rentals v. State
Treasurer.
17

In Business Computer Rentals, the State Treasurer leased a computer from a private
corporation under the terms of a lease-purchase agreement.
18
The agreement required the
State Treasurer to make periodic payments over the course of three years; and if all payments
were made, the computer would become the property of the state. The agreement contained a
nonappropriation clause providing that if the legislature failed to appropriate sufficient funds
for the State Treasurer to continue making payments, the lease would terminate and
Business Computer Rentals would repossess the computer.
__________

16
See, e.g., People v. Nunez, 658 P.2d 879 (Colo. 1983) (concluding that a lease-purchase agreement
between a bank and the department of institutions for property on which group homes were to be constructed did
not violate the constitutional prohibition on debt creation because each new yearly term of the lease commenced
only when sufficient funds were appropriated and nothing in the agreement limited the legislature's discretion);
Wilson v. Kentucky Transp. Cabinet, 884 S.W.2d 641 (Ky. 1994) (determining that legislatively authorized road
revenue bonds did not constitute state debt because funds to pay bondholders arose from discretionary biennial
appropriations; therefore, no legally enforceable obligation to pay off the bonds existed, and risk of loss was on
bondholders, even if legislature would be influenced by practical or moral considerations in determining whether
to appropriate funds); Ruge v. State, 267 N.W.2d 748 (Neb. 1978) (holding that financing plan for construction
of state building using revenue bonds, with state to lease property with option to purchase and therefore, in
effect, pay off bonds did not violate constitution because it created no obligation for state to pay if funds not
appropriated); Schulz v. State, 639 N.E.2d 1140 (N.Y. 1994) (ruling that State Thruway Authority and
Metropolitan Transportation Authority were public benefit corporations that existed independently of state for
purpose of contracting legally binding obligations; whether to recognize a moral obligation is within the state's
discretion and cannot be judicially imposed; a proposal to fund in a subsequent year, which includes a disclaimer
and is subject to legislature's appropriation, does not create a legally binding debt); Haugland v. City of
Bismarck, 429 N.W.2d 449 (N.D. 1988) (concluding that three-step sale-leaseback-purchase financing
arrangement to fund capital improvements did not implicate constitution because it contained a nonappropriation
clause and city was not obligated to appropriate funds for the annual lease payment). But see Constitutionality of
Chapter 280, Or. Laws 1975, 554 P.2d 126 (Or. 1976) (criticizing other states for allowing their legislatures to
bypass constitutional debt limitations and holding unconstitutional an act to create state building authority to
borrow money, where money for retiring debt came from state; rationale exempting revenue bonds from the
constitutional restriction inapplicable when the revenue comes from state's general fund).

17
114 Nev. 63, 953 P.2d 13 (1998).

18
Id. at 64-67, 953 P.2d at 15-17.
cient funds for the State Treasurer to continue making payments, the lease would terminate
and Business Computer Rentals would repossess the computer.
19

Although the State Treasurer wanted to make the lease payments, he refused to do so
because the Attorney General advised him that the agreement was contrary to the
constitutional debt limitations contained in Article 9, Section 3 of the Nevada Constitution.
20
Business Computer Rentals petitioned for a writ of mandamus directing the State Treasurer to
perform his obligations under the agreement, which this court ultimately granted.
21

This court concluded that future legislatures were not compelled by the agreement to
appropriate money for the State Treasurer to make the lease payments because of the express
nonappropriation clause in the agreement. The court ultimately concluded that because the
agreement did not create a legal obligation that could bind future legislatures, but merely
created a rent expense that was payable solely from currently-appropriated revenue, no public
debt was created within the meaning of Article 9, Section 3 of the Nevada Constitution.
22

In analyzing whether the agreement at hand constitutes public debt under the Business
Computer Rentals framework, it is necessary for this court to determine whether the
legislature is compelled to appropriate money in the future.
[Headnote 9]
Here, the lease-purchase agreement contains an express nonappropriation clause and
provides that in the event of nonappropriation, the lessor/seller can retake the office space.
We thus conclude that the legislature is not obligated to continue appropriating funds to cover
the payments. The legislature is not involved in the lease agreement; this is not a situation
where the borrowing function and the paying function are in fact performed by the same
body. Moreover, since the office space may be reclaimed if funds are not appropriated, no
issue exists with respect to the state's debt under Business Computer Rentals. Additionally,
under the agreement, the holders of the certificates of participation are unable to seek
recourse against the state or its agencies in the event the legislature fails to appropriate
necessary funds.
[Headnote 10]
It appears that the Attorney General's opinion with respect to this dispute turns
primarily on a narrow reading of Business Computer Rentals that limits the holding to
fungible equipment such as a computer.
__________

19
Id.

20
Id.

21
Business Computer Rentals, 114 Nev. at 71, 953 P.2d at 17.

22
Id.
Computer Rentals that limits the holding to fungible equipment such as a computer.
23
The
distinction is an artificial one rejected by the majority of courts.
24
As a general rule,
lease-purchase agreements such as the one presented here will be upheld where the lease (1)
contains a nonappropriation clause; (2) limits recourse to the leased property; and (3) does not
create a longterm obligation binding on future legislatures.
25

Finally, as pointed out by EICON, the public interest is likely promoted if the
agreement at issue does not constitute public debt. Governmental agencies often need
flexibility in acquiring property, and lease-purchase agreements and financing arrangements
provide this flexibility.
26

Lending of the state's credit under Article 8, Section 9 of the Nevada Constitution
[Headnote 11]
EICON argues that the lease-purchase agreement does not result in a lending of the
state's credit in violation of the Nevada Constitution Article 8, Section 9, and therefore, the
decision by the Board not to review the agreement was an abuse of discretion.
The Board argues, in accord with the Attorney General's opinion, that the agreement
creates a financing scheme in which the state is arguably placing its credit behind EICON's
ability to obtain financing. In addition, respondent argues that if the court considers the
substance of the transaction over its form, the agreement cannot withstand constitutional
scrutiny.
We conclude that because the state is not legally liable for the debts owed by EICON,
the agreement does not run afoul of the Nevada Constitution.
Article 8, Section 9 of the Nevada Constitution provides: The state shall not donate
or loan money, or its credit, subscribe to or be, interested in the Stock of any company,
association or corporation, except corporations formed for education or charitable purposes.
The state loans its credit in violation of this section only if the state acts as a surety or
guarantor for the debts of a company, corporation or association.
27

Under the terms of the agreement, the state is not liable for any debts owed by
EICON. The state is liable under the terms of the lease only for lease payments for which
the legislature has made appropriations.
__________

23
See 2000-39 Op. Att'y Gen. at 5-6 (Dec. 22, 2000).

24
See, e.g., Carr-Gottstein Props. v. State, 899 P.2d 136, 140 (Alaska 1995); In re Application of the Okla.
Capitol Improvement Auth., 958 P.2d 759, 770 (Okla. 1998).

25
See Carr-Gottstein Props., 899 P.2d at 144.

26
See Business Computer Rentals, 114 Nev. at 70, 953 P.2d at 17.

27
See State ex rel. Brennan v. Bowman, 89 Nev. 330, 333, 512 P.2d 1321, 1322-23 (1973).
lease only for lease payments for which the legislature has made appropriations. If the
legislature, in subsequent years, fails to appropriate sufficient money for the lease payments,
the state has no further liability to EICON. Additionally, limitation on the state's liability
under the agreement remains in spite of the assignment of lease payments to the third-party
trustee; the state would not be liable to the holder of such certificates of participation, who
would stand in no better position than EICON.
28

Moreover, constitutional debt limitations do not arbitrarily telescope multiyear
agreements into a single year, and [t]he determinative inquiry for purposes of the
Constitution is not the extent to which the agreement resembles an installment purchase
contract, but whether the payments in future years are contingent.
29
Here, payments in
future years are wholly contingent on future legislatures making the necessary appropriations.
Thus, the agreement is constitutional.
Finally, an extension of credit under these circumstances still would not violate the
Constitution's prohibitions because the expenditure would be for a valid public
purposeproviding office space for a state agency.
30

CONCLUSION
We conclude that the agreement does not violate the debt provisions of the
Constitution and that the Board should have reviewed the merits of the agreement. In
addition, we decline to extend the reasoning of the Hancock decision and, instead, expand
upon our more recent decision in Business Computer Rentals. We, therefore, grant EICON's
request and order the writ be issued.
__________

28
See, e.g., Carr-Gottstein Props., 899 P.2d at 144; St. Charles City-County Library Dist. v. St. Charles
Library Bldg. Corp., 627 S.W.2d 64, 68-69 (Mo. Ct. App. 1981).

29
Rider v. City of San Diego, 959 P.2d 347, 354-55 (Cal. 1998).

30
See 95-06 Op. Att'y Gen. at 27 (1995); 86-14 Op. Att'y Gen. at 51-52 (1986); Berger v. Howlett, 182
N.E.2d 673, 676 (Ill. 1962) (Assuming that the act in some ways permits the State to lend its aid or credit to the
Authority, the furnishing of adequate office facilities for State government is a public purpose and a proper
expenditure of State funds.).
____________
117 Nev. 260, 260 (2001) North Las Vegas v. Pardee Constr. Co.
CITY OF NORTH LAS VEGAS, a Municipal Corporation, Appellant, v. PARDEE
CONSTRUCTION COMPANY OF NEVADA, a Nevada Corporation, Respondent.
No. 30475
April 13, 2001 21 P.3d 8
This is an appeal from an order granting summary judgment to respondent in an action
for declaratory relief involving the definition of development impact fees. Eighth Judicial
District Court, Clark County; Sally L. Loehrer, Judge.
Developer filed action for declaratory relief, alleging that City's imposition of regional
water connection charges breached developer's development agreement with City. The district
court granted summary judgment to developer. City appealed. The supreme court held that
regional water connection charge was a cost-based fee rather than a development impact fee.
[Rehearing denied March 28, 2002]
Rawlings Olson Cannon Gormley & Desruisseaux and Aaron R. Maurice, Las Vegas,
for Appellant.
Harrison Kemp & Jones, Chtd., and William L. Coulthard and Jennifer C. Popick, Las
Vegas, for Respondent.
David R. Olsen, City Attorney, Boulder City, for Amicus Curiae City of Boulder City.
Bradford R. Jerbic, City Attorney, Las Vegas, for Amicus Curiae City of Las Vegas.
Shauna M. Hughes, City Attorney, and Catherine E. Conroy, Assistant City Attorney,
Henderson, for Amicus Curiae City of Henderson.
Charles K. Hauser, General Counsel, and John J. Entsminger, Associate General
Counsel, Las Vegas, for Amicus Curiae Southern Nevada Water Authority.
Waters and Water Courses; Zoning and Planning.
Regional water connection charge was a cost-based fee rather than a development impact fee, and thus developer could be
required under its contract with City to pay fee, although contract precluded any increase in development impact fees and charge was
assessed on City by Water Authority to pay for its capital improvements, as City simply passed on to developer the amount Water
Authority charged City, such that charge was based on actual costs to City, with none of the money collected going toward any of
City's own capital improvements programs.
OPINION
Per Curiam:
At issue in this case is whether a regional water connection charge imposed by a city
on a developer is a development impact fee or a cost-based fee. The development agreement
between the City and the developer precluded any increase in development impact fees, but
allowed new cost-based fees. The district court concluded that the charge was an impact fee.
Because we conclude that the regional water connection charge is a cost-based fee, and not a
development impact fee, we reverse and remand the judgment of the district court.
FACTS
In December 1988, respondent, Pardee Construction Company of Nevada, entered
into a written development agreement with the City of North Las Vegas. Pardee purchased
approximately 1,080 acres of real property in Clark County from the City for a planned
development of 8,500 dwelling units. A key provision in the development agreement
prohibited the City from imposing any new or any increases in existing development impact
fees. Pardee agreed to pay existing development impact fees and any new cost-based fees.
In 1991, seven southern Nevada municipalities, including the City, created the
Southern Nevada Water Authority (Water Authority). Through the Water Authority, the
municipalities sought to address water issues on a regional, rather than an individual,
purveyor basis, and to establish a coordinated water management and conservation program
to ensure sufficient water supply for southern Nevada. The Water Authority administers the
Southern Nevada Water System (Water System), which is a facility consisting of diversion,
treatment, conveyance, turnout, power transmission, and related facilities, by which Colorado
River water is made potable and conveyed into the water systems of Water Authority
purveyor members and Nellis Air Force Base.
In response to the increasing demand for water, the Water Authority developed a
capital improvements plan that was adopted by all Water Authority members on December 4,
1995, and subsequently amended on June 20, 1996, and again on January 16, 1997. The goal
of the capital improvements plan is to develop a reliable and demand-responsive municipal
water system that would supplement the existing and severely strained water system during
periods of curtailed production or system failures, and to provide Nevada full access to its
Colorado River water entitlement.
during periods of curtailed production or system failures, and to provide Nevada full access to
its Colorado River water entitlement. The capital improvements plan covers a thirty-year
period, from 1995 to 2025, and will more than double the Water System's capacity from 400
million gallons per day to 900 million gallons per day. The Water Authority's capital
improvements plan is not a capital expansion or improvement plan of the City and does
nothing to increase or improve the infrastructure of the City's own water distribution system.
The Water System delivers water to water purveyors, not to individual customers. The
City is both a member of the Water Authority and a purveyor member of the Water System.
The Las Vegas Valley Water District is the operating agent of the Water Authority.
Currently, the Water System brings water to four turnouts through two pipelines to the
City. The City distributes water to its customers within and outside city limits, and owns the
water distribution system that distributes the water from the turnouts to its customers. The
facilities that bring the water to the turnouts belong to the Water System and are owned by the
Water Authority. Thus, the Water System capital improvements plan benefits the City
through increased water capacity and reliability, but does not increase the City's own
infrastructure.
The City delivered 34,049 and 38,192 acre feet of water to its customers in 1995 and
1996, respectively. For 1997 and 1998, respectively, the City estimated it would deliver
41,750 and 45,704 acre feet of water to its customers. In 1997, the City held a contractual
allocation for only 40,089 acre feet of water, including 5,711 acre feet of ground water.
Membership in the Water Authority allows the City to take and sell more water than its
contractual allocation by using unused allocations of other Water Authority members and
other states. Thus, if the City had not joined the Water Authority, it would have had to cease
issuing building permits, including those requested by Pardee, sometime before 1997 because
it would not have been able to supply the water needed for more growth.
The City now pays for water and for increased water capacity, when needed, from the
Water Authority in four ways: (1) through water delivery charges, (2) through water
connection fees, (3) through a $0.05 per thousand gallons commodity charge, and (4) through
assessments. The Water Authority sets water delivery charges to cover Water Authority
operating costs, including debt service. In order to pay for capital improvements and debt
service on its capital improvements plan, the Water Authority assesses connection fees and
commodity charges. When revenues from connection fees and commodity charges fall short,
the Water Authority charges equitable assessment fees.
The City collects and remits to the Water Authority the amount of the connection fees
and commodity charges monthly. The Water Authority Facilities and Operations Agreement
gives Water System purveyor members absolute discretion to set water fees and charges for
their customers. The agreement also gives purveyor members the right to meet their financial
obligations to the Water Authority through customer fees and charges or through other
revenue sources that are legally available.
The City decided to pass on all Water System connection fees and commodity charges
directly to its customers and, therefore, adopted Ordinance No. 1176, which has been codified
in the City's municipal code at sections 13.04.020(K) and 13.04.030(I). Effective March 1,
1996, section 3 of the ordinance imposed a regional connection charge on all new
development to collect the Water System connection fee. In section 2, it also imposed a
regional commodity charge, effective November 1996, on all new development to collect
the Water System commodity charge.
The City makes no profit from these regional water fees or charges. Instead, the City
charges the customer exactly what the City is being charged for the services and turns all
money collected over to the Water Authority. From March 1, 1996, through December 1999,
the City paid the Water Authority $25,372,700 in water connection charges.
In August 1996, Pardee filed an action for declaratory relief in Clark County District
Court alleging that the City's imposition of regional water connection charges on Pardee,
pursuant to Ordinance No. 1176, was a breach of Pardee's development agreement with the
City. Both parties stipulated that there were no material issues of fact and filed motions for
summary judgment. The district court granted Pardee's motion, concluding that the regional
water connection charge was a development impact fee and, therefore, the City breached the
express provisions of the development agreement by passing on the charges to Pardee. The
City appealed. The cities of Las Vegas, Boulder City, and Henderson jointly filed an amicus
curiae brief in support of the City, as did the Water Authority.
DISCUSSION
The development agreement between the City and Pardee identifies two types of fees:
cost-based fees and development impact fees. The City may pass on the former to Pardee, but
not the latter.
1

__________

1
The development agreement, in section 6.4(b), provides:
Only those development impact fees as referred to in Section 4.5 of this Agreement which are in effect on
the Effective Date [December 10,
The City classifies the regional water connection charge as a cost-based fee because
the City simply passes on to the developer the amount the Water Authority charges the City.
The charge is based on actual costs to the City, with none of the money collected going
toward any of the City's own capital improvements programs. According to the City, the fact
that the Water Authority uses the money for the Water System's capital improvements does
not convert the charge from a cost-based fee to the City to a development impact fee for the
City's capital improvements.
Section 1.5 of the development agreement defines development impact fees as all
those fees, charges, or assessments which are or may be imposed as a condition to any
development of the Project Site for capital improvements or maintenance costs in categories
such as park, library and fire protection fees, road assessments, bridges, and flood control.
The term impact fee in the development agreement must be read in conjunction
with NRS Chapter 278B, which regulates and authorizes the imposition of impact fees.
Chapter 278B makes clear that the developer can be charged impact fees only for capital
improvement projects of the local government that is imposing the impact fee.
2
Only the city
or county is a local government which may charge an impact fee.
3
In order to be authorized
by the legislature to charge an impact fee, the City must comply with numerous statutory
provisions in establishing a capital improvement plan.
4
The water connection charge that is
being levied by the Water Authority on the City cannot be an impact fee under the provisions
of Chapter 278B.
On the other hand, cost-based fee is readily understood in its ordinary meaning. The
water connection charge is levied by the Water Authority on the City. The charge is a cost to
the City which the City has chosen to pass on to Pardee; in other words, it is a cost-based fee
to the City.
CONCLUSION
We conclude that the water connection charge is a cost-based fee, not a development
impact fee, under the terms of the agreement between Pardee and the City. The district court
therefore erred in granting summary judgment to Pardee. Accordingly, we reverse the district
court's order of summary judgment and remand this case to the district court for
proceedings consistent with this opinion.
__________
1988] may be imposed. No increases in such fees may be imposed, and no new development impact fees
may be imposed. City may increase cost based fees as defined in Section 4.5 of this Agreement.

2
NRS 278B.160.

3
NRS 278B.070.

4
NRS 278B.150-.210.
remand this case to the district court for proceedings consistent with this opinion.
____________
117 Nev. 265, 265 (2001) GES, Inc. v. Corbitt
GES, INC., a Nevada Corporation, Appellant, v. JEFF CORBITT; MICHELLE CORBITT;
POWERLINE, INC., a Colorado Corporation; and VIP GLOBAL DESIGNS, INC., a
Colorado Corporation, Respondents.
No. 33528
April 13, 2001 21 P.3d 11
Appeal from a judgment entered for respondents in a negligence action and from a
post-judgment settlement order. Eighth Judicial District Court, Clark County; Jack Lehman,
Judge.
Lighting technician for entertainment group brought negligence action against
electrical contractor and tradeshow exhibit booth operator after he was injured when truss
holding lighting collapsed. The district court denied contractor's motion for summary
judgment, and after jury verdict in favor of technician, found defendants jointly and severally
liable and entered judgment awarding damages exceeding $1,100,000.00. Electrical
contractor appealed. The supreme court held that: (1) contractor was not immune from
negligence action under Industrial Insurance Act, and (2) contractor was not jointly and
severally liable with booth operator.
Dismissed in part, affirmed in part, reversed in part and remanded.
[Rehearing denied August 10, 2001]
Law Offices of John & Elizabeth Foley, Las Vegas, for Appellant.
Alverson Taylor Mortensen Nelson & Sanders and Nathan R. Reinmiller, Las Vegas,
for Respondents Powerline, Inc., and VIP Global Designs, Inc.
Hannah C. Irsfeld and Bradley L. Booke, Las Vegas, for Respondents Jeff and
Michelle Corbitt.
An order denying summary judgment is not independently appealable.
On appeal from denial of summary judgment, the supreme court's review is de novo and without deference to the district court's
findings.
Under the Industrial Insurance Act, workers' compensation is an employee's only remedy against his employer and co-employees
for an industrial injury. However, the injured worker may pursue a common law tort action against any tortfeasor who is not his
statutory employer or co-employee.
Electrical contractor was not in same trade, business, profession or occupation as lighting technician who was injured when
truss holding lighting in trade show booth collapsed, and thus contractor was not immune under normal work test, where electrical
contractor provided electricity, hauling, and assembly services to convention exhibitors, and technician was lighting designer and
programmer. NRS 616B.603(1)(b).
5. Negligence; Torts.
Electrical contractor was not jointly and severally liable with trade show booth operator, under concerted acts exception to
comparative fault statute, to lighting technician who was injured when truss holding lighting in booth collapsed, where there was no
evidence that contractor had any agreement with booth operator to assemble booth together, much less agreement to proceed with joint
assembly knowing that the truss was likely to collapse. NRS 41.141(5)(d).
Statutory construction is a legal question requiring independent appellate review.
7. Statutes.
A statute should always be construed to avoid absurd results.
8. Negligence; Torts.
To be jointly and severally liable under concert of action exception to comparative fault statute, the defendants must have agreed
to engage in conduct that is inherently dangerous or poses a substantial risk of harm to others. This requirement is met when the
defendants agree to engage in an inherently dangerous activity, with a known risk of harm, that could lead to the commission of a tort;
mere joint negligence, or an agreement to act jointly, does not suffice. NRS 41.141(5)(d).
Before Maupin, C. J., Rose and Becker, JJ.
OPINION
Per Curiam:
This appeal arises from a judgment entered in a negligence action brought by
respondents Jeff and Michelle Corbitt against appellant GES, Inc. (GES),
1
and
respondents Powerline, Inc., and VIP Global Designs, Inc. (Powerline/VIP).
2
GES
appeals, claiming that it enjoys immunity from the Corbitts' suit under the Nevada Industrial
Insurance Act (NIIA). GES also claims that the district court erred in finding it jointly and
severally liable with PowerlineJVIP.
__________

1
Generally known as Greyhound Exposition Services.

2
Powerline, Inc., is a wholly-owned subsidiary of VIP Global Designs, Inc.
with Powerline/VIP. While we conclude that GES is not immune from suit under the NIIA
because its normal work was not the same as Mr. Corbitt's, we agree that the district court
erred in finding it jointly and severally liable. Accordingly, we affirm the district court's
judgment in part and reverse it in part.
FACTS
The accident in question occurred during preparation of an exhibit booth at the 1995
Winter Consumers Electronic Show (the convention) in Las Vegas. Mr. Corbitt was
employed as a lighting technician by Legends in Concert (Legends), an entertainment group
scheduled to perform during the convention at the Powerline/VIP exhibit site. Mr. Corbitt
was severely injured while supervising the placement and programming of lighting at the
exhibit booth.
As background, GES, a licensed Nevada electrical contractor and provider of drayage
services for Las Vegas convention events, contracted to assemble a ground truss structure at
the Powerline/VIP booth on which cyberlighting for the Legends performance was to be
installed. This truss structure was the focal point of the accident. GES employees placed the
truss assembly over the booth and temporarily secured the apparatus with nylon straps.
According to evidence adduced at trial, GES employees advised Powerline/VIP
representatives that the truss assembly had not been finally secured. The record also reveals
that GES employees understood the nylon straps to be temporary and that Bart Delorenzo,
vice-president of marketing for VIP, would purchase the appropriate bolts or clamps to
stabilize the truss. Unfortunately, however, the cyberlight installation proceeded under the
supervision of Powerline/VIP employees before the truss was secured.
An instant after the second cyberlight was hung, the truss swayed and collapsed in Mr.
Corbitt's direction, knocking him from a forklift on which he was standing. Mr. Corbitt fell
face first approximately thirteen feet to the parking lot surface and suffered a fractured skull,
fractured sinuses, fractured wrists and elbow, and other related injuries.
The Corbitts initiated a negligence action against GES, Powerline/VIP, and a third
defendant, Skytop Total Production Services (Skytop). The district court denied GES's
motion for summary judgment, which was based upon its claim of immunity under the NIIA.
At trial, the jury returned a general defense verdict in favor of Skytop, but awarded damages
exceeding $1,100,000.00 against Powerline/VIP and GES.
The jury, by way of special verdict, assessed the comparative fault of the parties as
follows: ten percent against Mr. Corbitt, twenty-five percent against GES, and sixty-five
percent against PowerlineJVIP.
twenty-five percent against GES, and sixty-five percent against Powerline/VIP. In response to
a motion to clarify the verdict, the district court found that Powerline/VIP and GES acted in
concert and, thus, concluded that these defendant parties were jointly and severally liable to
the Corbitts.
3
Thereafter, Powerline/VIP entered into a settlement with the Corbitts that was
approved by the district court as having been undertaken in good faith.
4

DISCUSSION
NIIA immunity
GES argues that it is immune from liability under the NIIA and that the district court
erred in refusing to grant it summary judgment.
[Headnotes 1, 2]
An order denying summary judgment is not independently appealable;
5
however, we
may review the propriety of the district court's summary judgment ruling because GES has
properly raised the issue in its appeal from the final judgment.
6
Our review is de novo and
without deference to the district court's findings.
7
Summary judgment is appropriate only
when there are no material issues of fact and the moving party is entitled to judgment as a
matter of law.
8

[Headnotes 3, 4]
Under the NIIA, workers' compensation is an employee's only remedy against his
employer and co-employees for an industrial injury; however, the injured worker may pursue
a common law tort action against any tortfeasor who is not his statutory employer or
co-employee.
9
To determine whether GES and Corbitt had a statutory employment
relationship under the NIIA, so that GES is immune from the Corbitts' negligence suit, we
apply the "normal work test" originally articulated in Meers v. Haughton Elevator
__________

3
See NRS 41.141(5).

4
See NRS 17.225 et seq.

5
NRAP 3A(b); Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984).

6
NRAP 3A(a); Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 161, 561 P.2d 450, 452 (1977). To the
extent that State, Department of Transportation v. Barsy, 113 Nev. 709, 715 n.1, 941 P.2d 971, 973 n.1 (1997),
and Evans v. Southwest Gas, 108 Nev. 1002, 1003 n.1, 842 P.2d 719, 720 n.1 (1992), are inconsistent, they are
overruled.

7
Caughlin Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993).

8
NRCP 56; SIIS v. Ortega Concrete Pumping, Inc., 113 Nev. 1359, 1363, 951 P.2d 1033, 1036 (1997).

9
Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1349, 1353-54, 951 P.2d 1027, 1029-30 (1997).
immune from the Corbitts' negligence suit, we apply the normal work test originally
articulated in Meers v. Haughton Elevator
10
and now codified as NRS 616B.603(1)(b).
11
The normal work test is used in non-construction cases and in construction cases when the
defendant is not a principal contractor
12
licensed under NRS chapter 624 or is not working
pursuant to a construction agreement with such a licensed principal contractor.
13
Here, the
exhibit booth and the lighting truss structure were displays, requiring assembly, not
construction. In addition, although GES was licensed under NRS chapter 624, GES was not a
principal contractor and GES's work at the Powerline/VIP booth was not performed pursuant
to a construction agreement with a licensed principal contractor or within the scope of its
specialty contractor's license.
Under the normal work test, GES is immune from suit under the NIIA only if it was
in the same trade, business, profession or occupation as Legends, Mr. Corbitt's employer.
14
According to the record before us, GES and Legends were in different trades entirely, with
GES supplying electricity, hauling and assembly services to convention exhibitors, and
Legends providing live stage entertainment involving music and custom lighting for
exhibitors. Mr. Corbitt worked for Legends as a lighting designer and programmer. Thus,
because GES was not entitled to NIIA immunity under the normal work test analysis, the
district court did not err by denying GES's motion for summary judgment.
Joint and several liability
[Headnote 5]
GES argues that the district court erred in finding it jointly and severally liable with
Powerline/VIP under NRS 41.141(5)(d), which permits such liability for defendants who act
in concert. We agree.
NRS 41.141 was amended in 1987 to read, in relevant part:
4. Where recovery is allowed against more than one defendant in such an action
[where comparative negligence is a viable partial defense],
[15]
except as otherwise
provided in subsection 5, each defendant is severally liable to the plaintiff only for that
portion of the judgment which represents the percentage of negligence attributable
to him.
__________

10
101 Nev. 283, 701 P.2d 1006 (1985).

11
Tucker, 113 Nev. at 1356-57, 951 P.2d at 1031-32.

12
See NRS 616A.285.

13
Tucker, 113 Nev. at 1357, 951 P.2d at 1033.

14
NRS 616B.603(1)(b); Ortega, 113 Nev. at 1363-64, 951 P.2d at 1036; Tucker, 113 Nev. at 1356, 951 P.2d
at 1031.

15
Buck v. Greyhound Lines, 105 Nev. 756, 783 P.2d 437 (1989).
tiff only for that portion of the judgment which represents the percentage of negligence
attributable to him.
5. This section does not affect the joint and several liability, if any, of the defendants
in an action based upon:
. . .
(d) The concerted acts of the defendants . . . .
In a tort action, when the plaintiff is found comparatively negligent in an apportioned
amount of fifty percent or less, defendants found liable are presumed under NRS 41.141(4) to
be severally liable unless an exception under subsection (5) applies. Here, the jury, by special
verdict, apportioned liability in the following percentages: Mr. Corbitt ten percent; GES
twenty-five percent; Powerline/VIP sixty-five percent. Although Mr. Corbitt's comparative
negligence presumptively rendered GES severally liable on the negligence claim, the district
court subsequently entered judgment imposing joint and several liability on GES and
Powerline/VIP based upon the concerted acts exception in NRS 41.141(5)(d). Specifically,
the district court found that
Powerline and GES's negligence combined to cause the injury to [Mr. Corbitt]. GES
and Powerline worked together to get the truss/exhibit put up. Both defendants were
negligent in constructing the truss. Although GES's employees told Powerline that the
straps would not secure the corners [of] the truss, GES is not relieved of liability
because of the employees' warning. The warning should not relieve GES of joint and
several liability because GES did nothing to fix the situation.
We conclude that the district court incorrectly interpreted the phrase concerted acts.
[Headnotes 6, 7]
Statutory construction is a legal question requiring independent appellate review, and
[a] statute should always be construed to avoid absurd results.
16
We previously discussed
the meaning of concert of action in Dow Chemical Co. v. Mahlum
17
and explained that
this doctrine requires more than just agreement to act:
Concert of action resembles the tort of civil conspiracy. Halberstam, 705 F.2d at 477.
. . .
Both causes of action require an agreement. To prevail in a civil conspiracy action, a
plaintiff must prove an agreement between the tortfeasors, whether explicit or tacit.
__________

16
General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995); Nyberg v. Nev. Indus.
Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).

17
114 Nev. 1468, 1488-89, 970 P.2d 98, 111-12 (1998).
between the tortfeasors, whether explicit or tacit. See Eikelberger v. Tolotti, 96 Nev.
525, 528 n.1, 611 P.2d 1086, 1088 n.1 (1980). Similarly, when [Restatement of Torts]
section 876 [concert of action] refers to acting in concert with another tortfeasor or
pursuant to a common design, it refers to this concept of agreement. See section 876(a),
cmt. a; Halberstam, 705 F.2d at 477. Proof of an agreement alone is not sufficient,
however, because it is essential that the conduct of each tortfeasor be in itself tortious.
Section 876(a), cmts. b & c.
[Headnote 8]
To the extent that our holding in Mahlum suggests that concert of action requires no
more than an agreement along with tortious conduct, it is disfavored. To be jointly and
severally liable under NRS 41.141(5)(d)'s concert of action exception, the defendants must
have agreed to engage in conduct that is inherently dangerous or poses a substantial risk of
harm to others. Thus, this requirement is met when the defendants agree to engage in an
inherently dangerous activity, with a known risk of harm, that could lead to the commission
of a tort.
18
Mere joint negligence, or an agreement to act jointly, does not suffice; such a
construction of NRS 41.141(5)(d) would render meaningless the general rule of several
liability.
Here, GES and Powerline/VIP combined their efforts in preparing the truss structure
and exhibit booth. Evidence in the record suggests that GES employees knew that the truss
assembly was incomplete and that GES employees told the Powerline/VIP representative that
the nylon straps would not secure the truss. Record evidence also suggests that Powerline/VIP
employees proceeded as if they had received no information to that effect from GES.
__________

18
See Walls v. Jacob North Printing Co., Inc., 618 N.W.2d 282, 285 (Iowa 2000) ([c]rucial to proof of
concerted action, however, is proof that the parties acted in accordance with an agreement to cooperate in a
particular line of conduct or to accomplish a particular result' ) (quoting Restatement (Second) of Torts 876,
at 315 cmt. a (1965)); Schneider v. Schaaf, 603 N.W.2d 869, 876 (N.D. 1999) ([T]o constitute concerted
action, the [plaintiffs] were required to present evidence manifesting a common plan to commit a tortious act
where the participants knew of the plan and its purpose and took substantial affirmative steps to [harm the
plaintiffs].); Juhl v. Airington, 936 S.W.2d 640, 644-45 (Tex. 1996) (The purpose of the concert of action
theory is to deter antisocial or dangerous behavior and instances where concert of action liability has been
imposed have almost always involved conduct posing a high degree of risk to others.) (citing Cobb v. Indian
Springs, Inc., 522 S.W.2d 383, 387 (Ark. 1975) (individual who encouraged another to see what his car could
do was held liable for encouraging the reckless driving that caused the plaintiff's injuries); and Kuhn v. Bader,
101 N.E.2d 322, 327 (Ohio Ct. App. 1951) (two people target shooting with a high powered rifle and a gravel
pile as backstop could both be liable when a ricocheting bullet struck the plaintiff)).
ceeded as if they had received no information to that effect from GES. Although the district
court correctly noted that GES was not relieved of liability simply because it told the
Powerline/VIP representative that the nylon straps would not secure the truss, the district
court applied the concerted acts exception of NRS 41.141(5)(d) in error. GES and
Powerline/VIP were merely concurrently negligent in relying upon each other to perform
certain acts in erecting the exhibit booth. No evidence in the record suggests that they had any
agreement to assemble a booth together, much less an agreement to proceed with joint
assembly knowing that the truss was likely to collapse. Consequently, joint and several
liability for concerted action was inappropriate.
Therefore, we reverse that portion of the district court's judgment imposing joint and
several liability on GES. Under NRS 41.141(4), GES is severally liable for its portion of the
damages awarded based upon the percentage of fault assessed by the jury in its special
verdict, i.e., twenty-five percent.
CONCLUSION
In sum, the district court properly refused to find immunity under the Nevada
Industrial Insurance Act. The court, however, improperly imposed joint and several liability
upon GES and Powerline/VIP under the concerted acts exception to NRS 41.141(4)(d).
19
We therefore reverse that portion of the judgment pertaining to joint and several liability and
remand this matter for entry of an amended judgment consistent with the views expressed in
this opinion. The judgment is affirmed in all other respects.
__________

19
Our ruling today renders moot issues relating to the finding below that the Powerline/VIP settlement was
entered into in good faith. Accordingly, we dismiss that portion of GES's appeal relating to the district court's
post-judgment settlement order. We have also examined appellant's other assignments of error and conclude that
they lack merit.
____________
117 Nev. 273, 273 (2001) Kaldi v. Farmers Ins. Exch.
STEVEN R. KALDI, Appellant, v. FARMERS INSURANCE EXCHANGE, an
InterInsurance Exchange; TRUCK INSURANCE EXCHANGE, an InterInsurance
Exchange; FIRE INSURANCE EXCHANGE, an InterInsurance Exchange;
MID-CENTURY INSURANCE COMPANY, a Corporation; FARMERS NEW
WORLD LIFE INSURANCE CO., a Corporation; FARMERS GROUP, INC., a
Corporation; KYLE WOLFF, an Individual; JON PORTER, an Individual; JERRY J.
CARNAHAN, an Individual, Respondents.
No. 32620
April 13, 2001 21 P.3d 16
Appeal from an order of the district court dismissing appellant's complaint for breach
of contract and related claims. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
Agent brought action against insurance companies for wrongful termination of agency
agreement. The district court dismissed action. Agent appealed. The supreme court held that:
(1) agent was an independent contractor rather than an employee, (2) agreement did not
require good cause for termination, and (3) companies did not misappropriate agent's trade
secrets.
Affirmed.
Edward M. Bernstein & Associates and Justin M. Clouser, Las Vegas; Perona,
Langer, Beck & Lallande and Michel F. Mills and E. Todd Trumper, Long Beach, California,
for Appellant.
Rawlings Olson Cannon Gormley & Desruisseaux, Las Vegas; Forrest Henderson
Sloan & Davis, Pinedale, California, for Respondents.
When reviewing an order granting a motion to dismiss, supreme court considers whether the challenged pleading sets forth
allegations sufficient to establish the elements of a right to relief. In doing so, court is bound to accept all the factual allegations in the
complaint as true.
2. Contracts.
Absent some countervailing reason, contracts will be construed from the written language and enforced as written.
3. Insurance; Master and Servant; Principal and Agent.
Exclusive agency agreement between insurance companies and agent did not create employer-employee relationship. Agreement
specifically stated that agent was not an employee of companies and that nothing in agreement was intended to create
employee-employer relationship, and agent was responsible for maintaining his own office, supervising his employees, determining
hours of operation, and providing supplies.
4. Insurance.
Exclusive agency agreement between insurance companies and agent did not require companies to establish good cause before
terminating agency, even though agreement provided for review of termination by review board.
agency, even though agreement provided for review of termination by review board. Agreement provided that either party could
terminate agreement upon sufficient notice, and there was no language requiring review board to determine whether there was good
cause for termination.
5. Principal and Agent.
Absent a contractual provision to the contrary, an independent contractor/principal agency relationship is terminable at any time
at the will of the principal or the agent.
6. Contracts.
Court is not free to modify or vary the terms of an unambiguous agreement.
7. Evidence.
The parol evidence rule forbids the reception of evidence which would vary or contradict the contract, since all prior
negotiations and agreements are deemed to have been merged therein.
8. Evidence.
Where a written contract is clear and unambiguous on its face, extraneous evidence cannot be introduced to explain its meaning.
9. Evidence.
Parol evidence was not admissible to show that agency agreement between insurance companies and agent was susceptible to
more than one reasonable interpretation regarding termination of agreement, where language establishing termination review
procedures was unambiguous.
10. Evidence.
The existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent
with its terms, may be proven by parol.
11. Torts.
Generally, elements required for pleading cause of action for misappropriation of trade secrets include: (1) a valuable trade
secret; (2) misappropriation of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and (3) the
requirement that the misappropriation be wrongful because it was made in breach of an express or implied contract or by a party with a
duty not to disclose.
12. Insurance; Torts.
For purposes of agent's claim against insurance companies for trade secret misappropriation following termination of agency
agreement, customer information or book of business was property of insurance companies, rather than agent, where agreement
plainly established that customer information was, at all relevant times, companies' property.
Before Maupin, C. J., Young and Becker, JJ.
OPINION
Per Curiam:
The district court dismissed an action brought by appellant, Steven R. Kaldi, against
the respondents in this case, Farmers Insurance Exchange, Truck Insurance Exchange, Fire
Insurance Exchange, Mid-Century Insurance Company and Farmers New World Life
Insurance Company (hereinafter collectively referred to as "Farmers").
to as Farmers). The action concerned Farmers' termination of an exclusive agency
agreement with Kaldi.
1
In particular, Kaldi asserted that because Farmers did not have good
cause to terminate the agreement, Farmers wrongfully terminated it. Because we conclude
that the agency agreement did not contain a for good cause provision, we affirm.
FACTS
On or about February 16, 1981, Kaldi and Farmers entered into a contract entitled
Agent Appointment Agreement (Agreement). The Agreement provided that Kaldi would
be authorized to sell insurance on behalf of Farmers and that he would submit requests or
applications for insurance to other insurance companies only in areas where Farmers did not
provide coverage or had rejected coverage. In return, Farmers would pay new business and
service commissions to Kaldi and would provide training, forms and advertising assistance
to Kaldi's business. The contract also set forth methods of termination and the basis for
calculating the value of the agency upon termination. The provisions of the Agreement
relevant to this dispute are as follows:
C. This Agreement terminates upon the death of the Agent and may be terminated by
either the Agent or the Companies on three (3) months written notice.
If the provisions of this Agreement are breached by either the Agent or the
Companies, the Agreement may be terminated by the other party on thirty (30) days
written notice. This Agreement may be terminated immediately by mutual consent or
by the Companies for the following reasons:
1. Embezzlement of monies belonging to the companies.
2. Switching insurance from the Companies to another carrier.
3. Abandonment of the Agency.
4. Conviction of a felony.
5. Willful misrepresentation that is material to the operation of the agency.
D. In the event this Agreement is terminated by the Companies, the Agent may within
ten (10) days of receiving the notice of termination request a review of the
termination by a termination review board.
__________

1
The claims against the remaining respondents, Farmers Group, Inc., Kyle Wolff, Jon Porter and Jerry J.
Carnahan were dismissed because they were deemed derivative of the claims against Farmers.
ing the notice of termination request a review of the termination by a termination
review board.
. . . .
The Review Board will convene within twenty (20) days of the request by the Agent
at the Regional Office or such other convenient place selected by the Regional
Manager.
The Board will submit a summary of the hearing and its recommendations to the
Executive Home Office.
The chief executive officer and staff will review the summary and recommendations,
reach a decision and promptly advise the Agent of that decision. . . .
. . . .
G. In the event of termination of this Agreement, the Companies will normally pay
Contract Value to the Agent or heirs in the manner hereinafter set out. If the
Companies do not pay the Contract Value, the Agent or heirs may, in writing,
nominate a successor(s). Such nominee(s) must be acceptable to the Companies, and
be ready, willing, and able to operate the Agency within thirty (30) days of
termination of this Agreement.
H. The Agent agrees to transfer and assign all of the Agent's interest under this
Agreement and Agency (including any interest in the telephone numbers and leased
or rented office location) to the Companies or any other purchaser in the event they
make payment to the Agent pursuant to Paragraph G of this Agreement. . . . The
Agent acknowledges that all manuals, lists and records of any kind (including
information pertaining to policyholders and expirations) are the confidential property
of the Companies and agrees they shall not be used or divulged in any way
detrimental to the Companies and shall be returned to the Companies upon
termination of the Agency.
I. Nothing contained herein is intended or shall be construed to create the relationship
of employer and employee; rather, the Agent is an independent contractor for all
purposes.
The time to be expended by the Agent is solely within the Agent's discretion, and the
persons to be solicited and the area wherein solicitation shall be conducted is at the
election of the Agent.
The Agent shall, as an independent contractor, exercise sole right to determine the
time, place and manner in which the objectives of this Agreement are carried out,
provided only that the Agent conform to normal good business practice, and to all
State and Federal laws governing the conduct of the Companies and their Agents.
On September 23, 1996, Kaldi received written notice of termination pursuant to
provision C of the Agreement. Kaldi requested a termination review, pursuant to provision
D, which was conducted on December 18, 1996. The Termination Review Board
unanimously approved Kaldi's termination. The Agreement was terminated on December 26,
1996, and Kaldi was paid the contract value pursuant to provision G of the Agreement.
On July 17, 1997, Kaldi filed a complaint in the Clark County District Court, asserting
claims for breach of contract, tort, contractual breach of the implied covenant of good faith
and fair dealing and misappropriation of trade secrets. In support of these claims, Kaldi
argued that the Agreement could be terminated only for cause and that when the Agreement
was wrongfully terminated, he became the owner of all information (trade secrets) pertaining
to his customers. In addition, Kaldi alleged that the Agreement in reality created an
employer/employee relationship. Kaldi asserted that the conduct and practices of Farmers
supported a finding of an implied covenant that the employment relationship would not be
terminated without good cause. Finally, Kaldi contended that the Termination Review
Board's hearing was a sham in violation of the implied covenant of good faith and fair
dealing inherent in contractual relations.
Farmers moved to dismiss the complaint, arguing that the Agreement was not an
employment agreement, and that it was unambiguous and provided for termination without
cause upon three months' written notice. Farmers also asserted that the trade secrets belonged
to Farmers once the contract value provided for in the Agreement had been paid to Kaldi. As
to its alleged breach of the implied covenant of good faith and fair dealing, Farmers noted
that as the Agreement was terminable without cause upon proper notice, there was no breach
of the contract and therefore no breach of the implied covenant.
Kaldi countered that the Termination Review Board provision was ambiguous and
that parol evidence was admissible to aid in the Agreement's interpretation. In this
connection, Kaldi argued that the custom and practices of Farmers, together with a document
entitled Agent Appointment Agreement Explainer (Explainer), clarified any ambiguity in
favor of a construction that three months' notice terminations were only effective upon a
showing of good cause.
showing of good cause.
2
In the alternative, Kaldi asserted that the Agreement was not a
standard agency agreement, but was an employee/employer agreement and that the complaint
contained sufficient allegations to support a claim of an implied good cause provision
overcoming the normal at-will presumption applicable to employment contracts in Nevada.
The district court dismissed Kaldi's complaint, finding that the Agreement was an
unambiguous agency contract, Kaldi was not an employee of Farmers, and the Agreement
was terminable at the will of either party upon appropriate notice. The district court further
found that the claims relating to good faith and trade secrets could not be maintained if there
was no breach of the Agreement. This appeal followed.
3

DISCUSSION
[Headnote 1]
When reviewing an order granting a motion to dismiss, this court considers whether
the challenged pleading sets forth allegations sufficient to establish the elements of a right to
relief. Madera v. SIIS, 114 Nev. 253, 256, 956 P.2d 117, 119 (1998) (citing Pemberton v.
Farmers Ins. Exchange, 109 Nev. 782, 792, 858 P.2d 380, 381 (1993)). In doing so, we are
bound to accept all the factual allegations in the complaint as true. Marcoz v. Summa
Corporation, 106 Nev. 737, 739, 801 P.2d 1346, 1347 (1990) (citing Edgar v. Wagner, 101
Nev. 226, 227-28, 699 P.2d 110, 111-12 (1985)).
[Headnotes 2, 3]
Kaldi contends that his exclusive agency arrangement with Farmers created an
employer-employee relationship between himself and the companies. The plain language of
the Agreement does not support Kaldi's assertion. It has long been the policy in Nevada that
absent some countervailing reason, contracts will be construed from the written language and
enforced as written. Ellison v. C.S.A.A., 106 Nev. 601, 603, 797 P.2d 975, 977 (1990) (citing
Southern Trust v. K & B Door Co., 104 Nev. 564, 568, 763 P.2d 353, 355 (1988) (holding
that if a document is facially clear, it will be construed according to its language)).
__________

2
Three exhibits were attached to the complaint. Exhibit A was the Agent Appointment Agreement. Exhibit B
was entitled Agent Appointment Agreement Explainer and Exhibit C was a document from an unrelated
proceeding wherein Farmers discussed the ownership of an agent's book, the term used for the trade secrets
related to an agent's business.

3
The district court did not specifically address Kaldi's claim that the termination review hearing was
improperly conducted. A finding that this claim lacked merit is implied however from the order dismissing the
entire complaint. See Hardy v. First Nat'l Bank of Nev., 86 Nev. 921, 478 P.2d 581 (1970). Kaldi does not raise
the issue on appeal.
clear, it will be construed according to its language)). Here, provision I of the agreement
specifically states that Kaldi is not an employee of Farmers and that nothing in the Agreement
is intended to create an employee/employer relationship. Additionally, under the Agreement,
Kaldi was responsible for maintaining his own offices, supervising his employees,
determining the hours of operation for the business, providing supplies, etc. As the
Agreement unambiguously provides that Kaldi was an independent contractor, not an
employee, we reject his argument that it created an employment relationship.
4

Contract interpretation
[Headnote 4]
Kaldi contends that it was error for the district court to dismiss his cause of action for
breach of contract because the Agreement expressly required Farmers to establish good cause
before terminating his agency. Kaldi alleges that the presence of provision D, which
provides for review of a termination by a review board, and the absence of an at-will
provision, create a contractual obligation to allow termination of the Agreement for good
cause only. We disagree.
[Headnote 5]
Absent a contractual provision to the contrary, an independent contractor/principal
agency relationship is terminable at any time at the will of the principal or the agent. See
generally Restatement (Second) of Agency 117 cmt. a (1958). Moreover, in Nevada, an
insurer may, subject to an agent's contract rights, terminate an agent's appointment at any
time. NRS 683A.290(1). The Agreement creates an independent contractor agency
relationship. Therefore, subject to the language of the Agreement, the agency relationship
between Farmers as principal and Kaldi as agent was terminable at any time without cause
provided three months' advance written notice was given.
Provision C of the Agreement contains contractual language that modifies the
common law and statutory right of the parties to terminate the agency relationship at will.
This language, however, deals with the type of notice required before a termination becomes
effective. The Agreement specifies that termination without advance written notice can only
occur when the agent commits certain wrongful acts, such as embezzlement. In all other
cases, one party must give the other either three months' or thirty days' advance written
notice of termination of the relationship, depending upon the circumstances.
__________

4
Because we conclude that Kaldi is not an employee of Farmers, we do not address his arguments based
upon an implied-in-fact covenant of continued employment under D'Angelo v. Gardner, 107 Nev. 704, 819 P.2d
206 (1991). We also reject Kaldi's arguments that he should be treated as an employee or quasi-employee
and decline to apply D'Angelo to the facts of this case.
cases, one party must give the other either three months' or thirty days' advance written notice
of termination of the relationship, depending upon the circumstances. Thus, the agent's
conduct is only a factor as to the nature of the notice which is required before the principal
can terminate the agency. The contractual provisions do not limit the principal's right to
terminate the agency without cause. Provision C is clear on its face and must be interpreted
as written; it does not require Farmers to have good cause before terminating the agency
relationship.
Kaldi does not contest that the language of provision C is not clear on its face.
Instead, Kaldi argues that provision C is modified by provision D of the Agreement.
Provision D provides that [i]n the event this Agreement is terminated by the Companies,
the Agent may within ten (10) days of receiving the notice of termination request a review of
the termination by a termination review board. Kaldi contends that this provision can be
reasonably interpreted to require a showing of good cause prior to termination because a
review by the Board would be meaningless in the case of a termination without cause.
While provision D unambiguously provides for a review of the agent's termination,
it does not indicate that the review is to establish the existence or absence of good cause. It
merely provides a forum for arguing that the decision to end the agency relationship should
be reconsidered. The ultimate decision on whether or not to terminate the agency still resides
within the discretion of the principal. Provision D cannot be reasonably read to require
Farmers to establish good cause before terminating the Agreement.
This interpretation does not, as asserted by Kaldi, lead to an absurd result or render
meaningless the language of provision D. Kaldi contends that the only logical reason for a
review is to determine if there is good cause to terminate the agent. However, there are many
reasons why a principal may wish to terminate an agency relationship that have nothing to do
with wrongful conduct on the part of the agent. For example, there may be too many agents in
a given geographical area and the principal may simply have chosen to reduce the agency
pool.
The review board process gives the agent the opportunity to assert that it is not in the
best interest of Farmers to sever the agency relationship. It also gives the agent, in appropriate
circumstances, a forum in which to argue that the termination was the product of bias or
prejudice on the part of the person who made the initial decision to terminate the relationship.
That is, the termination was not made to further the interests of Farmers, but the interests of
the executive who made the decision. Thus, even without a requirement of cause, the review
board serves a viable purpose under the contract.
[Headnote 6]
We are not free to modify or vary the terms of an unambiguous agreement. State ex
rel. List v. Courtesy Motors, 95 Nev. 103, 107, 590 P.2d 163, 165 (1979). Provision D is
not ambiguous. On its face, it does not require the Termination Review Board to make any
findings with respect to good cause before sustaining a termination and it must be construed
and enforced as written. Ellison, 106 Nev. at 603, 797 P.2d at 977.
Parol evidence rule
Kaldi next contends that since provision D does not specify a standard for the
review process, this is an ambiguity that would permit Kaldi to introduce parol evidence to
clarify the standard of review. In the alternative, Kaldi asserts the Agreement is silent on the
issue of termination for cause and that it does not contain an at-will provision. Because of
this silence, Kaldi argues the Agreement is ambiguous, allowing for the admission of parol
evidence. Kaldi contends that a second document, the Explainer attached to the complaint,
provides the clarification necessary to resolve any ambiguity.
5

[Headnotes 7, 8]
Generally, parol evidence may not be used to contradict the terms of a written
contractual agreement. The parol evidence rule forbids the reception of evidence which
would vary or contradict the contract, since all prior negotiations and agreements are deemed
to have been merged therein. Daly v. Del E. Webb Corp., 96 Nev. 359, 361, 609 P.2d 319,
320 (1980). Where a written contract is clear and unambiguous on its face, extraneous
evidence cannot be introduced to explain its meaning. Geo. B. Smith Chemical v. Simon, 92
Nev. 580, 582, 555 P.2d 216, 216 (1976).
[Headnote 9]
Kaldi contends that the Explainer is admissible to demonstrate that, although the
Agreement may appear to be unambiguous, it is susceptible to more than one reasonable
interpretation. Kaldi relies upon this court's statement in Russ v. General Motors Corp., 111
Nev. 1431, 906 P.2d 718 (1995). In dictum, Russ stated that a court should provisionally
receive all credible evidence concerning a party's intentions to determine whether the
language of a release is reasonably susceptible to the interpretation urged by the party. Id. at
1438-39, 906 P.2d at 723 (citing General Motors Corp. v. . Superior Court, 15 Cal. Rptr. 2d.
622, 626 {Ct. App. 1993)).
__________

5
Kaldi does not argue, nor does the complaint state, that the Explainer is a part of the Agreement and
therefore a part of the agency contract. The complaint and the briefs allege that the Explainer is a separate
document subject to the parol evidence rule.
General Motors Corp. v. Superior Court, 15 Cal. Rptr. 2d. 622, 626 (Ct. App. 1993)). If the
court decides that the extrinsic evidence makes the language in the release reasonably
susceptible to the interpretation urged, the extrinsic evidence should be admitted to aid the
court's interpretation of the contract. Id. at 1439, 906 P.2d at 723 (citing General Motors
Corp., 15 Cal. Rptr. 2d. at 626).
As dictum, Russ is not controlling. Moreover, the California opinion cited in Russ
does not stand for a general proposition that evidence of a party's intent may be admissible to
create ambiguity in an otherwise unambiguous written contract. To do so would be to
eviscerate the parol evidence rule. The California rule permits provisional receipt of parol
evidence to demonstrate that a particular phrase or term in a document, that has a common
meaning, was not intended by the parties to have its common meaning. The rule was
developed to avoid problems when a judge is unaware of the possibility that the phrase or
term might have a special meaning not apparent on the face of the document. For example,
thirty days usually means thirty calendar days, but it can also mean thirty business days. In
such instances, parol evidence may be admissible to demonstrate the parties' understanding of
a particular term. See Bionghi v. Metropolitan Water District, 83 Cal. Rptr. 2d 388 (Ct. App.
1999); Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 442 P.2d 641 (Cal.
1968).
Although Kaldi contends that the language establishing the termination review
procedures falls within this exception to the parol evidence rule, this exception was never
intended to allow parol evidence to substitute for the language of a complete section of an
agreement such as provision D.
Kaldi's second contention regarding ambiguity involves the Agreement's failure to
state that it is an at-will agreement as well as the Agreement's silence regarding the issue of
termination for cause. Kaldi argues that this silence allows for the admission of the
Explainer, or other evidence of the parties' intentions.
Kaldi relies heavily on Wallis v. Farmers Group, Inc., 269 Cal. Rptr. 299 (Ct. App.
1990). In Wallis, the California Court of Appeals considered the same agreement that is the
subject of this dispute. The Wallis court, citing to Masterson v. Sine, 436 P.2d 561 (Cal.
1968), concluded that the termination provisions of the agent appointment agreement were a
fully integrated component of the contract and that extrinsic evidence could not be used to
supplement the agreement. However, the Wallis court then stated that, as the agreement was
silent on the issue of good cause, it was susceptible to more than one meaning and extrinsic
evidence of oral or implied-in-fact agreements was admissible to ascertain the meaning of the
termination provisions within the agreement. Wallis, 269 Cal. Rptr. at 305.
The Wallis rationale is not persuasive, particularly in light of the common law right to
terminate an agency at will and the provisions of NRS 683A.290(1). NRS 683A.290(1) states
that [s]ubject to an agent's contract rights, if any, an insurer may terminate the agent's
appointment, resident or nonresident, at any time. Under Nevada statutory law, an insurance
agency contract is terminable at will unless the contract specifically contains language to the
contrary. Silence on this issue within a written contract cannot create an ambiguity.
Moreover, we agree with the Bionghi court that the Wallis court's treatment of the parol
evidence rule is inconsistent with Pacific Gas and Masterson. Bionghi, 83 Cal. Rptr. 2d at
394.
[Headnote 10]
We recognize that Nevada law does allow for the admission of extrinsic oral
agreements under certain circumstances. [T]he existence of a separate oral agreement as to
any matter on which a written contract is silent, and which is not inconsistent with its terms,
may be proven by parol.' Crow-Spieker #23 v. Robinson, 97 Nev. 302, 305, 629 P.2d 1198,
1199 (1981) (quoting Alexander v. Simmons, 90 Nev. 23, 24, 518 P.2d 160, 161 (1974)).
Here, however, the complaint does not allege that Kaldi and Farmers entered into a separate
oral contract regarding termination procedures. In fact, provision J of the Agreement
specifically prohibits separate oral contracts and requires that all changes, alterations or
modifications to the Agreement be in writing and signed by all parties. The complaint only
alleges the existence of the Explainer and that Farmers had expressly, or by implication,
promised that any termination of the Agreement would be based on good cause. Thus, the
facts of this case do not fall within the exception to the parol evidence rule set forth in
Crow-Spieker and Alexander.
Having determined that the parol evidence allegations contained in the complaint
cannot be used to supercede the express unambiguous provisions of the Agreement, we
conclude that the district court did not err in dismissing Kaldi's breach of contract claim.
Misappropriation of trade secrets
Kaldi contends that the district court erred by dismissing his claim that Farmers
misappropriated his trade secrets by divulging information to other agents who used the
information to gain a competitive advantage. We disagree.
[Headnote 11]
Generally, the elements required for pleading a cause of action for misappropriation of
trade secrets include:
(1) a valuable trade secret; (2) misappropriation of the trade secret through use,
disclosure, or nondisclosure of use of the trade secret; and (3) the requirement that the
misappropriation be wrongful because it was made in breach of an express or implied
contract or by a party with a duty not to disclose.
Frantz v. Johnson, 116 Nev. 455, 466, 999 P.2d 351, 358 (2000).
[Headnote 12]
Provision H of the Agreement states, in part, that:
The Agent acknowledges that all manuals, lists and records of any kind (including
information pertaining to policyholders and expirations) are the confidential property of
the Companies and agrees they shall not be used or divulged in any way detrimental to
the Companies and shall be returned to the Companies upon termination of the Agency.
(Emphasis added.) Provision H plainly establishes that the customer information was, at all
relevant times, Farmers' property. The Agreement in this regard is clear on its face and must
be construed from the written language and enforced as written. Ellison, 106 Nev. at 603,
797 P.2d at 977.
Kaldi alleges, however, that if Farmers breaches the Agreement, the agent is no longer
bound by provision H and the book of business belongs to the agent. Since we have
concluded, based on the allegations contained in the complaint, that the district court properly
concluded that Farmers did not breach the Agreement, Kaldi's assertion of ownership of the
trade secrets cannot be sustained on that ground.
Kaldi also contends that the trade secrets or book of business belong to him
because, under the contract, he is an independent contractor who has developed the trade
secrets. Kaldi asserts that Farmers has used this claim in other proceedings to support its
argument that it is not an employer subject to labor relations laws, and he attached
documentation to the complaint in support of that assertion. Assuming such extrinsic
evidence would be admissible, the evidence merely indicates that where an agent rejects the
payment of Contract Value upon the termination of a contract, then the agent may have a
claim upon the book of business. No such factual allegations are contained in the
complaint, and accordingly, we conclude that the district court did not err in dismissing
Kaldi's action for misappropriation of trade secrets.
CONCLUSION
Having considered the issues presented on appeal, we conclude that Kaldi failed to set
forth allegations sufficient to establish the elements of a right to relief in his complaint.
elements of a right to relief in his complaint. Therefore, we discern no error in the district
court's dismissal of Kaldi's complaint and affirm the district court's order.
____________
117 Nev. 285, 285 (2001) Dugan v. Gotsopoulos
LORI A. DUGAN, Appellant, v. DENNIS GOTSOPOULOS and EVELYN ROSS,
Respondents.
No. 32187
May 7, 2001 22 P.3d 205
Appeal from a plaintiff's judgment, pursuant to a jury verdict, in a negligence action
arising out of an automobile collision. Eighth Judicial District Court, Clark County; Jack
Lehman, Judge.
Motorist brought personal injury action against driver and owner of car after she was
injured in automobile collision. The district court entered judgment pursuant to jury verdict,
and motorist appealed. The supreme court held that: (1) motorist's testimony as to value of
her car was relevant to issue of compensatory damages; (2) Blue book value of car was
admissible; and (3) introduction into jury room of defendants' accident scene photographs,
which had not been admitted into evidence, warranted reversal.
Needham & Needham, Las Vegas, for Appellant.
Hafen, Talbot, Porter & Greene, Ltd., and Kenneth A. Cardone and Cookie L.
Olshein, Las Vegas, for Respondents.
1. Evidence.
Testimony of motorist, who brought action against driver and owner of other vehicle involved in collision, as to value of her car,
which was damaged in collision, was relevant to issue of compensatory damages.
2. Evidence.
A party to a lawsuit may testify as to the value of her personal or real property when that value is an issue in the case, and expert
testimony is not required. The jury may consider this testimony for its weight in conjunction with other evidence of value.
3. Damages.
Blue book value of car was admissible in action by motorist involved in collision to establish car's value for purposes of
computing compensatory damages, as publication was generally used in automobile industry as price list and generally relied on by
persons in trade to determine value of automobiles. NRS 51.245.
4. Evidence.
Market quotations, tabulations, lists, directories or other published compilations, generally used and relied upon by the public or
by persons in particular occupations, are not inadmissible under the hearsay rule.
in particular occupations, are not inadmissible under the hearsay rule. NRS 51.245.
5. Damages.
Expert testimony was not required to establish rental car costs, and thus motorist's testimony regarding rental car costs was
relevant to issue of loss of use damages, irrespective of whether motorist rented car, as long as adequate basis for her knowledge was
presented.
6. Damages.
A party may recover loss of use damages for the time period in which that party has lost use of her personal vehicle as a result of
damages to her automobile, and these damages may be measured by reasonable rental car costs for a reasonable period within which to
repair the vehicle. However, a party need not actually rent a vehicle to recover loss of use damages if that party is financially unable to
rent a substitute vehicle.
7. Damages.
A car owner is entitled to loss of use damages when the owner has lost the use of her personal vehicle as a result of damages to
her automobile, whether or not a substitute was obtained, as the owner has suffered compensable inconvenience and deprivation of the
right to possess and use her chattel.
8. Damages.
In order to establish loss of use damages, expert testimony is not required.
9. Damages.
Loss of use damages may be awarded for the inconvenience of loss of use based on individual circumstances, to which the party
can testify.
10. Appeal and Error; Trial.
Introduction into jury room during deliberations of defendants' enlarged photographs of scene of automobile accident, which
had not been admitted into evidence, warranted reversal, as only photographs favoring defendants' side were provided, and this
disparity had tendency to influence jury's verdict in assessing comparative negligence.
11. Appeal and Error; Trial.
In a civil case, when an improper item is brought into the jury room, and that item has the tendency to influence the verdict in
contravention of legal proofs and the court's instructions at trial, it is reversible error.
OPINION
Per Curiam:
This is an appeal from a plaintiff's judgment, pursuant to a jury verdict, awarding
medical expenses and damages for pain and suffering to appellant, Lori A. Dugan, for injuries
sustained from a car accident with respondent, Dennis Gotsopoulos. Dugan argues on appeal
that the judgment should be reversed and she should be granted a new trial because the
district court improperly excluded evidence on the value of her car and rental car costs for
consideration as loss of use damages. Dugan also contends that the district court erred by
allowing respondents' non-admitted enlarged photographs of the accident scene into the
jury room.
trict court erred by allowing respondents' non-admitted enlarged photographs of the accident
scene into the jury room. We agree that these evidentiary rulings were error, and we reverse
the judgment of the district court and remand for further proceedings.
FACTS
On May 17, 1995, Dugan was involved in a car accident with Gotsopoulos, who was
driving a car owned by Evelyn Ross. Dugan sustained physical injuries and substantial
damage to her car, a 1988 Pontiac Firebird, rendering the car virtually undrivable. Dugan
filed a complaint in negligence against Gotsopoulos and Ross to recover damages for her
physical injuries, car damage and repairs, and loss of the car's use. She requested $2,843.95
for medical expenses, $2,800.00 for car repairs, and an unspecified amount for loss of use.
Dugan took her car to the Auto Magic Paint and Body Center to obtain a repair
estimate. Auto Magic gave her a written estimate of approximately $2,800.00 to repair the
damage. Dugan, however, decided not to repair the car immediately because of the cost.
Although Dugan knew the car was dangerous to drive, she continued to do so occasionally
since she had no other car and could not afford to fix it or rent another one. Throughout
litigation, the car's condition deteriorated, and Dugan eventually sold the car for scrap value.
At trial, Dugan attempted to introduce the written repair estimate and other evidence
of compensatory damages. Defense counsel objected and argued that before Dugan could
introduce that evidence, she had to prove that the cost of repair was less than the market value
of the car. To do so, Dugan offered the Kelley Blue Book value of her car. The district court
declined to take judicial notice of the Blue Book value. After the district court refused to
allow purported experts to testify to the repair costs and the value of the car, Dugan attempted
to testify herself on the value of the car both when she bought it and when she sold it after the
accident. Defendants' objection was sustained on the grounds that Dugan lacked sufficient
knowledge to testify as to value.
Dugan also attempted to introduce evidence of rental car costs as probative of loss of
use damages, even though she did not actually rent a replacement vehicle. The district court
concluded that Dugan needed a rental car expert to testify as to the cost she would have
incurred absent specific pecuniary loss. Therefore, the district court refused to consider loss
of use damages and denied the requested jury instruction on that issue because Dugan failed
to provide expert testimony on loss of use damages.
After the close of Dugan's case, respondents moved for a directed verdict under NRCP
41(b) on the issue of compensatory and loss of use damages because Dugan had failed to
provide proper evidence of value.
and loss of use damages because Dugan had failed to provide proper evidence of value. The
district court granted the motion, concluding that Dugan needed two experts to testify about
these subjects. The jury returned a verdict in Dugan's favor and awarded her $2,843.95 in
medical expenses and $5,200.00 in past pain and suffering, for a total of $8,043.95. The jury
also found Dugan to be forty percent comparatively negligent and reduced her award to
$4,826.37.
After the trial, the district court and the parties discovered that during deliberations,
the jury requested the parties' enlarged photographs of the accident scene. Neither set of
photographs had been admitted into evidence. The bailiff gave the jury respondents'
photographs, but did not provide appellant's photographs. This timely appeal followed.
DISCUSSION
Dugan's main assignments of error relate to the improper exclusion of evidence
regarding compensatory and loss of use damages. We agree that the district court abused its
discretion in excluding certain evidence. Therefore, we reverse the judgment and remand.
[Headnotes 1, 2]
The district court abused its discretion by refusing to permit Dugan to testify about the
value of her car as it pertained to the issue of compensatory damages. A party to a lawsuit
may testify as to the value of her personal or real property when that value is an issue in the
case, and expert testimony is not required.
1
The jury may consider this testimony for its
weight in conjunction with other evidence of value.
2
Here, this testimony was relevant to the
jury's consideration of Dugan's compensatory damages.
[Headnotes 3, 4]
Furthermore, the district court refused to allow the Kelley Blue Book as evidence of
the vehicle's value. NRS 51.245 provides: Market quotations, tabulations, lists, directories or
other published compilations, generally used and relied upon by the public or by persons in
particular occupations, are not inadmissible under the hearsay rule. The Kelley Blue Book is
a publication that is generally used in the automobile industry as a price list and generally
relied on by persons in the trade to determine the value of an automobile.
3
In addition to her
own testimony, Dugan should have been allowed to present the value of her automobile
through the Kelley Blue Book.
__________

1
Lucini-Parish Ins. v. Buck, 108 Nev. 617, 621, 836 P.2d 627, 630 (1992) (citing Jones v. Northside Ford
Truck Sales, Inc., 556 P.2d 117, 121 (Or. 1976)); City of Elko v. Zillich, 100 Nev. 366, 371, 683 P.2d 5, 8
(1984).

2
Jones, 556 P.2d at 122.

3
Curtis v. Schwartzman Packing Company, 299 P.2d 776, 778 (N.M. 1956).
have been allowed to present the value of her automobile through the Kelley Blue Book.
[Headnotes 57]
The district court also should have allowed Dugan to testify about rental car costs and
to recover loss of use damages. A party may recover loss of use damages for the time period
in which that party has lost use of her personal vehicle as a result of damages to her
automobile.
4
These damages may be measured by reasonable rental car costs for a
reasonable period within which to repair the vehicle.
5
A party need not actually rent a
vehicle to recover loss of use damages if that party is financially unable to rent a substitute
vehicle.
6
The owner has suffered compensable inconvenience and deprivation of the right
to possess and use her chattel whether or not a substitute was obtained.
7

The district court's refusal to permit Dugan to testify about rental car costs, and its
refusal to permit the jury to consider loss of use damages, was reversible error. Whether
Dugan actually rented a car was irrelevant because she was still entitled to have the jury
consider her loss of use damages.
[Headnotes 8, 9]
Moreover, in order to establish loss of use damages, expert testimony is not required.
None of the cases involving loss of use damages requires expert testimony to establish value,
and courts have permitted the party to testify about rental car rates as long as that person had
some basis for the valuation.
8
Loss of use damages may also be awarded for the
inconvenience of loss of use based on individual circumstances, to which the party can
testify.
9
Thus, Dugan should have been permitted to testify to establish the value of rental
car rates as long as an adequate basis for her knowledge was presented.
__________

4
See, e.g., Tremeroli v. Austin Trailer Equipment Co., 227 P.2d 923, 935 (Cal. Ct. App. 1951); Airborne,
Inc. v. Denver Air Center, Inc., 832 P.2d 1086, 1089 (Colo. Ct. App. 1992); Lenz Const. Co. v. Cameron, 674
P.2d 1101, 1103 (Mont. 1984); Cress v. Scott, 868 P.2d 648, 651 (N.M. 1994).

5
See, e.g., Hamacher v. Decker Livestock, Inc., 536 N.E.2d 304, 305 (Ind. Ct. App. 1989); Lenz, 674 P.2d at
1103; Cress, 868 P.2d at 651.

6
See, e.g., Airborne, 832 P.2d at 1089; Lenz, 674 P.2d at 1103; Camaraza v. Bellavia Buick Corp., 523 A.2d
669, 670-71 (N.J. Super. Ct. App. 1987); Cress, 868 P.2d at 651; Graf v. Don Rasmussen Co., 592 P.2d 250,
254 (Or. Ct. App. 1979); Charles C. Marvel, Annotation, Recovery for Loss of Use of Motor Vehicle Damaged
or Destroyed, 18 A.L.R.3d 497, 528-32 (1968 & Supp. 2000).

7
Graf, 592 P.2d at 254.

8
See, e.g., Cress, 868 P.2d at 651-52; Lenz, 674 P.2d at 1103; Airborne, 832 P.2d at 1089-90; Hamacher,
536 N.E.2d at 305; Camaraza, 523 A.2d at 671-72.

9
See Camaraza, 523 A.2d at 671-72; see also Cress, 868 P.2d at 651-52.
knowledge was presented.
10
It is unclear from the record whether or not she had a proper
basis, but the district court did not even allow her to attempt to establish such a basis. This
ruling was error.
[Headnotes 10, 11]
Finally, the district court erred by allowing respondents' enlarged photographs of the
accident scene, which had not been admitted into evidence, into the jury room during
deliberations. It was prejudicial error to allow the unadmitted photographs into the jury room,
especially when only the photographs favoring one side were provided.
11
In a civil case,
when an improper item is brought into the jury room, and that item has the tendency to
influence the verdict in contravention of legal proofs and the court's instructions at trial, it is
reversible error.
12

An issue in this trial was Dugan's comparative negligence for the accident. Therefore,
the differing photographs representing each party's theories as to whose actions contributed to
the accident and resulting damages were designed to have a direct impact on the jury's
verdict. Because the jury was only able to consider respondents' enlarged photographs and not
Dugan's, this disparity had a tendency to influence the jury's verdict in assessing comparative
negligence. As this error was prejudicial to Dugan in the apportionment of liability, such error
is reversible.
CONCLUSION
We conclude that the district court abused its discretion by failing to permit Dugan to
present evidence about both the value of her car before and after the accident, and the
reasonable rental value of a replacement as probative of loss of use damages. In addition, we
conclude that the admission of the non-admitted enlarged photographs was prejudicial and
reversible error because comparative fault was an issue in the case. We therefore reverse the
judgment of the district court and remand for further proceedings consistent with this opinion.
__________

10
See NRS 50.025; NRS 50.265.

11
See Winiarz v. State, 107 Nev. 812, 814, 820 P.2d 1317, 1318 (1991) (criminal); see also Granite
Construction v. Rhyne, 107 Nev. 651, 652 n.1, 817 P.2d 711, 712 n.1 (1991) (civil).

12
See Granite Construction, 107 Nev. at 652 n.1, 817 P.2d at 712 n.1.
____________
117 Nev. 291, 291 (2001) Lee v. GNLV Corp.
AHILIYA LEE, Widow of BOBBY LEE STURMS, aka BOBBY LEE, Deceased; AHILIYA
LEE, as Guardian ad Litem for AARON CODY LEE, a Minor, Appellant, v. GNLV
CORP., dba GOLDEN NUGGET HOTEL AND CASINO, Respondent.
No. 33172
May 7, 2001 22 P.3d 209
Appeal from an order granting summary judgment in a wrongful death action. Eighth
Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Survivors of intoxicated invitee who choked to death in restaurant sued restaurant for
negligence, alleging that it breached duty of reasonable care owed to invitee when its
employees failed to administer Heimlich maneuver to him. The district court granted
summary judgment for restaurant. Survivors appealed. The supreme court, Agosti, J., held
that: (1) restaurant owed duty to invitee to act reasonably, but (2) restaurant had no duty to
administer Heimlich maneuver to invitee.
Affirmed.
Law Offices of Gus W. Flangas, Las Vegas, for Appellant.
Paula C. Gentile, Las Vegas, for Respondent.
When reviewing a district court's order granting summary judgment, the supreme court will determine whether the law has been
correctly perceived and applied by the district court. NRCP 56(c).
2. Judgment.
Summary judgment should only be granted by a district court when, after reviewing the pleadings and discovery on file, and
viewing them in a light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law. NRCP 56(c).
3. Judgment.
For summary judgment purposes, a genuine issue of material fact is one where the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. NRCP 56(c).
On appeal from a district court's order granting summary judgment, the supreme court reviews the district court's decision de
novo. NRCP 56(c).
5. Negligence.
In a negligence action, the question of whether a duty to act exists is a question of law solely to be determined by the court.
6. Negligence.
In Nevada, as under the common law, strangers are generally under no duty to aid those in peril.
7. Employers' Liability; Innkeepers; Negligence; Schools.
Where a special relationship exists between the parties, such as with an innkeeper-guest, teacher-student or employer-employee,
the law imposes an affirmative duty to aid others in peril.
8. Negligence.
One who is in control of the premises must take reasonable affirmative steps to aid an imperiled person.
9. Negligence.
Restaurant employees were under legal duty to come to aid of intoxicated patron who choked to death when his upper airway
became occluded by food he had been eating in restaurant. Special relationship existed between restaurant and its patrons, and there
was no dispute that restaurant was in control of premises.
10. Negligence.
If a legal duty exists, reasonable care under the circumstances must be exercised.
11. Negligence.
Whether a defendant's conduct was reasonable under a given set of facts is generally an issue for the jury to decide.
12. Negligence.
In some clear cases, the nature and extent of the defendant's duty is properly decided by the court.
13. Judgment.
Courts are reluctant to grant summary judgment in negligence cases because foreseeability, duty, proximate cause and
reasonableness usually are questions of fact for the jury. However, when the plaintiff as a matter of law cannot recover, the defendant is
entitled to a summary judgment. NRCP 56(c).
14. Negligence.
Restaurant employees' duty to take reasonable affirmative steps to aid intoxicated patron who choked to death when his upper
airway became occluded by food he had been eating in restaurant did not require employees to administer Heimlich maneuver to him.
Rather, employees discharged their duty by examining and assessing his condition immediately upon being summoned, by diligently
continuing to monitor his condition, and by summoning professional medical assistance when his medical condition deteriorated.
15. Negligence.
A person who has a duty to render aid to another must take reasonable affirmative steps to aid the party in peril.
OPINION
This is an appeal from the district court's order granting summary judgment in favor
of respondent GNLV Corporation. GNLV was the defendant below in a suit claiming
negligence and alleging wrongful death. Appellant Ahiliya Lee's husband, Bobby Lee Sturms,
choked to death when his upper airway became occluded by food he had been eating in
GNLV's restaurant.
by food he had been eating in GNLV's restaurant. On appeal, Lee argues that GNLV breached
its duty of reasonable care owed to Sturms when its employees failed to administer the
Heimlich maneuver to him. Since the question of a defendant's breach of duty in a negligence
action is generally considered a question of fact for the jury, Lee claims summary judgment
should not have been granted.
We conclude that GNLV did owe a duty to Sturms to act reasonably, and that, under
the circumstances presented in this case, GNLV's employees acted reasonably as a matter of
law by rendering assistance to Sturms and summoning professional medical aid once they
became aware that Sturms was in need of such assistance. Under the facts of this case, GNLV
did not, as a matter of law, breach the duty it owed to Sturms. Accordingly, we affirm the
district court's order granting summary judgment in GNLV's favor.
FACTS
The parties do not dispute the relevant facts. On March 27, 1995, the decedent, Bobby
Lee Sturms, and a companion were having dinner at the Carson Street Cafe, a restaurant
located within the Golden Nugget Hotel and Casino in Las Vegas. The respondent, GNLV, is
the owner and operator of the Golden Nugget Hotel and Casino and the Carson Street Caf. It
is undisputed that Sturms had been drinking that night and was intoxicated. Later, his blood
alcohol content was measured and determined to be 0.32 percent.
Sturms' companion observed that Sturms, after only a few bites of his meal, appeared
nauseated and seemed to be getting sick. Shortly thereafter, Sturms vomited in his lap and
on the floor, slumped over in his chair and closed his eyes. At this point, Sturms' companion
believed that Sturms had blacked out. Sturms' companion summoned a waitress and security
personnel. They arrived within sixty seconds, immediately checked Sturms' vital signs and
noted that Sturms' pulse was strong. At no time did Sturms choke or cough, or exhibit any
other signs that an object was obstructing his breathing. Soon thereafter, Sturms' pulse began
to slow. Immediately, security personnel radioed the hotel dispatcher and requested the
assistance of the Las Vegas Fire Department paramedics. While waiting for paramedics to
arrive, security personnel obtained an oxygen tank, laid Sturms on the floor and began CPR
procedures. Security personnel did not attempt mouth-to-mouth resuscitation.
Upon arrival, the paramedics took over the efforts to resuscitate Sturms. Their
attempts to clear Sturms' airway proved unsuccessful. Sturms was then transported to the
University Medical Center. At the emergency room, doctors attempted to clear Sturms'
airway, but these efforts were also unsuccessful.
Sturms' airway, but these efforts were also unsuccessful. At 10:10 p.m. doctors pronounced
Sturms dead.
An autopsy was performed the next day. The examining doctor stated that Sturms died
from asphyxia due to upper airway occlusion by food material. Sturms had choked to death
when food became lodged in his airway. In the doctor's view,
[choking to death] is not an unusual thing to have happen in a person who's severely
intoxicated. Whether they suddenly inhale what they're drinking or whether they vomit
inhaled stomach contents [sic] or if they're eating, they get back into the back [sic] of
the throat, they get an uncoordinated swallowing effort and [the food] goes into the
airway instead. This is not terribly unusual. This is one of the hazards of drinking too
much.
When asked whether security personnel could have saved Sturms' life, the examining doctor
testified, I doubt it. I doubt even an immediate Heimlich maneuver would have helped
[Sturms] . . . . [W]ith the material packed as tightly as we found it I seriously doubt that a
Heimlich maneuver would have been successful.
As a result of Sturms' death, Sturms' estranged wife, Ahiliya Lee, personally and on
behalf of their minor son, Aaron Lee, brought this wrongful death action, claiming negligence
on the part of GNLV. Pursuant to NRCP 56, GNLV moved for summary judgment. In its
motion, GNLV argued that although it owed a duty to Sturms to take reasonable steps to aid
him when it became apparent that he needed medical assistance, it fulfilled this duty when its
employees promptly summoned emergency medical assistance.
1
Lee opposed GNLV's
motion for summary judgment, asserting that GNLV did not exercise reasonable care
toward Sturms. The district court granted GNLV's motion.
In this appeal, Lee asserts that the district court erred in granting summary judgment
in favor of GNLV. She maintains that GNLV's duty encompassed not merely summoning
emergency medical assistance, but also tak[ing] reasonable affirmative steps to aid
[Sturms]. Furthermore, Lee claims that reasonable prudence required that [GNLV's]
security guards administer the Heimlich Maneuver to the [d]ecedent. Additionally, Lee
contends that since breach of duty in a negligence case is generally a question for the jury,
summary judgment was improperly granted by the district court.
__________

1
GNLV also argued in its motion for summary judgment that Lee incurred no damages as a result of Sturms'
death. Because we conclude that GNLV's employees acted reasonably under the circumstances, we need not
reach the damages issue.
DISCUSSION
[Headnotes 14]
When reviewing a district court's order granting summary judgment, this court will
determine whether the law has been correctly perceived and applied by the district court.
Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982). Additionally,
summary judgment should only be granted by a district court when, after reviewing the
pleadings and discovery on file, and viewing them in a light most favorable to the nonmoving
party, no genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985);
NRCP 56(c). 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. Posadas v. City of Reno,
109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993). Accordingly, we review the district court's
decision de novo. See Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591
(1992).
[Headnote 5]
Furthermore, in a negligence action, the question of whether a duty to act exists is a
question of law solely to be determined by the court. Scialabba v. Brandise Const. Co., Inc.,
112 Nev. 965, 968, 921 P.2d 928, 930 (1996); see also W. Page Keeton et al., Prosser and
Keeton on the Law of Torts 37, at 236 (5th ed. 1984). Therefore, under our de novo
standard of review, we must first determine whether such a relation exists between the
parties that the community will impose a legal obligation upon one for the benefit of the
other. Keeton et al., 37, at 236.
[Headnotes 68]
In Nevada, as under the common law, strangers are generally under no duty to aid
those in peril. See Sims v. General Telephone & Electric, 107 Nev. 516, 525, 815 P.2d 151,
157 (1991). This court, however, has stated that, where a special relationship exists between
the parties, such as with an innkeeper-guest, teacher-student or employer-employee, an
affirmative duty to aid others in peril is imposed by law. See id. at 526, 815 P.2d at 157-58
(citing Keeton et al., 56, at 376). Likewise, we have held that a party who is in control of
the premises' is required to take reasonable affirmative steps to aid the party in peril. Id. at
526, 815 P.2d at 158 (quoting Keeton et al., 56, at 376). Finally, while this court has not so
held, other jurisdictions have expressly stated that restaurant owners and their employees owe
an affirmative duty to come to the aid of patrons who become ill or are otherwise in need of
medical attention. See Breaux v. Gino's, Inc., 200 Cal. Rptr. 260, 261 (Ct. App. 1984) (It is
well established that restaurants have a legal duty to come to the assistance of their
customers who become ill or need medical attention . . . .");
restaurants have a legal duty to come to the assistance of their customers who become ill or
need medical attention . . . .); Drew v. LeJay's Sportsmen's Cafe, Inc., 806 P.2d 301, 306
(Wyo. 1991) (A restaurant whose employees are reasonably on notice that a customer is in
distress and in need of emergency medical attention has a legal duty to come to the assistance
of that customer.).
[Headnote 9]
Because a special relationship exists between a restaurateur and his patrons, and
because there is no dispute that GNLV was in control of the premises, GNLV's employees
were under a legal duty to come to the aid of Sturms. GNLV does not dispute that a duty was
owed to Sturms. Thus, the issue in this case is not whether GNLV owed a duty to Sturms.
Rather, the narrower issues presented in this case concern the nature and extent of GNLV's
duty to Sturms, and whether GNLV's employees breached that duty.
[Headnotes 10, 11]
The law is clear that if a legal duty exists, reasonable care under the circumstances
must be exercised. See Sims, 107 Nev. at 526-27, 815 P.2d at 157-58; Keeton et al., 37, at
237 and 56, at 377-78. Whether a defendant's conduct was reasonable under a given set of
facts is generally an issue for the jury to decide. See Sims, 107 Nev. at 527, 815 P.2d at 158.
Thus, Lee argues that because the issue of reasonableness is usually an issue for the jury to
decide, summary judgment was improperly granted by the district court.
[Headnotes 12, 13]
While we agree with this general proposition, we note that, in some clear cases, the
nature and extent of the defendant's duty is properly decided by the court.
2
Thus, we have
stated that [c]ourts are reluctant to grant summary judgment in negligence cases because
foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the
jury . . . . But when plaintiff as a matter of law cannot recover, defendant is entitled to a
summary judgment.' See Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 417, 633 P.2d
1220, 1222 (1981) (quoting Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022
(1970)); see also Keeton et al., 37, at 237 (It is possible to say, in many cases, that the
conduct of the individual clearly has or has not conformed to what the community requires,
and that no reasonable jury could reach a contrary conclusion.").
__________

2
Such would be the case under the negligence per se doctrine. See Ashwood v. Clark County, 113 Nev. 80,
86, 930 P.2d 740, 744 (1997) (stating that [a] violation of statute establishes the duty and breach elements of a
negligence action).
conformed to what the community requires, and that no reasonable jury could reach a
contrary conclusion.). We conclude that this is such a case.
[Headnote 14]
Lee contends that not only did GNLV have a duty to act reasonably, but also that
reasonableness under the circumstances of this case specifically required GNLV to administer
the Heimlich maneuver to Sturms. In her brief to this court, Lee contends that [p]roprietors
of Hotel Casinos are in the best position to prevent the type of harm which befell the
[d]ecedent. Lee claims that the imposition of such a duty on parties such as GNLV is not
onerous or burdensome. Lee further contends that the reasonable standard of care mandates
the use of the Heimlich maneuver because a choking victim may have only minutes before
serious injury or death results, and because the Heimlich maneuver is relatively simple to
perform.
[Headnote 15]
This court has stated that a person who has a duty to render aid to another must take
reasonable affirmative steps to aid the party in peril. Sims, 107 Nev. at 526, 815 P.2d at
157-58 (citing Keeton et al., 56, at 376). While GNLV must take reasonable affirmative
steps to aid a patron such as Sturms who is in need of first aid, this court has never ruled on
the specific question of what exactly those reasonable affirmative steps entail.
Although this court has not spoken on this specific issue,
3
four other jurisdictions
have reported opinions on this subject. See Breaux, 200 Cal. Rptr. at 260; Coccarello v.
Round Table of Coral Gables, Inc., 421 So. 2d 194 (Fla. Dist. Ct. App. 1982); Parra v.
Tarasco, Inc., 595 N.E.2d 1186 (Ill. App. Ct. 1992); Drew, 806 P.2d at 301. Most instructive
is the decision of the Wyoming Supreme Court in Drew, a case remarkably similar to the case
before this court, in which a patron who was arguably intoxicated choked on his meal after
only a few bites. 806 P.2d at 302. Customers near the choking man laid him on the floor and
proceeded to give him mouth-to-mouth resuscitation. Id. at 303.
__________

3
We note that while the Nevada Legislature has not addressed this specific issue, several statutes have been
adopted that impose duties to render aid in particular situations. See, e.g., NRS 484.223(c) (requiring motorists
to stop and render reasonable assistance in certain circumstances); NRS 616C.085(1) (mandating that
employers render all necessary first aid to injured employees).
Notably, the Nevada Legislature has also enacted a statute that encourages rendering first aid. Thus, in
Nevada, one who renders emergency care or assistance in an emergency, gratuitously and in good faith, is not
liable for any civil damages as a result of any act or omission, not amounting to gross negligence. NRS
41.500(1). However, this statute does not apply to this case. See Sims, 107 Nev. at 526, 815 P.2d at 157.
proceeded to give him mouth-to-mouth resuscitation. Id. at 303. Eventually, medical help was
summoned. Id. The plaintiffs in that case argued that the employees of the restaurant owed
patrons who become ill a duty to render first aid. Id. at 301-02. Ruling against the plaintiffs,
the court held that [a restaurateur] did not owe a duty to provide medical training to its food
service personnel, or medical rescue services to its customers. Id. at 302. The court, noting
the burden that would be placed on those in the food service industry, coupled with the low
probability that this situation would occur on a regular basis, held that summoning medical
assistance within a reasonable time satisfies the requirement that a restaurateur exercise
reasonable care. Id. at 306.
Likewise, the Florida Court of Appeal held in Coccarello:
A proprietor of a public place has a duty only to take reasonable action to give or secure
first aid after he knows that a patron is ill or injured; he is not required to take any
action beyond that which is reasonable under the circumstances. The action taken by
the proprietor under the circumstances herein [summoning a medical rescue team
within five minutes of discovering the patron was choking] was reasonable.
421 So. 2d at 195 (citations omitted). Similarly, the Illinois court stated in Parra that [a]s a
general rule, a restaurateur is not an insurer of his customers' safety against all personal
injuries. Parra, 595 N.E.2d at 1188. Finally, commentators on this subject declare that one
who is under a duty to render medical assistance will seldom be required to do more than
give such first aid as he reasonably can, and take reasonable steps to turn the sick person over
to a doctor or to those who will look after him until one can be brought. Keeton et al., 56,
at 377.
Nevada imposes a duty on GNLV to take reasonable affirmative steps to aid patrons
in need of medical attention. In this case, GNLV's employees examined and assessed Sturms'
condition immediately upon being summoned by Sturms' dining companion. GNLV
employees diligently continued to monitor Sturms' condition until his condition worsened.
Upon realizing that Sturms' medical condition was deteriorating, GNLV's employees
summoned professional medical assistance. Thus, we cannot say that the behavior of GNLV's
employees in these circumstances was anything other than reasonable. We perceive no
breach of the duty owed to Sturms in failing to perform the Heimlich maneuver. Accordingly,
although GNLV's employees owed a duty to Sturms to act reasonably, we are able to
conclude as a matter of law that GNLV's employees did not breach this duty.
CONCLUSION
We conclude that, under the circumstances presented in this case, GNLV's employees
acted reasonably as a matter of law by rendering medical assistance to Sturms and
summoning professional medical aid within a reasonable time. In this case, GNLV's
employees were under no legal duty to administer the Heimlich maneuver to Sturms.
Therefore, we affirm the district court's grant of summary judgment in favor of GNLV.
Shearing and Leavitt, JJ., concur.
____________
117 Nev. 299, 299 (2001) Secretary of State v. Tretiak
SECRETARY OF STATE, SECURITIES DIVISION, an Agency of the State of Nevada,
Appellant/Cross-Respondent, v. ROBERT TRETIAK, RETIREMENT FINANCIAL
CENTERS OF AMERICA, INC., and RFCA FINANCIAL SERVICES, INC.,
Respondents/Cross-Appellants.
No. 33665
May 15, 2001 22 P.3d 1134
Appeal and cross-appeal from a district court order granting in part and denying in
part a petition for judicial review. Eighth Judicial District Court, Clark County; Mark W.
Gibbons, Judge.
Secretary of State, Securities Division, brought enforcement action against issuing
corporation, its officer, and broker-dealer, alleging that respondents committed numerous
securities violations in connection with corporation's public offering. Division found
securities violations and imposed sanctions against all three respondents. Respondents
petitioned for judicial review. The district court denied petition, but modified sanctions
imposed against officer and broker-dealer. Division appealed, and respondents
cross-appealed. The supreme court held that: (1) record supported finding that officer and
broker-dealer committed numerous securities violations; (2) district court erred in modifying
sanctions imposed by Division; and (3) in issue of first impression, reliance and scienter are
not required elements of securities fraud in state enforcement actions.
Affirmed in part; reversed in part.
Frankie Sue Del Papa, Attorney General, and Tracey J. Brierly and Matthew S. Gabe,
Deputy Attorneys General, Carson City, for Appellant/Cross-Respondent.
Christensen & Boggess, Las Vegas, for Respondents/Cross-Appellants.
When reviewing an administrative decision, the supreme court's role is identical to that of the district court. Thus, the court must
review the evidence presented to the agency in order to determine whether the agency's decision was arbitrary or capricious and was
thus an abuse of the agency's discretion. NRS 233B.135(3)(f).
When reviewing the decision of an administrative agency, a court is limited to the agency record, and may not substitute its
judgment for that of the agency as to the weight of evidence on questions of fact. NRS 233B.135(3).
An administrative decision may be set aside in whole or in part, if the final decision is clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record. NRS 233B.135(3)(e).
When reviewing the decision of an administrative agency, the question before the supreme court is whether the agency's final
decision was based on substantial evidence. If it was, neither that court, nor the district court, may substitute its judgment for the
agency's determination. NRS 233B.135(3)(e).
For purposes of determining whether substantial evidence supports an administrative decision, substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion. NRS 233B.135(3)(e).
6. Securities Regulation.
Record in enforcement proceedings by Secretary of State, Securities Division, supported finding that officer of issuing
corporation committed numerous securities violations in connection with corporation's public offering. Record showed that officer
misrepresented that offering period had been extended, continued to sell stock after registration period had expired, received
compensation as franchise director without approval of board of directors and outside normal accounting procedures, charged over
$35,000.00 in personal expenses to credit card issued to corporation, manipulated offering to earn cash commissions on non-cash stock
sales, and continued to use prospectus even though many significant events had changed. NRS 90.570(2), (3).
Record in enforcement proceedings by Secretary of State, Securities Division, supported finding that broker-dealer committed
numerous securities violations in connection with issuing corporation's public offering. Record showed that broker-dealer did not
comply with registration laws, violated disclosure laws, failed to register branch, conducted trades at unfair prices, allowed employees
to benefit at expense of customers, and breached its fiduciary duty to act in best interests of customers. NRS 90.570(2), (3).
Record in enforcement proceedings by Secretary of State, Securities Division, supported order barring corporate officer from
association with licensed broker-dealer or investment adviser in Nevada for at least five years, due to
securities violations committed in connection with corporation's public offering.
licensed broker-dealer or investment adviser in Nevada for at least five years, due to securities violations committed in connection with
corporation's public offering. Hearing officer found that corporate officer's self-justification indicated lack of remorse and lack of
recognition that he had done anything wrong, thus suggesting that such violations might recur if he were allowed opportunity, and
Division reviewed officer's conduct and determined that appropriate sanction was warranted to prevent future securities violations.
NRS 90.630(2)(c).
Record in enforcement proceedings by Secretary of State, Securities Division, supported revocation of broker-dealer's license for
numerous securities violations in connection with issuing corporation's public offering. Hearing officer found that broker-dealer's
failures were prevalent and egregious, and Division reviewed broker-dealer's breach of fiduciary duty and concluded that revocation of
its license was necessary to prevent future securities violations. NRS 90.420(1)(b).
Where sanctions imposed by Secretary of State, Securities Division, in securities fraud enforcement action were not abuse of
discretion, district court erred in modifying those sanctions. NRS 90.420(1)(b), 90.630(2)(c).
Reliance and scienter are not required elements of securities fraud in state enforcement actions. NRS 90.570(2), (3).
12. 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.
Statute setting forth procedure to be followed when majority of agency's officers rendering final decision have not heard case or
read record was inapplicable in enforcement action by Secretary of State, Securities Division, as Deputy Secretary of State read
administrative record prior to executing Division's final decision. NRS 233B.124.
OPINION
Per Curiam:
This case involves interpretation of the Nevada Uniform Securities Act and the
elements necessary to prove securities fraud in state enforcement actions initiated under NRS
90.570(2) and (3). Respondents argue that reliance and scienter are required elements of
securities fraud. According to respondents, if either element is missing, a claim of securities
fraud must fail. In contrast, appellant, Nevada Secretary of State, Securities Division
{"Division"), argues that the common law elements of fraud are not necessary to prove a
claim of securities fraud under NRS 90.570{2) and {3).
(Division), argues that the common law elements of fraud are not necessary to prove a
claim of securities fraud under NRS 90.570(2) and (3). We conclude that reliance and scienter
are not required elements of securities fraud in state enforcement actions initiated under NRS
90.570(2) and (3).
FACTS
Respondent Retirement Financial Centers of America, Inc. (Retirement), is a
Nevada corporation, and its business consists of helping senior citizens perform financial
planning for retirement. Respondent Robert Tretiak is the founder, chief executive officer,
chairman, president and director of Retirement. Prior to this action, Tretiak possessed a
National Association of Securities Dealers (NASD) license. Respondent RFCA Financial
Services, Inc. (RFCA Financial), is a Nevada corporation and, prior to this action, was
registered as a broker-dealer with the Division and NASD.
In October 1994, Retirement made a public offering of almost $1,000,000.00. The
public offering was registered with the Division under Nevada's Small Corporate Offering
Registration (SCOR) program.
1
According to the prospectus, the offering was intended to
raise money for the company's expansion to a nationwide chain of franchises. Also, the
prospectus stated that Retirement wanted to raise money to purchase a high profile 1-acre
building site on Lake Mead Boulevard in Las Vegas for the company's headquarters.
Although the prospectus was approved by the Division, many of the disclosures set
forth in the prospectus were disregarded by respondents. Thus, on September 4, 1996, the
Division filed a complaint against respondents alleging numerous securities violations.
Following a seventeen-day hearing, a hearing officer issued findings of fact, recommended
conclusions of law and recommended sanctions. The hearing officer concluded that
respondents committed numerous securities violations that warranted the imposition of
sanctions.
The hearing officer concluded that the prospectus used by Retirement to solicit
investors was false, incomplete, and misleading in material respects."
__________

1
The SCOR program is designed to aid small businesses in carrying out their first public offerings. The
SCOR prospectus utilizes a question and answer format to elicit information about the company; then, this
information is disclosed to potential investors. Generally, company officials can prepare the prospectus, often
avoiding the need to engage experienced securities attorneys to accomplish registration. Accordingly, Tretiak
prepared, read and signed the prospectus to be distributed to investors in Retirement's initial public offering.
leading in material respects. Specifically, the hearing officer found that the total amount of
money spent on franchise development was significantly more than the amount set forth in
the prospectus. Moreover, the hearing officer found that the Lake Mead Boulevard property
was not acquired in the manner set forth in the prospectus. Rather, Retirement used borrowed
funds to purchase the property. Because investor funds were not used to purchase the
property, Retirement used the money raised in the public offering in manners not set forth in
the prospectus.
Additionally, the hearing officer concluded that [t]he improper conduct that resulted,
and the failures of other Respondents, were all a direct result of actions taken by Tretiak.
The hearing officer found that Tretiak misrepresented that the offering period had been
extended and that he continued to sell stock after the registration period had expired.
Moreover, the hearing officer found that Tretiak received compensation as franchise director
without the approval of the board of directors and outside normal accounting procedures.
Further, the hearing officer found that Tretiak charged over $35,000.00 in personal expenses
to a credit card issued to Retirement. Also, the hearing officer found that Tretiak manipulated
the offering to earn cash commissions on non-cash stock sales. Finally, because Tretiak
continued to use the prospectus even though many significant events had changed, the
hearing officer concluded that Tretiak's conduct justified the imposition of sanctions.
As to Retirement, the hearing officer concluded that Retirement, as issuer of the stock,
also committed securities violations. First, the hearing officer found that Retirement allowed
its stock to be sold by using a prospectus that was false and misleading. Second, the hearing
officer found that Retirement's stock was sold after the registration period had expired. Third,
the hearing officer found that Retirement improperly paid commissions and compensation to
Tretiak. Accordingly, the hearing officer recommended that sanctions be imposed against
Retirement.
Finally, with respect to RFCA Financial, the hearing officer concluded as follows:
[RFCA Financial] utterly failed to carry out its fiduciary duty to customers and stock
purchasers. In so doing, it failed in the areas that are most fundamental for licensed
broker-dealers. It did not comply with registration laws. It violated disclosure laws. It
failed to register a branch. It conducted trades at unfair prices. It allowed employees to
benefit at the expense of customers. It breached its fiduciary duty to act in the best
interests of customers.
Thus, the hearing officer determined that RFCA Financial's conduct justified the imposition
of sanctions.
On June 27, 1997, the Division adopted the hearing officer's findings of fact,
recommended conclusions of law and recommended sanctions. Further, the Division issued a
final order and sanctioned respondents as follows: (1) Retirement was ordered to cease and
desist from further violations of the Nevada Uniform Securities Act; (2) Tretiak was barred
from association with a licensed broker-dealer or investment adviser in the State of Nevada,
but he could apply to have the bar lifted after five years; and (3) RFCA Financial's
broker-dealer license was revoked.
On August 27, 1997, respondents petitioned the district court for judicial review. On
January 6, 1999, the district court denied the petition because it determined that substantial
evidence existed to support the Division's findings of fact. Nonetheless, the district court
concluded that the sanctions imposed against Tretiak and RFCA Financial were an abuse of
discretion. The district judge stated: I think that [the] punishment is disproportionate to the
offense and I elect to make a partial modification in that regard, to me there is a big difference
between Mr. Tretiak running his own company and being allowed to practice in an advisory
capacity. Therefore, the district court modified Tretiak's punishment as follows: (1) Tretiak
could apply for a license in a supervised capacity after January 1, 1999, and (2) Tretiak could
apply for a license in an unsupervised capacity after January 1, 2002. Further, the district
court determined that a permanent revocation of RFCA Financial's broker-dealer license was
too harsh. Accordingly, the district court concluded that RFCA Financial could apply for a
broker-dealer license after January 1, 1999; however, the license could only be obtained on a
supervised basis.
On appeal, the Division contends that the district court improperly modified the
sanctions imposed against Tretiak and RFCA Financial. The Division asserts that a district
court may not modify an agency's final decision when the underlying findings of fact of that
decision are found to be supported by substantial evidence. Moreover, the Division argues
that it was improper for the district court to characterize the sanctions as an abuse of
discretion. Accordingly, the Division requests that this court reverse that portion of the
district court's order modifying the sanctions imposed against Tretiak and RFCA Financial.
On cross-appeal, respondents contend that the Division's final decision should be set
aside in its entirety because their substantial rights have been prejudiced. Specifically,
respondents assert that the hearing officer misinterpreted the elements required to prove
securities fraud.
prove securities fraud. Because the hearing officer and the Division found that reliance and
scienter were not required elements of securities fraud in state enforcement actions initiated
under NRS 90.570(2) and (3), respondents urge this court to reverse that portion of the
district court's order denying judicial review, and to instruct the district court to set aside the
Division's final decision in its entirety.
DISCUSSION
[Headnotes 13]
When reviewing an administrative decision, this court's role is identical to that of the
district court.
2
This court must review the evidence presented to the agency in order to
determine whether the agency's decision was arbitrary or capricious and was thus an abuse of
the agency's discretion.
3
Additionally, [w]hen reviewing the decision of an administrative
agency, a court is limited to the agency record, and may not substitute its judgment for that of
the agency as to the weight of evidence on questions of fact.
4
Nonetheless, an
administrative decision may be set aside in whole or in part, if the final decision is [c]learly
erroneous in view of the reliable, probative and substantial evidence on the whole record.
5

[Headnotes 4, 5]
Thus, the question before us is whether the agency's final decision was based on
substantial evidence.
6
If it was, neither this court, nor the district court, may substitute its
judgment for the administrator's determination.
7
Furthermore, [s]ubstantial evidence has
been defined as that which []a reasonable mind might accept as adequate to support a
conclusion.[]'
8

__________

2
Clements v. Airport Authority, 111 Nev. 717, 721, 896 P.2d 458, 460 (1995).

3
Id.; NRS 233B.135(3)(f).

4
Beavers v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993); NRS 233B.135(3);
see also Clark Co. Liquor & Gaming v. Simon & Tucker, 106 Nev. 96, 98, 787 P.2d 782, 783 (1990).

5
NRS 233B.135(3)(e) (emphasis added); see also State, Dep't of Prisons v. Jackson, 111 Nev. 770, 772, 895
P.2d 1296, 1297 (1995).

6
Bally's Grand Hotel & Casino v. Reeves, 113 Nev. 926, 935-36, 948 P.2d 1200, 1206 (1997) (stating that
an agency's decision will only be affirmed if there is substantial evidence to support the decision).

7
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 607-08, 729 P.2d 497, 498 (1986).

8
Id. at 608, 729 P.2d at 498 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))); accord State, Emp. Sec. Dep't v. Holmes, 112
Nev. 275, 280, 914 P.2d 611, 614 (1996).
[Headnotes 6, 7]
With respect to the Division's decision to sanction Tretiak and RFCA Financial, we
conclude that substantial evidence was presented at the administrative hearing to support the
imposition of sanctions. A reasonable mind could review the evidence and determine that
Tretiak and RFCA Financial committed numerous securities violations.
[Headnote 8]
Further, we conclude that the sanctions imposed against Tretiak and RFCA Financial
were not disproportionate to the securities violations committed. The hearing officer
recommended that Tretiak be sanctioned because Tretiak's self justification indicates a lack
of remorse and a lack of recognition that he has done anything wrong. This suggests that
these problems might recur if Tretiak were allowed the opportunity. Thus, in accordance
with NRS 90.630(2)(c),
9
Tretiak was barred from association with a licensed broker-dealer
or investment adviser in the State of Nevada; however, Tretiak could apply to have the bar
lifted after five years. The Division reviewed Tretiak's conduct and determined that an
appropriate sanction was warranted to prevent future securities violations. Therefore, the
sanction imposed against Tretiak was not an abuse of discretion.
[Headnote 9]
As to RFCA Financial, the hearing officer recommended that RFCA Financial be
sanctioned because [its] failures were so prevalent, and so egregious, I question whether the
firm ever could demonstrate the ability or the intent to comply with the law. Thus, in
accordance with NRS 90.420(1)(b),
10
RFCA Financial's broker-dealer license was
revoked.
__________

9
NRS 90.630(2)(c) states as follows:
If the administrator reasonably believes, whether or not based upon an investigation conducted under
NRS 90.620, that a person has violated this chapter or a regulation or order of the administrator under
this chapter, the administrator, in addition to any specific power granted under this chapter, after giving
notice by registered or certified mail and conducting a hearing in an administrative proceeding, unless the
right to notice and hearing is waived by the person against whom the sanction is imposed, may . . . [b]ar
or suspend him from association with a licensed broker-dealer or investment adviser in this state.

10
NRS 90.420(1)(b) states as follows:
The administrator by order may . . . revoke any license . . . if the administrator finds that the order is in
the public interest and that the . . . broker-dealer . . . [h]as violated or failed to comply with a provision of
this chapter as now or formerly in effect or a regulation or order adopted or issued under this chapter . . . .
Financial's broker-dealer license was revoked. This sanction is not disproportionate to the
securities violations committed by RFCA Financial. The Division reviewed RFCA Financial's
breach of fiduciary duty and concluded that revocation of its broker-dealer license was
necessary to prevent future securities violations. Therefore, the sanction imposed against
RFCA Financial was not an abuse of discretion.
[Headnote 10]
Because the Division's sanctions were not an abuse of discretion, the district court
erred in modifying the sanctions imposed against Tretiak and RFCA Financial. Accordingly,
we reverse that portion of the district court's order modifying the sanctions imposed against
Tretiak and RFCA Financial.
On cross-appeal, respondents argue that the district court erred in denying their
petition for judicial review. Moreover, respondents contend that the district court should have
set aside the Division's final decision in its entirety. Specifically, respondents assert that the
hearing officer and the Division misinterpreted the law when they concluded that reliance and
scienter are not required elements of securities fraud in state enforcement actions initiated
under NRS 90.570(2) and (3).
11

In support of their argument, respondents contend that NRS 90.570 parallels
Securities and Exchange Commission Rule 10b-5,
12
which requires a plaintiff to prove
reliance and scienter in a private action alleging federal securities fraud.
__________

11
The relevant provisions of NRS 90.570 provide as follows:
In connection with the offer to sell, sale, offer to purchase or purchase of a security, a person shall not,
directly or indirectly:
. . . .
2. Make an untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements made not misleading in the light of the circumstances under which they are made; or
3. Engage in an act, practice or course of business which operates or would operate as a fraud or
deceit upon a person.

12
Rule 10b-5 states as follows:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of
interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in
order to make the statements made, in the light of the circumstances under which they were made, not
misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or
deceit upon any person,
in connection with the purchase or sale of any security.
17 C.F.R. 240.10b-5 (2000); cf. NRS 90.570(2) and (3).
private action alleging federal securities fraud.
13
Therefore, respondents maintain that the
Division should be required to prove reliance and scienter in a state securities fraud action.
According to respondents, if the Division is unable to prove reliance and scienter, then a
claim of securities fraud initiated under NRS 90.570(2) and (3) must fail.
In contrast, the Division urges this court to conclude that reliance and scienter are not
required elements of securities fraud in state enforcement actions initiated under NRS
90.570(2) and (3). First, the Division argues that NRS 90.570(2) and (3) should not be
interpreted consistently with Rule 10b-5 because the federal statute concerns private party
civil actions, not government enforcement actions.
Second, the Division contends that reliance and scienter, which are common law
elements of fraud,
14
are not required elements of securities fraud in state enforcement actions
initiated under NRS 90.570(2) and (3). In support of this contention, the Division points out
that under NRS 90.245, [f]raud,' deceit' and defraud' are not limited to common-law fraud
or deceit. Thus, because the Division is not statutorily restricted by the common law
definition of fraud, the Division asserts that reliance and scienter are not required elements of
securities fraud in state enforcement actions.
Finally, because we have not previously considered whether reliance and scienter are
required elements of securities fraud in state enforcement actions initiated under NRS
90.570(2) and (3), the Division urges us to follow case law from other jurisdictions, both
state and federal, concluding that these elements are not necessary.
__________

13
See Paracor Finance v. General Elec. Capital Corp., 96 F.3d 1151, 1157 (9th Cir. 1996) (stating that
[t]he elements of a Rule 10b-5 claim are: (1) a misrepresentation or omission of a material fact, (2) reliance, (3)
scienter, and (4) resulting damages); see also Shivers v. Amerco, 670 F.2d 826, 831 (9th Cir. 1982) (stating that
[t]he blue sky laws of . . . Nevada . . . parallel Rule 10b-5 . . . . Since . . . Nevada . . . chose to enact laws
paralleling Rule 10b-5, we think it only logical that [Nevada] intended the statutes to be interpreted consistently
with the federal rule).

14
See Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 111, 825 P.2d 588, 592 (1992) (stating that in order to
prevail on claim alleging common law fraud, each of the following elements must be proven by clear and
convincing evidence: (1) a misrepresentation made by the defendant; (2) defendant's knowledge of the
misrepresentation; (3) defendant's intent to defraud the plaintiff (scienter); (4) reliance by the plaintiff; and (5)
resulting damage to the plaintiff from such reliance).
both state
15
and federal,
16
concluding that these elements are not necessary.
[Headnote 11]
We are convinced by the Division's position and conclude that reliance and scienter
90.570(2) and (3). NRS 90.570(2) and (3) should not be interpreted consistently with Rule
10b-5 because the federal statute deals with private party civil actions, not state enforcement
actions. The underlying policy of the Nevada Uniform Securities Act is to prevent
unnecessary loss to investors. If the Division were required to wait until an investor relies on
untrue statement[s] of a material fact
17
in order to enjoin securities fraud, then the
purpose of securities regulations would be frustrated.
__________

15
See, e.g., State v. Gunnison, 618 P.2d 604, 607 (Ariz. 1980) (holding that scienter is not an element of a
violation of Ariz. Rev. Stat. 44-1991(2) [cf. NRS 90.570(2)], even though it may be an element of Ariz. Rev.
Stat. 44-1991(1) [cf. NRS 90.570(1)]); State v. Shama Resources Ltd. Partnership, 899 P.2d 977, 982 (Idaho
1995) (holding that the state need not make a showing of scienter under Idaho Code 30-1403(2) and (3) [cf.
NRS 90.570(2) and (3)]); State, Dept. of Finance v. Tenney, 858 P.2d 782, 788 (Idaho Ct. App. 1993) (holding
that reliance is not a required element of securities fraud in a state enforcement action in Idaho); Manns v.
Skolnik, 666 N.E.2d 1236, 1248 (Ind. Ct. App. 1996) (stating that scienter is not an element of securities fraud in
Indiana); Arnold v. Dirrim, 398 N.E.2d 426, 435 (Ind. Ct. App. 1979) (holding that reliance is not an element to
be proven under securities fraud in Indiana); State v. Dumke, 901 S.W.2d 100, 103 (Mo. Ct. App. 1995) (To
sustain a conviction under the [Missouri Uniform Securities Act], it is not necessary to find that the accused
realized his conduct was in violation of registration requirements.); Everts v. Holtmann, 667 P.2d 1028, 1033
(Or. Ct. App. 1983) (stating that the Oregon Securities Law imposes liability without regard to whether the
buyer relies on the omission or misrepresentation); Bradley v. Hullander, 249 S.E.2d 486, 495 (S.C. 1978)
(stating that reliance and causation are not necessary elements to prove securities fraud in South Carolina); State
v. Larsen, 865 P.2d 1355, 1360 (Utah 1993) (If the [Utah] [L]egislature had wanted scienter for perceived
public policy reasons, it could have included that requirement. It did not, and we will not.); Esser Distributing
Co., Inc. v. Steidl, 437 N.W.2d 884, 886-87 (Wis. 1989) (stating that the Wisconsin Uniform Securities Act does
not require the showing of reliance in a securities fraud action); State v. Temby, 322 N.W.2d 522, 526 (Wis. Ct.
App. 1982) (stating that scienter is not an element of securities fraud in Wisconsin).

16
See, e.g., S.E.C. v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985) (stating that the Commission is not required
to prove that any investor actually relied on the misrepresentations or that the misrepresentations caused any
investor to lose money); Securities & Exch. Comm'n v. North American R. & D. Corp., 424 F.2d 63, 84 (2d
Cir. 1970) (stating that the SEC need not show reliance in order to prove securities fraud); Berko v. Securities
and Exchange Commission, 316 F.2d 137, 143 (2d Cir. 1963) ([T]he fact that the salesman's clients were not
misled and indeed may even have profited from his actions is legally irrelevant.).

17
NRS 90.570(2).
order to enjoin securities fraud, then the purpose of securities regulations would be frustrated.
The Division must be able to enjoin suspected securities fraud before an investor relies on the
fraud to his or her detriment.
Additionally, as mentioned above, NRS 90.245 states that the definition of fraud is
not limited to common law fraud. Thus, even though common law fraud requires proof of
reliance and scienter, these limitations do not apply to state securities fraud actions initiated
under NRS 90.570(2) and (3). Furthermore, the Nevada Uniform Securities Act must be
applied and construed to effectuate its general purpose to make uniform the law with respect
to the subject of [NRS Chapter 90] among states enacting it and to coordinate the
interpretation and administration of [NRS Chapter 90] with the related federal laws and
regulations.
18
Our holding, that reliance and scienter are not required elements of securities
fraud in state enforcement actions initiated under NRS 90.570(2) and (3), is consistent with
the conclusion reached by other state courts that have addressed the issue.
Our holding, with respect to the scienter requirement, is also consistent with the
United States Supreme Court's ruling in Aaron v. Securities and Exchange Commission.
19
In
Aaron, the Court ruled that scienter is not a necessary element to prove securities fraud under
15 U.S.C. sections 77q(a)(2) and (3) (1976), a federal statute that is almost identical to the
Nevada statute at issue here. The Court concluded that scienter is not a necessary element
because the federal statute is devoid of any suggestion whatsoever of a scienter
requirement.
20
Moreover, the Court determined that the language of the federal statute
quite plainly focuses upon the effect of particular conduct on members of the investing
public, rather than upon the culpability of the person responsible.
21

In dictum, however, the Court noted that if a district court is considering whether to
prevent a person from violating securities laws, when that person has not yet committed a
violation, the court may need to consider scienter:
In cases where the [Securities and Exchange] Commission is seeking to enjoin a person
about to engage in any acts or practices which . . . will constitute a violation of those
provisions, the Commission must establish a sufficient evidentiary predicate to show
that such future violation may occur.
__________

18
NRS 90.860.

19
446 U.S. 680 (1980).

20
Id. at 696.

21
Id. at 697.
tiary predicate to show that such future violation may occur. An important factor in this
regard is the degree of intentional wrongdoing evident in a defendant's past conduct.
Moreover, as the Commission recognizes, a district court may consider scienter or lack
of it as one of the aggravating or mitigating factors to be taken into account in
exercising its equitable discretion in deciding whether or not to grant injunctive relief.
And the proper exercise of equitable discretion is necessary to ensure a nice
adjustment and reconciliation between the public interest and private needs.
22

Thus, the Court encourages district courts to at least consider the scienter element before
enjoining suspected future wrongdoing.
[Headnote 12]
In light of the holding in Aaron, we conclude that scienter is not a required element of
securities fraud in state enforcement actions initiated under NRS 90.570(2) and (3). First, the
plain language of NRS 90.570(2) and (3) does not specify a scienter requirement. This court
has consistently held 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.'
23
Accordingly, this court will
not infer a scienter requirement where the Nevada Legislature did not specifically set forth
one in the statute.
Second, like the federal statute discussed in Aaron, NRS 90.570(3) states that it is
unlawful to [e]ngage in an act, practice or course of business which operates or would
operate as a fraud or deceit upon a person. (Emphasis added.) This language, as does its
federal counterpart, focuses upon the effect of particular conduct on members of the
investing public, rather than upon the culpability of the person responsible.
24
The policy
behind NRS 90.570(3), to protect investors, is served by the focus of this language.
[Headnote 13]
Because reliance and scienter are not required elements of securities fraud in state
enforcement actions initiated under NRS 90.570(2) and (3), the hearing officer correctly
interpreted the elements required to prove securities fraud. Accordingly, the substantial
rights of respondents have not been prejudiced. court's order denying judicial review, nor
need we instruct the district court to set aside the Division's final decision in its entirety.
__________

22
Id. at 701 (citations omitted) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)).

23
State, Div. of Insurance v. State Farm, 116 Nev. 290, 293, 995 P.2d 482, 485 (2000) (quoting State v.
Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922)).

24
Aaron, 446 U.S. at 697.
stantial rights of respondents have not been prejudiced. Therefore, this court need not reverse
that portion of the district court's order denying judicial review, nor need we instruct the
district court to set aside the Division's final decision in its entirety.
25

CONCLUSION
The district court erred when it modified the sanctions imposed against Tretiak and
RFCA Financial. Because the Division's decision to sanction Tretiak and RFCA Financial
was supported by substantial evidence, the sanctions were not an abuse of discretion. Further,
the sanctions imposed against Tretiak and RFCA Financial were not disproportionate to the
securities violations committed because the sanctions imposed were within the statutory
limits set forth in NRS 90.420(1)(b) and NRS 90.630(2)(c). Accordingly, we reverse that
portion of the district court's order modifying the sanctions imposed against Tretiak and
RFCA Financial.
Furthermore, for the reasons set forth herein, we conclude that reliance and scienter
90.570(2) and (3). Thus, we affirm that portion of the district court's order denying judicial
review.
__________

25
On cross-appeal, respondents raise several other arguments as to why the Division's final decision should
be set aside in its entirety. Specifically, respondents argue that the Division's complaint did not provide adequate
notice; the hearing officer utilized the wrong standard of proof; the hearing officer improperly analyzed Tretiak's
Securities and Exchange Commission Rule 144 violations, 15 U.S.C. 77a77aa (1998); and the Division
failed to follow the requirements of NRS 233B.124. We conclude that these arguments lack merit. First, the
Division's complaint afforded respondents an adequate opportunity to prepare for the allegations presented at the
administrative hearing. Second, the hearing officer utilized the appropriate standard of proof. Third, respondents'
argument regarding the analysis of SEC Rule 144 is moot because the hearing officer determined that the
Division did not establish that SEC Rule 144 was violated. Last, the requirements set forth in NRS 233B.124 are
inapplicable because the Deputy Secretary of State read the administrative record prior to executing the
Division's final decision.
____________
117 Nev. 313, 313 (2001) Meyer v. Sunrise Hosp.
SUSAN MEYER, M.D., Appellant, v. SUNRISE HOSPITAL, a Nevada Corporation, dba
SUNRISE HOSPITAL AND MEDICAL CENTER, Respondent.
No. 31781
May 15, 2001 22 P.3d 1142
Appeal from an order of the district court granting respondent's motion to dismiss a
breach of contract action. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
Physician, whose hospital privileges were revoked for twelve months based on peer
review committees' findings that she provided substandard care to a homeless patient, brought
action against hospital for breach of contract and breach of the covenant of good faith and fair
dealing. The district court granted hospital's motion to dismiss, and physician appealed. The
supreme court, Becker, J., held, as matters of first impression, that: (1) it had jurisdiction to
review decisions made by private hospital review board, overruling Lakeside Community
Hospital v. Levenson, 101 Nev. 777, 710 P.2d 727 (1985); (2) expert testimony was irrelevant
to issue of whether peer review committees acted with a reasonable belief that action was
warranted; and (3) physician failed to overcome presumption that hospital acted with
reasonable belief that action was warranted based on the facts known after a reasonable
investigation and, thus, hospital was entitled to immunity under Health Care Quality
Improvement Act (HCQIA).
Affirmed.
Hale Lane Peek Dennison Howard & Anderson and Robert D. Martin, Noah G.
Allison, and Elissa F. Cadish, Las Vegas, for Appellant.
Earley Savage and S. Brent Vogel, Las Vegas, for Respondent.
Supreme court would review dismissal of physician's complaint against hospital as a summary judgment, where district court
not only ordered discovery, but also considered an affidavit from physician's medical expert and several excerpts of deposition
testimony before ruling on hospital's motion to dismiss. NRCP 12(b)(5), 56(c).
2. Hospitals.
Supreme court had jurisdiction to review decisions made by private hospital review board, overruling Lakeside Community
Hospital v. Levenson, 101 Nev. 777, 710 P.2d 727 (1985).
3. Hospitals.
Health Care Quality Improvement Act (HCQIA) provides conditional immunity for peer review action, essentially shielding the
participants from liability in damages, provided certain due process and fairness requirements are met. Health Care Quality
Improvement Act of 1986, 411, as amended, 42 U.S.C. 11111.
4. Judgment.
Whether a hospital is entitled to summary judgment because of immunity under Health Care Quality Improvement Act (HCQIA)
is a question of law for the court to decide whenever the record is sufficiently developed. NRCP 56(c); Health Care Quality
Improvement Act of 1986, 411 et seq., as amended, 42 U.S.C. 11111 et seq.
5. Hospitals.
Summary judgment under Health Care Quality Improvement Act (HCQIA) is unique in that appellate court's de novo review
begins with a presumption that the peer review action met the standards set forth in HCQIA. Health Care Quality Improvement Act of
1986, 412(a), as amended, 42 U.S.C. 11112(a).
6. Hospitals.
Plaintiff challenging the decision of the review board bears the burden of overcoming presumption that the peer review action
met the standards set forth in Health Care Quality Improvement Act (HCQIA). Health Care Quality Improvement Act of 1986,
412(a), as amended, 42 U.S.C. 11112(a).
In reviewing a motion for summary judgment based on Health Care Quality Improvement Act (HCQIA) immunity, the supreme
court will affirm the grant of summary judgment unless a reasonable jury, viewing the facts in a light most favorable to physician,
could conclude by a preponderance of the evidence that the hospital's actions fell outside the protection afforded by HCQIA. NRCP
56(c); Health Care Quality Improvement Act of 1986, 412(a), as amended, 42 U.S.C. 11112(a).
8. Hospitals.
Before peer review action is immune under the Health Care Quality Improvement Act (HCQIA), it must be an action made: (1)
in furtherance of quality health care, (2) after a reasonable effort to obtain the facts in the matter, (3) after adequate notice and hearing,
and (4) in the reasonable belief that the action was warranted based on the facts known. Health Care Quality Improvement Act of 1986,
412, as amended, 42 U.S.C. 11112.
9. Hospitals.
Peer review action is made in furtherance of quality health care when the reviewers, with the information available to them at the
time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would
protect patients. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C. 11112.
10. Hospitals.
In evaluating whether peer review action was made in furtherance of quality health care, for purposes of Health Care Quality
Improvement Act (HCQIA) immunity, the court must not reweigh the evidence or substitute its own judgment for that of the peer
review committee. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C. 11112.
11. Hospitals.
Because the reasonableness standard under the Health Care Quality Improvement Act (HCQIA) is objective, rather than
subjective, the peer reviewer's subjective bias or bad faith is irrelevant to determining whether the action of the peer review board was
made in furtherance of quality health care. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C. 11112.
12. Hospitals.
Physician's proffer of expert testimony, that action of hospital's peer review board in revoking her privileges for providing
substandard care to a homeless patient was not warranted and did not further quality care, was not relevant to issue of whether peer
review committee acted with a reasonable belief that its action was warranted by the facts known after a reasonable investigation and,
thus, was insufficient to overcome presumption, under Health Care Quality Improvement Act (HCQIA), that hospital acted with the
reasonable belief that it was furthering quality care. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C.
11112.
13. Hospitals.
Expert testimony is irrelevant to court's consideration of whether a peer review committee believed it was furthering quality
health care in terminating a physician, for purposes of immunity under the Health Care Quality Improvement Act (HCQIA). Court
focuses solely on the reasonableness of the peer reviewer's belief, not on whether the peer review action ultimately proved to be
medically sound or actually furthered quality care. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C.
11112.
14. Hospitals.
Fact that hospital's fair hearing committee recommended reinstating physician's privileges, because incident involving homeless
patient that gave rise to peer review was a first offense and she did not act out of malice, was irrelevant to issue of hospital's immunity
under Health Care Quality Improvement Act (HCQIA). Issue was not whether doctors disagreed over severity of disciplinary action or
whether a judge or jury would believe penalty was too harsh, since disciplinary decision, if supported by objective evidence, was
within discretion of hospital's review committee under HCQIA. Health Care Quality Improvement Act of 1986, 412, as amended, 42
U.S.C. 11112.
15. Hospitals.
Absent evidence that an evaluation was misleading, false, or otherwise defective, a dispute between experts over the standard of
care or the decision to impose discipline is insufficient to overcome the presumption that individuals acting pursuant to Health Care
Quality Improvement Act (HCQIA) standards are entitled to immunity from monetary damages under the Act. Health Care Quality
Improvement Act of 1986, 412, as amended, 42 U.S.C. 11112.
16. Hospitals.
Hospital's peer review committee acted with a reasonable belief that they were furthering quality care in suspending physician,
as was required for Health Care Quality Improvement Act (HCQIA) immunity, where committee focused on physician's alleged
substandard treatment of a homeless patient who allegedly died of pneumonia less than two hours after physician treated and released
him. Health Care Quality Improvement Act of 1986, 412, as amended, 42 U.S.C. 11112.
17. Hospitals.
Physician failed to provide any evidence that decision of hospital's peer review committee to suspend her privileges was based
on anything other than her treatment of homeless patient who allegedly died of pneumonia less than two hours after physician treated
and released him. Even if hospital officials were concerned about potential Consolidated Omnibus Budget Reconciliation Act
(COBRA) violations and potential lawsuits, these concerns related to quality health care, as was required
for Health Care Quality Improvement Act (HCQIA) immunity. Health Care Quality Improvement Act of 1986, 412, as amended, 42
U.S.C. 11112; Consolidated Omnibus Budget Reconciliation Act of 1986, 1 et seq., 100 Stat. 82.
18. Hospitals.
Suspended physician failed to proffer sufficient evidence to overcome presumption that hospital's peer review committee acted
only after a reasonable effort to obtain the facts in matter before it, involving physician's alleged substandard treatment of a homeless
patient who allegedly died of pneumonia less than two hours after physician treated and released him. Although hospital did not
dispute, and actually considered, physician's two-year record of proper patient care before making its determination, review action was
based on conduct in single incident, making review of physician's other patient charts unnecessary. Health Care Quality Improvement
Act of 1986, 412, as amended, 42 U.S.C. 11112.
19. Hospitals.
In reviewing the facts in the matter, the peer review committee is required by the Health Care Quality Improvement Act
(HCQIA) to consider only those facts upon which the professional review action is based. Health Care Quality Improvement Act of
1986, 412, as amended, 42 U.S.C. 11112.
20. Hospitals.
Decision of hospital peer review committee to suspend physician was after adequate notice and hearing, as was required for
Health Care Quality Improvement Act (HCQIA) immunity. Physician received proper notice of hearing, was represented by counsel,
and was allowed to advocate that she provided reasonable treatment to homeless patient who allegedly died of pneumonia less than two
hours after physician treated and released him, and fair hearing committee fairly considered physician's claims, as was evidenced by
conclusion that suspension was too severe a sanction for substandard treatment. Health Care Quality Improvement Act of 1986,
412(a), (b), as amended, 42 U.S.C. 11112(a), (b).
21. Hospitals.
Hospital conducted a reasonable investigation to obtain the facts concerning physician's treatment of homeless patient, as was
required for Health Care Quality Improvement Act (HCQIA) immunity. Even though two doctors had expressed their fears of
Consolidated Omnibus Budget Reconciliation Act (COBRA) violations and lawsuits, these doctors were not on any of the three
committees that reviewed matter, and there was no mention of such fears in written conclusions issued by committees, who instead
referenced physician's failure to treat patient as basis for their decisions. Health Care Quality Improvement Act of 1986, 412, as
amended, 42 U.S.C. 11112; Consolidated Omnibus Budget Reconciliation Act of 1986, 1 et seq., 100 Stat. 82.
Supreme court lacked jurisdiction to consider claim that hospital was entitled to award of attorney fees against suspended
physician, under provision of Health Care Quality Improvement Act (HCQIA) allowing for such awards when litigation of a claim was
frivolous, unreasonable, without foundation, or in bad faith, where hospital did not file cross-appeal in physician's action or request
attorney fees before trial court. Health Care Quality Improvement Act of 1986, 413, as amended, 42 U.S.C. 11113.
OPINION
SUMMARY
This case arises out of Dr. Susan Meyer's treatment of Adolph Anguiano, a homeless
patient who died on the premises of Columbia Sunrise Hospital and Medical Center (the
hospital) approximately two hours after Meyer had treated Anguiano and had him escorted
from the premises by hospital security. Based on Meyer's alleged substandard treatment of
Anguiano, Meyer was suspended and later went through the fair hearing process set forth in
the hospital's bylaws. After three separate peer review committees reviewed the
circumstances concerning Meyer's treatment of Anguiano, Meyer's staff privileges were
revoked for a period of twelve months.
Thereafter, Meyer filed a breach of contract action against the hospital, alleging that
her privileges were suspended out of fear of Consolidated Omnibus Budget Reconciliation
Act (COBRA) investigations and potential lawsuits, rather than in furtherance of quality
patient care. The hospital moved to dismiss Meyer's complaint, arguing that the court lacked
jurisdiction to hear the claim under state law and that its actions were immune under the
Health Care Quality Improvement Act (HCQIA). After a year of discovery, the district
court dismissed Meyer's action, ruling that the hospital's decision to suspend Meyer's
privileges was reasonable under the circumstances, and that the hospital's actions were
immune under HCQIA.
Meyer filed this timely appeal, alleging that the district court erred in dismissing her
complaint. We disagree. We therefore affirm the order of the district court.
On July 28, 1995, Anguiano, a thirty-four-year-old man, was found lying unconscious
in the wet grass of a Las Vegas hotel. Shortly thereafter, Anguiano was taken by ambulance
to the hospital, where he was admitted into the emergency room at 8:03 a.m. and
subsequently examined by Meyer.
Meyer observed that Anguiano was very dirty and that he had a foul body odor.
Additionally, Meyer made the following notations on Anguiano's medical chart: (1) that he
was homeless; (2) that he had not eaten in three days; (3) that he regularly smoked cigarettes
and drank alcohol and had smoked marijuana earlier that day; and {4) that his right rib
hurt, as he had injured it in a fight several days earlier.
cigarettes and drank alcohol and had smoked marijuana earlier that day; and (4) that his right
rib hurt, as he had injured it in a fight several days earlier.
Meyer stated by affidavit that Anguiano had no significant complaints about his
physical condition, except that he was hungry and thirsty. Meyer further stated that after she
gave Anguiano a full physical, took his vital signs, and measured the oxygenation of his
blood, she concluded that no additional tests were necessary. Meyer then gave Anguiano
crackers and juice and had security escort him from the hospital.
According to Dr. Graham Wilson, head of Meyer's emergency room group and the
Chair of the Department of Emergency Services at the hospital, Meyer treated Anguiano for a
total of approximately seven minutes and gave him no follow-up instructions. Wilson further
stated that the security officers had been so concerned about the liability associated with
Anguiano's release that they asked Meyer to readmit Anguiano. Apparently, Meyer refused
this request.
Approximately two hours later, at 10:10 a.m., Anguiano was found on hospital
grounds in full cardiac arrest. Upon Anguiano's readmission to the emergency room, Meyer
noted on Anguiano's chart that he had obviously been dead for a while, and officially
pronounced him dead at 10:18 a.m. Anguiano's autopsy, performed the following day,
revealed that Anguiano likely died as a result of pneumonia. Meyer, however, disputes this
autopsy report finding, stating by affidavit that it would have been impossible for Anguiano
to have died of pneumonia one hour after his oxygenation level was ninety-two percent.
Later that morning, Wilson reviewed Anguiano's chart. Wilson testified in his
deposition that he was very concerned about Meyer's treatment of Anguiano because he felt
Meyer's documentation and seven-minute treatment was substandard and violated hospital
rules and COBRA regulations. Wilson further testified that he let Meyer finish her shift
because he wasn't that concerned about her quality as a physician, and because she had
worked for him for two years without any problems. At the end of Meyer's shift, Wilson
called her into his office and summarily suspended her. Wilson then informed Meyer that she
would undergo the fair hearing process and advised her to get legal counsel.
Prior to Wilson's meeting with Meyer, however, Wilson had met with Rick Kilburn,
the hospital's Chief Operating Officer, who informed Wilson that there was no possibility that
Meyer could continue working at the hospital. Kilburn discussed the possibility that Meyer's
care of Anguiano might lead to another COBRA investigation
COBRA investigation
1
or possibly a large lawsuit. Moreover, Wilson admitted in his
deposition that Meyer would not be reinstated regardless of what happened in the fair hearing
process because he had lost trust in her, and once erratic behavior like Meyer's occurred,
there was a potential for it to happen again.
Despite the fact that Wilson admitted that he would not reinstate Meyer regardless of
the recommendation made by the fair hearing committee, Wilson sent a letter to the Chief of
Staff at the hospital, requesting a fair and unbiased review of Meyer's treatment of Anguiano.
Wilson's letter set forth five areas of concern about this treatment: (1) none of Anguiano's
documented complaints were addressed through diagnostic testing; (2) Meyer's medical
charting was nonmedical and substandard; (3) Meyer failed to issue follow-up instructions;
(4) a nurse had told Wilson that security had asked that Anguiano be readmitted because they
were concerned about liability; and (5) Meyer made no effort to resuscitate Anguiano after
he was in full code.
2

On August 29, 1995, Meyer had her hearing before the Fair Hearing Committee
(FHC) members, which included Drs. McPherson, Ahern, Cass, Freis, and Veinart. During
the hearing, Kilburn expressed his concern over Meyer's notations on Anguiano's chart:
[Y]ou have to consider the fact of how it looks on paper. You have a dirty, 34-year-old
male, homeless, smoking pot and cough [sic]. Nothing's been done to be [sic] evaluate
that. Homelessness and coughing. Nothing done. He's filthy, dirty, foul smelling. . . .
Nothing else is wrong and nothing is done.
Other doctors, however, felt that Meyer's treatment of Anguiano was well within the
standard of care. First, Wilson stated in his deposition that Dr. Jerry Goldberg, another
hospital doctor, was adamant that Meyer had done nothing wrong. Additionally, Gary Young,
an expert in the field of emergency room medicine, stated that Meyer acted within the
standard of care because Anguiano was in no acute distress and was clinically stable when
Meyer evaluated him.
__________

1
Dr. Frank Nemec, the hospital's Vice Chief of Staff, was also concerned that Meyer's treatment of Anguiano
was a COBRA violation because it might be interpreted as a denial of care to an indigent patient. According to
Wilson, Medicare had previously investigated the hospital for patient dumpingdenying care to an indigent
patient. This prior investigation arose out of another hospital doctor's alleged substandard treatment of an
indigent patient who was suffering from a subdural hematoma and passed out at a casino shortly after being
diagnosed with heat exhaustion and being released from the hospital.

2
Meyer, however, denies that she was ever asked by security to readmit Anguiano and maintains that she had
attempted to resuscitate Anguiano when he returned to the emergency room in full cardiac arrest.
care because Anguiano was in no acute distress and was clinically stable when Meyer
evaluated him.
After reviewing Meyer's treatment of Anguiano, the FHC found that Meyer's
suspension was warranted because her care of Anguiano was substandard, but concluded that
Meyer should be reinstated because she had no prior work problems and because her poor
judgment was not malicious.
Despite the FHC's recommendation, the Medical Executive Committee affirmed its
decision to suspend Meyer's medical privileges with eligibility to reapply in twelve months.
This decision was affirmed by the Appellate Review Committee (ARC), which included
Drs. White, Fox, and Hippler. The ARC reviewed all prior proceedings for evidence,
concluding, in part, that the professional review action taken was reasonable and in
furtherance of quality health care.
On January 9, 1996, Meyer filed a civil action against the hospital alleging, in part,
breach of contract and breach of the covenant of good faith and fair dealing. Thereafter, the
hospital moved to dismiss Meyer's complaint, arguing among other things that Meyer's claims
were barred by the HCQIA. The district court determined that it had jurisdiction over Meyer's
claim provided that she was alleging a violation of the hospital's bylaws. Accordingly, the
district court ordered further discovery so that it could ascertain whether Meyer had an
actionable claim.
After one year of discovery, the hospital renewed its motion to dismiss, requesting
that the court consider it as a summary judgment motion because Meyer had filed an affidavit
from her expert and filed excerpts from deposition testimony. The affidavit of Meyer's expert,
Dr. Rosen, an expert on emergency room medicine, concluded that Meyer's removal could
not have been done in furtherance of quality health care, and thus Meyer's removal violated
the hospital's bylaws.
After conducting a hearing, the district court granted the hospital's motion to dismiss,
ruling that the hospital followed its own rules and that its decision was reasonable in view of
the facts known to it at the time.
Thereafter, Meyer filed this timely appeal, alleging that the district court erred in
dismissing her complaint.
DISCUSSION
[Headnote 1]
As a threshold matter, Meyer contends that the district court's dismissal of her
complaint should be reviewed as an NRCP 12(b)(5) dismissal, rather than as a summary
judgment. We disagree and review this matter as a summary judgment.
In MacDonald v. Kassel, 97 Nev. 305, 307, 629 P.2d 1200, 1200 {19S1), we held
that a district court order granting an NRCP 12{b){5) motion to dismiss shall be reviewed
as a summary judgment where the district court received and considered affidavits before
ruling on the motion.
1200 (1981), we held that a district court order granting an NRCP 12(b)(5) motion to dismiss
shall be reviewed as a summary judgment where the district court received and considered
affidavits before ruling on the motion.
In the instant matter, the district court not only ordered discovery, but also considered
an affidavit from Meyer's medical expert and several excerpts of deposition testimony before
ruling on the hospital's motion to dismiss. Accordingly, in light of the holding in MacDonald,
we will treat the district court's dismissal of this matter as a summary judgment since the
district court considered evidence outside the pleadings.
[Headnote 2]
Turning to the primary substantive issue on appeal, Meyer contends that the district
court erred in granting summary judgment based on the conditional immunity provided under
HCQIA. Specifically, Meyer contends that summary judgment was improper because she
overcame the presumption that the hospital acted: (1) in furtherance of quality health care; (2)
after a reasonable effort to obtain the facts; (3) after adequate notice and hearing; and (4) with
the reasonable belief that action was warranted by the facts known at the time.
3
We disagree
with Meyer's contention, and therefore affirm the district court order dismissing her
complaint.
[Headnote 3]
The interpretation of HCQIA is an issue of first impression in Nevada. Congress
enacted HCQIA in 1986 to improve the quality of medical care by encouraging physicians to
identify and discipline other physicians who are incompetent or who engage in unprofessional
behavior. H.R. Rep. No. 99-903 (1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6294.
HCQIA provides conditional immunity for peer review action, essentially shielding the
participants from liability in damages,
4
provided certain due process and fairness
requirements are met.
__________

3
The hospital argues, in part, that this court lacks jurisdiction to review decisions made by private hospital
boards, citing Lakeside Community Hospital v. Levenson, 101 Nev. 777, 778, 710 P.2d 727, 728 (1985) (The
weight of judicial authority in this country denies judicial review of decisions of governing boards of private
hospitals to appoint or remove members of their medical staffs.). To the extent that Lakeside would bar this
court's consideration of whether a hospital board acted unconstitutionally or beyond the conditional immunity of
the HCQIA, we hereby explicitly overrule it.

4
We emphasize that the immunity provided under the HCQIA is not absolute. For example, actions brought
under 42 U.S.C. 1983 or Title VII of the Civil Rights Act of 1964 are excluded from the HCQIA's provision.
See Austin, 979 F.2d at 733. Further, peer review actions that are determined to be outside the scope of 42
U.S.C. 11112(a) lose any immunity the HCQIA would have provided.
process and fairness requirements are met. See Austin v. McNamara, 979 F.2d 728, 733 (9th
Cir. 1992) (citing 42 U.S.C. 11111).
Congress granted conditional immunity under HCQIA in an attempt to balance its
concern for protecting physicians improperly subjected to disciplinary action with its concern
over the chilling effect the fear of civil lawsuits would have on peer review. See Bryan v.
James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1322 (11th Cir. 1994).
[Headnotes 47]
Whether a hospital is entitled to summary judgment because of immunity under
HCQIA is a question of law for the court to decide whenever the record is sufficiently
developed. See Egan v. Athol Mem'l Hosp., 971 F. Supp. 37, 42 (D. Mass. 1997). Summary
judgment under HCQIA, however, is somewhat unique in that this court's de novo review
begins with a presumption that the peer review action met the standards set forth in HCQIA.
See 42 U.S.C. 11112(a). Additionally, the plaintiff challenging the decision of the review
board bears the burden of overcoming this presumption. See id.; see also Bryan, 33 F.3d at
1318; Austin, 979 F.2d at 734. Therefore, in reviewing a motion for summary judgment based
on HCQIA immunity, this court will affirm the grant of summary judgment unless a
reasonable jury, viewing the facts in a light most favorable to Meyer, could conclude by a
preponderance of the evidence that the hospital's actions fell outside the protection afforded
by section 11112(a).
[Headnote 8]
Section 11112(a) provides four requisites that must be satisfied before a peer review
action is immune. The peer review action must be an action made: (1) in furtherance of
quality health care; (2) after a reasonable effort to obtain the facts in the matter; (3) after
adequate notice and hearing; and (4) in the reasonable belief that the action was warranted
based on the facts known. 42 U.S.C. 11112.
i. In furtherance of quality health care
[Headnotes 911]
The first requisite is satisfied provided that the reviewers, with the information
available to them at the time of the professional review action, would reasonably have
concluded that their action would restrict incompetent behavior or would protect patients.
Bryan, 33 F.3d at 1334-35 (citing H.R. Rep. No. 99-903, at 10, reprinted in 1986
U.S.C.C.A.N. at 6393). In making this evaluation, the Court must not reweigh the evidence
or substitute its own judgment for that of the peer review committee. Egan, 971 F. Supp. at
44 {citing Bryan, 33 F.3d at 1337).
F. Supp. at 44 (citing Bryan, 33 F.3d at 1337). Further, because the reasonableness standard
is objective, rather than subjective, the peer reviewer's subjective bias or bad faith is
irrelevant. See Bryan, 33 F.3d at 1335; Austin, 979 F.2d at 734.
In the instant matter, Meyer argues that there is a triable issue of material fact
concerning whether the peer review committee based its action on a reasonable belief that it
was acting in furtherance of quality health care because: (1) Dr. Rosen, Meyer's medical
expert, stated by affidavit that the hospital's decision was not based in furtherance of quality
care or on any medical reason; and (2) there was evidence in the record that Meyer was
terminated because of the hospital's concern over bad publicity, lawsuits, and COBRA
investigations. We will address each of these arguments in turn.
A. Expert testimony
[Headnotes 12, 13]
With respect to expert testimony, we agree with the majority of jurisdictions that such
testimony is irrelevant to our consideration of whether a peer review committee believed it
was furthering quality health care in terminating a physician. See Sugarbaker v. SSM Health
Care, 190 F.3d 905, 914 (8th Cir. 1999); Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 636
(3d Cir. 1996); Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994);
Egan, 971 F. Supp. at 43. Expert testimony is irrelevant to our consideration of immunity
under HCQIA because we focus solely on the reasonableness of the peer reviewer's belief, not
on whether the peer review action ultimately proved to be medically sound or actually
furthered quality care. See Sugarbaker, 190 F.3d at 914; see also Manzetti v. Mercy Hosp.,
741 A.2d 827, 834 (Pa. Commw. Ct. 1999) (Even an incorrect decision to suspend a
physician will not disqualify the peer review body from immunity provided the requisites of
section 11112(a) are satisfied.). Therefore, Meyer's proffer of expert testimony stating that the
peer review action taken was not warranted and did not further quality care does not create a
triable issue of material fact because it does not bear on the relevant issue for our
considerationnamely, whether the peer review committee acted with a reasonable belief
that its action was warranted by the facts known after a reasonable investigation.
Meyer relies heavily on Brown v. Presbyterian Healthcare Services, 101 F.3d 1324
(10th Cir. 1996). While Brown does discuss the use of expert testimony in evaluating issues
of immunity under HCQIA, the decision in Brown centered upon the fact that Dr. Brown was
able to produce significant evidence to support her allegations that information submitted by
the defendants in her medical review process was false or misleading.
medical review process was false or misleading. Indeed, Dr. Brown produced evidence that
the individuals who investigated her actions were involved in encouraging another doctor to
move his practice so as to be in direct competition with her. In other words, the defendants in
Brown had conspired to manufacture allegations of improper behavior by Dr. Brown so as to
put Dr. Brown out of business. In this setting, Dr. Brown's expert concluded that the
defendants were not acting to further quality health care. Neither were their actions
reasonable under the facts of the case. It was for this reason that the federal district court in
Brown refused to grant summary judgment on the basis of HCQIA immunity, a decision that
was affirmed by the United States Court of Appeals for the Tenth Circuit.
Such facts do not exist here. There is no evidence or allegation that the doctors who
evaluated Meyer's performance in treating Anguiano were manufacturing or exaggerating
facts to support disciplinary sanctions. The Fair Hearing Committee found that Meyer's
suspension was warranted because her care of Anguiano was substandard. Given this finding,
the Medical Executive Committee and the Appellate Review Committee had an objective
basis for concluding that Meyer's privileges at the hospital should be suspended for a period
of twelve months.
[Headnote 14]
The fact that the FHC recommended reinstating Meyer's privileges because this was a
first offense and she did not act out of malice is irrelevant to the issue of immunity under
HCQIA. The issue is not whether doctors can disagree over the severity of the disciplinary
action, or whether a judge or jury believes the penalty was too harsh. This decision, if
supported by objective evidence, is within the discretion of a professional review committee
under the HCQIA. This is precisely why the United States Courts of Appeal for the Third,
Fourth, Ninth and Eleventh Circuits have concluded that issues of immunity should generally
be decided by the court through the use of summary judgment motions. See generally,
Mathews v. Lancanster General Hospital, 87 F.3d 624 (3d Cir. 1996); Imperial v. Suburban
Hospital Association, Inc., 37 F.3d 1026 (4th Cir. 1994); Bryan v. James E. Holmes Regional
Medical Center, 33 F.3d 1318 (11th Cir. 1994); Austin v. McNamara, 979 F.2d 728 (9th Cir.
1992).
[Headnote 15]
Absent evidence that an evaluation was misleading, false or otherwise defective, a
dispute between experts over the standard of care or the decision to impose discipline is
insufficient to overcome the presumption that individuals acting pursuant to HCQIA
standards are entitled to immunity from monetary damages under the Act.
[Headnote 16]
In the present matter, we are confident that the peer review committee acted with a
reasonable belief that they were furthering quality care. We cannot say that these physicians
did not reasonably believe that they were furthering quality care in suspending Meyer because
their review focused on Meyer's alleged substandard treatment of Anguiano, a patient who
allegedly died of pneumonia less than two hours after Meyer treated and released him.
Accordingly, because HCQIA provides that the peer review action need not be
correct, if it is taken with a reasonable belief that it was made in furtherance of quality care,
we conclude that Meyer's expert testimony was not sufficient to overcome the presumption
that the hospital acted with the reasonable belief that it was furthering quality care.
B. Subjective bias of the peer review committee
[Headnote 17]
Meyer further argues that the hospital did not act in furtherance of quality health care
because its decision to suspend her privileges was made based on the hospital's fear of
lawsuits and COBRA investigations.
Similar allegations have been made by other physicians trying to overcome the
presumption of qualified immunity under HCQIA. In Mathews, 87 F.3d at 634-35, a
physician claimed that his privileges were suspended because some of the members of the
peer review committee were the doctor's economic competitors. The Mathews court rejected
the physician's claim about subjective bias, reasoning that Congress had explicitly disaffirmed
a subjective good faith standard for reviewing HCQIA immunity, and instead opted for an
objective reasonable belief criteria.
5
See id. at 635 (citing the House Committee on Energy
and Commerce Report on the HCQIA, H.R. Rep. No. 99-903 at 10 (1986), reprinted in 1986
U.S.C.C.A.N. at 6392-93 (omitting a good faith standard out of concern that it would be
misinterpreted)). Similarly, in Egan, the court rejected a physician's allegations that the peer
review committee's decision was based on economic motives because there was no evidence
to show that anyone exaggerated or manufactured complaints against the doctor. 971 F. Supp.
at 44.
__________

5
We recognize that there will be instances where the subjective motives of the peer review committee will be
relevant in determining HCQIA immunity. For example, when a doctor alleges that she was disciplined because
of her race, religion, or sex, or in matters where there is seemingly no objectively reasonable evidentiary basis
for imposing discipline.
Like the physicians in Mathews and Egan, Meyer has failed to provide any evidence
that the peer review committee's decision was based on anything other than Meyer's treatment
of Anguiano. Although Meyer notes that Wilson and Kilburn were concerned about potential
COBRA violations and potential lawsuits, these concerns related to quality health care.
Indeed, the purpose behind the COBRA regulatory scheme is to ensure quality health care and
prevent discrimination against homeless patients or those patients who cannot afford to pay
for treatment. The hospital had already been sanctioned for refusing to properly treat
indigents. The peer review professionals were then faced with the findings of the FHC that
Meyer's treatment of Anguiano was substandard and facts from which an objective observer
could conclude that Meyer failed to treat Anguiano's complaints seriously because of his
homeless condition and general appearance. If a doctor's personal attitude towards a homeless
patient affects his or her professional judgment, this is an issue of quality health care. There is
objective evidence to support a conclusion that this is precisely what happened with Meyer.
While we agree that the hospital could have imposed a lesser sanction, they are not required
to do so under HCQIA. Because there was a reasonable evidentiary basis for the committee's
decision in this matter, Meyer's allegations concerning the subjective beliefs of Wilson and
Kilburn are insufficient to overcome the presumption of reasonableness.
Accordingly, we conclude that Meyer has failed to proffer relevant evidence that
would overcome the presumption that the hospital acted in furtherance of quality health care.
ii. After a reasonable effort to obtain the facts in the matter
[Headnote 18]
With respect to the second HCQIA requisite, Meyer contends that the hospital made
an insufficient effort to obtain the facts in this matter because the peer review committee
decided to terminate Meyer's privileges based on a single chartAnguiano'srather than on
Meyer's entire work history at the hospital. Meyer also relies upon Brown v. Presbyterian
Healthcare Services in support of this contention. We conclude that Meyer's contention lacks
merit.
[Headnote 19]
In reviewing the facts in the matter, the peer review committee is required to
consider only those facts upon which the professional review action is based. See Fobbs v.
Holy Cross Health Sys. Corp., 789 F. Supp. 1054, 1065 (E.D. Cal. 1992). In Brown, the court
concluded, in part, that a reasonable investigation into the facts in the matter had not been
made because the review committee had based its decision solely on two charts, which the
court deemed unreasonably narrow and insufficient to support its conclusion that a
physician posed a threat to patient safety.
committee had based its decision solely on two charts, which the court deemed unreasonably
narrow and insufficient to support its conclusion that a physician posed a threat to patient
safety. 101 F.3d at 1334.
We conclude that the instant investigation was distinguishable from the investigation
in Brown since the physician in Brown was suspended because of general concerns for her
overall quality of patient care reflected in her patients' charts. 101 F.3d at 1327. Moreover, as
we previously noted, there was substantial evidence in Brown that the premise for suspension
was false and that witnesses presented false or misleading evidence regarding the two charts.
In contrast, Meyer's privileges were suspended based on a single incident of alleged
substandard patient care. Because the professional review action was based on Meyer's
conduct arising from a single incident, a review of her other patients' medical charts was
unnecessary. Further, we cannot see how a review of Meyer's treatment of other patients
would have been relevant to the peer review process in light of the fact that the hospital did
not dispute, and actually considered, Meyer's two-year record of proper patient care before
making its determination.
Accordingly, we conclude that Meyer has failed to proffer sufficient evidence to
overcome the presumption that the peer review committee acted only after a reasonable effort
to obtain the facts in this matter.
iii. After adequate notice and hearing
[Headnote 20]
With respect to the third HCQIA requisite, Meyer contends that she did not receive an
adequate hearing because the review process was a sham, as the decision to terminate her
had been made long before she went through the peer review process. We conclude that this
contention lacks merit because the record reveals that Meyer received adequate notice and a
meaningful hearing.
Section 11112(b) of HCQIA sets forth safe harbor requirements concerning notice
and hearing procedures that a health care provider must satisfy to meet the requirement of
section 11112(a)(3). See Bryan v. James E. Holmes Regional Med. Cntr., 33 F.3d 1318, 1335
(11th Cir. 1994). Essentially, section 11112(b) requires that the medical facility provide the
physician with adequate notice of the hearing, including the proposed action to be taken and a
summary of the physician's rights to be afforded at the hearing. The physician's rights
afforded at the hearing, set forth in section 11112(b)(3), include the right to: (1)
representation by counsel; (2) have a record made of the proceedings; (3) call and
cross-examine witnesses; (4) submit a written closing statement; and {5) receive a written
decision by the health care entity.
statement; and (5) receive a written decision by the health care entity.
In the instant matter, our review of the record provides no evidentiary support for a
contention that the hospital violated the notice and hearing protections afforded by HCQIA.
Meyer received proper notice of the hearing, was represented by counsel, and was allowed to
advocate that her treatment of Anguiano was reasonable. The record reflects that the FHC
doctors fairly considered her claims, particularly in light of their conclusion that a suspension
was too severe a sanction for the substandard treatment.
Accordingly, we conclude that Meyer has failed to overcome the presumption that the
hospital provided her with adequate notice and a proper hearing.
iv. With the reasonable belief that action was warranted by the facts known
[Headnote 21]
With respect to the fourth HCQIA requisite, Meyer again reiterates her argument that
the hospital's action was unreasonable because it was instituted out of fear of COBRA
investigations and lawsuits, rather than based on a reasonable belief that disciplinary action
was warranted. We conclude that Meyer has proffered insufficient evidence that the review
process undertaken was a sham.
Peer review must be made with the reasonable belief that the action was warranted
by the facts known after such reasonable effort to obtain the facts. 42 U.S.C. 11112(a)(4).
In Bryan, the court held that a reasonable effort had been made to obtain the facts because
three separate committees reviewed submitted reports to a board, which made its decision
based upon the documentary record developed during the peer review proceedings. 33 F.3d at
1335.
Here, like in Bryan, three separate committees reviewed the suspension of Meyer's
privileges, referencing Meyer's failure to treat Anguiano as the basis for their decision to
suspend or discipline Meyer. Although two doctors had expressed their fears of COBRA
violations and lawsuits, these doctors were not on the committees that reviewed Meyer's
treatment of Anguiano. Further, there was no mention of such fears in the written conclusions
issued by the committees, rather their written conclusions focused on the treatment of
Anguiano.
We therefore conclude that the hospital conducted a reasonable investigation to obtain
the facts concerning Meyer's treatment of Anguiano. We have in our consideration of the first
HCQIA requisite also concluded that the peer review action was made with a reasonable
belief that it was warranted based on these facts.
uisite also concluded that the peer review action was made with a reasonable belief that it was
warranted based on these facts.
Accordingly, we conclude that Meyer has failed to overcome the presumption that the
hospital acted with the reasonable belief that action was warranted based on the facts known.
CONCLUSION
[Headnote 22]
We conclude that the district court did not err in granting summary judgment.
6
Meyer
has failed to overcome the presumption that the peer review action met the requisites set forth
in section 11112. We therefore affirm the order of the district court.
7

Young, and Agosti, JJ., concur.
Given the stringency of the standard for review under HCQIA,
1
we are compelled to
affirm. Brown v. Presbyterian Healthcare Services,
2
the case authority upon which Dr.
Meyer primarily relies, does not support reversal. Brown did not hold that conflicting
affidavits create issues of fact under HCQIA. Rather, Brown, correctly applying the standard
for review under HCQIA, found no immunity because the premise for the discipline imposed
by the peer review process in that case was false on its face. The incident upon which Dr.
Meyer was terminated does not suffer from the same defect of proof. Thus, although
termination of Dr. Meyer because of a single incident of improper care seems excessive, I
must concur with the result reached by the majority.
__________

6
Without cross-appealing and without requesting attorney fees before the district court, the hospital asks this
court to award it attorney fees pursuant to HCQIA 11113, which provides for attorney fees when litigation of a
claim was frivolous, unreasonable, without foundation, or in bad faith. We do not reach the issue of whether
attorney fees are proper because this court lacks jurisdiction to hear the claim. See Sierra Creek Ranch v. J. I.
Case, 97 Nev. 457, 460, 634 P.2d 458, 460 (1981) (providing that this court will not consider issue of attorney
fees without a filing of a cross-appeal); see also Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668
P.2d 1081, 1085 n.5 (1983) (noting that arguments raised for the first time on appeal will not be considered).

7
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of
this matter.

1
See Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir. 1999); Manzetti v. Mercy Hosp., 741 A.2d 827
(Pa. Commw. Ct. 1999); Mathews v. Lancaster Gen. Hosp., 87 F.3d 624 (3d Cir. 1996); Bryan v. James E.
Holmes Reg'l Med. Ctr., 33 F.3d 1318 (11th Cir. 1994); Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026
(4th Cir. 1994); Austin v. McNamara, 979 F.2d 728 (9th Cir. 1992).

2
101 F.3d 1324 (10th Cir. 1996).
Shearing, J., with whom Rose, J., agrees, concurring:
I must concur in the result reached in the majority opinion because HCQIA sets such a
low threshold for granting immunity to a hospital's so-called peer review. Basically, as long
as the hospitals provide procedural due process and state some minimal basis related to
quality health care, whether legitimate or not, they are immune from liability. Unfortunately,
this may leave the hospitals and review board members free to abuse the process for their
own purposes without regard to quality medical care. This is particularly probable since most
courts have indicated that the legislative history of HCQIA bars consideration of the
subjective motives or biases of peer review boards.
Here, hospital administrators, immediately upon recognizing a public relations
problem, decided that Dr. Meyer was to be the hospital's scapegoat for the unfortunate death
of a patient. The testimony showed that the administrators decided to fire her long before any
so-called peer review. The real opinion of her ability is made clear by the fact that they
allowed her to continue to take care of patients and finish her shift because they were not
that concerned about her quality as a physician, because she had worked for them for two
years without any problems.
Unfortunately, the immunity provisions of HCQIA sometimes can be used, not to
improve the quality of medical care, but to leave a doctor who is unfairly treated without any
viable remedy.
____________
117 Nev. 330, 330 (2001) Vanisi v. State
SIAOSI VANISI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35249
May 17, 2001 22 P.3d 1164
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
first-degree murder with the use of a deadly weapon, three counts of robbery with the use of a
deadly weapon, and one count of grand larceny and from a sentence of death. Second Judicial
District Court, Washoe County; Connie J. Steinheimer, Judge.
Defendant was convicted in the district court of first-degree murder with use of deadly
weapon, robbery with use of deadly weapon, and grand larceny, and was sentenced to death.
Defendant appealed. The supreme court, Shearing, J., held that: (1) defendant's motion for
self-representation was properly denied; (2) complexity of case and fair-trial concerns are not
independent bases for denying motion for self-representation, abrogating Meegan v. State,
114 Nev. 1150, 968 P.2d 292 (1998), and Lyons v. State, 106 Nev. 43S 796 P.2d 210 {1990)
Lyons v. State, 106 Nev. 438, 796 P.2d 210 (1990); (3) evidence in penalty phase supported
finding of aggravating circumstances of mutilation, robbery or attempted robbery, and killing
peace officer; (4) there was no basis upon which to conclude that jury improperly rejected
persuasive mitigating evidence during penalty phase; and (5) death penalty was not excessive.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
A criminal defendant has the right to self-representation under the Sixth Amendment of the United States Constitution and the
Nevada Constitution. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
2. Criminal Law.
An accused who chooses self-representation must satisfy the court that his waiver of the right to counsel is knowing and
voluntary. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
3. Criminal Law.
A defendant's decision to represent himself can be competent and intelligent even though he lacks the skill and experience of a
lawyer; however, the record should establish that he was made aware of the dangers and disadvantages of self-representation. Const.
art. 1, 8, cl. 1; U.S. Const. amend. 6.
4. Criminal Law.
A court may deny a request for self-representation if the request is untimely, equivocal, or made solely for purposes of delay or if
the defendant is disruptive. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
5. Criminal Law.
Deprivation of the right to self-representation is reversible, never harmless, error. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
6. Criminal Law.
Record in first-degree murder case in which court denied defendant's motion for self-representation supported finding that
motion was made for purpose of delay. Although motion was technically timely, defendant had previously engaged in conduct that had
resulted in delay, including his personal request for continuance, his motion to appoint new counsel, his subsequent refusal to
cooperate with counsel, and consequent need for competency evaluation. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
7. Criminal Law.
If it is clear the request for self-representation comes early enough to allow the defendant to prepare for trial without need for a
continuance, the request should be deemed timely. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
8. Criminal Law.
The district court may deny a request for self-representation in circumstances where the defendant's prior conduct indicates he or
she is making the request as a delaying tactic.
is making the request as a delaying tactic. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
9. Criminal Law.
A court may consider events preceding a motion for self-representation to determine whether the request is made in good faith or
merely for delay. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
10. Criminal Law.
Record in first-degree murder case in which court denied defendant's motion for self-representation supported finding that
defendant was unable or unwilling to abide by rules of procedure and courtroom protocol, and thus presented danger of disrupting trial.
Defendant had interrupted prior hearings by blurting out statements in loud voice, talking while others were speaking in court, standing
up and engaging in unsettling rocking motions, repeating himself over and over, and speaking out loud to himself, and at
self-representation canvass, he exhibited difficulty in processing information and took lengthy period of time to respond to many of
court's questions. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
11. Criminal Law.
An accused seeking to represent himself must be able and willing to abide by rules of procedure and courtroom protocol. Const.
art. 1, 8, cl. 1; U.S. Const. amend. 6.
12. Criminal Law.
The right of self-representation is not a license to abuse the dignity of the courtroom; neither is it a license not to comply with
relevant rules of procedural and substantive law. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
13. Criminal Law.
In considering a request for self-representation, a defendant's pretrial activity is relevant if it indicates he or she will be
disruptive in the courtroom. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
14. Criminal Law.
The supreme court will not substitute its own evaluation for the district court's personal observations and impressions as to
whether a defendant seeking to represent himself will be disruptive in the courtroom, as the district court is in a better position to
observe the defendant's demeanor and conduct. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
15. Criminal Law.
Although the complexity of the case and fair-trial concerns are relevant on the issue of whether a defendant's decision to waive
counsel was made understanding the potential consequences of the decision, those factors are not independent bases for denying a
motion for self-representation; abrogating Meegan v. State, 114 Nev. 1150, 1154, 968 P.2d 292 (1998), and Lyons v. State, 106 Nev.
438, 446, 796 P.2d 210 (1990). Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
16. Criminal Law.
In deciding whether a defendant has knowingly and intelligently decided to represent himself, the trial court is to look not to the
quality of his representation, but rather to the quality of his decision. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
17. Criminal Law.
When a defendant seeks to represent himself, the district court should inquire of the defendant about the complexity of the case
to ensure that the defendant understands his or her decision and, in particular, the difficulties he or she will face
proceeding in proper person.
ular, the difficulties he or she will face proceeding in proper person. Const. art. 1, 8, cl. 1; U.S. Const. amend. 6.
18. Criminal Law.
When a defendant seeks to represent himself, the relevant assessment examines his competence to choose self-representation,
not his ability to adequately defend himself. Accordingly, if a defendant willingly waives counsel and chooses self-representation with
an understanding of its dangers, including the difficulties presented by a complex case, he or she has the right to do so. Const. art. 1,
8, cl. 1; U.S. Const. amend. 6.
Evidence in death penalty phase of prosecution for first-degree murder with use of deadly weapon supported finding of
aggravating circumstance of mutilation. Physician who performed autopsy identified at least twenty separate and distinct impacts to
victim's face and head, some of victim's teeth were actually found outside of body, and defendant's relative testified that defendant
stated that even after victim was knocked out by defendant's initial assault, defendant proceeded to kick victim over and over,
stomping on victim's head. NRS 200.033(8).
For sentencing purposes, the aggravating factor of mutilation 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. NRS 200.033(8).
Although jury instruction on aggravating circumstance of mutilation erroneously incorporated phrase or other serious and
depraved physical abuse, which was based on former version of statute that referred to depravity of mind, instruction was not
prejudicial in penalty phase of capital murder prosecution, as State did not argue depravity of mind and there was compelling evidence
of mutilation. NRS 200.033(8).
Jury instructions on the aggravating circumstance of mutilation should no longer incorporate language referring to other serious
and depraved physical abuse. NRS 200.033(8).
Evidence in penalty phase of capital murder prosecution supported finding of aggravating circumstance of robbery or attempted
robbery, as evidence showed that defendant took victim's gun belt and gun. NRS 177.055(2)(b).
Evidence in penalty phase of capital murder prosecution supported finding of aggravating circumstance of killing peace officer.
There was evidence that victim was on duty, in uniform, and in his police car when he was attacked, and defendant made statements to
various individuals about his intent to kill and rob police officer. NRS 177.055(2)(b).
There was no basis in capital murder prosecution upon which to conclude that jury improperly rejected persuasive mitigating
evidence during penalty phase, even though jury made no findings with respect to mitigating circumstances. Jury was not asked to
detail its findings concerning mitigating circumstances, and there was no requirement that jury receive form to specify mitigating
circumstances it found. NRS 175.554(3).
Death penalty was not excessive in prosecution for first-degree murder with use of deadly weapon: crime was cold, calculated,
and brutal killing; defendant had planned to kill police officer well in advance of murder; he carried that plan into action, going so far
as to disguise himself before killing; actual act of killing was completely unprovoked and particularly violent; defendant indicated
afterwards that he enjoyed it and would like to kill again; and despite evidence that defendant suffered from mental health problems,
level of planning behind killing showed that it was more than rash impulse acted on during psychotic episode arising from bipolar
disorder. NRS 177.055(2).
27. Criminal Law.
Use of mandatory statutory jury instruction on reasonable doubt, rather than defendant's proffered instruction, was proper in
capital murder prosecution. NRS 175.211.
OPINION
The State charged appellant Siaosi Vanisi with the first-degree murder of George
Sullivan, a police sergeant at the University of Nevada, Reno (UNR), and four other felonies.
Vanisi's first trial ended in a mistrial. At the second trial, the jury found Vanisi guilty of all
five offenses and imposed a death sentence for the murder.
The primary issue on appeal is Vanisi's claim that the district court erred in denying
his motion for self-representation. We reject this claim as well as Vanisi's other contentions
and affirm the judgment of conviction and the sentence of death.
FACTS
The evidence of Vanisi's guilt in this case is overwhelming. During a visit to Reno in
January 1998, Vanisi told several friends and relatives that he wanted to murder and rob a
police officer. Makeleta Kavapalu testified that Vanisi indicated that he was going to kill a
police officer with his ax. Sateki Taukiuvea testified that Vanisi said that he wanted to kill a
police officer and take his badge, radio, gun, and belt. Maria Louis testified that Vanisi said
he wanted to kill a police officer and take his radio and gun. Priscilla Endemann testified that
Vanisi repeatedly told her he wanted to kill a cop.
Mele Maveni testified that on January 9, 1998, she accompanied her cousin and
Vanisi to a local Wal-Mart where Vanisi purchased a hatchet and a pair of gloves. He told
Maveni and her cousin that he wanted to kill police officers.
In the early morning of January 13, 1998, UNR Police Sergeant George Sullivan was
murdered and robbed on the UNR campus. At least two witnesses, including UNR Police
Officer Carl Smith, observed Vanisi near the murder site shortly before the time of the
killing. Officer Smith testified that sometime after 12:17 a.m. he observed Vanisi in the same
area as Sullivan, who had made a traffic stop. Vanisi had dreadlocks and was wearing a dark
jacket. Subsequently, Smith observed Sullivan head towards the area of a kiosk, a fairly well
lit area where officers wrote reports.
A short time later, a student discovered Sullivan's body lying under his police car near
the kiosk. Smith received a dispatch just before 1:00 a.m. and was the first officer at the
scene. Several items that Sullivan had been carrying were missing, including his gun and gun
belt.
Dr. Ellen Clark performed the autopsy on Sullivan's body. The cause of death was
multiple injuries to the skull and brain due to blunt impact trauma.
Shortly after the killing, Vanisi proceeded to an apartment occupied by some of his
relatives. His niece, Maria Louis, testified that Vanisi entered the apartment between 1:00 and
1:15 a.m. wearing a jacket and gloves and carrying a plastic grocery bag. Many of the injuries
to Sullivan's body were consistent with a hatchet that was discovered at the apartment,
apparently the hatchet purchased by Vanisi a few days before. Police also recovered other
evidence at the apartment, including a pair of gloves, a jacket, and plastic bags containing
items belonging to Sullivan. Vanisi's fingerprints were found on one of the bags. Stains on the
hatchet and jacket contained Sullivan's DNA. The gloves contained DNA from both Sullivan
and Vanisi.
After the killing, Vanisi told others that he had killed Sullivan. Vainga Kinikini
testified that Vanisi provided him with the following details of the crime. Vanisi had bought a
hatchet and had been looking for a white police officer to kill. He observed a police officer in
the middle of a traffic stop. He waited for the officer to complete the stop and then crept up
on the officer. He knocked on the window of the officer's patrol car, and the officer asked if
he could help Vanisi. Vanisi attacked the officer and knocked him out. Vanisi then kicked the
officer over and over, stomping on his head. Vanisi stated that it was fun or great. He
had worn a disguise at the time of the killing, a beanie with fake dreadlocks to make him look
Jamaican. He threw the wig and beanie into a canal nearby. (A wig and baseball cap were
later discovered in a ditch near the UNR campus.) Vanisi also showed Kinikini a gun that he
claimed was a police officer's.
The State presented evidence that Vanisi committed three other crimes on the evening
after the killing: the theft of a car in Reno, which was later recovered in Salt Lake City
outside a residence where Vanisi was apprehended; and two store robberies.
which was later recovered in Salt Lake City outside a residence where Vanisi was
apprehended; and two store robberies. Witnesses to both robberies identified Vanisi as the
perpetrator, and a surveillance videotape and a surveillance photograph supported their
testimony.
On January 14, 1998, police apprehended Vanisi at a residence in Salt Lake City.
Vanisi did not comply with police orders to exit the residence, and a SWAT team entered
after Vanisi set a fire in the garage. Vanisi confronted one officer with a handgun, and the
officer fired several shots, hitting Vanisi in the arm. Police partially withdrew and attempted
to persuade Vanisi to surrender. Vanisi eventually emerged but refused to obey officers'
commands, so he was subdued with a bean-bag round. Police discovered Sergeant
Sullivan's gun in the residence. Boots and pants that Vanisi had worn tested positive for
Sullivan's DNA.
The jury found Vanisi guilty of first-degree murder and three counts of robbery, all
with the use of a deadly weapon, and one count of grand larceny.
At the penalty phase, the State presented testimony about Vanisi's disciplinary
problems during his pretrial incarceration. Vainga Kinikini again testified about Vanisi's
statements concerning the killing. Vanisi said that once he had killed, he had to kill some
more to keep his high or rush. Kinikini indicated that Vanisi was smart but insane,
crazy and that Vanisi himself said he was insane and did not care anymore. The State
presented victim impact testimony from several individuals, including Sullivan's sister, wife,
and daughter.
The defense called a number of witnesses, including Vanisi's relatives. Some of the
witnesses indicated that Vanisi had changed in the last few years. For example, Vanisi's wife
testified that Vanisi had been friendly, outgoing, and kind but began to change in late 1995
and 1996. At times Vanisi became violent and abusive, he exhibited poor hygiene and bizarre
behavior, he would ramble, and he lacked a sense of reality. Vanisi would sometimes pose in
front of a mirror pretending to be different people and would dress as a superhero. Eventually,
Vanisi's wife left him. Testimony at the penalty phase indicated that drug use by Vanisi might
have been a factor in his changed behavior.
The defense also called a psychiatrist, Dr. Ole Thienhaus, who treated patients at the
county jail, including Vanisi. Thienhaus testified that his initial diagnosis of Vanisi indicated
possible bipolar disorder, also known as manic depression, or cyclothymia, a similar
condition. Thienhaus stated that a colleague who had seen Vanisi independently had the same
impressions of his condition. During his pretrial incarceration, Vanisi had been prescribed
various medications, including Depakote (a mood stabilizer, discontinued after Vanisi
complained of side effects), lithium (for bipolar disorder), and Risperdal {an antipsychotic
medication).
bipolar disorder), and Risperdal (an antipsychotic medication). Thienhaus indicated, however,
that Vanisi's bipolar disorder did not appear to be an extreme case. Thienhaus explained that
bipolar disorder could be characterized by psychotic episodes, i.e., a loss of touch with
reality, and that violent behavior might occur in the manic phase. However, Thienhaus
testified that this kind of out-of-control behavior was impulsive and inconsistent with
planning for a crime. He acknowledged that it was possible that Vanisi was malingering,
i.e., fabricating symptoms, but he thought it was more likely that Vanisi did in fact suffer
from bipolar disorder.
On cross-examination, the State referenced reports from other professionals who had
evaluated Vanisi. Although there was some additional support for a diagnosis of bipolar
disorder, some professionals indicated that Vanisi exhibited signs of malingering.
Vanisi did not testify at the penalty phase but made a statement in allocution. He
apologized to Sullivan's family and his own. He said that if he had known he was ill he would
have gone to a doctor. He referred to his use of speed and marijuana and lack of sleep before
the crime. This is not an excuse, but a reason. I fell away from my church and my values. If
given the opportunity, he hoped to try to help others avoid the nightmare of drugs and
despair.
The jury imposed a death sentence for the murder, finding three aggravating
circumstances: the murder occurred in the commission of or an attempt to commit robbery;
the victim was a peace officer engaged in the performance of his official duties, and the
defendant knew or reasonably should have known the victim was a peace officer; and the
murder involved mutilation. The jury did not find a fourth alleged aggravating circumstance:
the murder was committed because of the victim's actual or perceived race, color, religion, or
national origin. The district court sentenced Vanisi to consecutive prison terms for the other
offenses.
DISCUSSION
I. Appellant's motion for self-representation
Vanisi asserts that the district court improperly denied a motion for self-representation
that he made before the second trial.
[Headnotes 15]
A criminal defendant has the right to self-representation under the Sixth Amendment
of the United States Constitution and the Nevada Constitution.
1
However, an accused who
chooses self-representation must satisfy the court that his waiver of the right to counsel is
knowing and voluntary.
__________

1
U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 818-19 (1975); Nev. Const. art. 1, 8, cl. 1.
to counsel is knowing and voluntary.
2
Such a choice can be competent and intelligent even
though the accused lacks the skill and experience of a lawyer, but the record should establish
that the accused was made aware of the dangers and disadvantages of self-representation.
3
A court may also deny a request for self-representation if the request is untimely, equivocal,
or made solely for purposes of delay or if the defendant is disruptive.
4
Deprivation of the
right to self-representation is reversible, never harmless, error.
5

Vanisi filed a motion for self-representation in early August 1999, after orally
requesting to be allowed to represent himself. At that time, the trial was scheduled to
commence on September 7. On August 10, the district court held a hearing on the motion: it
canvassed Vanisi pursuant to SCR 253 and heard testimony from a psychiatrist who had
treated Vanisi. The next day the court entered an order denying Vanisi's motion and detailing
extensive findings of fact and conclusions of law.
The district court did not question that Vanisi was prepared to enter a knowing,
intelligent, and voluntary waiver of his right to counsel. Instead, the court gave three basic
reasons for denying Vanisi's motion: the motion was made for purpose of delay; Vanisi was
abusing the judicial process and presented a danger of disrupting subsequent court
proceedings; and the case was a complex, death penalty case, and the court had concerns
about Vanisi's ability to represent himself and receive a fair trial. We consider each reason in
turn.
Purpose of delay
[Headnote 6]
First, the district court found that Vanisi's motion for self-representation was made for
purpose of delay. The court referred to prior actions by Vanisi that had resulted in delay,
including a personal request by Vanisi for a continuance, Vanisi's motion to appoint new
counsel, his subsequent refusal to cooperate with counsel, and the consequent need for a
competency evaluation. The court also believed that Vanisi had decided to represent himself
long before he actually made his request to do so. The court concluded, Although the
defendant states he is not making this motion for the purpose of delay, the court finds
otherwise in light of his previous actions and requests in this case."
__________

2
Faretta, 422 U.S. at 835; Godinez v. Moran, 509 U.S. 389, 400-01 (1993).

3
Faretta, 422 U.S. at 835.

4
Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997).

5
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
of his previous actions and requests in this case. Indeed, at an earlier hearing on a motion by
Vanisi to dismiss his counsel, the court had stated that it appeared that Mr. Vanisi has an
agenda to delay the trial.
[Headnote 7]
As the district court acknowledged, Vanisi's motion was technically timely. Vanisi
made his motion approximately one month before the scheduled start date for the trial and did
not request a continuance. If it is clear that the request comes early enough to allow the
defendant to prepare for trial without need for a continuance, the request should be deemed
timely.
6
Nevertheless, a specific finding of dilatory intent provides a separate and
distinct basis for denial of the request.
7

[Headnotes 8, 9]
The Ninth Circuit has explained that the district court may deny a request for
self-representation in circumstances where the defendant's prior conduct indicates that he or
she is making the request as a delaying tactic:
Of course, a request for self-representation need not be granted if it is intended merely
as a tactic for delay. Moreover, a court may consider events [preceding] a motion for
self-representation to determine whether the request is made in good faith or merely for
delay. Thus, if the district judge determines that the . . . request is part of a pattern of
dilatory activity, the court has the discretion to deny the continuance and require the
defendant to proceed to trial on the scheduled date either with the counsel designated or
pro se.
8

The district court determined that Vanisi's request was part of a pattern of dilatory
activity based on his prior behavior. Although Vanisi said during the Faretta canvass that he
would be prepared to go to trial on schedule and that his motion was not for purpose of delay,
we decline to substitute our judgment for the district court's direct observations and findings
on this matter.
9
We conclude that the district court acted within its discretion in finding that
Vanisi harbored an intent to delay the proceedings.
Abuse of process and risk of disruption
[Headnote 10]
The district court also concluded that Vanisi was abusing the right of
self-representation by disrupting the judicial process" and inferred from Vanisi's past
conduct that he presented a danger of disrupting the trial.
__________

6
Lyons v. State, 106 Nev. 438, 446, 796 P.2d 210, 214 (1990).

7
Id. at 446, 796 P.2d at 214-15.

8
U.S. v. Flewitt, 874 F.2d 669, 674-75 (9th Cir. 1989) (citations omitted).

9
See Tanksley, 113 Nev. at 1001-02, 946 P.2d at 150-51.
right of self-representation by disrupting the judicial process and inferred from Vanisi's past
conduct that he presented a danger of disrupting the trial.
[Headnotes 1114]
The United States Supreme Court has stated that an accused has the right to conduct
his own defense provided that he is able and willing to abide by rules of procedure and
courtroom protocol.
10
The right of self-representation is not a license to abuse the dignity
of the courtroom. Neither is it a license not to comply with relevant rules of procedural and
substantive law.
11
This court has stated that in considering a request for self-representation,
a defendant's pretrial activity is relevant if it indicates that he or she will be disruptive in the
courtroom.
12
Since the district court is in a better position to observe a defendant's demeanor
and conduct, this court will not substitute its own evaluation for the district court's personal
observations and impressions.
13

We conclude that the district court made appropriate and sufficient findings to support
a conclusion that Vanisi was unable or unwilling to abide by rules of procedure and
courtroom protocol. The court noted that Vanisi had interrupted prior hearings by blurt[ing]
out statements in a loud voice. Vanisi also talked while others were speaking in court, stood
up and engaged in unsettling rocking motions, and repeated himself over and over. Vanisi
spoke out loud to himself in such a manner that it was at times difficult to determine if he
was speaking for his own benefit or to the courtroom audience or the court. At the
self-representation canvass, Vanisi exhibited difficulty in processing information and took
an extremely lengthy period of time to respond to many of the court's questions, the
courtroom proceedings stopping for two to three minutes at times while he pondered his
answer. At times, Vanisi asked the court to repeat the same question many times before
answering and even refused to answer a question that he believed to be an incomplete
sentence. Vanisi frequently asked the district court questions instead of answering the court's
questions. At one hearing, Vanisi continued to question the district court after the court
indicated that Vanisi should address his counsel. The district court also noted its concern with
Vanisi's history of aggressive and disruptive behavior while at the Nevada State Prison.
__________

10
McKaskle, 465 U.S. at 173.

11
Faretta, 422 U.S. at 835 n.46.

12
See Tanksley, 113 Nev. at 1001, 946 P.2d at 150.

13
Id. at 1001-02, 946 P.2d at 150-51; cf. Stewart v. Corbin, 850 F.2d 492, 497-98 (9th Cir. 1988).
We conclude that the district court acted within its discretion in finding that Vanisi
had shown himself unable or unwilling to abide by rules of procedure and courtroom
protocol.
Case complexity, the ability to represent oneself, and trial fairness
[Headnote 15]
The district court further concluded that the instant case was so complex that
permitting Vanisi to represent himself would deny him a fair trial. In two of our own cases,
this court has cited the complexity of the case and fair-trial concerns as a basis for denying a
defendant's request for self-representation.
14
We now clarify that though this factor is
relevant on the issue of whether a defendant's decision to waive counsel was made
understanding the potential consequences of the decision, it is not an independent basis for
denial of a motion for self-representation.
[Headnotes 16, 17]
The Ninth Circuit has pointed out: In deciding whether a defendant has knowingly
and intelligently decided to represent himself, the trial court is to look not to the quality of his
representation, but rather to the quality of his decision.
15
The district court should inquire of
a defendant about the complexity of the case to ensure that the defendant understands his or
her decision and, in particular, the difficulties he or she will face proceeding in proper person.
But to regard the complexity of the case and related fair-trial concerns as considerations
independent of this inquiry, we conclude, does not comport with the law on
self-representation.
[Headnote 18]
The United States Supreme Court has recognized that a criminal defendant's ability
to represent himself has no bearing upon his competence to choose self-representation.
16
This court has similarly stated that [t]he relevant assessment examines the accused's
competence to choose self-representation, not his ability to adequately defend himself.
17
Accordingly, if a defendant willingly waives counsel and chooses self-representation with an
understanding of its dangers, including the difficulties presented by a complex case, he or
she has the right to do so.
__________

14
See Meegan v. State, 114 Nev. 1150, 1154, 968 P.2d 292, 294 (1998) ([B]ased on the complexity of the
case, the district court properly denied Meegan's request to represent himself.); Lyons, 106 Nev. at 444, 796
P.2d at 214 (A court may deny a defendant's request to represent himself when a case is so complex that the
defendant would virtually be denied a fair trial if allowed to proceed pro se.).

15
Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir. 2000).

16
Godinez, 509 U.S. at 400.

17
Harris v. State, 113 Nev. 799, 802, 942 P.2d 151, 153 (1997).
by a complex case, he or she has the right to do so. We discern no Faretta exception where a
defendant's assertion of the right to self-representation would be especially unwise.
18
The
United States Supreme Court has emphasized that although the defendant may conduct his
own defense ultimately to his own detriment, his choice must be honored,' even though it is
undeniable that in most cases a defendant is better represented by counsel.
19

II. The aggravating circumstance of mutilation
[Headnote 19]
Vanisi claims that the aggravating
circumstance of mutilation does not apply in this case. We reject this claim.
[Headnote 20]
NRS 200.033(8) provides for an aggravating circumstance where [t]he murder
involved torture or the mutilation of the victim. Here, the State proceeded on a theory of
mutilation. This court has approved a jury instruction that defines mutilate as 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.
20
Mutilation requires an act beyond the act of killing itself.
21

There is compelling evidence establishing mutilation here. Dr. Clark, who performed
the autopsy, testified to the extensive and severe injury inflicted on Sullivan's body. Clark
identified at least twenty separate and distinct impacts to Sullivan's face and head. Sullivan
had many, many lacerations and some of Sullivan's teeth were actually found outside of the
body. Clark testified that the weapon used in the offense was wielded in different fashions,
that some of the injuries are coming this direction, some are coming this direction, some are
coming towards the back, and other injuries are made with a sharp portion of the blade.
Clark also found that some injuries to Sullivan's chin and jaw and to the back of his head
were more consistent with broad flat impact, possibly stomping. Sullivan sustained skull
fractures, fractures to virtually all of the facial bones, and damage to the brain. This physical
evidence is consistent with the testimony of one of Vanisi's relatives concerning Vanisi's
description of the murder. According to this account, even after Sullivan was knocked out by
Vanisi's initial assault, Vanisi proceeded to kick Sullivan over and over, stomping on
Sullivan's head.
__________

18
See 3 Wayne R. LaFave et al., Criminal Procedure 11.5(d), at 584-85 (2d ed. 1999).

19
Godinez, 509 U.S. at 400 (quoting Faretta, 422 U.S. at 834).

20
Smith v. State, 114 Nev. 33, 39, 953 P.2d 264, 267 (1998).

21
Browne v. State, 113 Nev. 305, 316, 933 P.2d 187, 193 (1997).
Given the weight of this evidence, we conclude that Vanisi's assault went well beyond
the act of killing itself and resulted in mutilation of the victim's body.
22

[Headnote 21]
Although Vanisi does not specifically challenge the jury instruction on appeal, we
note that it included some language no longer mandated by the statutory aggravating
circumstance. The jury was instructed: The term 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, or other serious and depraved physical abuse beyond the act of killing itself.
23
This instruction is largely the same as the one we have approved. However, the emphasized
language appears to come from an instruction based on a former version of NRS 200.033(8),
which referred to depravity of mind as well as torture and mutilation.
24
In 1995, the
Legislature amended the statute to delete depravity of mind.
25

[Headnote 22]
Use of the instruction here was not prejudicial since the State did not argue depravity
of mind and there was compelling evidence of mutilation, as discussed above. We take this
opportunity, however, to clarify that language referring to other serious and depraved
physical abuse should no longer be included in a definition of mutilation.
III. Mandatory review of the death sentence
NRS 177.055(2) requires
this court to review every death sentence and consider in addition to any issues raised on
appeal:
circumstances;
defendant.
__________

22
Cf. Browne, 113 Nev. at 316-17, 933 P.2d at 194 (upholding a finding of mutilation where the victim
received repeated blows to the head which destroyed her brain, some blows were inflicted after she became
unconscious, and any one of the blows could have killed her).

23
Emphasis added.

24
See Smith, 114 Nev. at 35-37, 953 P.2d at 265-66.

25
The amendment applies to offenses committed on or after October 1, 1995. 1995 Nev. Stat., ch. 467,
1-3, at 1490-91.
[Headnotes 23, 24]
First, there is evidence to support each of the aggravating circumstances. We have
already discussed mutilation. The remaining aggravating circumstances are also supported by
the evidence. With regard to the aggravating circumstance of robbery or attempted robbery,
the evidence shows that Vanisi took Officer Sullivan's gun belt and gun. With regard to the
aggravating circumstance of killing a peace officer, there is evidence that Sullivan was on
duty, in uniform, and in his police car when he was attacked. Further, Vanisi's statements to
various individuals about his intent to kill and rob a police officer support the jury's finding of
both aggravating circumstances.
[Headnote 25]
Second, we have reviewed the record and conclude that Vanisi's death sentence was
not imposed under the influence of passion, prejudice, or any arbitrary factor.
Vanisi makes one contention in this regard. Because the jury made no findings with
respect to mitigating circumstances, he argues that the jury improperly rejected persuasive
mitigating evidence. This contention lacks merit. Here, the jury was not asked to detail its
findings concerning mitigating circumstances, and there is no requirement that a jury receive
a form to specify the mitigating circumstances it has found.
26
NRS 175.554(3) provides that
the jury need only state that there are no mitigating circumstances which outweigh the
aggravating.
27
We perceive no basis to conclude that the jurors did not duly consider the
mitigating evidence before them.
[Headnote 26]
Third, we conclude that the death penalty is not excessive. The instant crime was a
cold, calculated, and brutal killing. Vanisi had planned to kill a police officer well in advance
of the murder, and he carried that plan into action, going so far as to disguise himself before
the killing. The actual act of killing was completely unprovoked and particularly violent.
Vanisi indicated afterwards that he enjoyed it and would like to kill again. It is true that this
case is not without mitigating evidence, including testimony by Vanisi's family and other
evidence indicating that he has mental health problems. Nevertheless, despite these problems,
the level of planning behind this killing shows that it was more than a rash impulse acted on
during a psychotic episode arising from bipolar disorder.
__________

26
Rogers v. State, 101 Nev. 457, 469, 705 P.2d 664, 672 (1985).

27
Id.
IV. The statutory instruction on reasonable doubt
[Headnote 27]
Finally, Vanisi claims that the district court erred in rejecting his proffered instruction
on reasonable doubt and instructing the jury pursuant to NRS 175.211. The court did not err
in using the mandatory statutory instruction.
28

CONCLUSION
We conclude that the district court did not err in denying Vanisi's motion to represent
himself. Vanisi's other claims also lack merit. We therefore affirm his judgment of conviction
and sentence.
Maupin, C. J., Young and Leavitt, JJ., concur.
Rose, J., with whom Agosti and Becker, JJ., agree, concurring:
I concur in the majority's conclusion that Vanisi's request to represent himself was
improperly denied on the bases of the delay in asserting his request and the complexity of the
case. I also agree that the district court's denial of Vanisi's motion for self-representation was
proper because Vanisi exhibited a risk of disruption, but only because of this court's
deferential policy toward the findings of fact of the district court on this issue. The facts of
this case should set the high-water mark for the denial of a defendant's constitutional right of
We have held that a defendant's pretrial conduct is relevant if it affords a strong
indication that [he or she] will disrupt the proceedings in the courtroom.'
1
I question
whether the district court's findings provide a strong indication that Vanisi would be
disruptive at trial. Many of the court's findings are more indicative of inconvenience than
disruption. A request for self-representation should not be denied solely because of the
inherent inconvenience often caused by pro se litigants.'
2

My review of the record reveals that, at least at the hearing on the motion for
self-representation, Vanisi was generally articulate, respectful, and responsive during rigorous
examination by the district court.
__________

28
See, e.g., Bollinger v. State, 111 Nev. 1110, 1115 & n.2, 901 P.2d 671, 674 & n.2 (1995) (upholding the
constitutionality of the instruction particularly where [as here] the jury received additional instruction on the
State's burden of proof and the presumption of innocence).

1
Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997) (quoting United States v. Flewitt, 874
F.2d 669, 674 (9th Cir. 1989)).

2
Tanksley, 113 Nev. at 1001, 946 P.2d at 150 (quoting Lyons v. State, 106 Nev. 438, 444 n.1, 796 P.2d 210,
217 n.1 (1990)).
trict court. It does not appear that Vanisi actually disrupted earlier proceedings, although the
court's frustration with Vanisi has some factual basis. At one hearing, for instance, Vanisi
continued to question the court after the court had indicated that Vanisi should address his
counsel. At that time Vanisi's own counsel complained, and the court responded: Actually, I
didn't think he is any worse than you. But you can go on. I mean, you have interrupted me on
many occasions. I mean, he is excitable but I would not call him manic. The transcript of
this hearing as a whole reveals that Vanisi was generally respectful to the court, rarely
interrupted or continued speaking inappropriately, and complied when the court told him to
refrain from such conduct. I note, however, that toward the end of the hearing the court had to
instruct Vanisi to keep his voice down while others were speaking; the court stated: You
have to whisper. You are interfering.
Assessments of Vanisi's behavior by defense counsel and by the State also contradict
the district court's ultimate evaluation. At the canvass, defense counsel commented that
Vanisi's behavior had been impeccable since this case first came into this courtroom and
that there was absolutely nothing he has done in this courtroom over the past year-and-a-half
which reflects that he's going to delay or obstruct or in any way make himself a nuisance.
Counsel explained, [h]e had five days when he was in trial. He minded his manners. He's
observed decorum. He's paid respect and courtesy to this Court. The State agreed that Vanisi
had not been disruptive whenever the State was present. The prosecutor explained,
I would indicate to the Court that at least the times in court that the State has been
present . . . Mr. Vanisi has been anything but disruptive. I think he responded very
literally to the Court's inquiry, was cognizant of the questions and the proceedings
surrounding them, oriented to time and place, and satisfies that criteria across the board.
The prosecutor commented further that Vanisi had significant ability to read and process
information and that he was distinctly and cognitively more adept at defending himself than
any defendant I have ever been involved with. Finally, Vanisi himself represented to the
court that he would behave properly within the court's guidelines and that he did not intend to
disrupt the proceedings.
The court also commented on two other factors relating to the potential for disruption
that were independent of Vanisi's courtroom conduct. First, the court cited Vanisi's history
of aggressive and disruptive behavior while at the Nevada State Prison. The relevance of
Vanisi's out-of-court behavior in this case is questionable to me, given his apparently
non-violent and generally appropriate in-court behavior and the fact that some of his
out-of-court behavior and prior conduct might have been due to an untreated bipolar
disorder.
questionable to me, given his apparently non-violent and generally appropriate in-court
behavior and the fact that some of his out-of-court behavior and prior conduct might have
been due to an untreated bipolar disorder.
3

Second, the court noted that Vanisi had indicated that he wanted less confinement in
the courtroom and that it appeared that Vanisi expected that he would be permitted
unrestricted movement if allowed to represent himself. The court commented that, if denied
full movement, it appeared that Vanisi would complain on appeal that he did not have an
equal opportunity to present his case and that this revealed a tactic' intended to disrupt the
judicial process. I believe that there is little basis for the district court to rely on Vanisi's
apparent desire to have full movement in the courtroom as a reason to deny his constitutional
right of self-representation. Vanisi did not condition his request for self-representation on full
movement or indicate that he would not abide by the court's rules. When the court asked if
Vanisi understood that the court would not allow him more movement in the courtroom than
had been allowed thus far, Vanisi indicated that he understood. He further stated, however,
that the court should put it on the record that it wanted him to conduct a fair trial standing
[like] a statu[e], but that it was fine so long as the court put it on the record.
From the record before this court, it is difficult to find strong indications that Vanisi
would have been disruptive in future proceedings. A defendant's constitutional right to
self-representation should not be denied merely because of indications of future
inconveniences or moderate disruptions. However, this court has stated that on this issue it
will not substitute its evaluation for that of the district court judge's own personal
observations and impressions.
4
On this basis alone, I concur in the affirmance of the district
court's denial of Vanisi's request for self-representation.
__________

3
Compare Stewart v. Corbin, 850 F.2d 492 (9th Cir. 1988) (concluding that shackling and gagging of
defendant and consequent termination of right to self-representation (due to gagging) were constitutional, given
defendant's egregious in-court behavior as well as some prior out-of-court behavior).

4
Tanksley, 113 Nev. at 1002, 946 P.2d at 151.
____________
117 Nev. 348, 348 (2001) Gallego v. State
GERALD ARMOND GALLEGO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35291
May 17, 2001 23 P.3d 227
This is an appeal from a judgment of conviction and sentence of death following a
second penalty hearing. Sixth Judicial District Court, Pershing County; John S. McGroarty,
Judge.
Following affirmance of capital murder convictions and death sentence, 101 Nev. 782,
711 P.2d 856 (1985), new sentencing hearing was ordered, 124 F.3d 1065 (9th Cir. 1997).
After hearing, defendant was again sentenced to death by the district court. Defendant
appealed. The en banc supreme court, Shearing, J., held that: (1) defendant's request to
represent himself at resentencing was neither untimely nor waived, (2) defendant's acceptance
of appointed counsel for his original trial did not result in waiver of his right to proceed
without counsel at second penalty hearing, (3) defendant's pretrial behavior showed he was
unable or unwilling to abide by rules of procedure and courtroom protocol, (4) defendant
failed to show good cause for substitution of appointed counsel, (5) prosecutor's improper
comment in closing argument that defense had not rebutted alleged aggravators was harmless,
(6) jury's failure to fully mark special verdict form did not prejudice defendant, (7) waiver of
defendant's right to testify was valid, and (8) death sentence was not excessive.
Affirmed.
Steven G. McGuire, State Public Defender, and James P. Logan, Chief Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District
Attorney, John J. Kadlic, Deputy District Attorney, and Brent T. Kolvet, Special Deputy
District Attorney, Pershing County, for Respondent.
1. Criminal Law.
A criminal defendant has the right to self-representation under United States and Nevada Constitutions. Const. art. 1, 8; U.S.
Const. amend. 6.
2. Criminal Law.
An accused who chooses self-representation must satisfy the court that his waiver of the right to counsel is knowing and
voluntary. Const. art. 1, 8; U.S. Const. amend. 6.
3. Criminal Law.
A defendant's decision to represent himself can be competent and intelligent even though he lacks the skill and experience of a
lawyer, but the record should establish that he was made aware of the dangers and disadvantages of
the record should establish that he was made aware of the dangers and disadvantages of self-representation. Const. art. 1, 8; U.S.
Const. amend. 6.
4. Criminal Law.
Deprivation of the right to self-representation is reversible, never harmless, error. Const. art. 1, 8; U.S. Const. amend. 6.
5. Criminal Law.
A court may deny a defendant's request for self-representation when the defendant is incompetent to waive the right to counsel,
the request is untimely, the request is equivocal, the request is made solely for the purpose of delay, or the defendant abuses the right to
self-representation by disrupting the judicial process. Const. art. 1, 8; U.S. Const. amend. 6.
Capital murder defendant's request to represent himself at resentencing proceeding was timely. In denying such request, district
court treated it as if it came just before penalty phase in midst of ordinary, uninterrupted capital trial, which treatment was
inappropriate because penalty phase followed original trial by fifteen years and required new jury to be empaneled, and defendant first
made his request almost one year before that empaneling. Const. art. 1, 8; U.S. Const. amend. 6.
Capital murder defendant who accepted appointed counsel for his original trial did not thereby waive his right to proceed
without counsel at second penalty hearing fifteen years later. Const. art. 1, 8; U.S. Const. amend. 6.
Capital murder defendant's request to represent himself at resentencing was not rendered equivocal merely because he also asked
court for substitution of counsel. Though relevant to request for self-representation, request for substitution of counsel was not
dispositive. Const. art. 1, 8; U.S. Const. amend. 6.
9. Criminal Law.
A request to proceed without counsel can be unequivocal even if in the alternative the defendant would prefer a different
attorney. Const. art. 1, 8; U.S. Const. amend. 6.
10. Criminal Law.
Although an unequivocal request for self-representation can be conditional, it must speak to self-representation and not simply
to a dissatisfaction with current counsel, and a court can insist that the defendant explicitly choose to proceed pro se once informed
that a substitution of counsel will not be permitted. Const. art. 1, 8; U.S. Const. amend. 6.
11. Criminal Law.
The right of self-representation is not a license to abuse the dignity of the courtroom; neither is it a license not to comply with
relevant rules of procedural and substantive law. Const. art. 1, 8; U.S. Const. amend. 6.
12. Criminal Law.
An accused has the right to conduct his own defense provided that he is able and willing to abide by rules of procedure and
courtroom protocol. Const. art. 1, 8; U.S. Const. amend. 6.
13. Criminal Law.
A defendant's pretrial activity is relevant in determining whether the defendant will disrupt courtroom proceedings, for purposes
of his request to represent himself. Const. art. 1, 8; U.S. Const. amend. 6.
14. Criminal Law.
In reviewing the denial of a defendant's request to represent himself, the supreme court will not substitute its evaluation for the
district court's personal observations and impressions if the latter finds that the defendant will be disruptive. Const. art. 1, 8; U.S.
Const. amend. 6.
15. Criminal Law.
Capital murder defendant's refusal to cooperate with mental health experts appointed to determine his competency was not
relevant to issue of whether he was unable or unwilling to abide by rules of procedure and courtroom protocol, for purposes of his
request to represent himself at resentencing, as defendant had Fifth Amendment right to remain silent during court-ordered psychiatric
interview. Const. art. 1, 8; U.S. Const. amends. 5, 6.
Capital murder defendant's request to represent himself at resentencing was properly denied, as his pretrial behavior showed he
was unable or unwilling to abide by rules of procedure and courtroom protocol: he showed unwillingness or inability to follow
procedural rules in repeatedly claiming his innocence and seeking to present evidence on that issue despite being informed by district
court that such claim was improper during penalty phase; he impeded pretrial proceedings on numerous occasions by refusing to
respond or participate, often claiming that he could not hear district court or another speaker; and even though record showed that there
was some trouble with acoustics in courtroom as well as with defendant's hearing, it also showed that defendant was frequently
malingering. Const. art. 1, 8; U.S. Const. amend. 6.
Indigent capital murder defendant failed to show good cause for substitution of appointed counsel at resentencing. Disagreement
between defendant and counsel over trial strategy was not conflict of interest. Counsel's strategy, i.e., to present evidence that
defendant had endured severe physical and emotional abuse as child, suffered from mental disabilities, and had abused drugs, was
reasonable one, whereas much evidence that defendant wished to present was not even admissible, and even though defendant claimed
that counsel lied to defendant by telling him that another attorney would be joining defense team, order for employment of that attorney
was rescinded after federal court granted six-month extension of time for resentencing. Const. art. 1, 8; U.S. Const. amend. 6.
18. Criminal Law.
A defendant's right to substitution of counsel is limited. Const. art. 1, 8; U.S. Const. amend. 6.
19. Criminal Law.
A defendant is not entitled to reject his court-appointed counsel and request substitution of other counsel at public expense
absent a showing of adequate cause for such a change. Const. art. 1, 8; U.S. Const. amend. 6.
20. Criminal Law.
The decision whether friction between appointed counsel and client justifies appointment of new counsel is entrusted to the
sound discretion of the trial court and should not be disturbed on appeal in the absence of a clear showing of
abuse.
of the trial court and should not be disturbed on appeal in the absence of a clear showing of abuse. Const. art. 1, 8; U.S. Const.
amend. 6.
21. Criminal Law.
Where a motion for new appointed counsel is made considerably in advance of trial, the court may not summarily deny the
motion but must adequately inquire into the defendant's grounds for it. Const. art. 1, 8; U.S. Const. amend. 6.
22. Criminal Law.
A defendant cannot base a claim of inadequate representation upon his refusal to cooperate with appointed counsel. Const. art.
1, 8; U.S. Const. amend. 6.
23. Criminal Law.
An indigent defendant has a right to substitution only upon establishing good cause, such as a conflict of interest, a complete
breakdown of communication, or an irreconcilable conflict which could lead to an apparently unjust verdict. Const. art. 1, 8; U.S.
Const. amend. 6.
24. Criminal Law.
The mere loss of confidence in appointed counsel does not establish good cause for substitution. Const. art. 1, 8; U.S. Const.
amend. 6.
25. Criminal Law.
Good cause for the substitution of appointed counsel is not determined solely according to the subjective standard of what the
defendant perceives. While loss of trust is certainly a factor in assessing good cause, the defendant must nevertheless afford the court
with legitimate reasons for the lack of confidence. Const. art. 1, 8; U.S. Const. amend. 6.
26. Criminal Law.
Attorney-client conflicts justify the grant of a motion for substitution of appointed counsel only when counsel and defendant are
so at odds as to prevent presentation of an adequate defense. Const. art. 1, 8; U.S. Const. amend. 6.
At sentencing in a first-degree murder prosecution, the court may exclude proffered mitigating evidence as irrelevant if it does
not bear on the defendant's character, his prior record, or the circumstances of his offense. NRS 175.552(3).
Evidence presented in mitigation at sentencing in a first-degree murder prosecution must be relevant to the offense, the
defendant, or the victim. NRS 175.552(3).
29. Criminal Law.
Failure to object during trial generally precludes appellate consideration of an issue; however, despite such failure, the supreme
court has the discretion to address an error if it was plain and affected the defendant's substantial rights. NRS 178.602.
30. Criminal Law.
Normally, a defendant must show that an unobjected-to error was prejudicial in order to establish that it affected substantial
rights. NRS 178.602.
Prosecutor's comment in closing argument in penalty phase of capital murder prosecution that defense had not rebutted alleged
aggravators was improper, as it suggested that defense had burden to disprove aggravating circumstances.
To obtain a death sentence, the State must prove beyond a reasonable doubt that at least one aggravating circumstance exists and
that the aggravating circumstance or circumstances outweigh any mitigating evidence.
Even if plain error occurred when prosecutor commented without objection in closing argument in penalty phase of capital
murder prosecution that defense had not rebutted alleged aggravators, such improper remark did not affect defendant's substantial
rights. Remark was extremely brief and general, and there was overwhelming evidence to prove three aggravating circumstances.
Jury's failure to fully mark special verdict form in penalty phase of capital murder prosecution did not prejudice defendant,
despite claim that such failure meant that jury failed to consider mitigating evidence and weigh it against aggravating circumstances.
Jury checked final item on verdict form, indicating that mitigating circumstances were not sufficient to outweigh aggravating
circumstances, jurors were not required to find some or all of defendant's proffered mitigating circumstances simply because he
presented unrebutted evidence to support them, and it appeared that jurors found no mitigating circumstances and simply overlooked
that they were supposed to indicate this on form. NRS 175.554(3).
Jurors were not required to find some or all of defendant's proffered mitigating circumstances in penalty phase of capital murder
prosecution, even though he presented unrebutted evidence to support them.
36. Criminal Law.
The supreme court presumes that the jurors followed their instructions and considered properly admitted evidence.
Jury's failure to indicate on special verdict form in penalty phase of capital murder prosecution whether it found any mitigating
circumstances did not prevent supreme court's mandatory review of death sentence. Supreme court's consideration of mitigating
evidence was not dependent on jury's assessment of that evidence. NRS 177.055(2).
38. Criminal Law; Sentencing and Punishment.
Capital murder defendant's confrontation rights were not violated by his absence from pre-penalty phase in camera proceedings
at which prospective jurors were dismissed by stipulation of both counsel, for reasons ranging from knowledge of case to ill health.
39. Criminal Law.
A defendant does not have an unlimited right to be present at every proceeding.
The right to be present is rooted in the Confrontation Clause and the Due Process Clause of the Federal Constitution: the
confrontation aspect arises when the proceeding involves the presentation of evidence; the due process aspect has been recognized only
to the extent that a fair and just hearing would be thwarted by the defendant's absence. U.S. Const. amends. 6, 14.
The right to be present under the Confrontation Clause and the Due Process Clause of the Federal Constitution is subject to
harmless error analysis. The defendant must show that he was prejudiced by the absence. U.S. Const. amends. 6, 14.
Waiver of capital murder defendant's right to testify or to speak in allocution at penalty phase was valid, despite claim that he
made it under misconception that his testimony would have been restricted so as to exclude evidence of innocence. Such belief was not
misconception, as evidence of innocence was irrelevant, insofar as it did not bear on defendant's character, his prior record, or
circumstances of his offense. U.S. Const. amends. 5, 6, 14; NRS 175.552(3).
43. Constitutional Law; Witnesses.
Criminal defendants have the right to testify on their own behalf under the Due Process Clause of the Fourteenth Amendment,
the Compulsory Process Clause of the Sixth Amendment and the Fifth Amendment's privilege against self-incrimination. U.S. Const.
amends. 5, 6, 14.
A valid waiver of a fundamental constitutional right ordinarily requires an intentional relinquishment or abandonment of a
known right or privilege.
Courts should indulge every reasonable presumption against waiver of a fundamental constitutional right, and should not
presume acquiescence in the loss of fundamental rights.
The proper place for the introduction of evidence tending to establish innocence is in the guilt phase of trial. At the penalty
phase, the defendant's guilt has already been assessed and is no longer in issue.
Process by which juries in capital cases consider evidence and decide on sentence is constitutionally adequate.
Capital murder defendant was not prejudiced in penalty phase by law enforcement officer's comment that defendant and his
accomplice were responsible for probably ten murders. Although such remark constituted only impalpable evidence, remark was
inadvertent and brief, and reliable evidence did establish that defendant had committed six murders.
Testimony regarding police investigations of a defendant's other crimes is admissible at a capital penalty hearing so long as the
evidence is not impalpable or highly suspect.
50. Costs.
Capital murder defendant was properly denied funding for magnetic resonance imaging and positron emission tomography
testing, which he claimed was necessary to establish at penalty phase that he suffered from organic brain damage. Psychiatrist and
psychologist were appointed for defendant, both provided their opinions that he had organic brain damage, and he had received
computerized axial tomography (CAT) scan which his experts were able to rely on to support their opinions. NRS 7.135.
A victim can express an opinion regarding the defendant's sentence only in noncapital cases.
Statutory aggravators properly narrow class of persons eligible for death penalty. NRS 200.033.
Statute that allows introduction of evidence against defendant on any other matter which the court deems relevant is neither
unconstitutionally vague nor contrary to statute setting forth aggravators in death penalty cases. Statutes were compatible, and supreme
court had previously defined limited scope and use of other matter evidence. NRS 175.552(3), 200.033.
Death penalty is not cruel and unusual punishment under either federal or state constitution. Const. art. 1, 6; U.S. Const.
amend. 8.
55. Mental Health.
Fact the State conducted capital murder defendant's pre-penalty phase psychological evaluation at Northern Nevada Correctional
Center, rather than at Lakes Crossing, did not violate any right.
Death sentence was not excessive with respect to defendant convicted of two first-degree murders. Evidence supported finding
of three aggravating circumstances, and reliable evidence showed that defendant had committed total of six murders. NRS 177.055(2).
OPINION
Appellant Gerald Armond Gallego murdered two teenage girls in Pershing County in
1980. He was convicted and sentenced to death. In 1997, a federal court ordered that Gallego
be resentenced. He received a new penalty hearing and was again sentenced to death.
Gallego contends that a number of errors occurred at his second penalty hearing,
including that the district court erred in not permitting him to represent himself and in not
appointing substitute counsel. We conclude that none of Gallego's assignments of error
warrant relief.
FACTS
Two teenage girls, Stacey Redican and Karen Twiggs, disappeared from a shopping
mall in Sacramento, California, in April 1980. Their bodies were found in July 1980 in
shallow graves in remote Limerick Canyon, Nevada. The State's primary witness, Charlene
Williams (aka Charlene Gallego), testified that she enticed the two victims into a van where
they were forcibly confined, sexually molested by Gallego, driven to Limerick Canyon, and
then murdered by Gallego with a hammer.
enticed the two victims into a van where they were forcibly confined, sexually molested by
Gallego, driven to Limerick Canyon, and then murdered by Gallego with a hammer. Evidence
also showed that Gallego and Williams acted similarly in the earlier kidnapping and killing of
two teenage girls in California, Kippi Vaught and Rhonda Scheffler. The jury found Gallego
guilty of two counts each of first-degree murder and first-degree kidnapping. During the
penalty phase, the State introduced evidence that Gallego had been convicted of murdering
two more people in California, Mary-Beth Sowers and Craig Miller. He was sentenced to
death for the murders in this case and received two consecutive sentences of life without the
possibility of parole for the kidnappings. This court affirmed Gallego's conviction and
sentence.
1

In 1997, the Ninth Circuit Court of Appeals concluded that a jury instruction on the
possibility of executive clemency had been misleading and ordered that Gallego be
resentenced.
2

The district court appointed the Nevada State Public Defender to represent Gallego.
Gallego moved in proper person to be permitted to represent himself in October 1998. Steven
McGuire, Gallego's lead counsel, filed a response to the motion asking the district court to
determine as a threshold question whether Gallego was competent. In January 1999, the
district court approved the employment by the defense of a psychiatrist and a psychologist to
examine Gallego. An evidentiary hearing on Gallego's competency was held May 10-12,
1999. The district court found him competent.
Following this finding, McGuire filed a brief in support of Gallego's motion for
self-representation. Gallego submitted a request in proper person for discharge of McGuire
and substitution of counsel. At a hearing in August 1999, the district court denied Gallego's
motions to represent himself and for substitute counsel.
The second penalty hearing was held in September 1999. The State presented
evidence that Gallego kidnapped and murdered Redican and Twiggs, that he had been
convicted of kidnapping and murdering two other people in California (Sowers and Miller),
and that he kidnapped and killed two more people in California (Vaught and Scheffler) but
had not been charged with the latter offenses.
The defense introduced written declarations by a number of people familiar with
extreme physical and emotional abuse that Gallego suffered growing up and by Dr. Myla K.
Young, the psychologist who examined him.
__________

1
See Gallego v. State, 101 Nev. 782, 784, 711 P.2d 856, 858 (1985) (reciting the facts); Gallego v.
McDaniel, 124 F.3d 1065, 1068-69 (9th Cir. 1997) (Gallego II) (same).

2
Gallego II, 124 F.3d at 1074-76, 1079.
Gallego suffered growing up and by Dr. Myla K. Young, the psychologist who examined
him. Psychiatrist Dr. David V. Foster testified for the defense. Gallego's medical history
showed that he had suffered serious head injuries, and Foster stated that neuropyschiatric and
neuropsychological testing and a CAT (computerized axial tomography) scan indicated
significant damage to Gallego's brain. Foster summed up Gallego's family history as follows:
Mr. Gallego was severely tortured, beaten, humiliated and at times starved and deprived of
food, affection, warmth, and suffers severe post-traumatic stress disorder as a consequence.
The jury found all three alleged aggravating circumstances, which were that the
murder was committed: by a person previously convicted of another murder; by a person
previously convicted of a felony involving the use or threat of violence; and while the
defendant was engaged in the commission of kidnapping in the first degree. It found that the
mitigating circumstances did not outweigh the aggravating circumstances and returned a
death sentence for each murder.
The defense filed a motion for a new trial, alleging that the jury neglected its duty to
consider the mitigating evidence. After a hearing on the motion, the district court denied it. A
sentencing hearing was then held, and the court entered judgment and sentenced Gallego to
death.
DISCUSSION
I. The denial of appellant's motion to represent himself
Gallego contends that the district court violated his constitutional right to represent
himself.
[Headnotes 15]
A criminal defendant has the right to self-representation under the Sixth Amendment
of the United States Constitution and article 1, section 8 of the Nevada Constitution.
3
However, an accused who chooses self-representation must satisfy the court that his waiver of
the right to counsel is knowing and voluntary.
4
Such a choice can be competent and
intelligent even though the accused lacks the skill and experience of a lawyer, but the record
should establish that the accused was made aware of the dangers and disadvantages of
5
Deprivation of the right to self-representation is reversible, never
harmless, error.
6
A court may deny a defendant's request for self-representation when the
defendant is incompetent to waive the right to counsel, the request is untimely, the
request is equivocal, the request is made solely for the purpose of delay, or the defendant
abuses the right to selfrepresentation by disrupting the judicial process.
__________

3
U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 818-19 (1975); Nev. Const. art. 1, 8, cl. 1.

4
Faretta, 422 U.S. at 835; Godinez v. Moran, 509 U.S. 389, 400-01 (1993).

5
Faretta, 422 U.S. at 835.

6
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
deny a defendant's request for self-representation when the defendant is incompetent to waive
the right to counsel, the request is untimely, the request is equivocal, the request is made
solely for the purpose of delay, or the defendant abuses the right to self-representation by
disrupting the judicial process.
7

The district court expressed a number of grounds for denying Gallego's motion to
represent himself. It found the request to be untimely and equivocal and that Gallego had
waived the right to represent himself. It also cited Gallego's uncooperative, obstructive
behavior as grounds to deny the motion.
Whether the request for self-representation was untimely or waived
[Headnote 6]
In Lyons v. State, this court held that if a request for self-representation comes early
enough to allow the defendant to prepare for trial without need for a continuance, the request
should be deemed timely.
8
We conclude that the district court erred in deeming Gallego's
request untimely. None of the cases cited by the court on this issue were apposite since all
involved requests for self-representation coming on the first day of trial or later.
9

Here, the district court treated Gallego's request to represent himself as if it came just
before the penalty phase in the midst of an ordinary, uninterrupted capital trial. This treatment
was not appropriate because the penalty phase followed the original trial by fifteen years and
required a new jury to be empaneled. Gallego first made his request in October 1998, almost
a year before that empaneling. There is no indication that Gallego was trying to delay the
proceedings. Deeming the request untimely under these circumstances improperly placed
form over substance and was erroneous. Under Lyons, Gallego's request was timely because it
was made well before the penalty phase of the trial and did not necessitate a continuance.
[Headnote 7]
The district court also found that Gallego waived the right to represent himself by
accepting court-appointed counsel at his original trial. It cited our opinion in Tucker v. State,
which holds: Where a defendant requests a court-appointed attorney and thereafter
voluntarily acquiesces in representation by that court-appointed attorney, he waives his
constitutional right to conduct a pro se defense.
__________

7
Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997).

8
106 Nev. 438, 446, 796 P.2d 210, 214 (1990).

9
See, e.g., United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (holding that request made on
second day of trial was properly refused as a ploy to frustrate the orderly procedures of a court).
pro se defense.
10
In Tucker, a burglary defendant told the district court at a pretrial hearing
he would not accept representation by the public defender, but then voluntarily accepted such
representation and made no objection once it commenced.
11

Tucker is not on point here, and again the district court placed form over substance
and treated Gallego's request as if it came in the midst of an ongoing trial. It concluded that
his acceptance of appointed counsel for the trial in 1984 acted to waive his right to proceed
without counsel at the second penalty hearing fifteen years later. However, during the
proceedings related to the new penalty hearing Gallego never acquiesced to the appointment
of his counsel, and the court erred in finding waiver under these circumstances.
Whether appellant's request for self-representation was equivocal
[Headnote 8]
The district court found Gallego's request to be equivocal because Gallego also asked
the court for substitution of counsel. The pertinent facts are the following.
In September 1998, the district court appointed the Nevada State Public Defender to
represent Gallego. Gallego filed a motion for permission to represent himself on October 8,
1998. This motion unequivocally asked the court to allow Gallego to represent himself. When
Gallego first appeared before the district court on October 16, 1998, he informed the court, I
am my attorney.
Gallego's counsel, McGuire, then asked for a determination of Gallego's competency,
and for most of a year the proceedings in district court largely related to this issue. During a
competency hearing in November 1998, Gallego told the court that his appointed attorneys
were trying to kill him and he wanted another lawyer. The court asked, Are you saying you
don't want to represent yourself? Gallego said, I want another lawyer, one I can talk to, a
real lawyer like [the State] got. The court said, it appears for the record that you want an
attorney, you just don't want the attorneys you have right now; is that correct, sir? Gallego
said, I want an attorney that is going to represent me. It's just that simple.
In July 1999, the district court found that Gallego was competent. In August 1999,
McGuire filed a brief supporting Gallego's motion for self-representation. McGuire asserted
that if a canvass under Faretta showed that Gallego had made his decision with a clear
comprehension of the attendant risks, then he had the right to waive counsel and represent
himself.
__________

10
92 Nev. 486, 491, 553 P.2d 951, 954 (1976).

11
Id.
to waive counsel and represent himself. Around the same time, Gallego submitted a pro per
request for discharge of McGuire and substitution of counsel.
At a hearing on August 24, 1999, as the district court began to canvass Gallego on his
request to represent himself, he asked the court to first address his motion for substitute
counsel. The court agreed to do so. Gallego said that McGuire had a conflict of interest and
there was a lack of trust and total breakdown of communications. He therefore asked the
court to terminate Mr. McGuire and appoint new counsel. Gallego insisted that the motion
for substitute counsel was not connected to his motion to represent himself. He said, I don't
know how the court is going to rule on my motion to represent myself, but either way I would
object to Mr. McGuire. Gallego acknowledged that because he was indigent he was not
entitled to counsel of his choice, but he asked the court for any counsel other than McGuire or
anyone from his office. McGuire agreed that there had been an irremediable breakdown in the
attorney-client relationship and joined in Gallego's motion.
Without addressing the motion for self-representation or conducting a Faretta
canvass, the court denied Gallego's motion to represent himself, finding it equivocal. We
conclude that the record does not support this finding.
During the August 1999 hearing, the district court, Gallego, McGuire, and the
prosecutor all to some degree obscured the discussion of the motion for substitute counsel
with references to the motion for self-representation. It was reasonable, however, for Gallego
to ask the court to first decide the motion for substitution of new counsel because granting it
would have rendered the motion for self-representation moot. And although Gallego stated
more than once that his motion for substitute counsel was a separate request, the court never
distinguished it from the motion for self-representation. Thus, the court saw the request for
new counsel as nothing more than an equivocal element in the motion for self-representation.
However, this equivocation might have been eliminated if the court had addressed the
motions separately.
[Headnote 9]
There is no question that Gallego sought to have new counsel appointed. Though
relevant to a request for self-representation, this is not dispositive. Numerous courts have
recognized that a request to proceed without counsel can be unequivocal even if in the
alternative the defendant would prefer a different attorney.
12

__________

12
See, e.g., Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir. 1994) (concluding the request was equivocal);
Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989) (concluding the request was unequivocal); State v.
Stenson, 940 P.2d 1239, 1275-76 (Wash. 1997) (equivocal); State v. Sinclair, 730 P.2d
The Ninth Circuit's analysis in Adams v. Carroll is apt.
Although [Adams's] two self-representation requests were sandwiched around a request
for counsel, this was not evidence of vacillation. To the contrary, each of these requests
stemmed from one consistent position: Adams first requested to represent himself when
his relationship with Carroll broke down. He later requested counsel, but with the
express qualification that he did not want Carroll. When Carroll was reappointed,
Adams again asked to represent himself. Throughout the period before trial, Adams
repeatedly indicated his desire to represent himself if the only alternative was the
appointment of Carroll. While his requests no doubt were conditional, they were not
equivocal.
13

Here, it appears that Gallego's requests to represent himself and for substitute counsel also
stemmed from one consistent position: his desire to discharge McGuire as his counsel.
[Headnote 10]
Although an unequivocal request for self-representation can be conditional, it must
speak to self-representation and not simply to a dissatisfaction with current counsel, and a
court can insist that the defendant explicitly cho[o]se to proceed pro se once informed that a
substitution of counsel will not be permitted.
14
Gallego's request went beyond
dissatisfaction with counsel and expressly sought self-representation, but he was never
presented the explicit choice to proceed in proper person.
The question is whether Gallego wanted to represent himself if he could not have new
counsel. We do not have a definitive answer to this because no record was made on the issue.
The district court's conclusion that Gallego's request was equivocal was, at best, premature.
The court should have denied the request for substitute counsel and then ascertained whether
Gallego nevertheless wanted to represent himself. The record as it stands suggests that
Gallego would have preferred to represent himself rather than be represented by McGuire and
the State Public Defender. Therefore, the district court erred in finding the request equivocal
simply because Gallego preferred to have new counsel.
Whether appellant was disruptive
[Headnotes 11, 12]
The United States Supreme Court has stated: The right of self-representation is not
a license to abuse the dignity of the courtroom.
__________
742, 745 (Wash. Ct. App. 1986) (unequivocal); People v. Longuemire, 257 N.W.2d 273, 274-75 (Mich. Ct.
App. 1977) (unequivocal).

13
Adams, 875 F.2d at 1444-45.

14
3 Wayne R. LaFave et al., Criminal Procedure 11.5(b), at 573, and (d), at 582 (2d ed. 1999).
self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license
not to comply with relevant rules of procedural and substantive law.
15
An accused has the
right to conduct his own defense provided that he is able and willing to abide by rules of
procedure and courtroom protocol.
16

[Headnotes 13, 14]
A defendant's pretrial activity is relevant in determining whether the defendant will
disrupt courtroom proceedings.
17
This court will not substitute its evaluation for the district
court's personal observations and impressions if the latter finds that a defendant will be
disruptive.
18
We conclude that the record supports a finding that Gallego's pretrial behavior
showed he was unable or unwilling to abide by rules of procedure and courtroom protocol.
[Headnotes 15, 16]
Although the district court was concerned with Gallego's refusal to cooperate with the
mental health experts appointed to determine his competency, we do not consider this
behavior relevant to his right to conduct his own defense because a defendant has the Fifth
Amendment right to remain silent during a court-ordered psychiatric interview.
19
Other
behavior by Gallego, however, was relevant to his right to represent himself. He showed an
unwillingness or inability to follow procedural rules in repeatedly claiming his innocence and
seeking to present evidence on that issue despite being informed by the district court that such
a claim was improper during the penalty phase. Gallego impeded pretrial proceedings on
numerous occasions by refusing to respond or participate, often claiming that he could not
hear the district court or another speaker. Although the record shows that there was some
trouble with acoustics in the courtroom as well as with Gallego's hearing, it also establishes
that Gallego was frequently malingering. Although the prison provided Gallego with a
hearing aid, he did not wear it and denied having received one. The district court was
remarkably patient, but noted that Gallego's hearing problem appeared to come and go.
During proceedings Gallego often waited long periods of time before asserting that he had not
been able to hear anything the court had said. Several times he simply refused to respond at
all to the court. At least twice he turned his back on courtroom proceedings and once refused
to participate in a hearing conducted by conference call.
__________

15
Faretta, 422 U.S. at 835 n.46.

16
McKaskle, 465 U.S. at 173.

17
Tanksley, 113 Nev. at 1001 , 946 P.2d at 150.

18
Id. at 1002, 946 P.2d at 151.

19
See U.S. Const. amend. V; Brown v. State, 113 Nev. 275, 288-89, 934 P.2d 235, 244 (1997).
It is clear from the overall record that Gallego repeatedly and intentionally obstructed
the proceedings below. We conclude that the district court acted within its discretion in
denying his motion for self-representation based on this behavior.
II. The denial of appellant's motion for substitute counsel
[Headnote 17]
Gallego contends that the district court erred in denying his motion to substitute new
counsel. The pertinent facts follow.
On August 13, 1999, Gallego submitted a pro per motion for discharge of McGuire
and substitution of counsel. Gallego alleged a conflict of interest because all his
[McGuire's] defen[s]e does is offer me up to the D.A. for ex[e]cution and McGuire had not
filed any motions I feel he should have. Gallego also alleged a total breakdown of
communications and lack of trust because McGuire had lied to him and failed to keep
promises.
At the hearing on August 24, 1999, Gallego argued in support of his motion for
substitute counsel. He complained that he was not receiving records of the court proceedings
and claimed that McGuire had broken his promise to bring in attorney Richard Cornell to
help with the defense. He explained he was asking the court for any counsel other than
McGuire or anyone from his office, not for a particular attorney. Gallego also maintained that
he had new evidence proving his innocence which he wished to present to the court. During
the hearing McGuire moved to withdraw. He explained that he had felt compelled to raise the
issue of Gallego's competency early in the proceedings against Gallego's wishes and this had
harmed their relationship. McGuire agreed that there had been an irremediable breakdown
for any potential attorney-client relationship. McGuire also believed that he had sent Gallego
all the records in the case. The court rejected Gallego's motion for substitute counsel.
[Headnotes 1822]
In Thomas v. State, this court held that a defendant's right to substitution of counsel is
limited:
A defendant is not entitled to reject his court-appointed counsel and request
substitution of other counsel at public expense absent a showing of adequate cause for
such a change. Junior v. State, 91 Nev. 439, 441, 537 P.2d 1204 (1975). The decision
whether friction between counsel and client justifies appointment of new counsel is
entrusted to the sound discretion of the trial court and should not be disturbed on appeal
in the absence of a clear showing of abuse.
20

__________

20
94 Nev. 605, 607-08, 584 P.2d 674, 676 (1978) (citation omitted).
Where a motion for new counsel is made considerably in advance of trial, the court may not
summarily deny the motion but must adequately inquire into the defendant's grounds for it.
21
A defendant cannot base a claim of inadequate representation upon his refusal to cooperate
with appointed counsel. Such a doctrine would lead to absurd results.'
22

[Headnotes 2326]
Thomas is consistent with other case law on this topic. An indigent defendant has a
right to substitution only upon establishing good cause, such as a conflict of interest, a
complete breakdown of communication, or an irreconcilable conflict which [could] lead . . .
to an apparently unjust verdict.' The mere loss of confidence in his appointed counsel does
not establish good cause.'
23
Good cause is not determined solely according to the
subjective standard of what the defendant perceives. While loss of trust is certainly a factor in
assessing good cause, a defendant seeking substitution of assigned counsel must nevertheless
afford the court with legitimate reasons for the lack of confidence.
24
Attorney-client
conflicts justify the grant of a substitution motion only when counsel and defendant are so at
odds as to prevent presentation of an adequate defense.
25

Here, Gallego undoubtedly lacked confidence and trust in his counsel and often
refused to work with them. (It was not an absolute breakdown in the relationship, however.
Gallego was able to meet and consult with counsel during the penalty phase although he still
disagreed with them.) But Gallego never provided legitimate reasons for his lack of
confidence in his counsel. Although he claimed that McGuire had a conflict of interest, he
provided no evidence that McGuire's loyalty was in any way compromised. Gallego
apparently based this claim on his contention that McGuire's defense would offer him up for
execution. This amounted to a disagreement between Gallego and McGuire over trial
strategy, not a conflict of interest. This disagreement was not good cause for substitution of
counsel: McGuire's strategy was reasonable while Gallego's strategy was ill-conceived and
largely impermissible.
Gallego wanted to dispute his culpability and blame Charlene Williams for the
murders and even call her as a witness. He wanted to present evidence that she was a violent,
intimidating lesbian who had sex by force; that she was a liar; and that she had made a
plea agreement and was no longer serving prison time for her crimes.
__________

21
See id. at 608, 584 P.2d at 676.

22
Id. (quoting Shaw v. United States, 403 F.2d 528, 529 (8th Cir. 1968)).

23
3 LaFave, Criminal Procedure 11.4(b), at 555 (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir.
1981)) (footnotes omitted).

24
McKee, 649 F.2d at 932.

25
Stenson, 940 P.2d at 1272.
lesbian who had sex by force; that she was a liar; and that she had made a plea agreement and
was no longer serving prison time for her crimes. Further, Gallego wanted to present evidence
that the original trial prosecutor and others had written and profited from a book on Gallego's
crimes. He also wanted to present a statement from his deceased mother and testimony by his
brother, his cousin, and a former employer as mitigating evidence.
McGuire's strategy was to present evidence that Gallego had endured severe physical
and emotional abuse as a childincluding at the hands of his motherand that he suffered
from mental disabilities and had abused drugs. McGuire also informed the jury that Williams
actively participated in the crimes, lied to authorities various times, and received a plea
bargain and was now free, but he did not call Williams because he considered her a hostile
witness who would have provided damaging testimony against Gallego. McGuire expressed
doubt that the jury would find it relevant that people connected to Gallego's case had written a
book about it. And McGuire had attempted to locate various mitigation witnesses, but many
could not be found, and others did not want to testify.
[Headnotes 27, 28]
We conclude that McGuire's strategy was reasonable, while much of the evidence
which Gallego wished to present was not even admissible. A court may exclude proffered
mitigating evidence as irrelevant if it does not bear on the defendant's character, his prior
record, or the circumstances of his offense.
26
Evidence presented in mitigation must be
relevant to the offense, the defendant, or the victim.
27

Gallego's claim that McGuire broke a promise to have attorney Richard Cornell join
the defense team is somewhat understandable, but groundless. In November 1998, McGuire
applied for the district court's approval to employ Cornell to assist in the case because the
federal court's deadline for resentencing was so short and Cornell had represented Gallego for
eleven years. The court originally ordered the employment. However, McGuire did not
oppose the State's request to rescind the order after the federal court granted a six-month
extension of time for the resentencing. Gallego has offered no other specific basis for his
claims that McGuire lied to him and broke promises made to him. Nor has he specified any
motions which McGuire refused to file.
We conclude that the district court adequately inquired into Gallego's grounds for
moving to substitute counsel, that Gallego proffered no legitimate reason for his lack of
confidence and trust in his counsel, that his counsel represented him ably, and that the
attorney-client conflict here did not prevent the presentation of an adequate defense or
result in an apparently unjust verdict.
__________

26
See Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000) (citing Lockett v. Ohio, 438 U.S. 586,
604 n.12 (1978)).

27
NRS 175.552(3); Collman v. State, 116 Nev. 687, 725, 7 P.3d 426, 450 (2000).
proffered no legitimate reason for his lack of confidence and trust in his counsel, that his
counsel represented him ably, and that the attorney-client conflict here did not prevent the
presentation of an adequate defense or result in an apparently unjust verdict. Therefore, the
court acted within its sound discretion in refusing to appoint substitute counsel.
III. The propriety of jury instructions and closing argument
[Headnotes 29, 30]
Gallego contends that certain jury instructions were erroneous and that the prosecutor
made improper remarks during closing argument. Gallego did not object below to the
instructions or remarks. Failure to object during trial generally precludes appellate
consideration of an issue.
28
Despite such failure, this court has the discretion to address an
error if it was plain and affected the defendant's substantial rights.
29
Normally, the defendant
must show that an error was prejudicial in order to establish that it affected substantial rights.
30

Gallego complains that instruction numbers 10 and 29 and a remark by the prosecutor
failed to inform jurors that they had to weigh any mitigating circumstances against
aggravating circumstances before considering other evidence offered by the State against
Gallego. No error occurred: the jury instructions and the prosecutor's remarks as a whole
correctly informed the jury to consider the mitigating evidence.
31
Gallego also claims that
instruction number 9 was erroneous under Geary v. State.
32
This claim has no merit.
[Headnotes 3133]
Gallego complains that the prosecutor commented in closing argument that the
defense had not rebutted the alleged aggravators. This comment was improper. To obtain a
death sentence, the State must prove beyond a reasonable doubt that at least one aggravating
circumstance exists and that the aggravating circumstance or circumstances outweigh any
mitigating evidence.
__________

28
Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997).

29
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.).

30
See United States v. Olano, 507 U.S. 725, 734-35 (1993) (discussing Fed. R. Crim. P. 52(b), which is
identical to NRS 178.602).

31
See Greene v. State, 113 Nev. 157, 167-68, 931 P.2d 54, 61 (1997) (a jury instruction is not judged in
isolation, but must be viewed in the context of the overall charge), receded from on other grounds by Byford v.
State, 116 Nev. 215, 994 P.2d 700 (2000).

32
114 Nev. 100, 103-04, 952 P.2d 431, 432-33 (1998).
stance or circumstances outweigh any mitigating evidence.
33
Thus, the prosecutor's remark
improperly suggested that the defense had a burden to disprove aggravating circumstances.
34
Nevertheless, the remark here was extremely brief and general, and there was overwhelming
evidence to prove the three aggravating circumstances. Even assuming the error was plain, we
conclude that the remark did not affect Gallego's substantial rights.
IV. The jury's failure to fully mark a special verdict form
[Headnote 34]
The jury received a special verdict form directing it to check any listed mitigating
circumstances that it found or to check that it found none. The form then directed the jury to
check that either the mitigating circumstances were sufficient to outweigh the aggravating
circumstances or were not. The jury checked only the final item on the verdict form: the
mitigating circumstances were not sufficient to outweigh the aggravating circumstances.
Gallego contends that the failure to fill out the whole verdict form shows that the jury
failed to consider the mitigating evidence and weigh it against the aggravating circumstances.
He also claims that he proved, without rebuttal, the eleven mitigators listed on the form.
As an initial point, there is no requirement that a jury specify the mitigating
circumstances it has found.
35
NRS 175.554(3) provides that the jury need only state that
there are no mitigating circumstances which outweigh the aggravating.
36
The jury here so
stated.
[Headnotes 35, 36]
We do not accept Gallego's suggestion that jurors had to find some or all of his
proffered mitigating circumstances simply because he presented unrebutted evidence to
support them. Although the State did not offer any direct rebuttal evidence, the prosecutor
cross-examined the defense psychiatrist vigorously and argued generally against the
mitigating force of Gallego's evidence. Jurors were properly instructed to consider the
evidence presented in mitigation. We presume that the jurors followed their instructions and
considered the evidence.
37
Gallego fails to cite
__________

33
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.

34
See, e.g., Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996) ([I]t is generally improper for a
prosecutor to comment on the defense's failure to produce evidence or call witnesses as such comment
impermissibly shifts the burden of proof to the defense.).

35
See Rogers v. State, 101 Nev. 457, 469, 705 P.2d 664, 672 (1985).

36
Id.

37
See Thomas v. State, 114 Nev. 1127, 1149, 967 P.2d 1111, 1125 (1998).
any authority which holds that a jury is required to find a mitigating circumstance when a
defendant presents evidence in support of that circumstance.
38
It appears that the jurors
found no mitigating circumstances and simply overlooked that they were supposed to indicate
this on the form. We conclude that no error occurred here.
[Headnote 37]
Given the jury's failure to fill out the entire verdict form, Gallego also claims that this
court cannot perform its mandatory review of his death sentence because we must review the
weight that jurors gave to the mitigating evidence. We disagree. NRS 177.055(2) requires this
court to consider, among other things, whether a death sentence is excessive. To do so, we
must consider the mitigating evidence presented by a capital defendant, but our review is not
dependent on the jury's assessment of that evidence. In fact, as discussed above, this court
may not even know the jurors' findings on particular alleged mitigators because a verdict
form specifying such findings is not required. Therefore, the jury's failure to fully mark its
verdict form does not prevent our mandatory review of Gallego's sentence.
V. Appellant's exclusion from in camera proceedings
[Headnote 38]
Gallego complains that he was not present at a number of in camera proceedings.
Specifically, he contends that his right to be present at the empaneling of the jury was
violated because several prospective jurors were excused in such proceedings. We conclude
that no error occurred.
Gallego cites two decisions by the United States Supreme Court for authority that his
right to be present was violated, but these cases are distinguishable because they both
involved the defendants' absence when challenges to prospective jurors were being made and
decided.
39
Here, by contrast, the prospective jurors were dismissed by the stipulation of both
counsel for reasons ranging from knowledge of the case to ill health.
[Headnotes 3941]
This court has explained that a defendant does not have an unlimited right to be
present at every proceeding.
The right to be present is rooted in the Confrontation Clause and the Due Process
Clause of the Federal Constitution. The confrontation aspect arises when the pro
__________

38
Id.

39
Lewis v. United States, 146 U.S. 370, 376 (1892); Hopt v. Utah, 110 U.S. 574, 577 (1884).
ceeding involves the presentation of evidence. The due process aspect has been
recognized only to the extent that a fair and just hearing would be thwarted by the
defendant's absence. The right to be present is subject to harmless error analysis. The
defendant must show that he was prejudiced by the absence.
40

No evidence presented at the in camera proceedings implicated Gallego's
confrontation right. He has not shown how his absence prejudiced him in any way, and we
conclude that the proceedings were fair and just despite his absence.
VI. Appellant's waiver of his right to testify
[Headnote 42]
Gallego claims that the waiver of his right to testify was not valid because he made it
under a misconception that his testimony would have been restricted. This claim has no merit.
The district court advised Gallego fully of his right to testify or to speak in allocution,
explaining that any statements he gave would be limited to matters relevant to the penalty
phase, such as mitigating circumstances and expressions of remorse, not issues of guilt.
Gallego responded that if he could not tell the whole truth, he had no choice but to forfeit
his right to testify. Gallego did speak in allocution.
[Headnotes 4345]
Criminal defendants have the right to testify on their own behalf under the due
process clause of the fourteenth amendment, the compulsory process clause of the sixth
amendment and the fifth amendment's privilege against self-incrimination.
41
The United
States Supreme Court has stated that a valid waiver of a fundamental constitutional right
ordinarily requires an intentional relinquishment or abandonment of a known right or
privilege.
42
Courts should indulge every reasonable presumption against waiver and should
not presume acquiescence in the loss of fundamental rights.
43

[Headnote 46]
Gallego contends that his waiver of his right to testify was not knowing because at
trial he believed that his testimony would be restricted when he actually could have testified
as he wished, subject to cross-examination.
__________

40
Kirksey v. State, 112 Nev. 980, 1000, 923 P.2d 1102, 1115 (1996) (citations omitted).

41
Phillips v. State, 105 Nev. 631, 632, 782 P.2d 381, 382 (1989) (citing Rock v. Arkansas, 483 U.S. 44, 49
(1987)).

42
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

43
Barker v. Wingo, 407 U.S. 514, 525-26 (1972).
subject to cross-examination. He is incorrect. The proper place for the introduction of
evidence tending to establish innocence is in the guilt phase of trial. At the penalty phase, the
defendant's guilt has already been assessed and is no longer in issue.
44
Evidence presented
in mitigation must be relevant to the offense, the defendant, or the victim.
45
At a capital
penalty hearing, a court may constitutionally exclude evidence as irrelevant if it does not bear
on the defendant's character, his prior record, or the circumstances of his offense.
46

Thus, Gallego's belief at trial that the scope of his testimony could be limited was not
a misconception. We conclude that Gallego understood his right to testify and intentionally
waived it.
VII. Other assignments of error
Gallego's other assignments of error also warrant no relief.
[Headnote 47]
Gallego claims that Nevada's capital sentencing scheme improperly allows a jury to
find a defendant death-eligible based on evidence other than enumerated aggravating
circumstances and therefore the district court erred in denying his motion to trifurcate or
bifurcate the penalty hearing. We conclude that the process by which juries in capital cases in
Nevada consider the evidence and decide on a sentence is constitutionally adequate.
47

[Headnotes 48, 49]
Gallego complains that a former sheriff's lieutenant said without any supporting
evidence that Gallego and Williams were responsible for probably ten murders. Testimony
regarding police investigations of a defendant's other crimes is admissible at a capital penalty
hearing so long as the evidence is not impalpable or highly suspect.
48
The remark here
constituted only impalpable evidence; however, the remark was inadvertent and brief.
Reliable evidence did establish that Gallego had committed six murders: the two in this case,
the two he was convicted of in California, and two uncharged murders in California. In light
of this evidence, we conclude that the single, passing reference to four other possible murders
did not prejudice Gallego.
[Headnote 50]
Gallego contends that he was denied funding for magnetic resonance imaging and
positron emission tomography testing necessary to establish that he suffered from organic
brain damage.
__________

44
Echavarria v. State, 108 Nev. 734, 744, 839 P.2d 589, 596 (1992).

45
NRS 175.552(3); Collman, 116 Nev. at 725, 7 P.3d at 450.

46
See Harte, 116 Nev. at 1069, 13 P.3d at 430.

47
See Hollaway v. State, 116 Nev. 732, 745-47, 6 P.3d 987, 996-97 (2000); Middleton v. State, 114 Nev.
1089, 1116-17, 968 P.2d 296, 314-15 (1998).

48
Leonard v. State, 114 Nev. 1196, 1214, 969 P.2d 288, 299 (1998).
sary to establish that he suffered from organic brain damage. We conclude that the district
court did not err in denying the motion for the funding. Not only was Gallego appointed a
psychiatrist and a psychologist who provided their opinions that he had organic brain damage,
but the record shows that he had received a CAT scan which his experts were able to rely on
to support their opinions. Gallego has failed to show why further testing was necessary to
adequately present this theory of mitigation.
49

[Headnote 51]
Gallego claims that the father of one of the victims asked the jury to return a death
sentence. Gallego did not object below. A victim can express an opinion regarding the
defendant's sentence only in noncapital cases.
50
However, no error, let alone plain error,
occurred: Mr. Redican did not express to the jury an opinion regarding Gallego's sentence.
[Headnotes 5254]
Gallego challenges the constitutionality of the death penalty in Nevada on several
grounds. First, he claims that the aggravators set forth in NRS 200.033 fail to truly narrow the
class of persons eligible for the death penalty. Gallego does not argue that any aggravator was
misapplied in his case, and we reject this claim. Second, Gallego contends that NRS
175.552(3), which allows the introduction of evidence against a defendant on any other
matter which the court deems relevant, is unconstitutionally vague and is contrary to NRS
200.033. This contention lacks merit: the statutes are compatible, and we have defined the
limited scope and use of other matter evidence.
51
Third, Gallego argues that the death
penalty is cruel and unusual punishment in violation of the Eighth Amendment. Even if death
is not an unusual punishment in this country, he contends that it is undeniably cruel and
therefore violates article 1, section 6 of the Nevada Constitution, which prohibits cruel or
unusual punishments. We decline to reconsider our precedent upholding the constitutionality
of the death penalty.
[Headnote 55]
Finally, Gallego claims that the State improperly conducted his psychological
evaluation at the Northern Nevada Correctional Center rather than at Lakes Crossing.
__________

49
See NRS 7.135 (providing for reimbursement for such investigative, expert or other services as may be
necessary for an adequate defense); cf. Sonner v. State, 112 Nev. 1328, 1340, 930 P.2d 707, 715 (1996) (a
defendant is entitled to attempt to prove defense theory, but unlimited expenditure in effort to find support for
theory is not required), modified on other grounds on rehearing by 114 Nev. 321, 955 P.2d 673 (1998).

50
Rippo, 113 Nev. at 1261, 946 P.2d at 1031.

51
See, e.g., Hollaway, 116 Nev. at 745-47, 6 P.3d at 996-97.
Center rather than at Lakes Crossing. We conclude that Gallego fails to demonstrate a
violation of any right in this regard.
VIII. Mandatory review of appellant's death sentence
[Headnote 56]
Pursuant to NRS 177.055(2), we conclude that the evidence supports the aggravating
circumstances found in this case; we discern no indication that Gallego's death sentence was
imposed under the influence of passion, prejudice, or any arbitrary factor; and considering the
crime and the defendant, we conclude that the sentence is not excessive.
CONCLUSION
We conclude that the district court did not err in denying Gallego's motion to
represent himself or his motion for substitute counsel. We also conclude that Gallego's other
assignments of error do not warrant relief. We therefore affirm his judgment of conviction
and sentence of death.
52

Agosti, Rose, Leavitt and Becker, JJ., concur.
____________
117 Nev. 371, 371 (2001) Mosley v. Comm'n on Judicial Discipline
DONALD M. MOSLEY, Petitioner, v. NEVADA COMMISSION ON JUDICIAL
DISCIPLINE, Respondent.
No. 36775
May 17, 2001 22 P.3d 655
Original petition for a writ of certiorari, mandamus, or prohibition challenging the
jurisdiction of the Nevada Judicial Discipline Commission and the Commission's denial of
petitioner's motion to dismiss disciplinary proceeding.
District court judge petitioned for writ of certiorari, mandamus, or prohibition,
challenging the jurisdiction of the Commission on Judicial Discipline and the Commission's
denial of the judge's motion to dismiss the disciplinary proceeding against him. The supreme
court, Maupin, C. J., held that: (1) commissioned state judges have protected due process
property or liberty interests in their judicial offices; (2) the Commission's combination of
prosecutorial, investigative, and adjudicative functions did not violate due process; but (3)
State Bar Board of Governors exceeded its constitutional appointment powers regarding the
Commission by delegating to Commission's executive director the power to appoint two
alternate delegates to the Commission, from a slate of twelve candidates nominated by
the State Bar.
__________

52
The Honorable A. William Maupin, Chief Justice, and The Honorable Cliff Young, Justice, did not
participate in the decision of this appeal.
delegating to Commission's executive director the power to appoint two alternate delegates to
the Commission, from a slate of twelve candidates nominated by the State Bar.
Petition granted in part and denied in part.
Shearing, J., with whom Agosti, J., agreed, dissented in part. Leavitt, J., dissented in
part.
Galatz Earl & Associates, Las Vegas, for Petitioner.
Sinai Schroeder Mooney Boetsch Bradley & Pace, Reno, for Respondent.
Gillock Markley & Killebrew, Las Vegas, for Amici Curiae District Judges Ritchie,
Voy and Del Vecchio.
Wolfson & Glass, Las Vegas, for Amici Curiae District Judges Porter, Douglas and
Mahan.
Curran & Parry, Las Vegas, for Amici Curiae District Judges Kathy Hardcastle and
Huffaker.
Richard Segerblom, Las Vegas, for Amici Curiae District Judges Denton and Cherry.
Mainor & Harris, Las Vegas, for Amici Curiae District Judges Bonaventure and Mark
Gibbons.
1. Judges.
The supreme court is empowered to provide extraordinary relief with regard to proceedings of the Commission on Judicial
Discipline. Const. art. 6, 4.
2. 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. NRS 34.160.
3. Mandamus.
The writ of mandamus will not issue if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
NRS 34.170, 34.330.
4. Mandamus.
A writ of mandamus is an extraordinary remedy, and it is within the discretion of the supreme court to determine if a petition
will be considered.
5. Mandamus.
The supreme court will not exercise its discretion to consider a petition for a writ of mandamus challenging an order denying a
motion to dismiss unless considerations of sound judicial economy and administration militate in favor of granting relief.
6. Mandamus.
The supreme court may exercise its discretion to grant a petition for writ of mandamus challenging an order denying a motion to
dismiss, when an important issue of law requires clarification.
A fair trial in a fair tribunal is a basic requirement of due process. U.S. Const. amend. 14.
An adjudicator's actual bias against a party is constitutionally unacceptable under due process, and in some situations, an
implied probability of bias constitutes a deprivation of due process. U.S. Const. amend. 14.
As a predicate to determining whether a due process violation has occurred, the court must first conclude that the contested state
action impinges upon an interest in life, liberty, or property. U.S. Const. amend. 14.
Commissioned state judges have protected due process property or liberty interests in their judicial offices. U.S. Const. amend.
14.
11. Constitutional Law; Judges.
The Commission on Judicial Discipline's combination of prosecutorial, investigative, and adjudicative functions is not implicitly
prejudicial to judges brought within the disciplinary process, and the Commission's procedures therefore do not, by themselves, violate
commissioned state judges' protected due process property or liberty interests in their judicial offices. Const. art. 6, 21; U.S. Const.
amend. 14.
12. Judges.
The state constitution contemplates a judicial discipline commission with combined investigative, prosecutorial, and
adjudicative functions. Const. art. 6, 21.
13. Constitutional Law; Judges.
District court judge's generalized allegations that involvement of executive director and general counsel of Commission on
Judicial Discipline in the disciplinary proceeding against the judge was slanting the proceeding against him did not overcome the
presumption the Commissioners were unbiased, and thus, judge did not establish a violation of his due process property or liberty
interests in his judicial office. Const. art. 6, 21; U.S. Const. amend. 14.
Without a showing to the contrary, state adjudicators are assumed to be people of conscience and intellectual discipline, capable
of judging a particular controversy fairly on the basis of its own circumstances, so that their involvement as adjudicators does not
violate due process property or liberty interests of those whose rights are adjudicated. U.S. Const. amend. 14.
15. Judges.
State Bar Board of Governors exceeded its constitutional appointment powers regarding the Commission on Judicial Discipline
by delegating to the Commission's executive director the power to appoint two alternate delegates to the Commission, from a slate of
twelve candidates nominated by the State Bar. The State Bar did not specifically name the alternate delegates who replaced recused
commissioners, and the alternate delegates were not appointed for specific terms.
nate delegates were not appointed for specific terms. Const. art. 6, 21(2)(b).
16. Judges.
The power to appoint alternate delegates to the Commission on Judicial Discipline is an inherent power of the appointing
authorities. Const. art. 6, 21(2)(b).
17. Judges.
The constitutional power to appoint delegates to the Commission on Judicial Discipline means to assign, designate, or set
apart, and connotes a particularized selection, indicating that the power to appoint is specific rather than general. Const. art. 6,
21(2)(b).
OPINION
By the Court, Maupin, C. J.:
The Nevada Commission on Judicial Discipline (the Commission) is charged by the
Nevada Constitution to investigate, prosecute, and adjudicate allegations of judicial
misconduct.
1
The petitioner in this matter, Donald M. Mosley (Judge Mosley), is a Nevada
district court judge against whom the Commission is currently conducting disciplinary
proceedings. Judge Mosley asks us to terminate these proceedings, claiming that the
Commission has violated his state and federal due process rights, and that the Commission
has violated certain provisions of the Nevada Constitution and the statutory construct
enacted pursuant to the constitutional mandate.
__________

1
See Nev. Const. art. 6, 21.
Following our decisions in Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 128, 906 P.2d 230 (1994)
(Whitehead I); Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994) (Whitehead
II); Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 874, 878 P.2d 913 (1994) (Whitehead III);
Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 70, 893 P.2d 866 (1995) (Whitehead IV) (see infra), the
1995 and 1997 Nevada legislatures passed resolutions to amend article 6, section 21 of the Nevada Constitution.
See A.J.R. 33, 68th Leg. (1995); A.J.R. 35, 69th Leg. (1997). The people of Nevada approved and ratified this
amendment at the 1998 general election.
Prior to amendment, article 6, section 21 vested power in this court to make rules delineating the grounds of
discipline that the Commission may impose and governing the confidentiality of Commission proceedings. See
former Nev. Const. art. 6, 21(5)(a)-(b). In addition, former section 21(c)(5) required this court to make rules
for the conduct of Commission investigations and hearings.
The 1998 amendment removed these powers from this court. Now, the constitution requires the legislature to
establish the grounds for disciplinary actions that the Commission may impose, the standards for the
Commission's investigations, and the confidentiality of its proceedings. Nev. Const. art. 6, 21(5)(b)-(d). The
Commission itself is now empowered to adopt its own procedural rules for the conduct of its hearings and any
other procedural rules it deems necessary to carry out its duties. Nev. Const. art. 6, 21(7).
rights, and that the Commission has violated certain provisions of the Nevada Constitution
and the statutory construct enacted pursuant to the constitutional mandate.
FACTS
Michael Mosley was born on February 15, 1992, the son of Judge Mosley and Ms.
Terry Figliuzzi.
2
Continuing disputes over Michael's custody have been protracted and
particularly contentious. Following a trial, the district court terminated joint custody and
awarded sole custody of Michael to Ms. Figliuzzi.
3
On appeal, we reversed this judgment
and remanded the matter.
4
On remand, the district court reinstated joint custody. Based upon
alleged interactions with witnesses in the custody proceedings, Judge Mosley stands accused
of violating several canons of the Nevada Code of Judicial Conduct.
On April 24, 1999, the Las Vegas Review-Journal published an article alleging that
Judge Mosley used his judicial office to secure testimony favorable to him in the custody
dispute. Specifically, the article indicated that Judge Mosley agreed to show leniency in the
sentencing of a defendant in a felony criminal proceeding in exchange for testimony that Ms.
Figliuzzi was an unfit mother. The defendant and his spouse lived briefly with Ms. Figliuzzi
and Michael.
The article came to the attention of Leonard Gang, the former executive director and
general counsel of the Commission. Pursuant to his authority as executive director, Gang
filed a statement of complaint with the Commission on April 26, 1999, requesting that the
Commission investigate allegations of misconduct taken from the article.
5
The Commission
reviewed the complaint and authorized an investigation.
6

__________

2
See Mosley v. Figliuzzi, 113 Nev. 51, 53, 930 P.2d 1110, 1111 (1997).

3
Id.

4
Id. at 69, 930 P.2d at 1121.

5
See the Procedural Rules of the Nevada Commission on Judicial Discipline (CPR) 10(2):
A complaint may be initiated by information in any form from any source received by the commission
that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is
incapacitated. If there is no written complaint from another person, the Executive Director of the
commission may file a complaint.
See also Nev. Const. art. 6, 21(9), which provides that [a]ny matter relating to the fitness of a justice or judge
may be brought to the attention of the commission by any person or on the motion of the commission.

6
See CPR 11-12; see also NRS 1.4663 (providing that, if the Commission determines that the complaint
states allegations which, if true, establish grounds for discipline, the Commission must authorize an investigation
of the charges).
On August 13, 1999, the Las Vegas Review-Journal published another article
charging that Judge Mosley released a criminal defendant named Robert D'Amore on his own
recognizance at the request of a longtime friend, Barbara Orcutt. Orcutt testified on Judge
Mosley's behalf at one of the custody hearings.
Thereafter, on September 7, 1999, Gang submitted a second statement of complaint to
the Commission. In addition to describing the facts alleged in the August 13, 1999, news
article, Gang submitted, with this second complaint, copies of two letters written by Judge
Mosley on his official stationery. The letters were directed to Michael's elementary school
principals and requested that they prevent Ms. Figliuzzi from visiting Michael at his school.
Based upon preliminary evidence, the Commission found sufficient probable cause to
authorize formal disciplinary hearings on both complaints. A finding of probable cause means
the Commission has determined that there is a reasonable probability that evidence available
for introduction at a formal hearing may clearly and convincingly establish grounds for
disciplinary action.
7
Following the probable cause determination, Gang secured the services
of a special prosecutor, who filed a formal statement of charges pursuant to NRS 1.467(3)(a).
8
The formal complaint essentially reiterates the allegations contained in the earlier
statements of complaint.
Judge Mosley answered the charges and submitted a motion to dismiss for
determination by the Commission. In this motion, Judge Mosley assigned constitutional and
statutory error to the Commission's proceedings. The Commission considered this motion at a
public hearing and denied it. Judge Mosley filed the instant petition with this court for
extraordinary relief.
DISCUSSION
Standard of review
[Headnote 1]
The parties do not contest this court's jurisdiction to afford interlocutory review.
Although the current rules governing Commission procedure do not provide for review of
interlocutory orders, we are empowered to provide extraordinary relief with regard to
Commission proceedings.
__________

7
See CPR 13(1); see also NRS 1.467(1).

8
NRS 1.467(3)(a) states in part:
3. If the commission makes a finding that such a reasonable probability does exist, the commission
shall, in accordance with its procedural rules:
(a) Designate a prosecuting attorney, who must sign under oath a formal statement of charges against
the justice or judge and file the statement with the commission.
orders,
9
we are empowered to provide extraordinary relief with regard to Commission
proceedings.
10

[Headnotes 26]
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,
11
or to control an arbitrary or
capricious exercise of discretion.
12
The writ will not issue, however, if the petitioner has a
plain, speedy and adequate remedy in the ordinary course of law.
13
Further, a writ of
mandamus is an extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered.
14
In Smith v. District Court,
15
this court
explained that it will not exercise its discretion to consider a petition for a writ of mandamus
challenging an order denying a motion to dismiss unless considerations of sound judicial
economy and administration militate in favor of granting relief. In addition, this court may
exercise its discretion to grant a petition challenging such an order when an important issue of
law requires clarification.
16

Judge Mosley requests that we direct the Commission to terminate the ongoing
disciplinary proceedings against him. Because we conclude that two of his claims raise
important constitutional issues, we consider them below. We decline to exercise our
discretion with regard to the remaining contentions.
Combination of functions
[Headnotes 7, 8]
The United States Supreme Court observed in In re Murchison
17
that a fair trial in a
fair tribunal is a basic requirement of due process."
__________

9
Cf. former ARJD 40(7) (expressly allowing review of interlocutory Commission orders via extraordinary
writ).

10
See Whitehead I, 110 Nev. at 150-51, 161, 906 P.2d at 243-44, 250-51; Whitehead II, 110 Nev. at 408,
873 P.2d at 964 ([T]his court has the power under the Nevada Constitution to intervene in Commission
proceedings by way of an extraordinary writ in appropriate circumstances. See Nev. Const. art. 6, 4 (supreme
court shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas
corpus).).

11
See NRS 34.160.

12
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

13
See NRS 34.170; NRS 34.330.

14
See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983).

15
113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997).

16
Id. at 1345, 950 P.2d at 281.

17
349 U.S. 133, 136 (1955).
process. An adjudicator's actual bias against a party is constitutionally unacceptable and, in
some situations, an implied probability of bias constitutes a deprivation of due process.
18
In
this case, Judge Mosley contends that the Commission's investigative, prosecutorial, and
adjudicative functions have combined to deprive him of his right to due process.
[Headnotes 9, 10]
Under the Fourteenth Amendment of the Federal Constitution, no state shall deprive
any person of life, liberty, or property, without due process of law.
19
As a predicate to
determining whether a due process violation has occurred, we must first conclude that the
contested state action impinges upon an interest in life, liberty, or property. Accordingly, we
must first decide whether the interest at stake in this proceedingnamely, a commissioned
judgeshipis constitutionally protected.
While this court has never expressly held that state district court judges have property
or liberty interests in their positions, we have implied that such is the case.
20
The majority of
courts that have addressed the question have concluded that judges do possess such interests,
especially when, as here, they serve for designated terms and have a continued expectation of
office.
21
We approve of this authority and conclude that commissioned judges in this state
have a protected interest in their judicial offices under the Fourteenth Amendment.
[Headnote 11]
We now consider whether the Commission's procedures withstand constitutional
scrutiny. Judge Mosley urges us to conclude that the Commission's combination of functions
is implicitly prejudicial to judges brought within the disciplinary process, thereby violating
important due process rights. He cites language from Whitehead III, in which this court
observed that the Judicial Discipline Commission is not just another administrative agency
which can combine investigative, prosecutorial and judging functions. As this court held in
Whitehead I, the Commission is a court of judicial performance, created by the Nevada
Constitution as a part of the judicial branch of government.
22

__________

18
Withrow v. Larkin, 421 U.S. 35, 47 (1975) (citing Murchison, 349 U.S. at 136).

19
U.S. Const. amend. XIV.

20
See Whitehead IV, 111 Nev. 70, 893 P.2d 866 (1995) (granting of extraordinary relief to petitioner was
premised in part upon the theory that the Commission proceedings at issue deprived petitioner of due process).

21
See Jeffrey M. Shaman et al., Judicial Conduct and Ethics 13.09, at 454 (3d ed. 2000), and cases
collected therein.

22
Whitehead III, 110 Nev. 874, 882 n.7, 878 P.2d 913, 918 n.7 (1994).
We conclude that the language upon which Judge Mosley relies is not controlling.
Whitehead III addressed the question of commingling functions in light of its determination
that former NRS 1.450(2)
23
did not allow the Commission to employ the state attorney
general as special counsel.
24
It reached this conclusion pursuant to the Nevada Constitution's
express separation-of-powers doctrine
25
and disposed of the case on these grounds. The
court did not address the question of whether any combination of functions inherently
violated due process.
[Headnote 12]
Further, as noted in the margin above, the legislature successfully obtained an
amendment to the Nevada Constitution's provisions governing judicial discipline in this state.
Among other provisions, the procedural framework established after the four Whitehead
decisions were handed down expressly requires the Commission to assign or appoint an
investigator to conduct an investigation to determine whether the allegations [against a judge]
have merit.
26
In addition, NRS 1.467(3)(a) provides that once the Commission makes the
threshold probable cause determination, the Commission must then [d]esignate a
prosecuting attorney to act in a formal disciplinary hearing. It seems clear then that the
legislative intent manifested in the amendment process is that, although a court of judicial
performance, the Commission may exercise, to a degree, a combination of investigative,
prosecutorial and adjudicative functions. Thus, having determined that the Nevada State
Constitution contemplates a judicial discipline commission with combined functions, we turn
to the issue of whether that combination violates Judge Mosley's rights of due process.
We are persuaded that this case is governed by the United States Supreme Court's
decision in Withrow v. Larkin,
27
which held that the combination of prosecutorial,
investigative, and adjudicative functions does not by itself violate due process. Although the
Court's ruling concerned an administrative agency and not, as here, a court of judicial
performance, we conclude that Withrow is otherwise indistinguishable and therefore
dispositive.
In Withrow, a licensed physician challenged the constitutionality of the Wisconsin
Medical Examining Board, claiming that its combined investigative and adjudicative
functions implicitly biased the adjudicators and therefore violated due process.
__________

23
Former NRS 1.450(2) commanded the attorney general to act as counsel upon request of the
Commission.

24
Whitehead III, 110 Nev. at 881-82, 878 P.2d at 918.

25
See Nev. Const. art. 3, 1(1).

26
NRS 1.4663(1).

27
421 U.S. 35 (1975).
biased the adjudicators and therefore violated due process. Wisconsin law invested the board
with the power to warn and reprimand, suspend physicians' licenses, and institute criminal
action or action to revoke licenses after finding probable cause to proceed with discipline.
28
The Wisconsin Medical Examining Board was further empowered to investigate, adjudicate,
and act upon alleged instances of physician misconduct.
29

The Court in Withrow held that a combination of functions did not per se violate the
Constitution. The procedures and powers exercised by the medical board in Withrow and the
Commission in this case are virtually identical. Both hire outside counsel to investigate
charges, bifurcate probable cause determinations and adjudications on the merits, and permit
hearings. The powers to discipline in both instances include more than mere
recommendations; the powers in both instances include censure, suspension and removal.
Certainly, a physician duly trained and licensed by state authority should enjoy no less
protection than a commissioned judicial officer.
The Withrow court also aptly draws an analogy to contempt proceedings. It observed
that no authority stands for the principle that a judge before whom an alleged contempt is
committed may not bring and preside over the ensuing contempt proceedings. The accepted
rule is to the contrary.
30
Thus, the Court implicitly acknowledged that, even with regard to
judicial proceedings, a combination of adjudicative and prosecutorial functions is not biased
per se and does not, without more, violate due process.
This court agreed in Matter of Davis,
31
which held in part that the Commission's
combined duties of determining probable cause and adjudicating the merits of a complaint
against a judge did not violate due process. In Davis, the court quoted Withrow's recognition
that constitutional due process does not bar a judge from making a preliminary determination
of probable cause and then presiding over a criminal trial.
32
The court based its ultimate
conclusion on language in Withrow (that the commissioners' dual responsibility to determine
probable cause and sit in judgment did not violate due process).
[Headnote 13]
We conclude that Judge Mosley has failed to demonstrate that the commingling of
functions in this case poses a risk of actual bias.
__________

28
Withrow, 421 U.S. at 37.

29
Id. at 38 n.1.

30
Id. at 53-54 (citing Ungar v. Sarafite, 376 U.S. 575, 584-85 (1964) (upholding due process challenge to
contempt proceeding); see also Nilva v. United States, 352 U.S. 385, 395-96 (1957) (same)).

31
113 Nev. 1204, 946 P.2d 1033 (1997).

32
Id. at 1218, 946 P.2d at 1042 (quoting Withrow, 421 U.S. at 56).
bias. Withrow provided that, to demonstrate such a risk, aggrieved parties must first overcome
a presumption that the adjudicators are honest. Second, complainants must demonstrate that
under a realistic appraisal of psychological tendencies and human weakness, conferring
investigative and adjudicative powers on the same individuals poses such a risk of actual bias
or prejudgment that the practice must be forbidden if the guarantee of due process is to be
adequately implemented.
33

Judge Mosley offers no evidence suggesting that the Commission members are
dishonest, biased, or prejudiced in any manner. Instead, he offers generalized allegations that
Gang's ongoing involvement in this case presents a likelihood that the Commission's
proceedings are slanted against him. We conclude on this record that Judge Mosley has failed
to overcome the presumption that the commissioners are unbiased. We note in this regard that
Gang is now retired from his positions with the Commission. In addition, we cannot conclude
that under any appraisal of psychological tendencies and human weaknesses, the
Commission's combination of functions poses a risk of actual bias requiring our intervention.
[Headnote 14]
Without a showing to the contrary, state adjudicators are assumed to be [people] of
conscience and intellectual discipline, capable of judging a particular controversy fairly on
the basis of its own circumstances.'
34
Because Judge Mosley has failed to overcome this
assumption and because there is no reason to believe that the Commission's structure poses
any risk of bias, we conclude that Judge Mosley's rights to due process have not been
infringed.
Appointment of alternate commissioners
[Headnote 15]
Judge Mosley challenges the composition of the Commission in his case because the
Nevada State Bar Board of Governors (the State Bar) improperly delegated the appointment
of two alternate delegates to the executive director of the Commission. We agree that the
appointments were improperly delegated.
On February 10, 2000, upon learning of the Commission's investigation of Judge
Mosley, James Beasley, a permanent member of the Commission, voluntarily recused himself
from the subject disciplinary proceedings because he had at one time acted as Ms. Figliuzzi's
attorney. Later, after the Commission formally determined that reasonable probability existed
in this case to warrant prosecution of the charges against Judge Mosley, Donald Campbell,
another permanent commissioner, recalled a prior but brief contact with Ms. Figliuzzi
regarding the Mosley-Figliuzzi domestic-relations lawsuit and also voluntarily disqualified
himself from further proceedings.
__________

33
Withrow, 421 U.S. at 47.

34
Id. at 54 (quoting United States v. Morgan, 313 U.S. 409, 421 (1941)).
rant prosecution of the charges against Judge Mosley, Donald Campbell, another permanent
commissioner, recalled a prior but brief contact with Ms. Figliuzzi regarding the
Mosley-Figliuzzi domestic-relations lawsuit and also voluntarily disqualified himself from
further proceedings.
Commissioners Beasley and Campbell are attorney members of the Commission,
appointed by the State Bar pursuant to article 6, section 21(2)(b) of the Nevada Constitution.
There is no constitutional procedure that governs the temporary replacement of disqualified
board members. In such situations, the entities authorized to appoint commissioners (namely,
this court, the State Bar, and the governor) customarily name alternates to replace the recused
commissioners.
In this case, the State Bar did not specifically name replacements for Beasley and
Campbell. Instead, the Board of Governors, through the president of the State Bar, delegated
to the Commission's executive director the authority to select alternates from a list or slate
of twelve candidates nominated by the State Bar in 1995.
35
Acting on this delegated
authority, Gang accordingly replaced Commissioners Beasley and Campbell with Larry
Hicks, Esq., and B. Mahlon Brown, Esq., who were both listed on the State Bar's slate of
approved attorney alternates.
This court has not yet considered whether the State Bar or any other appointing
authority may delegate its appointing power to Commission staff. We now conclude that the
Nevada Constitution's text, structure, and purpose provide no basis for the State Bar's
delegation of its appointment authority.
[Headnote 16]
The power of appointment to the Commission is created by article 6, section 21 of the
Nevada Constitution. Subparagraph 2(b) (the appointment clause) provides: The
commission is composed of . . . [inter alia, t]wo members of the State Bar of Nevada, a public
corporation created by statute, appointed by its board of governors. (Emphasis added.) The
appointment clause goes on to provide limitations on the appointment power: If a vacancy
occurs, the appointing authority shall fill the vacancy for the unexpired term. An appointing
authority shall not appoint more than one resident of any county . . . [and] [n]o member may
be a member of a commission on judicial selection.
36
As noted, the Nevada Constitution is
silent with respect to the appointment or selection of Commission alternates. Nevada statutes
relating to these matters likewise make no provision for the appointment of alternates.
__________

35
On June 14, 1995, the Board of Governors met and nominated twelve attorneys, including Larry Hicks
and B. Mahlon Brown, to fill the seat on the Commission. The Board took no further action regarding
alternates at this meeting.

36
these matters likewise make no provision for the appointment of alternates.
37
We conclude,
however, that the power to appoint alternates is an inherent power of the appointing
authorities.
[Headnote 17]
Accordingly, we construe the text of the appointment clause as applying to the
appointment of alternates. By its plain language,
38
the clause empowers the State Bar to
appoint[ ] Commission members. Appoint means to assign, designate, or set apart.
39
These words connote a particularized selection and indicate that the power to appoint is
specific rather than general.
The appointment clause, by its terms, demonstrates that the appointment of alternates
in this case was accomplished in violation of the state constitution. First, paragraph two vests
the power of appointment in three, independently elected and distinct authorities: the
governor, this court and the State Bar. The power to appoint commissioners is given to no
one other than these entities. Second, the constitution establishes a scheme under which the
appointing authorities designate commissioners for a specific term, and thereafter have no
authority to remove the commissioners or otherwise replace them. This serves the purpose of
ensuring that commissioners remain impartial by minimizing the likelihood of strategic
appointments. Although there is absolutely no evidence that alternates Hicks and Brown are
biased in any way, or that Gang had an ulterior motive in selecting them, we conclude that
delegated appointment authority in general has the potential for undermining this carefully
and thoughtfully crafted construct for neutral selection.
Accordingly, we conclude that the text of the appointment clause unambiguously
precludes the State Bar from delegating its appointment power in the manner described by
these parties. Therefore, the appointment of the alternates by the executive director of the
Commission on Judicial Discipline, pursuant to the instructions from the Nevada State Bar,
violated the state constitution.
CONCLUSION
The record in this matter demonstrates that the Commission's
__________

37
Cf. NRS 1.440(2) (empowering this court to appoint two justices of the peace or municipal judge to sit on
the Commission for proceedings against a justice of the peace or municipal judge. Justices of the peace or
municipal judges so appointed must be designated by an order of the supreme court to sit for such proceedings in
place of and to serve for the same terms as the regular members of the commission appointed by the supreme
court.).

38
See Rogers v. Heller, 117 Nev. 169, 176 & n.17, 18 P.3d 1034, 1038 & n.17 (2001).

39
Webster's Third New International Dictionary 105 (1968).
combination of functions did not deprive Judge Mosley of his due process rights under the
Federal and Nevada State Constitutions. Accordingly, we decline to order the Commission to
terminate its proceedings.
40

We also conclude, however, that the State Bar's delegation of its appointment power
violated article 6, section 21 of the Nevada Constitution. Thus, the State Bar must exercise its
power to appoint Commission members on its own. We stress again that there is no evidence
of any wrongdoing on the part of Gang or alternates Hicks and Brown. Gang selected the
alternates solely at the request of the State Bar under a procedure it established.
Because the appointment of the alternate commissioners is infirm, we direct the clerk
of this court to issue a writ of mandamus directing the Commission to declare the two
positions vacant and to again seek appointment of alternates by the State Bar. The State Bar
must, of course, fill these vacancies with whomever it deems appropriate. No new probable
cause hearing is required because Hicks and Brown took no role in the Commission's
probable cause determination.
Young, Rose and Becker, JJ., concur.
Shearing, J., with whom Agosti, J., agrees, concurring in part and dissenting in part:
I agree with the majority that Judge Mosley's due process rights under the United
States and Nevada Constitutions are not violated by the Nevada Commission on Judicial
Discipline's combination of functions. However, I do not agree that the procedure used by the
Board of Governors of the State Bar of Nevada for appointing alternate members to the
Commission violates the Nevada Constitution.
Article 6, Section 21 of the Nevada Constitution provides:
2. The commission is composed of:
(a) two justices or judges appointed by the supreme court;
(b) two members of the State Bar of Nevada, a public corporation created by statute,
appointed by its board of governors; and
(c) three persons, not members of the legal profession, appointed by the governor.
The Constitution does not discuss replacing attorneys who must recuse themselves for
conflicts of interest or other reasons. The intent of Section 21 of Article 6 of the Nevada
Constitution is clearly to have a certain balance of judges, attorneys and lay members to
consider judicial discipline.
__________

40
We note that the United States District Court for the District of Nevada has stayed its consideration of
Judge Mosley's claim for federal relief pending interlocutory review of the Commission's denial of Judge
Mosley's motion to dismiss.
clearly to have a certain balance of judges, attorneys and lay members to consider judicial
discipline. We can also logically infer that the intent would certainly be that if an attorney has
a conflict of interest, that attorney should not sit on the case. However, the Constitution does
not specify a method for providing an alternate which is necessary in order to maintain the
desired proportion of attorneys on the Commission. Therefore, the Board of Governors is free
to choose a method of appointment for alternates. They have done so in this case.
The Board of Governors of the State Bar has chosen to appoint several attorney
alternates so that there will be someone available to sit as the need arises. Nothing in the
Constitution indicates that the Board cannot delegate the specific one-time selection of a
member to a panel from among those appointed by the Board. There is absolutely nothing
violative of the constitutional provisions in such appointments. On the contrary, it is fully in
keeping with the letter and spirit of the Constitution. It makes no sense to apply the
provisions of the Constitution for replacement of permanent members of the Commission
when a vacancy occurs to the one-time substitution of alternates. Those provisions simply do
not apply. Nothing in the Constitution requires the Board to call a special meeting every time
a conflict arises. Considering the schedules of busy attorneys, it makes eminent sense for the
Board of Governors to name several alternates so that there will be someone available to sit
as a case arises.
The alternates, Larry Hicks and Mahlon Brown, should be allowed to sit on the
Commission as substitutes for the recused members of the Commission.
Leavitt, J., concurring in part and dissenting in part:
I agree with the majority that the failure of the Nevada State Bar Board of Governors
to specifically name replacements for the disqualified members of the Judicial Discipline
Commission violates article 6, section 21(2)(b) of the Nevada Constitution. The section
clearly requires the Board of Governors to make a specific appointment to fill any vacancy,
and the practice of naming a slate of twelve persons and delegating the authority to select
alternates to the Executive Director of the Judicial Discipline Commission taints the entire
proceeding.
The power to appoint members to the Judicial Discipline Commission is given by our
constitution to three, independently elected authorities: the Nevada Supreme Court, the
Governor, and the Nevada State Bar Board of Governors. This arrangement is designed to
protect against the appointment of commissioners prejudiced against a judge being
investigated. By allowing the executive director to make the selection, the guarantee of
neutrality is lost.
ity is lost. Fairness requires that charges against an accused judge be heard by an impartial
Commission.
I disagree with the majority that this fundamental error can be corrected merely by
allowing the Board of Governors to appoint two new members to the Commission at this
stage of the proceedings. Here, the dispute has progressed beyond the probable cause stage to
the filing of a formal complaint of misconduct. Because two properly designated
commissioners had not been appointed to decide the probable cause issue to support the filing
of the charges, all of the actions taken by the Commission up to the filing of formal charges
were in excess of its jurisdiction.
Other incidents occurred during these proceedings that individually may not warrant
extraordinary relief, but the cumulative effect leaves a question as to the fairness of the whole
process.
Specifically, the Executive Director hired an investigator who is the husband of one of
the executive director's employees. The petitioner claims this gives the investigator an
incentive to prepare a biased report to please his wife's employer. Although this does not
necessarily imply the Commission would be biased against petitioner, an independent
investigator would have been preferable.
Further, the prosecuting attorney for the Commission is required to sign under oath a
formal statement of any charges made against a judge, and file the same with the
Commission.
1
This was not done in this case. The Commission agreed the complaint was
not properly signed under oath, and in order to correct the error, instructed the prosecutor to
swear under the penalty of perjury that the contents of the complaint were true. The filing of
the formal statement of charges lifts the confidentiality and subjects a judge to adverse
publicity.
2
The requirement of an oath is intended to make sure the confidentiality of the
proceedings is not lifted because of untrue, reckless and irresponsible charges. To be effective
this oath must be contemporaneous with the filing of the formal charges, not subsequent
thereto.
Other claims by petitionerregarding the executive director's statement to the news
media, the timing of a commissioner's recusal, the granting of media entry to the proceeding,
and the combining of investigative and adjudicative functionsare all points in question but
do not amount to a want of jurisdiction.
The petition should be granted, and a writ of prohibition issued preventing the
Commission from proceeding under the current complaint.
__________

1
NRS 1.467.

2
NRS 1.4683(1) states: Except as otherwise provided in this section and NRS 1.4693, all proceedings of the
commission must remain confidential until the commission makes a determination pursuant to NRS 1.467 and
the prosecuting attorney files a formal statement of charges.
complaint. The Commission should begin anew with an independent investigation and with
two new members of the Commission appointed by the Board of Governors pursuant to the
Nevada Constitution.
____________
117 Nev. 387, 387 (2001) Hudson v. Warden
LARRY DEANE HUDSON, Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN
IGNACIO, Respondent.
No. 34666
May 17, 2001 22 P.3d 1154
Appeal from an order of the district court denying appellant's post-conviction petition
for a writ of habeas corpus. Sixth Judicial District Court, Pershing County; Richard Wagner,
Judge.
Post-conviction petition for a writ of habeas corpus was filed, alleging ineffectiveness
of appellate counsel and trial counsel, and also seeking to set aside petitioner's pleas of guilty
to driving under influence of controlled substance (DUI) causing substantial bodily harm and
unlawful possession of controlled substance. The district court denied petition. Petitioner
appealed. The en banc supreme court, Becker, J., held that: (1) information contained in
presentence report regarding prior convictions was insufficient to support imposition of
enhanced sentence for DUI causing substantial bodily harm; (2) district court had jurisdiction
over DUI offense; and (3) defendant's guilty plea was not knowingly entered, due to
discrepancy in language of plea agreement with respect to maximum possible sentence.
Karla K. Butko, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District
Attorney, and John J. Kadlic, Deputy District Attorney, Pershing County, for Respondent.
1. Criminal Law.
To prevail on a claim of ineffective assistance of appellate counsel, a defendant must demonstrate: (1) that his appellate
counsel's performance fell below an objective standard of reasonableness, and (2) that the omitted issue would have had a reasonable
probability of success on appeal. U.S. Const. amend. 6.
2. Criminal Law.
Appellate counsel's performance fell below objective standard of reasonableness, where counsel failed to raise claim that district
court could not rely on presentence investigation report to prove defendant's prior convictions for purpose of enhancing sentence for
driving under influence of controlled substance (DUI) causing substantial bodily harm.
Trial counsel expressly preserved that issue for appeal, State admitted that it did not know how to proceed in proving prior convictions,
and even district court expressed some uncertainty as to what level of proof was required, acknowledging that issue might finally be
decided by supreme court. U.S. Const. amend. 6; NRS 453.336(2), 484.3795(1)(d).
3. Criminal Law.
To establish prejudice based on the deficient assistance of appellate counsel in failing to raise a claim, the defendant must show
that the omitted issue would have a reasonable probability of success on appeal. In making this determination, a court must review the
merits of the omitted claim. U.S. Const. amend. 6.
4. Automobiles.
When State seeks enhanced penalties based upon prior convictions in prosecution for driving under influence of controlled
substance (DUI) causing substantial bodily harm, State is required to give formal notice in charging document that it is seeking
enhanced sentence, and State has burden of proving existence of prior convictions. NRS 453.336(2), 484.3795(1)(d).
In order to satisfy the requirements of due process when seeking to enhance an offense, the State must prove the prior
convictions at or any time before sentencing. U.S. Const. amend. 14.
A defendant may stipulate to or waive proof of sentence-enhancing prior convictions.
Unless the defendant chooses to stipulate to or waive proof of sentence-enhancing prior convictions, the State is required to
satisfy its burden of production by presenting a record of the existence of the prior conviction that provides prima facie evidence of the
prior conviction.
Information in a presentence report regarding sentence-enhancing prior felony convictions is insufficient to satisfy the State's
burden of production because it is not prima facie evidence of a prior felony conviction.
9. Automobiles.
Information contained in presentence report regarding prior convictions was insufficient to support imposition of enhanced
sentence in prosecution for driving under influence of controlled substance (DUI) causing substantial bodily harm. NRS 453.336(2),
484.3795(1)(d).
10. Automobiles; Criminal Law.
On or off the highways of this state, as used in statute prohibiting person who is under influence of controlled substance from
driving vehicle on or off the highways of this state, was not ambiguous, and thus, where evidence introduced at preliminary hearing
showed that defendant drove vehicle off highway in Nevada, district court had jurisdiction over that offense. NRS 484.3795(1)(d).
11. Statutes.
Where statute was clear and unambiguous, supreme court would not search for any meaning beyond language of statute itself.
12. Criminal Law.
Defendant's guilty plea to two counts of driving under influence of controlled substance (DUI) causing substantial bodily harm
was not knowingly entered, as discrepancy in language of plea agreement with respect to maximum
sentence he could receive deprived him of ability to understand consequences of his plea.
knowingly entered, as discrepancy in language of plea agreement with respect to maximum sentence he could receive deprived him of
ability to understand consequences of his plea. When asking defendant if he understood consequences of plea at change of plea
hearing, district court referred only to page two of agreement, which stated that maximum period defendant could receive in prison was
twenty years, whereas page three stated that maximum potential sentence if counts were run consecutively would be forty years. NRS
174.063, 453.336(2), 484.3795(1)(d).
13. Criminal Law.
In reviewing the validity of guilty pleas, the supreme court applies a totality of the circumstances test to determine whether the
record demonstrates that the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense and
the consequences of the plea.
14. Criminal Law.
Discrepancy in language of plea agreement with respect to maximum sentence defendant could receive was not corrected by fact
that defendant received accurate information at canvass conducted at time of defendant's initial arraignment.
15. Criminal Law.
A court has an obligation to determine that a defendant understands the nature of the offense and the consequences at the time of
the entry of the plea, and where the court does not canvass the defendant on these issues at the time of the plea and relies, in part, upon
a written plea agreement, a material mistake in the agreement cannot be corrected by the fact that the defendant received accurate
information at a previous proceeding.
16. Criminal Law.
Where pleas of guilty to charges relating to driving under influence (DUI) were not knowingly made, and where defendant did
not understand consequences of those pleas, plea of guilty to possession of controlled substance charge was also invalid, as latter plea
was part of negotiation on pleas of guilty to DUI charge.
17. Criminal Law.
Even though sentence enhancement for driving under influence of controlled substance (DUI) causing substantial bodily harm
was improper due to State's failure to properly prove prior convictions, State was not prohibited from introducing evidence of prior
convictions at re-sentencing, as State had offered to properly prove prior convictions but was erroneously told by district court that
information in presentence report regarding prior convictions was sufficient. NRS 453.336(2), 484.3795(1)(d).
OPINION
Appellant, Larry Deane Hudson, entered pleas of guilty to two counts of driving under
the influence of a controlled substance causing substantial bodily harm and one count of
unlawful possession of a controlled substance.
session of a controlled substance. Because of prior convictions, Hudson's possession of a
controlled substance charge was treated as a third offense. Hudson filed a direct appeal that
was dismissed. Hudson's appellate counsel did not challenge the rulings of the district court
regarding the validity of his prior convictions on appeal. Hudson filed a post-conviction
petition for a writ of habeas corpus asserting ineffectiveness of appellate counsel and trial
counsel on a variety of grounds. In addition, Hudson alleged his pleas of guilty should be set
aside because they were not freely, voluntarily and knowingly made. The district court denied
the petition. We conclude that appellate counsel was ineffective in not raising issues relating
to the district court's rulings involving Hudson's prior convictions. We further conclude that
Hudson's pleas of guilty were not knowingly made. We therefore reverse the district court's
denial of the petition and remand this case to the district court for further proceedings
consistent with this opinion.
FACTS
In September of 1996, Hudson attended the Burning Man Festival, an annual event
held in the Black Rock Desert north of Gerlach, Nevada. The participants come to the festival
to camp and listen to music.
Over a period of one to two days, while attending the Festival, Hudson ingested both
methamphetamine and heroin. Sometime between 10 p.m. on September 1 and midnight on
September 2, Hudson ingested a controlled substance known as ecstasy. At approximately
6:45 a.m. on September 2, Hudson attempted to drive a vehicle from his friends' camp to his
own. While driving, Hudson ran over two tents, hit another tent, and struck a parked vehicle,
which was then pushed into a third vehicle. Three people who were sleeping in the tents were
seriously injured. One victim sustained permanent brain damage when Hudson's vehicle ran
over his head. Another victim sustained a concussion, cuts to her face, and a severed earlobe.
The third victim suffered third-degree burns from the hot anti-freeze and battery acid that
poured onto her back when she was trapped under the front of one of the vehicles that
Hudson had hit.
During searches of Hudson's person and vehicle, deputies of the Pershing County
Sheriff's Office discovered methamphetamine and hypodermic needles. Tests of Hudson's
blood revealed the presence of methamphetamine, morphine, and marijuana as well as
various metabolites of these drugs in Hudson's system.
Hudson was charged with three counts of driving while under the influence of a
controlled substance causing substantial bodily harm, two counts of possession of a
controlled substance, four counts of unlawful use of a controlled substance, one count of
possession of drug paraphernalia, and one count of unlawful possession of a hypodermic
device.
possession of drug paraphernalia, and one count of unlawful possession of a hypodermic
device.
Hudson initially entered a plea of not guilty to all charges; however, he subsequently
decided to accept a plea agreement. Pursuant to the plea agreement, Hudson agreed to plead
guilty to two counts of causing substantial bodily harm while driving under the influence of a
controlled substance and one count of possession of a controlled substance. In exchange, the
State agreed to dismiss the remaining charges and to recommend that Hudson's sentence on
the possession conviction be served concurrently to the sentence imposed on one of the DUI
convictions.
Because the district attorney believed that Hudson had been convicted of possession
of a controlled substance on two prior occasions, the district attorney intended to request that
the district court treat this conviction as a third offense category D felony rather than a
category E felony. A category D felony carries more severe penalties than a category E
felony. The plea memorandum reflected the category D penalties.
After Hudson entered his pleas, the district attorney informed the district court that
Hudson was the first person to be charged with possession of a controlled substance since the
law was changed to allow enhancement to a category D felony for a third offense. The district
attorney then asked how the State should proceed in proving Hudson's prior convictions for
the purpose of enhancing his possession of a controlled substance conviction from a category
E felony to a category D felony. The district attorney asked the court if he should provide
proof of Hudson's prior convictions in the same manner as is required for an enhanced DUI
conviction under NRS 484.3792, or if the information regarding prior convictions in a
presentence investigation (PSI) report would be sufficient to demonstrate that Hudson should
be sentenced as a category D offender. The district court determined that the reference to the
prior convictions contained in a PSI was sufficient for enhancement purposes, and therefore
the State was not required to present additional evidence of Hudson's prior convictions at the
time of sentencing.
Hudson's counsel urged the court to require the State to prove the prior convictions in
the same manner as that required for DUI enhanced sentences. The district judge replied that,
as far as my dealing with such drug enhancement where it has to do with prior convictions,
if it shows up on the PSI as prior convictions, then for the purpose of sentencing, I'll deem it
to be such unless the defense can show something differently at that time. The district court
also stated:
My understanding, if it shows up on the PSI report as prior convictions, the Court can
consider that. That's my interpretation.
tation. The Supreme Court may disagree with me at some time in the future, but I know
of no case law that requires any type of Koenig
[1]
type of standard with regard to those
prior convictions as I understand it.
At the time of sentencing, the district court relied on the statements regarding prior
convictions contained in the PSI report to determine whether Hudson should be sentenced as
a category D offender. Finding that Hudson had two prior convictions based upon the
statement to that effect in the PSI, the district court treated Hudson as a category D offender.
The district court then sentenced Hudson to serve maximum terms of 150 months
with a minimum parole eligibility of 60 months to be served consecutively for each count of
DUI causing substantial bodily harm, and a maximum term of 30 months with a minimum
parole eligibility of 12 months for the possession charge to run concurrent with the second
DUI count. The district court also ordered Hudson to pay a $4,000.00 fine and $272,164.76 in
restitution.
Hudson filed a direct appeal, which this court dismissed.
2
In that appeal, Hudson
alleged that his plea had been coerced, that the DUI controlled substance statute was
unconstitutionally vague, and that his sentence was improper. Hudson did not allege that the
use of the PSI to prove his prior convictions was improper or that the district court lacked
subject matter jurisdiction over the DUI offenses because the location of the offenses was
outside the scope of the applicable statutes.
After the dismissal of his direct appeal, Hudson filed this timely post-conviction
petition for a writ of habeas corpus. In the petition Hudson alleged that both his trial and
appellate counsel were ineffective on several grounds. With respect to trial counsel Hudson
asserted that: (1) Hudson's plea was not made knowingly and voluntarily based upon a full
understanding of the potential consequences of the plea, and (2) counsel failed to object to
restitution the court ordered to be paid to an insurance company.
3
As to appellate counsel,
Hudson argued that: (1) he failed to raise issues regarding the use of the PSI report as
evidence of prior convictions for enhancement purposes, and {2) he failed to address the
constitutionality of NRS 4S4.3795 as it relates to driving on or off the highways of the
state and the jurisdiction of the district court.
__________

1
See Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983).

2
Hudson v. State, Docket No. 30293 (Order Dismissing Appeal, November 20, 1997).

3
Hudson also asserted the following issues regarding trial counsel: (1) counsel failed to object to the district
court's transferring of the burden of proof for the enhancement of the possession charge; (2) the prosecutor
breached the plea agreement when she argued for a sentence that was inconsistent with the negotiations found in
the guilty plea memorandum; and (3) counsel failed to litigate the issue of substantial bodily harm. We have
considered these issues and conclude that they lack merit.
convictions for enhancement purposes, and (2) he failed to address the constitutionality of
NRS 484.3795 as it relates to driving on or off the highways of the state and the jurisdiction
of the district court. The district court appointed counsel and held an evidentiary hearing on
the merits of the petition. Subsequent to the evidentiary hearing, Hudson and the State agreed
to correct the judgment with respect to the amount of restitution. The remainder of the
petition was denied. This appeal followed.
DISCUSSION
Proof of prior convictions
Hudson argues that because the district court relied on the presentence investigation
report to prove his prior convictions for the purpose of enhancing the possession charge,
unless the defense can show something differently, the court improperly shifted the burden
of proof from the State to the defense. Hudson contends that his appellate counsel was
ineffective for failing to raise this issue on appeal.
[Headnote 1]
A claim of ineffective assistance of appellate counsel is reviewed under the test set
forth in Strickland v. Washington.
4
To prevail on a claim of ineffective assistance of
appellate counsel, Hudson must demonstrate: (1) that his appellate counsel's performance fell
below an objective standard of reasonableness, and (2) that the omitted issue would have had
a reasonable probability of success on appeal.
5

[Headnote 2]
First, we conclude that Hudson's appellate counsel's performance fell below an
objective standard of reasonableness. Hudson's trial counsel expressly preserved the issue for
appeal, urging the district court to require the State to prove Hudson's prior convictions for
the purpose of enhancing the possession charge. The court replied, That's up to you whether
or not you wish to do that, sir. If you want to preserve the record, it could be an issue on
appeal that you may or may not wish to deal with. In addition, the State admitted that it did
not know how to proceed in proving Hudson's prior convictions. Even the district court
expressed some uncertainty as to what level of proof was required, acknowledging that the
issue might finally be decided by this court. Yet Hudson's appellate counsel did not raise the
issue on appeal.
__________

4
466 U.S. 668, 687 (1984). Accord Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113-14 (1996).

5
Strickland, 466 U.S. at 687; Kirksey, 112 Nev. at 988, 923 P.2d at 1113-14.
appeal. We conclude that under these circumstances the counsel's failure to raise this issue on
appeal was unreasonable.
[Headnote 3]
Second, we conclude that Hudson was prejudiced because, but for his appellate
counsel's errors, the result of the appeal would have been different. To establish prejudice
based on the deficient assistance of appellate counsel, the defendant must show that the
omitted issue would have a reasonable probability of success on appeal. In making this
determination, a court must review the merits of the omitted claim.
6

[Headnote 4]
Hudson argues that because the statute under which he was charged, NRS 453.336(2),
7
provides for enhanced penalties based upon prior convictions, the State must present prima
facie evidence of the prior convictions. We agree. We have previously held that NRS 453.336
is an enhancement statute.
8
As such, the State is required to give formal notice that it is
seeking an enhanced sentence in the charging document.
9
In addition, as we held in Dressler
v. State, the State has the burden of proving the existence of a sentence enhancing prior
conviction.
10

[Headnotes 58]
In order to satisfy the requirements of due process when seeking to enhance an
offense, the State must prove the prior convictions at or anytime before sentencing.
__________

6
Kirksey, 112 Nev. at 998, 923 P.2d at 1114 (citations omitted).

7
NRS 453.336(2) provides as follows:
Except as otherwise provided in subsections 3, 4 and 5 and in NRS 453.3363, and unless a greater
penalty is provided in NRS 212.160, 453.3385, 453.339 or 453.3395, a person who violates this section
shall be punished:
(a) For the first or second offense, if the controlled substance is listed in schedule I, II, III or IV, for a
category E felony as provided in NRS 193.130.
(b) For a third or subsequent offense, if the controlled substance is listed in schedule I, II, III or IV, or
if the offender has previously been convicted two or more times in the aggregate of any violation of the
law of the United States or of any state, territory or district relating to a controlled substance, for a
category D felony as provided in NRS 193.130, and may be further punished by a fine of not more than
$20,000.
(c) For the first offense, if the controlled substance is listed in schedule V, for a category E felony as
provided in NRS 193.130.
(d) For a second or subsequent offense, if the controlled substance is listed in schedule V, for a
category D felony as provided in NRS 193.130.

8
Lewis v. State, 109 Nev. 1013, 862 P.2d 1194 (1993).

9
Id. at 1014-15, 862 P.2d at 1195.

10
107 Nev. 686, 691-93, 819 P.2d 1288, 1290-92 (1991).
tions at or anytime before sentencing.
11
Additionally, we have recently held that a defendant
may stipulate to or waive proof of prior convictions.
12
Therefore, unless the defendant
chooses to stipulate to or waive proof of prior convictions, which Hudson did not do, the
State is held to the legal principles enunciated in Dressler concerning proof of prior felony
convictions. The State is required to satisfy its burden of production by presenting a record of
the existence of the prior conviction that provides prima facie evidence of the prior
conviction.
13
We hold that a reference to a prior conviction contained in a presentence report
is insufficient to satisfy Dressler because it is not prima facie evidence of a prior felony
conviction.
[Headnote 9]
The district court erred in ruling that the information contained in a presentence report
regarding prior convictions was sufficient to support the imposition of an enhanced sentence.
Jurisdiction
[Headnote 10]
Hudson next contends that his appellate counsel was ineffective for failing to raise the
issue of whether the district court had jurisdiction to convict him of two counts of causing
substantial bodily harm while driving under the influence of a controlled substance.
Hudson was convicted under NRS 484.3795, which provides in relevant part that:
1. A person who:
. . . .
(d) Is under the influence of a controlled substance or is under the combined influence
of intoxicating liquor and a controlled substance;
. . . .
and does any act or neglects any duty imposed by law while driving or in actual
physical control of any vehicle on or off the highways of this state, if the act or neglect
of duty proximately causes the death of, or substantial bodily harm to, a person other
than himself, is guilty of a category B felony . . . .
Hudson argues that the words on or off the highways of this state are ambiguous, and
therefore the district court lacked jurisdiction.
__________

11
Ronning v. State, 116 Nev. 32, 33-34, 992 P.2d 260, 261 (2000).

12
Krauss v. State, 116 Nev. 307, 310, 998 P.2d 163, 165 (2000).

13
Dressler, 107 Nev. at 697, 819 P.2d at 1295.
[Headnote 11]
We conclude that NRS 484.3795 is clear and unambiguous, and therefore we will not
search for any meaning beyond the language of the statute itself.
14
The evidence introduced
at the preliminary hearing substantiates that Hudson was driving a vehicle off the highway of
this state, and thus the district court has jurisdiction over the offense. We therefore conclude
that Hudson's appellate counsel was not ineffective for failing to raise the issue on appeal.
Plea canvass
[Headnote 12]
Hudson contends that his convictions are constitutionally infirm because the district
court did not conduct a proper plea canvass before accepting Hudson's guilty pleas.
Specifically, Hudson alleges that the failure of the district court to clarify conflicting
information in the Guilty Plea Agreement or otherwise canvass him regarding the
consequences of his plea led him to enter his pleas under a misconception as to the possible
sentences he could receive.
[Headnote 13]
We have long held that, in reviewing the validity of guilty pleas, we will apply a
totality of the circumstances test to determine whether the record demonstrates that the plea
was knowingly and voluntarily made and that the defendant understood the nature of the
offense and the consequences of the plea.
15
This test was recently reaffirmed in State v.
Freese.
16

At Hudson's arraignment on November 12, 1996, at which he entered a plea of not
guilty, the district court advised Hudson that he had the following rights: (1) the right to a
jury trial, (2) the right to testify or not to testify, (3) the right to call witnesses in his defense,
and (4) the right to require that the district attorney prove guilt beyond a reasonable doubt. In
addition, the district court requested that the district attorney explain the elements the State
would have to prove and the possible penalties Hudson would face with regard to each
charge, including any sentence enhancements. The district court then asked Hudson whether
he understood what had been stated to him by the court and the district attorney. Hudson
replied yes. Finally, the district court asked Hudson if he understood that the sentencings
[sic] that you could receive could be what we call consecutive, one after the other, or
concurrently, all at the same time, in the event that you were convicted of any or all of
these."
__________

14
See Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995).

15
Bryant v. State, 102 Nev. 268, 271, 721 P.2d 364, 367 (1986).

16
116 Nev. 1097, 13 P.3d 442 (2000).
you were convicted of any or all of these. Hudson said that he understood.
Subsequently, on January 14, 1997, Hudson appeared before the district court to
change his plea from not guilty to guilty on three counts with the understanding that the
remaining charges would be dismissed. The negotiations were memorialized in a written plea
agreement in conformance with the requirements of NRS 174.063.
At the change of plea hearing, the district court conducted the following colloquy:
THE COURT: Mr. Hudson, there's been filed this morning a document entitled Guilty
Plea Agreement. Do you have a copy of that document there with you, sir?
. . . .
THE DEFENDANT: Yes, I do.
. . . .
THE COURT: Would you please turn with me on the Guilty Plea Agreement to page 7
of the document. This purports to have your signature on the document. Did you sign
the original?
THE DEFENDANT: Yes.
THE COURT: Did you read it before you signed it?
THE DEFENDANT: Yes, I did.
THE COURT: By your signature, I take it that you not only read it but you understood
it and agree with everything in the document, is that true?
THE DEFENDANT: Yes.
THE COURT: With regard to the document, on page 2, it sets forth the possible
consequences of your plea. Did you understand the possible consequences of the plea as
set forth there, sir?
THE DEFENDANT: Unfortunately, yes.
. . . .
THE COURT: Before I can accept your pleas of guilty, there's certain information I
must have. What's your age?
THE DEFENDANT: Thirty-three.
THE COURT: What education have you completed?
THE DEFENDANT: High school.
THE COURT: Were you able to read and understand the legal documents that you
signed here, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Do you believe that at any time or as you sit here today that you are
suffering from any kind of mental illness or taking drugs or alcohol that would interfere
with your understanding of what you are doing here today?
THE DEFENDANT: No, sir.
THE COURT: Are you pleading guilty to these charges, sir, because in truth and fact
you are guilty and for no other reason?
THE DEFENDANT: Yes.
THE COURT: Has anyone made any promises or threats to you in order to get you to
plead guilty other than what's in the Guilty Plea Agreement itself?
THE DEFENDANT: No.
THE COURT: Do you understand that the matter of sentencing is up to me as the judge
in the State of Nevada? The attorneys can recommend but ultimately I, as the judge,
determine the sentence within the limits of the law. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Also at sentencing, I can consider all the circumstances surrounding this
case, everything that's a part of the plea negotiation, I can consider all of that as well as
anyI don't know anything about you but if you have had any prior felony or other
criminal convictions I can consider that at the time of sentencing. Do you understand
that?
THE DEFENDANT: Yes.
In addition to the foregoing colloquy, the district court discussed the factual basis of the plea
with Hudson and the fact that the district attorney was alleging this was a third offense. Based
upon the colloquy and the guilty plea memorandum, the district court concluded that
Hudson's plea of guilty was freely and voluntarily made and that he understood the charges
against him and the consequences of his plea.
Hudson argues that because the district court referred only to page two of the written
plea agreement when asking Hudson if he understood the consequences of the plea, he was
not aware of the fact that the maximum sentence that he could receive on the DUI charges
was forty, not twenty years.
charges was forty, not twenty years. The plea agreement contains conflicting information
regarding the consequences of pleading guilty to the two counts of driving under the influence
of a controlled substance causing substantial bodily harm. On page two of the agreement, it
states that the maximum period that Hudson could receive in prison is twenty years and a
$5,000.00 fine. However, on page three of the agreement, it states that Hudson could receive
a minimum of two years and a maximum of twenty years for a violation of the felony DUI
statute and that if there was more than one sentence of imprisonment imposed, they could be
run consecutively. In other words, the maximum potential sentence if the counts were run
consecutively would be a four year minimum sentence and a forty year maximum sentence.
At the time of the canvass, counsel, Hudson and the district court discussed other errors in the
agreement and made corrections by way of interlineation, but the conflicting language
regarding the maximum possible sentence was never addressed.
During the evidentiary hearing on the petition for post-conviction relief, Hudson
testified that he understood that the sentences could be run consecutively but because of the
language on page two he believed that even if the sentences were to run consecutively, the
maximum amount of time he would have to serve would be twenty years. Hudson stated that
he thought based on the language of the agreement that if the judge did not give him
concurrent sentences, the minimum time might increase to eight years but the maximum time
would still be twenty years. A reasonable person reading the agreement could arrive at just
this conclusion.
In reviewing this claim, the district court found, under a totality of the circumstances
test, that Hudson's pleas were freely, voluntarily and knowingly made. We agree with the
district court that the pleas were freely entered and made on a voluntary basis. However, the
discrepancy in the language of the plea agreement with respect to the maximum sentence that
Hudson could receive deprived Hudson of the ability to understand the consequences of his
plea. His plea was not knowingly entered.
[Headnotes 14, 15]
In making its finding that Hudson understood the consequences, the district court
referred to the canvass that the court conducted at the time of Hudson's initial arraignment. At
that time, Hudson was informed in open court by the prosecutor of the penalties he would be
facing on each charge. The district court also made it clear at that time that the sentences
could be run consecutively. The district court was under the impression that because Hudson
had acknowledged he understood the information at the arraignment there was no need to
determine whether or not he remembered and understood the same information at the time of
his plea.
The district court was mistaken. A court has an obligation to determine that a defendant
understands the nature of the offense and the consequences at the time of the entry of the
plea. Where the court does not canvass the defendant on these issues at the time of the plea
and relies, in part, upon a written plea agreement, then a material mistake in the agreement
cannot be corrected by the fact that the defendant received accurate information at a previous
proceeding. It is for this reason that we have urged the trial courts not to simply rely upon a
plea memorandum, but to also conduct a thorough canvass.
[Headnote 16]
Based upon the totality of the circumstances, as shown by the record, we conclude
that the pleas of guilty to the charges relating to driving under the influence were not
knowingly made and that Hudson did not understand the consequences of the pleas.
17
In
addition, because the plea of guilty to the possession of the controlled substance charge was
part of the negotiation on the pleas of guilty to the DUI charge, we conclude that the plea on
the possession charge is also invalid.
[Headnote 17]
We therefore reverse the district court's denial of the post-conviction petition for a
writ of habeas corpus and remand this matter to the district court with instructions to permit
Hudson to withdraw his pleas of guilty and for further proceedings consistent with this
opinion. In the event that Hudson elects not to withdraw his pleas of guilty, then the district
court is instructed to vacate Hudson's category D conviction for possession of a controlled
substance and to conduct a new sentencing hearing on that charge in light of our ruling on the
issue of the prior convictions. Moreover, because the State offered to properly prove
Hudson's prior convictions but was told by the district court that it was not necessary as a
result of the district court's ruling, the State is not prohibited from introducing evidence of the
prior convictions at re-sentencing.
18

CONCLUSION
We conclude that Hudson's appellate counsel was ineffective for failing to raise the
issue of the validity of the prior conviction enhancements on appeal. To enhance a conviction
under NRS 453.336, the State must produce records of the prior convictions that contain
prima facie evidence of the prior convictions, unless the defendant stipulates to or waives
the requirement of proof.
__________

17
See Freese, 116 Nev. at 1105, 13 P.3d at 448; Bryant, 102 Nev. at 271, 721 P.2d at 367.

18
See Monge v. California, 524 U.S. 721, 735 (1998) (double jeopardy clause does not apply to
re-sentencing, especially when re-sentencing is required as a result of a legal error that infected the original
sentence).
the defendant stipulates to or waives the requirement of proof. The district court erred in
relying on the reference to the prior convictions contained in the presentence report to
enhance Hudson's conviction of possession of a controlled substance. We further conclude
that under the plain meaning of NRS 484.3795, the location of the DUI offense was within
the subject matter jurisdiction of the district court.
Finally, with respect to Hudson's pleas of guilty, we conclude that the pleas were not
knowingly made. Accordingly we reverse the district court's denial of the petition and remand
the matter to the district court for further proceedings consistent with this opinion.
Young and Shearing, JJ., concur.
I agree that this matter should be reversed and remanded to give Hudson the option of
setting aside his pleas of guilty or undergo a second sentencing proceeding. I would note
separately that our ruling in this matter does, in part, clarify the confusion over the
requirements for sufficient plea canvasses and does not undermine, in any respect, our prior
ruling in State v. Freese.
1
However, I would also note that, in the wake of our decisions on
this issue, many district courts in Nevada have taken variant approaches to the canvass
process. Given the split of opinion within this court on these matters, and given the variances
in approach statewide, I am now of the view that we should examine the possibility of
developing a mandatory oral canvass that would minimize the uncertainties in this process.
Agosti, J., with whom Rose and Leavitt, JJ., agree, concurring:
I agree with the majority that the State has an obligation to prove the prior convictions
upon which it relies to enhance Hudson's conviction for possession of a controlled substance.
I agree with the majority that the district court did have jurisdiction over the charges against
Hudson of causing substantial bodily harm while driving under the influence of a controlled
substance. I agree with the majority that the district court's denial of the petition was error as
it relates to Hudson's guilty pleas, but I disagree with its reasons why.
I disagree with the majority's proposition that under the totality of the circumstances
Hudson's guilty pleas were entered freely and voluntarily. The district court failed in its
colloquy with Hudson, at the moment of his entry of guilty pleas to extremely serious
charges, to ask Hudson if he understood any of his constitutional rights and if he voluntarily
waived any of these critical rights.
__________

1
116 Nev. 1097, 13 P.3d 442 (2000).
stitutional rights and if he voluntarily waived any of these critical rights. The district court
failed to advise Hudson of the elements of the offenses to which he was pleading guilty. The
district court failed to advise Hudson as to the consequences of his guilty pleas. The district
court failed to advise Hudson of the maximum and minimum sentences that applied to each
charge. The district court failed to ask whether Hudson had voluntarily signed the guilty plea
agreement. The district court failed to make a finding concerning whether Hudson's guilty
pleas were knowingly entered.
And yet, under all these circumstances, the majority clings to the principle that if these
matters are properly set out in a written plea agreement, a defendant's plea of guilty can be
found to be knowing, voluntary and intelligent. If such were the case here, the majority would
affirm Hudson's convictions based upon its decision in State v. Freese.
1
I dissented from the
majority in Freese, and for the same reasons stated there, I continue to disagree with the
majority's analysis here.
The majority correctly determined that while Hudson had been properly advised of the
possible sentences when he entered his not guilty pleas, the district court was still obliged to
advise him again, when Hudson withdrew his not guilty pleas and entered his pleas of guilty,
of the possible sentences he faced. The majority acknowledged that Hudson, because of the
inconsistency in the plea agreement, did not understand the consequences of his pleas. The
majority concluded, therefore, that while Hudson's pleas were freely entered and made on a
voluntary basis, they were not knowingly entered.
As I noted in my dissent in Freese, the district court is constitutionally required to
determine that a defendant's guilty plea is knowing, voluntary and intelligent.
2
If the majority
takes freely and voluntarily entered to mean that Hudson's guilty pleas were not coerced, it
may be correct. However, the voluntariness of a plea involves more than a lack of coercion. I
believe Hudson's pleas of guilty were also involuntary and unintelligent because they were, as
the majority concedes, unknowing. I question how one can voluntarily plead guilty if one
does not know the applicable maximum possible sentence.
This case underscores the problem with the holding in Freese. The possibility of
inconsistencies, wrong information, misleading information or incomplete information
creeping into these word-processed, mass-produced plea agreements is not theoretical, it is
actual. It happened here. In my experience as a trial judge, it happens frequently. Often, errors
are identified and corrected. Sometimes they are not. The majority must recognize the peril of
allowing district judges to abandon their traditional, thorough canvass of a defendant
because the majority specifically encourages the district judges not to rely upon a plea
memorandum but to conduct a thorough canvass of their own.
__________

1
116 Nev. 1097, 13 P.3d 442 (2000) (Agosti, J., dissenting).

2
Id. at 1108, 13 P.3d at 449 (Agosti, J., dissenting).
allowing district judges to abandon their traditional, thorough canvass of a defendant because
the majority specifically encourages the district judges not to rely upon a plea memorandum
but to conduct a thorough canvass of their own.
I am not content merely to encourage, as good and expedient practice, the district
judges to conduct a thorough canvass. I would require it.
____________
117 Nev. 403, 403 (2001) S.O.C., Inc. v. The Mirage Casino-Hotel
S.O.C., INC.; HILLSBORO ENTERPRISES, INC., and HILLSBORO ENTERPRISES,
LTD., Appellants, v. THE MIRAGE CASINO-HOTEL, a Nevada Corporation; and
TREASURE ISLAND CORP., a Nevada Corporation, Respondents.
No. 34563
May 17, 2001 23 P.3d 243
Appeal from a district court order issuing a preliminary injunction enjoining the
distribution of commercial handbills on private property along the Las Vegas Strip. Eighth
Judicial District Court, Clark County; Michael A. Cherry, Judge.
Private property owner brought action to enjoin distribution of commercial handbills
on sidewalks on owner's property. The district court issued temporary injunction. Handbill
distributors appealed. The supreme court, Young, J., held that: (1) pedestrian easement that
owner granted to county with respect to sidewalks did not contemplate use by commercial
businesses seeking to advance their own economic gains; (2) by owning and maintaining
sidewalks, owner was not automatically performing a public function so as to be subject to
free speech requirements of First Amendment; (3) sidewalks were private property and thus
were not subject to reach of First Amendment; (4) free speech provisions of state constitution
did not afford greater protection than those of First Amendment; and (5) grant of preliminary
injunction was not abuse of discretion.
Affirmed.
[Rehearing denied October 2, 2001]
Potter Law Offices, Las Vegas, for Appellant S.O.C., Inc.
JoNell Thomas, Las Vegas, for Appellant Hillsboro Enterprises.
Schreck Morris and Todd L. Bice and Matthew E. McCaughey, Las Vegas, for
Respondents.
Allen Lichtenstein, Las Vegas, for Amicus Curiae American Civil Liberties Union of
Nevada.
Owners of private property may exclude commercial handbillers, and such exclusion is not a violation of free speech provisions
in state and federal constitutions. Const. art. 1, 9; U.S. Const. amend. 1.
2. Appeal and Error; Injunction.
Decision to grant or deny a preliminary injunction is within the sound discretion of the trial court, and that discretion will not be
disturbed absent abuse.
Supreme court's review of a decision to grant or deny a preliminary injunction is limited to the record to determine whether the
lower court exceeded the permissible bounds of discretion.
A district court's determinations of fact will not be set aside unless they are clearly erroneous.
If the district court's findings are supported by substantial evidence, they will be upheld.
Questions of law are reviewed de novo.
7. Injunction.
A party seeking the issuance of a preliminary injunction bears the burden of establishing (1) a likelihood of success on the
merits; and (2) a reasonable probability that the non-moving party's conduct, if allowed to continue, will cause irreparable harm for
which compensatory damage is an inadequate remedy.
8. Easements.
Extent of an easement, like any other conveyance of rights in real property, is fixed by the language of the instrument granting
the right.
9. Easements.
Easement must be construed strictly in accordance with its terms in an effort to give effect to the intentions of the parties.
10. Easements.
Generally, easements are construed strictly in favor of the owner of the property.
11. Easements.
A party is privileged to use another's land under an easement only to the extent expressly allowed by the easement.
12. Easements.
An easement is only as broad as needed to achieve the intended result.
13. Easements.
Perpetual pedestrian and maintenance easement that private property owner granted to county with respect to sidewalks on
owner's property did not contemplate use by commercial businesses seeking to advance their own economic gains.
Mere existence of pedestrian easement over owner's sidewalk property did not transform owner's private property into a public
forum for purposes of First Amendment free speech protections. U.S. Const. amend. 1.
By owning and maintaining sidewalks from which it excluded commercial handbillers, private property owner was not
automatically performing a public function so as to be subject to free speech requirements of First Amendment. U.S. Const. amend. 1.
Privately-owned property does not lose its private nature, in context of determining whether that property is public forum for
First Amendment purposes, merely because the public traverses upon it. U.S. Const. amend. 1.
Sidewalks for which private property owner had granted pedestrian and maintenance easements to county were private property
and therefore were not subject to the reach of First Amendment free speech provisions. U.S. Const. amend. 1.
18. States.
Federal law, whether based on statute or constitution, generally establishes a minimum national standard for the exercise of
individual rights and does not inhibit state governments from affording its citizens greater protections for such rights.
Free speech protections of state constitution are coextensive to, but no greater than, those of the First Amendment to the United
States Constitution. Const. art. 1, 9; U.S. Const. amend. 1.
20. Easements.
Private property owner that had granted to county a pedestrian easement with respect to sidewalks on owner's property was
entitled to preliminary injunction prohibiting commercial handbillers from distributing leaflets on those sidewalks.
OPINION
[Headnote 1]
This case presents several issues related to the exclusion of commercial handbillers
from property that is privately owned. We conclude that the district court did not err in
making a preliminary determination that owners of private property may exclude commercial
handbillers and such exclusion is not a violation of the Nevada or United States
Constitutions.
FACTS
S.O.C., Inc., Hillsboro Enterprises, Inc., and Hillsboro Enterprises, Ltd.,
1
are licensed
corporations that provide referrals for erotic dance entertainment. The erotic entertainment
services at issue are generally provided in hotel/motel rooms and are available in Clark
County for a fee. A partially dressed or nude dancer is requested by telephone and then
usually paid for by the person who views the performance.
The Mirage Casino-Hotel, a Nevada corporation, and Treasure Island Corporation, a
Nevada corporation, are hotel-casinos located on real property in Clark County, Nevada,
which is bordered by Las Vegas Boulevard South (commonly referred to as the Strip),
Spring Mountain Road, Industrial Road, and private property known as Caesars Palace.
Along the front of the Mirage properties,
2
there are two sections of sidewalk owned
by the Mirage. One of these sidewalks extends from Buccaneer Bay Boulevard (an interior
driveway of the Mirage property) south to the Caesars Palace property. This sidewalk borders
the water attraction at the Mirage and is parallel and adjacent to Las Vegas Boulevard. The
other sidewalk extends from Buccaneer Bay Boulevard north to the corner of Spring
Mountain Road and Las Vegas Boulevard. In keeping with the Treasure Island theme, this
sidewalk is constructed principally of wooden planks and forms the front of the Treasure
Island property line. The plank sidewalk is elevated several feet off the ground and is
separated from Las Vegas Boulevard by a public sidewalk that runs parallel to the plank
sidewalk and Las Vegas Boulevard for the length of the Treasure Island property.
3
Signs are
posted at various points along the sidewalks indicating that they are the private property of
the Mirage.
In October 1993, as part of the zoning, licensing, and building plans for the Mirage
resort, the Mirage conveyed to Clark County a perpetual pedestrian easement over, under,
and across the parcel of land upon which the sidewalk at issue is abutted. The legal
description of the easement states that it is a pedestrian easement for the west right-of-way
of Las Vegas Boulevard.
At one time, there were publicly-owned sidewalks located along Las Vegas
Boulevard; however, these public sidewalks were
__________

1
For the sake of convenience, the parties are referred to as S.O.C./Hillsboro.

2
The Mirage and Treasure Island are both wholly-owned subsidiaries of Mirage Resorts, Incorporated. The
property involved here is owned entirely by the Mirage Casino-Hotel; Treasure Island leases the land it sits upon
from the Mirage Casino-Hotel.

3
For the purpose of this appeal, the public sidewalk parallel to the plank sidewalk is not at issue. The district
court's preliminary injunction specifically did not apply to the public sidewalk.
removed to accommodate the widening of the Boulevard when larger resorts were built along
the Strip. The record on appeal is not clear with respect to whether the building of the Mirage
and Treasure Island necessitated the widening of the Strip and the elimination of the
publicly-owned sidewalks.
On April 15, 1999, the Mirage filed suit against S.O.C./Hillsboro alleging that
S.O.C./Hillsboro's practice of hiring canvassers to solicit business on sidewalks in front of the
Mirage properties, by passing out leaflets advertising their erotic dance services, constituted a
trespass. Included in Mirage's prayer for relief were requests for preliminary and permanent
injunctions. At the same time, Mirage also filed a motion for a preliminary injunction and a
memorandum of points and authorities in support of its motion.
The district court held an evidentiary hearing on the motion for preliminary injunction
which included the presentation of several witnesses and other documentary evidence.
The district court judge allowed the parties to submit additional briefs and took the
matter under advisement. On June 30, 1999, the district court granted Mirage's request for a
temporary injunction. In an oral hearing on the motion, the district court judge indicated that
he did not think S.O.C./Hillsboro's arguments regarding the First Amendment were
persuasive and that the Mirage was entitled to protect its private property by seeking to
exclude commercial handbillers. The preliminary injunction was filed on July 8, 1999.
S.O.C./Hillsboro made a timely appeal to this court on July 22, 1999.
DISCUSSION
[Headnotes 26]
The decision to grant or deny a preliminary injunction is within the sound discretion
of the trial court, and that discretion will not be disturbed absent abuse.
4
This court's review
is limited to the record to determine whether the lower court exceeded the permissible bounds
of discretion.
5
A district court's determinations of fact will not be set aside unless they are
clearly erroneous.
6
If the district court's findings are supported by substantial evidence, they
will be upheld.
7
8

__________

4
See Dangberg Holdings v. Douglas Co., 115 Nev. 129, 138, 978 P.2d 311, 319 (1999).

5
Id.

6
Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990).

7
Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 25, 866 P.2d 1138, 1139 (1994).

8
SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).
[Headnote 7]
A party seeking the issuance of a preliminary injunction bears the burden of
establishing (1) a likelihood of success on the merits; and (2) a reasonable probability that the
non-moving party's conduct, if allowed to continue, will cause irreparable harm for which
compensatory damage is an inadequate remedy.
9

The easement
S.O.C./Hillsboro argue that the district court erred in granting the injunction because
the Mirage sidewalks are encumbered by a perpetual easement allowing for public access.
They further argue that the activities of the handbillers fall within the permissible scope of the
perpetual easement.
We disagree. We conclude instead that the mere existence of the easement does not
implicate the protections of the First Amendment. In addition, because of the procedural
posture of the case and in light of the facts considered by the district court, we conclude that
the district court did not err in finding the easement alone was insufficient to convert private
property to a public forum for the purpose of entering the preliminary injunction.
In October 1993, the Mirage granted Clark County a perpetual easement and
pedestrian easement over, under, and across the sidewalk property involved in this litigation.
The easement also contained the following descriptive language: a perpetual easement for a
pedestrian and maintenance easement for streetlights, traffic control devices and for detectors
over, under, and across the parcel of land.
[Headnotes 812]
The extent of an easement, like any other conveyance of rights in real property, is
fixed by the language of the instrument granting the right.
10
Moreover, an easement must be
construed strictly in accordance with its terms in an effort to give effect to the intentions of
the parties.
11
Generally, easements are construed strictly in favor of the owner of the
property.
12
A party is privileged to use another's land only to the extent expressly allowed by
the easement.
13
As the Arizona Court of Appeals in Dixon v. City of Phoenix
__________

9
See Dangberg Holdings, 115 Nev. at 142-43, 978 P.2d at 319; see also NRS 33.010.

10
See Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962).

11
See Sanders v. Lutz, 784 P.2d 12, 14 (N.M. 1989).

12
See, e.g., Brown v. Eoff, 530 P.2d 49, 52 (Or. 1975); Gambrell v. Schriver, 440 S.E.2d 393, 395 (S.C. Ct.
App. 1994).

13
See Mielke v. Yellowstone Pipeline Co., 870 P.2d 1005, 1006 (Wash. Ct. App. 1994).
Phoenix
14
observed, an easement is only as broad as needed to achieve the intended result:
The cases generally hold that an easement obtained by a governmental entity for a
public use is only as broad as necessary for the accomplishment of the public purpose
for which the easement was obtained and, to the extent the easement holder exceeds
this right, it will be regarded as a trespasser and is responsible for damages.
Any misuse of the land or deviation from the intended use of the land is a trespass for
which the owner may seek relief.
15
The Restatement addresses the privilege to enter
another's property where that property contains a public highway. The Restatement defines
public highway to include a sidewalk laid across private property for the use of pedestrians.
The Restatement suggests that where sidewalks on private property are intended to facilitate
pedestrian travel, activities unrelated to travel exceed the use of such property and subject the
trespasser to liability.
16

[Headnotes 13, 14]
We conclude that the easement, by its express language, is limited to pedestrian uses
of the sidewalk to travel from point A to point B. The language of the easement does not
contemplate use by commercial businesses seeking to advance their own economic gains. The
district court did not err in making a preliminary finding that the existence of the easement
alone, without more, does not transform private property into a public forum for
constitutional scrutiny.
The requirement of a state actor
[Headnote 15]
S.O.C./Hillsboro concede that the Constitution does not apply to private conduct;
however, they argue that the First Amendment protects the activities of its employees from
infringement by the Mirage, a private entity, because the Mirage has functionally assumed the
role of the government by excluding their handbillers from a traditional public venue. We
cannot agree. The need to apply the public function exception to the application of the state
action requirement of the First Amendment has not yet been demonstrated, and therefore,
Mirage's exclusion of commercial handbillers does not implicate the First Amendment.
The First Amendment of the United States Constitution provides in relevant part that
"Congress shall make no law . . . abridging the freedom of speech.
__________

14
845 P.2d 1107, 1114 (Ariz. Ct. App. 1992).

15
See NRS 207.200; Restatement (Second) of Torts 192 (1981).

16
Restatement (Second) of Torts 192 cmt. d (1981).
vides in relevant part that Congress shall make no law . . . abridging the freedom of speech.
17
As applied to the states through the Fourteenth Amendment, it is a guarantee only against
abridgment [of the right of free speech] by government, federal or state.
18
The abridgment
then must involve some form of government action. As the United States District Court for
the District of Nevada explained, this requirement is subject to a limited set of exceptions:
The general rule is that the Constitution does not apply to private conduct. See Hudgens
v. N.L.R.B., 424 U.S. 507, 513, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). There are very
limited exceptions to this time honored principle. One occurs in the rare instance where
a private actor is performing a function that has traditionally been exclusively
performed by the state. See Flagg Bros. v. Brooks, 436 U.S. 149, 156-59, 98 S.Ct.
1729, 56 L.Ed.2d 185. For example, in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276,
90 L.Ed. 265 (1946), a private company owned an entire town performing all of the
usual municipal functions and owning all the buildings and sidewalks. Id. at 502-03, 66
S.Ct. 276. The Court found that the Constitution applied to the activity in the company
owned town. Id. at 508, 66 S.Ct. 276.
19

The public function doctrine created in Marsh is a means of satisfying the state action
requirement. The doctrine provides:
The state cannot free itself from the limitations of the Constitution in the operation of
its governmental functions merely by delegating certain functions to otherwise private
individuals. If private actors assume the role of the state by engaging in these
governmental functions then they subject themselves to the same limitations on their
freedom of action as would be imposed upon the state itself.
20

We conclude that S.O.C./Hillsboro rely on an unintended and overly broad reading of
Marsh v. Alabama
21
(holding that company town was the equivalent of government for
purposes of First Amendment).
First, Marsh has been consistently interpreted to apply to a very narrow set of facts
where the entity in question performed " 'the full spectrum of municipal powers and stood
in the shoes of the State.' "
__________

17
U.S. Const. amend. I.

18
Hudgens v. NLRB, 424 U.S. 507, 513 (1976).

19
Venetian Casino Resort v. Local Joint Executive Bd. of Las Vegas, 45 F. Supp. 2d 1027 (D. Nev. 1999).

20
2 R. Rotunda, J. Nowak & J. Young, Constitutional Law 16.2, at 771 (1999).

21
326 U.S. 501 (1946).
the full spectrum of municipal powers and stood in the shoes of the State.'
22

Second, an overly broad application of the exception to the state action requirement
would swallow the rule. We conclude that compelling policy reasons exist in support of a
narrow reading of the state action requirement. As Professor Tribe explains:
By exempting private action from the reach of the Constitution's prohibitions, it stops
the Constitution short of preempting individual libertyof denying to individuals the
freedom to make certain choices . . . . Such freedom is basic under any conception of
liberty, but it would be lost if individuals had to conform their conduct to the
Constitution's demands.
23

We hold that the district court did not err in making a preliminary finding that by
owning and maintaining the particular sidewalks at issue in this case, the Mirage is not
automatically performing a public function and therefore cannot be held to the Constitutional
requirements of the First Amendment.
Public forum
[Headnote 16]
S.O.C./Hillsboro argue that sidewalks, no matter who maintains title, are a public
forum subject to a heightened level of protection. We disagree. Privately-owned property
does not lose its private nature because the public traverses upon it. In addition, inherent
within our conclusion, that the district court did not err in finding that no state action has
occurred, is the corollary that the forum is private.
The United States Supreme Court has formulated an approach to the protection of free
speech based largely on the type of forum involved.
24
The classification of the forum
identifies the applicable standard of judicial scrutiny to apply.
25
In Perry, the Supreme Court
identified and defined three types of forums. The first is the quintessential public forum.
26
A traditional public forum encompasses places which by long tradition or government fiat
have been devoted to assembly and debate," such as streets and parks.
__________

22
Hudgens v. NLRB, 424 U.S. 507, 519 (1976) (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69
(1972)) (rejecting sweeping interpretation of Marsh; overruling Logan Valley, and holding that there is no First
Amendment right in private shopping center); accord Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 159 (1978)
(emphasizing the limits of the Marsh doctrine).

23
L. Tribe, American Constitutional Law 18-2, at 1691 (2d ed. 1988).

24
See Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37 (1983).

25
Id. at 44.

26
Id. at 45.
have been devoted to assembly and debate, such as streets and parks.
27
At the other end of
the spectrum is the nonpublic forum, which consists of public property that is neither by
tradition nor designation a forum for public discourse.
28
In between these two types of
forums, Perry further identifies public property which the state has opened for use by the
public as a place for expressive activity.
29

S.O.C./Hillsboro cite to the often-quoted United States Supreme Court decision in
Hague v. CIO
30
for the proposition that [w]herever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the public. S.O.C./Hillsboro also
cite Frisby v. Schultz
31
in support of their argument that sidewalks, no matter who owns
them, are a public forum. We conclude that S.O.C./Hillsboro's argument paints too broad a
stroke.
The right to exclude others has been held to constitute a fundamental element of
private property ownership.
32
The power to exclude has traditionally been considered one
of the most treasured strands in an owner's bundle of property rights.
33

The cases that raise this issue generally concern one of three forums: (1)
privately-owned shopping malls, (2) medical clinics, and (3) privately-owned streets or
walkways. We conclude that private property does not lose its private nature because it is
open to the public.
34

Especially relevant and helpful to this discussion is the Michigan Court of Appeals
decision in Commodities Export Co. v. City of Detroit.
35
In that case, a private business
enterprise attempted to distribute commercial handbills on a privately-owned bridge and
surrounding property of its closest competitor.
36
The owner of the bridge attempted to
exclude the handbillers who, in turn, sued alleging that they had a First Amendment right to
distribute their advertisements on the property because it was held open to the general public.
37
The court of appeals, after analyzing the United States Supreme Court's cases in this
area, concluded that the rights surrounding private property ownership cannot be
extinguished because the property is held open to the public.
__________

27
Id.

28
See id. at 46.

29
Id. at 45.

30
307 U.S. 496, 515-16 (1939).

31
487 U.S. 474, 480 (1988).

32
See Armes v. Philadelphia, 706 F. Supp. 1156, 1164 (E.D. Pa. 1989); and Hudgens v. NLRB, 424 U.S. 507
(1976).

33
Bresnick v. Beulah Park Ltd. P'ship, 617 N.E.2d 1096, 1097 (Ohio 1993).

34
See PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).

35
321 N.W.2d 842 (Mich. Ct. App. 1982).

36
Id. at 844.

37
Id.
the United States Supreme Court's cases in this area, concluded that the rights surrounding
private property ownership cannot be extinguished because the property is held open to the
public.
38
The court went on to say that a private property owner's rights cannot be infringed
by allowing uncontested-to commercial advertising on its premises.
39

Other courts have also consistently ruled that private property held open to the public
does not, in and of itself, create a public right to access.
40

__________

38
Id. at 847.

39
Id.

40
See Southwest Community Resources, Inc. v. Simon Property Group, LP, 108 F. Supp. 2d 1239 (D. N.M.
2000) (mall was not public forum and mall operator was not state actor for purpose of First Amendment);
American Civil Liberties Union of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998) (mall was
not public forum subject to First Amendment protections); Garrison v. City of Lakeland, 954 F. Supp. 246
(M.D. Fla. 1997) (paved road adjacent to hospital was private property not subject to First Amendment);
McMurdie v. Doutt, 468 F. Supp. 766 (N.D. Ohio 1979) (shopping center's sidewalks, streets, and parking
areas, although open to the public by the private owner . . . may be subjected to nondiscriminatory bans on
expression without running afoul of the First Amendment); Int'l Soc'y for Krishna Consciousness v. Reber, 454
F. Supp. 1385 (C.D. Cal. 1978) (private road adjacent to theme park not public forum); People v. Yutt, 597
N.E.2d 208 (Ill. App. Ct. 1992) (clinic-owned sidewalks not public forum); Planned Parenthood of Mid-Iowa v.
Maki, 478 N.W.2d 637 (Iowa 1991) (private property of reproductive health clinic not subject to First
Amendment); State v. Scholberg, 412 N.W.2d 339 (Minn. Ct. App. 1987) (private health clinic was not public
forum); State v. Wicklund, 589 N.W.2d 793 (Minn. 1999) (private shopping mall was not public forum);
Cincinnati v. Thompson, 643 N.E.2d 1157 (Ohio Ct. App. 1994) (clinic property was private and therefore not
subject to First Amendment constraints); State v. Purdue, 826 P.2d 1037 (Or. Ct. App. 1992) (private parking
lot of women's clinic not functional equivalent of public property); but see Thomason v. Jernigan, 770 F. Supp.
1195 (E.D. Mich. 1991) (city vacated right-of-way on privately-owned sidewalk in front of health clinic was
public forum); and Citizens to End Animal Suffering v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D.
Mass. 1990) (outdoor shopping area was public forum).
S.O.C./Hillsboro also cite to the decision of the Ninth Circuit Court of Appeals in S.O.C. v. Clark County, 152
F.3d 1136 (9th Cir. 1998), for the proposition that the sidewalks along the Las Vegas Strip are public forums. In
S.O.C., the Ninth Circuit struck down C.C.C. Section 16.12, which sought to ban off-premise canvassing in the
Las Vegas Resort District as being overly broad. Id. at 1148. S.O.C./Hillsboro argue, that sidewalks are a
public forum if on private property upon which a limited easement of public access has been granted.' We
conclude that S.O.C. addressed the First Amendment implications of the enforcement by C.C.C. Section 16.12
and did not address whether privately-owned sidewalks along the Strip were required to be opened as public
forums for First Amendment purposes. The S.O.C. decision did not rest on an analysis of the complex question
before this court regarding the intersection of the First Amendment and private property rights.
[Headnote 17]
We conclude that the district court did not err in making a preliminary finding that the
sidewalks in question are private property and therefore not subject to the reach of the First
Amendment.
Article 1, Section 9 of the Nevada Constitution
S.O.C./Hillsboro argue that the protections of Article 1, Section 9 of the Nevada
Constitution should be interpreted more broadly than the protections of the First Amendment
to the United States Constitution. They argue that a broader reading of the Nevada
Constitution would afford greater protection to the type of speech activity involved in this
case. S.O.C./Hillsboro invite this court to adopt the rationale of the California Supreme Court
decision in Robins v. PruneYard Shopping Center.
41
We decline such an invitation.
[Headnote 18]
In Robins, the California Supreme Court held that the California Constitution
protected the right of individuals to solicit signatures in opposition to the United Nations
resolution concerning Zionism in the courtyard of a privately-owned shopping center.
42
The shopping center appealed to the United States Supreme Court; and, in PruneYard
Shopping Center v. Robins,
43
the High Court affirmed the decision, acknowledging that each
state had a sovereign right to adopt its own constitution and provide its citizens more
expansive individual liberties than those conferred by the Federal Constitution.
44
It is
generally true that federal law, whether based on statute or constitution, establishes a
minimum national standard for the exercise of individual rights and does not inhibit state
governments from affording its citizens greater protections for such rights.
45

The provision of the Nevada Constitution upon which S.O.C./Hillsboro rely is Article
1, Section 9, which provides in relevant part:
Every citizen may freely speak, write and publish his sentiments on all subjects being
responsible for the abuse of that right; and no law shall be passed to restrain or abridge
the liberty of speech or of the press.
__________

41
592 P.2d 341 (Cal. 1979).

42
Robins, 592 P.2d at 344.

43
447 U.S. 74, 81 (1980).

44
Id. at 81.

45
See Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982).
The language of this section has remained unchanged since the adoption of our first state
constitution in 1864. Having reviewed the proceedings and debates of the Nevada
Constitutional Convention, we conclude that there is nothing indicating that the delegates
desired to enlarge the scope of the protections of the speech clause beyond those afforded by
the federal counterpart.
46

This court has never construed the state constitutional free speech provision in the
context of accommodation of speech on private property. Our decisions addressing
accommodation of speech on public and private property have relied equally on the First
Amendment and the Nevada Constitution without distinguishing between them.
47
At least
one court has observed that Nevada law differs substantially from California with regard to
this issue.
48

[Headnote 19]
The majority of courts having virtually identical state constitutional language to
Nevada's have interpreted the free speech provisions of their constitutions as coextensive to,
but no greater than, that of the First Amendment to the United States Constitution.
49
We
concur with the holding of the majority of state courts and decline to expand the scope of
In addition, regardless of whether the state constitution should be read more broadly
or not, S.O.C./Hillsboro still must establish that the Nevada Constitution restrains private
conduct.
__________

46
See generally Andrew Marsh, Nevada Constitutional Debates and Proceedings, Official Reporter, at 44-48
(1866).

47
See Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949) (holding that picketing was protected by
both the First Amendment and the Nevada Constitution); City of Reno v. District Court, 59 Nev. 416, 95 P.2d
994 (1939) (striking down city ordinance banning peaceful picketing as unconstitutional under the First
Amendment and the Nevada Constitution); see also Venetian, 45 F. Supp. 2d at 1034 n.4 (recognizing plaintiff's
claim that Nevada law provided no greater protection for free speech rights on private property than does the
United States Constitution, but declining to rule on the basis of Nevada constitutional law).

48
See NLRB v. Calkins, 187 F.3d 1080 (9th Cir. 1999) (recognizing that Nevada law does not extend special
protection to free speech interests at the expense of a private store owner's property interest).

49
See, e.g., Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d 719, 723 (Ariz. Ct. App. 1988);
Citizens for Ethical Government, Inc. v. Gwinnett Place Assocs., 392 S.E.2d 8, 9-10 (Ga. 1990); Illinois v.
DiGuida, 604 N.E.2d 336 (Ill. 1992); State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991); State v. Wicklund, 589
N.W.2d 793, 799 (Minn. 1999). But see Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991) (allowing
public demonstration in private shopping mall under broad reading of state constitution); Stranahan v. Fred
Meyer, Inc., 958 P.2d 854 (Or. Ct. App. 1998) (adopting a more expansive reading of its state constitutional
guarantees of free speech than the federal constitution).
that the Nevada Constitution restrains private conduct. We conclude, however, that nothing
indicates that Article 1, Section 9 was intended to restrain private conduct. Accordingly,
S.O.C./Hillsboro's position must fail.
Preliminary injunction
[Headnote 20]
Finally, S.O.C./Hillsboro argue that the district court abused its discretion in granting
the preliminary injunction because Mirage's legal argument would not have prevailed, the
Mirage could not prove irreparable harm, and the loss of unfettered speech outweighs any
harm suffered by the Mirage. Having concluded that the Mirage has made a prima facie case
that it is entitled to exclude the commercial handbillers, we find no abuse of discretion by the
district court.
This court has previously held that an injunction is an appropriate remedy for the
threat of continuing trespass.
50
Accordingly, we affirm the judgment of the district court.
51

Agosti and Becker, JJ., concur.
Maupin, C. J., with whom Shearing, J., agrees, concurring in the result:
I concur in the majority's result, albeit for alternate reasons.
I write separately because I believe the appellants' commercial speech invites a
lowered First Amendment scrutiny, and, accordingly, the district court properly enjoined the
handbillers' activities.
The basic question in this matter was convincingly settled in Venetian Casino Resort
v. Local Joint Executive Board.
1
In Venetian, the defendant unions obtained a permit to
picket in a private pedestrian walkway fronting the Venetian Casino Resort. That sidewalk is
directly across the street from, and in every relevant respect identical to, the properties at
issue in the instant matter. The federal district court concluded that the Venetian property
was previously public, serves as a thoroughfare along a main public road, and serves the
needs of the general public. As such, it falls within a very limited exception to the general
rule that private property is not subject to the First Amendment.
2
This exception must also
apply here.
__________

50
See Cook v. Maremont-Holland Co., 75 Nev. 380, 388, 344 P.2d 198, 202 (1959); Parkinson v. Winniman,
75 Nev. 405, 344 P.2d 677 (1959).

51
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of
this matter.

1
45 F. Supp. 2d 1027 (D. Nev. 1999).

2
Id. at 1036.
Nevertheless, the speech at issue in Venetian and in the case upon which Venetian
primarily relies, Marsh v. Alabama,
3
is different in kind from the commercial handbilling
here. Unlike union protests or religious proselytizing, commercial speech enjoys limited First
Amendment protection.
4
[T]he difference between commercial price and product
advertising and ideological communication permits regulation of the former that the First
Amendment would not tolerate with respect to the latter.'
5

Commercial speech may be suppressed even where, as here, it is conducted in a
traditional public forum.
6
In determining whether suppression of commercial speech passes
First Amendment muster, courts apply intermediate scrutiny, analyzing government
regulations under the four-part test announced in Central Hudson:
7

At the outset, we must determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at least must
concern lawful activity and not be misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries yield positive answers, we must
determine whether the regulation directly advances the governmental interest asserted,
and whether it is not more extensive than is necessary to serve that interest.
On the record before the court, I believe that the appellants' commercial speech fails
the first prong of the Central Hudson test. The handbills in this case advertise in-room erotic
dancing with suggestive slogans. As such, they appear to solicit offers of illegal prostitution.
And if they do not, they certainly create that misleading impression. Accordingly, I would
hold that the appellants' commercial speech is unprotected by the First Amendment. Thus, the
regulation at issue here is constitutionally permissible.
For these reasons, I concur in the court's judgment.
The real property in question consists of two traditional sidewalks abutting Las Vegas
Boulevard that are traversed daily by thousands who use the sidewalks as a principal
thoroughfare along the city's most famous stretch of casinos, the Las Vegas Strip.
__________

3
326 U.S. 501, 506 (1946).

4
See Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980).

5
Metromedia Inc. v. San Diego, 453 U.S. 490, 507 (1981) (quoting Young v. American Mini Theatres, Inc.,
427 U.S. 50, 69 n.32 (1976) (plurality opinion)).

6
See Metromedia; Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).

7
447 U.S. at 566.
thousands who use the sidewalks as a principal thoroughfare along the city's most famous
stretch of casinos, the Las Vegas Strip. By the very location and function of the sidewalks, I
think it is impossible not to conclude that they serve as traditional public sidewalks. Similar
thoroughfares, whether publicly or privately owned, have been recognized as public forums
on which all First Amendment rights must be recognized and honored. Therefore, I disagree
with the majority's conclusion that the area in question is not a public forum. But I believe
that the Mirage and Treasure Island may have made a sufficient showing that the petitioner's
solicitations are merely a front for prostitution, an illegal activity in Las Vegas not entitled to
First Amendment protection. The district court, however, expressly declined making a finding
on this issue. Therefore, although I conclude that the district court abused its discretion in
granting the preliminary injunction on the ground stated, I would remand to the district court
for a determination of whether the respondents are nonetheless entitled to a preliminary
injunction based on the fact that the solicitations actually advertise illegal activity.
The diagram below shows the two sidewalks on which the Mirage and Treasure Island
granted their pedestrian easement to the city.
Diagram 1: The Easement Areas on Las Vegas Boulevard
1

The sidewalk in front of the Mirage is entirely owned by the Mirage and consists of a
cement walkway directly abutting Las Vegas Boulevard. Part of the sidewalk is bordered by
the water and volcano attraction located in front of the Mirage. The pedestrian easement
includes the length of the sidewalk as it runs parallel to the Strip.
The sidewalk in front of Treasure Island consists of both a publicly owned cement
walkway directly abutting Las Vegas Boulevard and an adjacent privately owned planked
walkway. The pedestrian easement includes that portion of the planked walkway running
parallel to Las Vegas Boulevard. The planked area serves not only as a thoroughfare along the
Strip but also as a place from which pedestrians can enjoy Treasure Island's Buccaneer Bay
show, which is staged on the large pond in front of the casino.
__________

1
Although the diagram is a fair representation of the easement area, it is not drawn to scale and may contain
minor irregularities.
which pedestrians can enjoy Treasure Island's Buccaneer Bay show, which is staged on the
large pond in front of the casino. The narrow public sidewalk abutting the planked walkway
is approximately five feet in width and was apparently built after Treasure Island's completion
in order to relieve the pedestrian congestion caused by the performance of the Buccaneer Bay
show.
2

The majority's conclusion that the private ownership of the sidewalks allows the
Mirage and Treasure Island to regulate First Amendment activities on the walkways is
unpersuasive. As the United States Supreme Court has articulated: Ownership does not
always mean absolute dominion. The more an owner, for his advantage, opens up his property
for use by the public in general, the more do his rights become circumscribed by the statutory
and constitutional rights of those who use it.
3
Thus, even if the underlying land is private
property, the location and purpose of the land will dictate the degree to which the owner can
regulate activity on it.
The sidewalks at issue here serve as critical commercial arteries along the Las Vegas
Strip and function in every other respect as traditional public sidewalks.
4
Indeed, the
sidewalks serve as major public passageway[s] and thoroughfare[s] that facilitate the
daily commerce and life of the neighborhood or citycharacteristics which the United
States Supreme Court has held are indicative of traditional public sidewalks.
5
The Court
further instructs that traditional public sidewalks are the archetype of a traditional public
forum.
__________

2
At trial, there may be evidence presented that establishes that the principal purpose of the planked area is
not to serve as a public sidewalk and that adequate space is provided by the abutting public sidewalk to meet the
demands of a public thoroughfare along the Strip. However, at this time, it appears that the two walkways
fronting Treasure Island function coextensively as public thoroughfares except during the small portions of the
day when the Buccaneer Bay show is being performed. Cf. United States v. Kokinda, 497 U.S. 720, 728-29
(1990) (noting that the location and purpose of a publicly owned sidewalk is critical to determining whether
such a sidewalk constitutes a public forum).

3
Marsh v. Alabama, 326 U.S. 501, 506 (1946); see also Hague v. CIO, 307 U.S. 496, 515 (1939)
(Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the
public.).

4
As the vice president and general counsel of the Mirage testified, the sidewalks are used by: Guests of the
Mirage and Treasure Island. People who live in Las Vegas and want to come to Treasure Island and the Mirage.
People who are guests of other properties and want to go from one property to another on our side of the [Strip].
. . . Whether you were a resident, whether your were a visitor, whether you were a guest, whether you were a
business person, you would move on that sidewalk.

5
Kokinda, 497 U.S. at 727-28 (emphasizing that the use of a sidewalk as a public passageway or
thoroughfare to facilitate the daily commerce and life of the neighborhood or city are the characteristics of
sidewalks that are traditional public forums).
traditional public forum.
6
[For t]ime out of mind' public streets and sidewalks have been
used for public assembly and debate, the hallmarks of a traditional public forum.
7
Additionally, it should not be forgotten that the original purpose of the pedestrian easement
was to allow the city to widen Las Vegas Boulevard into the public right-of-way typically
reserved for sidewalks without depriving the public of such a sidewalk. Accordingly, because
of the sidewalks' central location and important commercial function, I believe that they are
public forums regardless of private ownership.
8

Once the property is determined to be a public forum, the full panoply of First
Amendment rights must be recognized and honored. Further, regulation by the
governmentor by a private actor who has assumed the traditional governmental function of
policing the property as the Mirage and Treasure Island have done herethen becomes
sharply circumscribed.
9
Therefore, I believe that the majority is in error in concluding that
the Mirage and Treasure Island can regulate speech on the easement areas by virtue of their
ownership of the underlying property.
10

Although I conclude that the sidewalks in question are public forums to which the full
protections of the First Amendment apply, commercial speech promoting illegal activity
enjoys no such protection.
__________

6
Frisby v. Schultz, 487 U.S. 474, 480 (1988).

7
Id. at 480 (quoting Hague, 307 U.S. at 515).

8
Indeed, it is the central location of the sidewalks and their use as commercial arteries that distinguishes them
from the private walkways considered in the cases relied on by the majority. The cases cited by the majority
instead deal with walkways abutting private access roads, private parking lots, or other private grounds. Unlike
the sidewalks at issue here, none of the cases cited consider a walkway that abuts a city's most commercially
important boulevard and that functions as a critical pedestrian thoroughfare along that boulevard.

9
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); see also Venetian Casino
Resort v. Local Joint Exec. Bd. of Las Vegas, 45 F. Supp. 2d 1027, 1035 (D. Nev. 1999) (Thoroughfare
sidewalks parallel to the main public street in a city, that allow citizens to move from one part of the city to the
next, have traditionally been exclusively owned and maintained by the government. Consequently, by owning
and maintaining the particular sidewalk at issue in this case, the Venetian is performing a public function.).

10
See Venetian, 45 F. Supp. 2d at 1035-36 (holding that the sidewalk in front of the Venetian casino, which
lies directly across from the Mirage and Treasure Island on the Strip, was a public forum subject to the full
protections of the First Amendment despite the sidewalk's private ownership); Citizens to End Animal Suffering
& Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65, 70-72 (D. Mass. 1990) (holding that the
lanes in the Faneuil Hall Marketplace were public forums subject to the full protections of the First Amendment
despite their being leased to a private enterprise).
such protection.
11
Uncontradicted evidence in the record establishes that the solicitations
distributed by S.O.C. and Hillsboro advertise the services of erotic performers. The
advertisements often leave little doubt that physical sexual activity is part of the services
offered. Additionally, Las Vegas police officers testified at the hearing below that eighty to
ninety-five percent of transactions made through these solicitations involve actual sexual
activity. Although some counties and cities in Nevada permit prostitution, Las Vegas does
not. Therefore, because prostitution is an unlawful activity in Las Vegas, I believe that the
distribution of the advertisements may not fall within the scope of First Amendment
protection.
Accordingly, there exists an alternative ground on which the district court may
conclude that the Mirage and Treasure Island have shown a likelihood of success on the
merits and a reasonable probability of irreparable harm. Because the district court expressly
declined to address this issue, however, remand for further consideration is necessary.
Accordingly, I dissent from the majority and prefer instead to remand the matter to the district
court for a determination of whether the advertisements in fact promote illegal activity and
therefore are not entitled to First Amendment protection.
____________
117 Nev. 421, 421 (2001) EICON v. Chandler
EMPLOYERS INSURANCE COMPANY OF NEVADA, a Mutual Company, fka
EMPLOYERS INSURANCE COMPANY OF NEVADA, an Agency of the State of
Nevada, Appellant, v. HARRY CHANDLER, Respondent.
No. 35079
May 24, 2001 23 P.3d 255
Appeal from an order of the district court denying a petition for judicial review.
Eighth Judicial District Court, Clark County; Nancy M. Saitta, Judge.
Claimant, who was injured in a work-related motor vehicle accident and received a
third-party settlement for his injuries, sought to reopen his workers' compensation claim for
further psychological therapy.
__________

11
See Princess Sea Indus. v. State of Nev., 97 Nev. 534, 537, 635 P.2d 281, 283 (1981) (holding that NRS
201.440, which prohibits advertisements for prostitution in counties and cities where prostitution is illegal, does
not violate the First Amendment because commercial speech for an illegal activity can be severely regulated);
see also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 388-89 (1973)
(Any First Amendment interest which might be served by advertising an ordinary commercial proposal . . . is
altogether absent when the commercial activity itself is illegal.).
chological therapy. Administrative appeals officer ruled that claimant was entitled to receive
medical benefits without first exhausting the entire amount of the third-party settlement
proceeds. The district court denied employer's petition for judicial review. Employer
appealed. The supreme court held that denial of further medical benefits for claimant's
work-related injury was warranted until he exhausted his third-party settlement proceeds.
[En banc reconsideration denied Augut 13, 2001]
Shirley D. Lindsey, Associate General Counsel, Employers Insurance Company of
Nevada, Las Vegas, for Appellant.
Nancyann Leeder, Nevada Attorney for Injured Workers, and Gary T. Watson, Deputy
Nevada Attorney for Injured Workers, Carson City, for Respondent.
Questions of law in workers' compensation cases are reviewed de novo.
2. Statutes.
Denial of further medical benefits for claimant's work-related injury was warranted until he exhausted his third-party settlement
proceeds. NRS 616C.215(2)(a).
4. Statutes.
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; however, 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.
When a statute is susceptible to but one natural or honest construction, that alone is the construction that can be given.
6. Statutes.
Courts must construe statutes to give meaning to all of their parts and language, and the supreme court will read each sentence,
phrase, and word to render it meaningful within the context of the purpose of the legislation.
The term compensation in statute granting subrogation rights to a workers' compensation insurer against a claimant's
third-party recovery when the claimant receives an injury for which compensation is payable clearly and unambiguously includes
medical benefits. NRS 616A.035, 616A.090, 616C.215(2)(a).
The contemplated purpose of statute granting subrogation rights to a workers' compensation insurer against a claimant's
recovery from a third-party tortfeasor is to make the insurer whole and to prevent an employee from receiving
an impermissible double recovery.
third-party tortfeasor is to make the insurer whole and to prevent an employee from receiving an impermissible double recovery. NRS
616C.215(2)(a).
A workers' compensation insurer is entitled to withhold payment of medical benefits for a work-related injury until an employee
has exhausted any third-party settlement proceeds. NRS 616C.215(2)(a).
Before Young, Leavitt and Becker, JJ.
OPINION
Per Curiam:
Respondent Harry Chandler sustained injuries in a motor vehicle accident that
occurred during the course of his employment. Appellant Employers Insurance Company of
Nevada (EICON) paid Chandler workers' compensation benefits and eventually closed his
claim. After receiving a third-party settlement and reimbursing EICON for benefits paid,
Chandler later requested EICON to reopen his workers' compensation claim. EICON denied
Chandler's request on the basis that he was required to exhaust the third-party settlement
proceeds before it could reopen his claim. EICON's denial was upheld by a hearing officer,
but reversed by an appeals officer. The district court subsequently denied EICON's petition
for judicial review. On appeal, EICON contends that Chandler is not entitled to receive
further workers' compensation benefits, including medical benefits, without first exhausting
the entire amount of his third-party settlement proceeds because the term compensation in
NRS 616C.215 includes payment of medical expenses. We agree and reverse the order of the
district court denying the petition for judicial review.
FACTS
Chandler, an employee of Greyhound Lines, Inc., was injured in the course of his
employment when the bus he was driving was involved in a motor vehicle accident. The
accident was caused by a third-party driver whose vehicle collided head-on with the bus in
Kingman, Arizona. Chandler sustained injuries to his left knee and right toe. He also suffered
post-traumatic stress disorder as a result of the collision, which killed the third-party driver
and his passenger. EICON paid Chandler workers' compensation benefits amounting to
$3,267.46 before closing his claim.
Chandler also pursued a claim against the third-party driver's insurer. That case was
settled for $7,267.46, and Chandler received $4,000.00 in damages after reimbursing EICON
the $3,267.46 in benefits out of the settlement proceeds.
Thereafter, Chandler requested EICON to reopen his claim for further psychological
therapy because he continued to experience symptoms of post-traumatic stress disorder
following the accident. EICON advised Chandler that he would have to exhaust the
third-party settlement proceeds before it would reopen his workers' compensation claim.
Chandler challenged EICON's decision, and the hearing officer affirmed. Chandler appealed.
The appeals officer concluded that Chandler was entitled to receive medical benefits without
first exhausting the entire amount of the third-party settlement proceeds because the term
compensation in NRS 616C.215 includes wage replacement benefits but does not include
medical benefits. The district court subsequently denied EICON's petition for judicial review
after concluding that substantial evidence supported the appeals officer's decision.
DISCUSSION
[Headnotes 1, 2]
The question before this court is one of statutory construction, namely, whether the
appeals officer properly interpreted the workers' compensation statutes applicable to this case.
1
[A] reviewing court may undertake independent
review of the administrative construction of a statute.
2

NRS 616C.215 grants subrogation rights to workers' compensation insurers and
allows them to place liens upon the proceeds recovered by employees from third-party
tortfeasors.
3
In particular, subsection 2 provides in relevant 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:
(a) The injured employee, or in case of death his dependents, may take proceedings
against that person to recover damages, but the amount of the compensation the injured
employee or his dependents are entitled to receive pursuant to the provisions of
chapters 616A to 616D, inclusive, or chapter 617 of NRS, including any future
compensation, must be reduced by the amount of the damages recovered,
notwithstanding any act or omission of the employer or a person in the same
employ which was a direct or proximate cause of the employee's injury.
__________

1

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

3
See NRS 616C.215.
notwithstanding any act or omission of the employer or a person in the same employ
which was a direct or proximate cause of the employee's injury.
4

[Headnote 3]
EICON contends that the plain language of NRS 616C.215(2)(a) entitles it to deny
Chandler further medical benefits for his work-related injury until he has exhausted his
thirdparty settlement proceeds because, for purposes of NRS 616C.215(2)(a), NRS 616A.090
defines compensation to include accident benefits which, according to the express language
of NRS 616A.035, includes medical benefits.
5
Chandler contends, however, that the term
compensation in NRS 616C.215(2)(a) does not include medical benefits because the phrase
money which is payable to an employee or to his dependents in NRS 616A.090 limits the
statutory definition of compensation to wage replacement benefits.
[Headnotes 46]
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.
6
However, when
the language of a statute is plain and unambiguous, a court should give that language its
ordinary meaning and not go beyond it.
7
Under long established principles of statutory
construction, when a statute is susceptible to but one natural or honest construction, that alone
is the construction that can be given.
8
Additionally, courts must construe statutes to give
meaning to all of their parts and language, and this court will read each sentence, phrase,
and word to render it meaningful within the context of the purpose of the legislation.
__________

4
NRS 616C.215(2)(a).

5
NRS 616A.090 provides:
Compensation means the money which is payable to an employee or to his dependents as provided
for in chapters 616A to 616D, inclusive, of NRS, and includes benefits for funerals, accident benefits and
money for rehabilitative services.
NRS 616A.035 provides in relevant part:
1. Accident benefits means medical, surgical, hospital or other treatments, nursing, medicine,
medical and surgical supplies, crutches and apparatuses, including prosthetic devices.
2. The term includes:
(a) Medical benefits as defined by NRS 617.130.
NRS 617.130 provides in relevant part:
1. Medical benefits means medical, surgical, hospital or other treatments, nursing, medicine,
medical and surgical supplies, crutches and apparatus, including prosthetic devices.

6
Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987).

7

8
Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990) (citations omitted).
construe statutes to give meaning to all of their parts and language, and this court will read
each sentence, phrase, and word to render it meaningful within the context of the purpose of
the legislation.
9

[Headnotes 7, 8]
We do not read the phrase payable to an employee or to his dependents in NRS
616A.090 as Chandler reads it. To the contrary, the word payable simply means due and
does not limit the definition of compensation in NRS 616C.215 to money disbursed directly
to an employee or to his dependents.
10
In fact, when read within the context of NRS
616A.035, NRS 616A.090, and NRS 617.130, the term compensation in NRS 616C.215
clearly and unambiguously includes medical benefits. Further, the contemplated purpose of
NRS 616C.215 is to make the insurer whole and to prevent an employee from receiving an
impermissible double recovery.
11
Defining the term compensation in NRS 616C.215 to
include medical benefits prevents an employee from receiving a double recovery. Thus, the
plain meaning of NRS 616C.215(2)(a) is consistent with the purpose of the statute.
CONCLUSION
[Headnote 9]
We conclude that an insurer is entitled to withhold payment of medical benefits for a
work-related injury until an employee has exhausted any third-party settlement proceeds
because the plain meaning of the term compensation in NRS 616C.215 includes medical
benefits. Accordingly, we reverse the district court's order denying the petition for judicial
review and remand this matter to the district court. On remand, the district court shall grant
the petition and reverse the appeals officer's decision that Chandler is not required to exhaust
his settlement proceeds before receiving medical benefits.
__________

9
Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).

10
See Random House Webster's College Dictionary 957 (2d ed. 1997).

11
See NRS 616C.215; see also Breen v. Caesars Palace, 102 Nev. 79, 82, 715 P.2d 1070, 1072 (1986).
____________
117 Nev. 427, 427 (2001) Grant v. State
ISAIAH GRANT, III, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34885
June 13, 2001 24 P.3d 761
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
category C grand larceny and one count of possession of a controlled substance. Eighth
Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Defendant was convicted following jury trial in the district court of category C grand
larceny and possession of controlled substance. Defendant appealed. The supreme court held
that: (1) State did not act with due diligence or in good faith to obtain presence at trial of
casino security officer, thus rendering officer's preliminary hearing testimony inadmissible;
(2) improper admission of that prior testimony was harmless; (3) district court's sua sponte
amendment of grand larceny charge from category B to category C was proper; (4) no Batson
violation occurred in State's peremptory strike of African-American prospective juror; (5)
evidence supported requisite finding of intent on grand larceny charge; and (6) evidence
supported conviction for possession of controlled substance.
Affirmed.
Morgan D. Harris, Public Defender, and Darin F. Imlay, Deputy Public Defender,
Respondent.
1. Criminal Law.
State did not act with due diligence or in good faith to obtain presence at trial of casino security officer who was on vacation at
time of trial, thus rendering officer's preliminary hearing testimony inadmissible under relevant statutes in grand larceny and drug
possession prosecution, where State never served officer with a subpoena, but merely sent several subpoenas to casino for distribution
to employees, and provided no indication that it had called officer at home, called his family or friends, or otherwise attempted to
contact him to ensure his availability. NRS 171.198(6), 174.125, 174.345(1), 205.220.
2. Criminal Law.
Under statute governing admission of a witness's prior testimony, State's attempts to obtain the witness's presence, for purposes
of meeting general requirement of filing motion requesting admission of prior testimony within fifteen days before trial, must be in
good faith and with due diligence. NRS 171.198(6), 174.125, 174.345(1).
3. Criminal Law.
Improper admission of preliminary hearing testimony by one of casino's security officers was harmless in prosecution for grand
larceny and possession of controlled substance arising from defendant's taking of casino patron's purse and
the discovery of purse, money, and marijuana cigarettes during searches of defendant.
117 Nev. 427, 428 (2001) Grant v. State
and possession of controlled substance arising from defendant's taking of casino patron's purse and the discovery of purse, money, and
marijuana cigarettes during searches of defendant. Sufficient evidence existed in testimony of three other security personnel to support
convictions without the testimony in question. NRS 205.220.
4. Indictment and Information.
Although the district court may not generally amend a criminal information except by the State's motion, if one of the parties
raises the issue of amendment in the pleadings, such as a return to a writ of habeas corpus, the court may sua sponte order the
amendment of the criminal information as long as amended information does not involve new or different offenses. NRS 173.095(1).
District court's sua sponte amendment of grand larceny charge from category B to category C was proper, where defendant
petitioned for pretrial writ of habeas corpus after State failed to adduce sufficient evidence of property's value to support original
charge, and State raised alternative of amending charge in its return to defendant's petition. NRS 173.095(1), 205.220(1), 205.222(2),
(3).
6. Jury.
To determine whether State's peremptory juror challenge was discriminatory, a three-step inquiry is used: (1) the defendant must
make a prima facie showing of discrimination, (2) State must offer a race-neutral explanation, and (3) the defendant must rebut that
explanation by showing it is pretextual.
7. Jury.
Unless discriminatory intent is inherent in the State's race-neutral explanation for a peremptory juror strike, the reason will be
sufficient to meet the second prong of Batson and thus to require a rebuttal showing by defendant that the reason is pretextual. Reason
need not be plausible, just not discriminatory.
8. Jury.
No Batson violation occurred when prosecution exercised peremptory strike of a particular African-American prospective juror.
Prosecution adduced a sufficiently race-neutral explanation, namely, that juror in question was too indecisive and wishy-washy and
would be unable to fairly weigh the evidence, and defendant failed to offer any evidence that the reason was pretextual.
9. Criminal Law.
Supreme court reviews a sufficiency of evidence claim by looking at the facts in the light most favorable to State.
10. Criminal Law.
Inquiry on sufficiency of evidence review focuses on whether there is substantial evidence in the record to support the jury's
verdict, and whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
11. Larceny.
Requisite finding of intent to permanently deprive owner of property was supported in grand larceny prosecution by evidence
that defendant was seen tucking casino patron's purse into his jacket several times and heading towards lobby and exit of casino. NRS
205.220(1), 205.222(2), (3).
12. Criminal Law.
Intent need not be proven by direct evidence but can be inferred from conduct and circumstantial evidence.
117 Nev. 427, 429 (2001) Grant v. State
13. Drugs and Narcotics.
Conviction for possession of controlled substance was supported by evidence that one security officer found marijuana
cigarettes on defendant and that defendant told another security officer the marijuana was defendant's.
Before Shearing, Agosti and Rose, JJ.
OPINION
Per Curiam:
A jury convicted appellant, Isaiah Grant, III, of one count of category C grand larceny
and one count of possession of a controlled substance. The district court sentenced Grant to a
prison term of fourteen to thirty-six months on the grand larceny charge and to a concurrent
term of twelve to forty-eight months on the possession charge with 230 days credit given for
time served.
On appeal, Grant asserts four assignments of error: (1) the district court erred by
admitting Officer Brown's preliminary hearing testimony into evidence; (2) the district court
erred by sua sponte amending the grand larceny charge from category B to category C; (3) the
State violated Batson v. Kentucky
1
by improperly striking an African-American
venireperson; and (4) the State adduced insufficient evidence of intent on both the grand
larceny and the possession of a controlled substance charges. We conclude that the State
failed to exercise due diligence in obtaining Brown's presence at trial, rendering the
admission of his testimony improper. However, because we conclude that this error was
harmless and all of appellant's remaining contentions lack merit, we affirm the judgment of
conviction.
FACTS
On January 8, 1999, Therese Wilson was playing the slot machines at the Bellagio in
Las Vegas when she left her black crochet purse on the stool and walked to the change
machine about ten to twelve feet away. When she returned, her purse was missing and she
noticed a man, later identified as Grant, walking away from the slot machines carrying her
purse. She yelled, and Grant turned around but continued walking away. Wilson then notified
Bellagio security.
Bellagio Security Officer Wayne Kimi testified at trial that he arrived and spoke with
Wilson. She described the man who took her purse as an African-American male, five feet
nine inches tall, mid-twenties, about 135-150 pounds, slim build, and wearing a black jacket
and pants.
__________

1
476 U.S. 79 (1986).
117 Nev. 427, 430 (2001) Grant v. State
black jacket and pants. She then told Kimi that she had several thousand dollars in cash and
some jewelry in her purse. After receiving several false calls identifying the man, Wilson and
Kimi were called to the main lobby to identify a potential suspect. When she arrived in the
lobby, she identified Grant, who was sitting on a couch holding a drink, as the man she saw
taking her purse.
Security Officer Raymond Brown joined Kimi and Wilson in the lobby. Brown
testified at the preliminary hearing that he noticed a black purse on the couch next to Grant,
and saw Grant digging into his jacket.
2
Brown and Kimi testified that they approached Grant
and noticed him stuffing something into his jacket as they neared. Brown began talking to
Grant, lifted Grant's jacket, and revealed Wilson's purse.
A struggle ensued between Brown and Grant, and Grant was pushed to the ground.
The surveillance tape indicated that one of the security officers picked something up off the
ground and placed it in Grant's right pocket after they had seized him; however, it was unclear
what the item was and whether it fell out of Grant's pocket. Brown then took Grant back to a
security room to hold him until the Las Vegas Metropolitan Police arrived. Kimi remained
with Wilson.
In the security room, Brown testified that he searched Grant and found two partially
smoked marijuana cigarettes. Various security personnel at the Bellagio testified that they
were in the room at various stages and observed the money and marijuana found on Grant
lying on the adjacent table. No one else was in the room during the actual search. Police
Officer Scott Baker testified that Grant admitted that the cigarettes were his, but stated that he
did not think he should go to jail for such a small amount. The surveillance tape indicated that
when Brown left Grant alone for a few minutes, Grant removed $600 from his pants. Nothing
else was found on Grant at his arrest.
3

Security Officer Bernardo Figuredo testified at trial based on his observations of the
security tape of the events both before and after Grant's arrest. He testified that he observed
Grant walking toward the row of slot machines where Wilson's purse was located. He then
viewed an arm taking the purse off the slot machine stool, and a few seconds later he saw
Grant walking quickly out of that aisle with something under his left arm.
__________

2
Security Officer Raymond Brown testified solely at the preliminary hearing and was unavailable to testify at
trial. The propriety of the district court's admission of Brown's prior testimony at trial is at issue in this appeal.

3
The district court noted that there was some confusion in the testimony and police reports as to exactly how
much money was found in the purse and in Grant's possession. Ultimately, the district court concluded that about
$1,800 total was found in Grant's possession at his arrest.
117 Nev. 427, 431 (2001) Grant v. State
Figuredo also testified that he saw Grant walking toward the front door of the lobby fifteen
minutes later. He then observed Grant turn, walk over to the couch, reach into his jacket and
put something in his pants. A few minutes later, Figuredo observed Brown and Kimi
approach Grant, and his testimony corroborated their depictions of the event and arrest.
The State filed a criminal complaint charging Grant with one count of category B
grand larceny (value exceeding $2,500) and one count of possession of a controlled
substance. At the preliminary hearing, Grant argued that the State failed to adduce sufficient
evidence of value exceeding $2,500 to support the charge, and that therefore the charge
should be dismissed.
Grant filed a petition for a pretrial writ of habeas corpus. In its return, the State argued
that should the district court agree with Grant, the district court should amend the information
to the lesser charge of category C grand larceny (value exceeding $250). The district court
denied Grant's motion for an outright dismissal, but found insufficient evidence of value
exceeding $2,500, and therefore amended the information to a category C larceny charge.
On the day set for trial, the State filed a motion to admit Officer Brown's preliminary
hearing testimony because Brown was on vacation and unavailable for trial. The district court
granted the motion and permitted Brown's testimony to be read into evidence. The jury
returned a guilty verdict on both counts.
At the voir dire examination, Grant challenged the State's peremptory challenge of
juror no. 579 as being racially motivated. Juror no. 579 was one of only three
African-Americans in the venire, two of whom the State struck with peremptory challenges.
4
The State countered that it excluded juror no. 579 because he was too wishy-washy and did
not have sufficient leadership to adequately serve on the jury. The district court found this to
be a racially neutral reason and denied Grant's Batson challenge. This timely appeal followed.
DISCUSSION
[Headnote 1]
Grant contends that admission of Officer Brown's testimony into evidence under NRS
171.198(6) and NRS 174.125 was error. We agree.
[Headnote 2]
NRS 171.198(6) permits the State to admit a witness's prior testimony if the defendant
was represented by counsel at the prior proceeding and the witness is sick, dead, out of state,
persistently refuses to testify, or his attendance cannot otherwise be had at trial.
__________

4
Grant does not challenge the peremptory strike of the other venireperson in this appeal.
117 Nev. 427, 432 (2001) Grant v. State
refuses to testify, or his attendance cannot otherwise be had at trial. This court has determined
that the admission of prior testimony comports with the requirements of the Sixth
Amendment of the United States Constitution provided that defense counsel had the
opportunity to, and in fact did,
5
thoroughly cross-examine the witness, and the witness was
actually unavailable for trial.
6
However, under NRS 174.125 the State must file a motion
requesting the admission of prior testimony within fifteen days before trial unless the State
was unaware of the witness or the need for the testimony did not exist before that time period.
Under Drummond v. State, the State's attempts to obtain the witness's presence in order to
meet this time requirement must be in good faith and with due diligence.
7

We conclude that the State did not act with due diligence or in good faith in timely
obtaining Officer Brown's presence at trial. The State never served Officer Brown with a
subpoena. The State merely sent several subpoenas to the Bellagio for distribution to its
employees. The State also provided no indication that they had called Brown at home, called
his family or friends, or otherwise attempted to contact Brown to ensure he would be
available for trial. Had the State attempted to complete personal service, as required under
NRS 174.345(1), it could have known earlier that Brown would be unavailable. Then, it
could have complied with the time provisions of NRS 174.125. Instead, the State sent the
subpoena to a third party and awaited the results. This is not proper or diligent service, and
therefore cannot establish that Brown was unavailable for trial.
__________

5
California v. Green, 399 U.S. 149, 165-66 (1970), suggests that actual cross-examination is unnecessary to
comply with Confrontation Clause requirements; merely an adequate opportunity to cross-examine is sufficient.
However, in that case, the defendant actually cross-examined the witness at the prior proceeding and the Court
did not reach whether this requirement should be revised. Green, 399 U.S. at 165-66. The United States
Supreme Court further suggested that actual cross-examination is not required in Ohio v. Roberts, 448 U.S. 56,
70-71 (1980), but did not reach the issue directly since actual cross-examination had occurred.
In Nevada, cases citing to California v. Green and Ohio v. Roberts rely on them for the proposition that
cross-examination is required for Confrontation Clause purposes and do not further indicate that mere
opportunity is sufficient. See, e.g., Power v. State, 102 Nev. 381, 724 P.2d 211 (1986); Dias v. State, 95 Nev.
710, 601 P.2d 706 (1979); Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979); Maginnis v. State, 93 Nev. 173,
561 P.2d 922 (1977). In addition, whether mere opportunity is sufficient has not been addressed since in most
cases, the witness was actually cross-examined. See Power, 102 Nev. at 382, 724 P.2d at 211. Drummond v.
State, 86 Nev. 4, 462 P.2d 1012 (1970), has not been overruled by either California v. Green or Ohio v. Roberts.
Moreover, we need not reach this distinction in this case because Grant actually cross-examined Brown at the
preliminary hearing.

6
See Drummond, 86 Nev. at 7, 462 P.2d at 1013-14 (citing Barber v. Page, 390 U.S. 719 (1968) and Berger
v. California, 393 U.S. 314 (1969)).

7
86 Nev. at 6-8, 462 P.2d at 1013-14.
117 Nev. 427, 433 (2001) Grant v. State
Brown was unavailable for trial.
8
Accordingly, the district court erred in granting the State's
motion to admit Brown's prior testimony.
[Headnote 3]
Even though Brown's testimony was erroneously admitted at trial, we conclude that
such error was harmless.
9
Brown's testimony was duplicative of the other security
personnel's testimony regarding Grant's arrest and finding the purse, money and marijuana on
Grant. Sufficient evidence existed in Figuredo's, Baker's, and Kimi's testimony to support
Grant's convictions without Brown's preliminary hearing testimony. Because Grant's
conviction did not rest solely, or even rely on, Brown's preliminary hearing testimony, we
conclude that the admission of this testimony was harmless error.
[Headnotes 4, 5]
Grant also contends that the district court erred by sua sponte amending his grand
larceny charge from category B to category C.
10
Although the district court may not
generally amend a criminal information except by the State's motion,
11
if one of the parties
raises the issue of amendment in the pleadings, such as a return to a writ of habeas corpus, the
court may sua sponte order the amendment of the criminal information.
12
As long as the
amended information does not involve new or different offenses, and the defendant is not
prejudiced, the amendment may be granted.
13

__________

8
See, e.g., Drummond, 86 Nev. at 6-8, 462 P.2d at 1013-14; Joseph John H., a Minor v. State, 113 Nev. 621,
939 P.2d 1056 (1997) (good cause for continuance in juvenile proceedings); Quillen v. State, 112 Nev. 1369,
929 P.2d 893 (1996); Sheriff v. Simpson, 109 Nev. 430, 851 P.2d 428 (1993); Bustos v. Sheriff, 87 Nev. 622,
491 P.2d 1279 (1971) (good cause for continuance); Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969) (good
cause for continuance), limited by Sheriff v. Marcus, 116 Nev. 188, 995 P.2d 1016 (2000). Cf. Anderson v.
State, 109 Nev. 1150, 865 P.2d 331 (1993).

9
See Drummond, 86 Nev. at 8-9, 462 P.2d at 1014-15.

10
Category B grand larceny requires proof that the value of the property stolen was greater than $2,500. NRS
205.222(3). Category C grand larceny requires proof that the value of the property stolen was greater than $250.
NRS 205.220(1); NRS 205.222(2).

11
See NRS 173.095(1); see also Parsons v. District Court, 110 Nev. 1239, 1243-44, 885 P.2d 1316, 1320
(1994), overruled on other grounds by Parsons v. State, 116 Nev. 928, 10 P.3d 836 (2000).

12
See Benitez v. Sheriff, 111 Nev. 1363, 1364-65, 904 P.2d 1036, 1037 (1995); see also Huntley v. Sheriff,
90 Nev. 187, 188-89, 522 P.2d 147, 148 (1974).

13
Compare State v. Hancock, 114 Nev. 161, 167-68, 955 P.2d 183, 187 (1998).
117 Nev. 427, 434 (2001) Grant v. State
In this case, the State raised the alternative of amending the criminal information from
a category B to a category C felony in its return to Grant's petition for a pretrial writ of habeas
corpus after it failed to adduce sufficient evidence of value of the property to support the
original charge. Grant was on sufficient notice of the lesser charge of a category C felony. We
conclude that the district court properly amended the criminal information.
Grant contends that the State improperly exercised a peremptory challenge of an
African-American venireperson solely on the basis of race in violation of Batson v. Kentucky.
14
We conclude that Grant failed to rebut the State's race-neutral explanation for its strike and
no Batson violation occurred.
[Headnotes 6, 7]
To determine whether the State's peremptory challenge was discriminatory, a
three-step inquiry is used: (1) the defendant must make a prima facie showing of
discrimination; (2) the State must offer a race-neutral explanation; and (3) the defendant must
rebut that explanation by showing it is pretextual.
15
We have previously stated that
[p]resumably the exclusion of three-out-of-four black prospective jurors is sufficient to
make out a prima facie Batson violation.
16
However, [o]nce a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.'
17
Unless discriminatory intent
is inherent in the State's race-neutral explanation, the reason will be sufficient to meet the
second prong of Batson;
18
it need not be plausible, just not discriminatory.
19

[Headnote 8]
Grant argues that because the State struck from the venire two out of three prospective
African-American jurors, he has demonstrated a prima facie showing of discrimination.
However, upon our review of the jury voir dire, we conclude that the State adduced a
sufficiently race-neutral reason for its strike of juror no. 579; namely, that that juror was too
indecisive and wishy-washy and he would be unable to fairly weigh the evidence. Because
these reasons alone do not raise any inference of discriminatory intent, we conclude that the
State has met its burden to rebut a Batson claim.
__________

14
476 U.S. 79 (1986).

15
Id. at 91-99; see also Doyle v. State, 112 Nev. 879, 887, 921 P.2d 901, 907 (1996).

16
Doyle, 112 Nev. at 888, 921 P.2d at 907.

17
Id. (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)).

18
See id. at 888, 921 P.2d at 908.

19
See Purkett v. Elem, 514 U.S. 765, 768 (1995).
117 Nev. 427, 435 (2001) Grant v. State
criminatory intent, we conclude that the State has met its burden to rebut a Batson claim.
Grant fails to offer any evidence that this reason is pretextual. Therefore, we conclude that no
Batson violation occurred. Hence, we need not determine whether the pattern of striking from
the venire two out of three African-Americans is a prima facie showing of discrimination.
[Headnotes 9, 10]
Finally, Grant argues that the State adduced insufficient evidence of intent on both the
grand larceny and possession of a controlled substance charges. We disagree. We review a
claim of sufficiency of evidence by looking at the facts in the light most favorable to the
State.
20
Our inquiry focuses on whether there is substantial evidence in the record to support
the jury's verdict, and whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
21

[Headnotes 11, 12]
Grant argues that because grand larceny requires intent to permanently deprive the
owner of the property,
22
the State failed to adduce sufficient evidence of that intent because
Grant claims he intended to return the purse to security. Intent need not be proven by direct
evidence but can be inferred from conduct and circumstantial evidence.
23
Because the
evidence adduced at trial indicated that Grant was seen tucking the purse into his jacket
several times and heading towards the lobby and exit of the Bellagio, we conclude that these
circumstances provide sufficient basis from which the jury could infer the requisite intent. We
therefore affirm the judgment of conviction for grand larceny.
[Headnote 13]
As for the possession of a controlled substance charge, Grant's main contention is that
the security officers planted the marijuana cigarettes on him, thereby negating intent. Upon
our review of the record, we found no evidence supporting that contention. Officer Baker
testified at trial that Grant told him the marijuana was his. We conclude that the testimony at
trial indicating that Brown found the marijuana in Grant's pockets and Grant's statements to
Baker admitting ownership constitute sufficient evidence to support the judgment of
conviction on that count. Because Grant fails to provide any evidence aside from this
contention to support his claim, we conclude that this assignment of error lacks merit.
__________

20
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984).

21
Id. at 250-51, 681 P.2d at 47 (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

22
See NRS 205.220(1); see also NRS 205.222(2)-(3).

23
See Mathis v. State, 82 Nev. 402, 406, 419 P.2d 775, 777 (1966).
117 Nev. 427, 436 (2001) Grant v. State
CONCLUSION
We conclude that the district court erred in admitting Officer Brown's preliminary
hearing testimony at trial because the State failed to exercise due diligence in obtaining his
presence at trial. However, because we conclude that ample remaining evidence supports
Grant's judgment of conviction on both counts, and his other assignments of error lack merit,
we affirm the judgment of conviction.
____________
117 Nev. 436, 436 (2001) Vega v. Eastern Courtyard Assocs.
WENDY VEGA, Appellant, v. EASTERN COURTYARD ASSOCIATES, a Limited
Partnership, Respondent.
No. 33932
WENDY VEGA, Appellant, v. EASTERN COURTYARD ASSOCIATES, a Limited
Partnership, Respondent.
No. 34059
June 13, 2001 24 P.3d 219
Consolidated appeals from a final judgment and an order granting attorney fees in a
personal injury action. Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
Patron brought negligence action against medical facility, for slip-and-fall injury she
allegedly sustained while attempting to negotiate a ramp leading to facility's entrance. The
district court entered judgment on jury verdict in favor of facility and awarded attorney fees.
Patron appealed. The supreme court, Rose, J., held that, as a matter of first impression,
negligence per se instruction was justified by expert testimony that slope of the building's
ramp, on which patron slipped and fell as she was entering building, exceeded the slope
allowed under building code provision adopted by county ordinance.
Maupin, C. J., with whom Young and Agosti, JJ., agreed, dissented.
Parker Nelson & Arin, Chtd., and Casey D. Gish, Las Vegas, for Appellant.
Pyatt & Silvestri and Phillip V. Tiberi, Las Vegas, for Respondent.
1. Negligence.
Whether a particular statute, administrative regulation or local ordinance is utilized to define the standard of care in a negligence
action is clearly a question of law to be determined exclusively by the court.
2. Negligence.
Negligence per se instruction was justified by expert testimony that slope of the building's ramp, on which patron allegedly
slipped and fell as she was entering building, exceeded the slope allowed under building code provision adopted by county ordinance,
in patron's action against building owner, so long as trial court determined that patron belonged to the class of persons that the
provision was intended to protect, and the injury that patron allegedly suffered was of the type the provision was intended to prevent.
3. Negligence.
If (1) a violation of a building code provision adopted by local ordinance is established, (2) an injured party fits within the class
of persons that a particular provision of a building code was intended to protect, and (3) the injury suffered is of the type the provision
was intended to prevent, the alleged violation constitutes negligence per se.
4. Negligence.
Whether an injured party belongs to the class of persons that a provision of a local building code was meant to protect and
whether the injury suffered is the type the provision was intended to prevent, are questions of law to be determined by the court, in the
determination of whether there exists negligence per se.
OPINION
In these consolidated appeals
1
we are asked to determine whether the violation of a
validly adopted building code provision constitutes negligence per se. We conclude that the
violation of a building code provision adopted by a county ordinance is negligence per se if
the plaintiff belongs to the class of persons the building code provision is intended to protect,
and the injury the plaintiff suffered is of the type the provision was intended to prevent.
Accordingly, because the district court failed to properly instruct the jury regarding the
negligence per se doctrine, we reverse the district court's judgment in favor of the respondent,
as well as the district court's order awarding attorney fees, and remand this case to the district
court for further proceedings consistent with this opinion.
FACTS
On September 10, 1993, appellant Wendy Vega had a scheduled appointment at
respondent Eastern Courtyard Associates' medical facility in Las Vegas. While attempting to
negotiate a ramp
__________

1
On November 2, 1999, this court issued an order consolidating these appeals.
ramp
2
leading to the main entrance, Vega slipped, fell and was injured. Vega commenced
suit, claiming Eastern Courtyard was negligent.
Prior to trial, Vega moved for partial summary judgment on the issue of duty and
breach pursuant to the theory that Eastern Courtyard was negligent per se. Vega argued that
Eastern Courtyard, as owner of the premises, had violated a provision of the Uniform
Building Code (UBC), which had been adopted as part of the Building Code of Clark
County.
3
Vega claimed that the slope of the ramp leading into the entrance of the medical
complex exceeded the slope allowed under the UBC, and that such a violation constituted
negligence as a matter of law, or negligence per se. The district court, however, found that
factual issues remained for trial, and, accordingly, denied Vega's motion for partial summary
judgment.
Vega again raised the theory of negligence per se in her trial brief. Vega proposed that
the jury be charged with Nevada Jury Instruction 4.12, which reads:
There was in force at the time of the occurrence in question [a law] [laws] which read
as follows:
A violation of the law[s] just read to you constitutes negligence as a matter of law. If
you find that a party violated a law just read to you, it is your duty to find such violation
to be negligence; and you should then consider the issue of whether that negligence was
a [proximate] [legal] cause of injury or damage to the plaintiff.
4

The district court, however, again ruled that Vega's negligence per se theory did not
apply to the facts of this case. The district court refused to allow Vega to utilize the
negligence per se doctrine because Vega only alleged that Eastern Courtyard violated a
building code provision enacted into law by an ordinance, not a statute.
__________

2
Both parties in this dispute refer to the slope in question as a ramp; however, the area where Vega slipped
is more accurately described as the tapered portion of the sidewalk that declined from the interior portion of the
sidewalk to the adjoining parking lot. While no evidence challenging this characterization was presented at trial
or to this court on appeal, there is some question whether this slope actually fits within the Uniform Building
Code's definition of a ramp. We note that a case similar to the instant case was decided by the Montana Supreme
Court on the ground that the Uniform Building Code's provision concerning ramps did not apply to the slope in
question. See Knutson v. Barbour, 879 P.2d 696, 698-700 (Mont. 1994).

3
See Clark County Ordinance 22.04.010 ([T]he Uniform Building Code, 1991 Edition,' . . . is designated
as the building code of Clark County and by the designation and reference is adopted and made a part of this
chapter, the same as if it were fully set forth herein.). NRS 244.105 allows Nevada counties to adopt uniform
building, plumbing or electrical codes by reference.

4
Nev. J.I. 4.12 (brackets in original).
because Vega only alleged that Eastern Courtyard violated a building code provision enacted
into law by an ordinance, not a statute. Thus, the case proceeded to trial solely on the issue of
liability.
5

At trial, Vega presented expert testimony demonstrating that the slope of the ramp
exceeded the slope allowed under the UBC. Notably, Eastern Courtyard presented no
evidence of its own regarding the slope of the ramp, nor did Eastern Courtyard challenge the
characterization of the slope in question as a ramp under the UBC. Instead, Eastern
Courtyard argued that even if the ramp violated the UBC, such a violation was not the
proximate cause of Vega's injuries. In support of this argument, Eastern Courtyard
demonstrated that if the jury accepted Vega's expert's calculations, any violation of the UBC
was minimal.
At the close of evidence, the district court instructed the jury that if it found that
Eastern Courtyard had, in fact, violated the UBC, the jury could consider such a violation as
evidence of Eastern Courtyard's negligence.
6
The jury subsequently returned a verdict in
favor of Eastern Courtyard. Following the favorable verdict, Eastern Courtyard filed a motion
for attorney fees pursuant to NRCP 68. Because Vega failed to oppose the motion, the district
court granted attorney fees to Eastern Courtyard in the sum of $31,596.25. This appeal
followed.
DISCUSSION
[Headnote 1]
Whether a particular statute, administrative regulation or local ordinance is utilized to
define the standard of care in a negligence action is clearly a question of law to be determined
exclusively by the court.
7
Accordingly, our review is de novo.
8

__________

5
In this appeal, Vega also asks this court to review the district court's decision to bifurcate the trial pursuant
to NRCP 42(b). Because of our resolution of the negligence per se issue, we need not address this issue. We do
note, however, that we have generally held that the question of whether to order separate trials is left to the
sound discretion of the district court. C.S.A.A. v. District Court, 106 Nev. 197, 199, 788 P.2d 1367, 1368
(1990).

6
The instruction given to the jury read:
If you find that the ramp in question was maintained by the defendants in violation of the Uniform
Building Code, you may consider this as evidence that defendant [ ] breached its duty.
The fact that the defendant [ ] may not have had knowledge of the Uniform Building Code
requirements does not excuse a violation.

7
Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983) (Whether a legislative
enactment provides a standard of conduct in the particular situation presented by the plaintiff is a question of
statutory interpretation and construction for the court.).

8
County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998) (The construction of a statute
is a question of law subject to de novo review.).
[Headnote 2]
Although we have never ruled on the applicability of an alleged violation of a building
code provision in a plaintiff's negligence action, we have consistently held that the violation
of a statute constitutes negligence per se if the injured party belongs to the class of persons
that the statute was intended to protect, and the injury suffered is of the type the statute was
intended to prevent.
9
In Barnes v. Delta Lines, Inc.,
10
we held that where a plaintiff
adduced evidence at trial showing that the defendant violated a statute designed to protect a
class of persons to which the plaintiff belonged, the district court erred by failing to instruct
the jury regarding the negligence per se doctrine.
11
And later, in Del Piero v. Phillips,
12
we
applied the same analysis to a municipal ordinance. In that case we determined that a
violation of the Reno Municipal Code, along with the defendant's failure to yield to
pedestrians as required by the rules of the road, required that the jury be instructed
regarding negligence per se.
13

In Ashwood v. Clark County,
14
we declined to decide whether a violation of the UBC
could be utilized as the basis for a plaintiff's theory that the defendant was negligent per se.
15
But as dictum in Ashwood evidences, we recognized that the UBC was legislative in nature.
We also determined, however, that the UBC arguably appeared to be akin to an
administrative regulation. We now take this opportunity to refute the dictum contained in
Ashwood, and hold that the UBC is not administrative in nature.
Instead, we conclude that an alleged violation of a provision of the UBC may be
utilized as part of a plaintiff's negligence per se theory if the plaintiff belongs to the class of
persons that the provision was intended to protect, and the injury suffered is of the type the
provision was intended to prevent. We see no reason not to apply the reasoning and analysis
we employed in Barnes and Del Piero to an alleged violation of a building code provision.
Other jurisdictions that have addressed this issue are in accord with this ruling.
16

__________

9
Anderson v. Baltrusaitis, 113 Nev. 963, 965, 944 P.2d 797, 799 (1997) (quoting Ashwood v. Clark County,
113 Nev. 80, 86, 930 P.2d 740, 744 (1997) (citing Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d
1013, 1015 (1983))); Brannan v. Nevada Rock & Sand, 108 Nev. 23, 26-27, 823 P.2d 291, 293 (1992); Barnes
v. Delta Lines, Inc., 99 Nev. 688, 690, 669 P.2d 709, 710 (1983).

10
99 Nev. 688, 669 P.2d 709.

11
Id. at 690, 669 P.2d at 710-11.

12
105 Nev. 48, 769 P.2d 53 (1989).

13
Id. at 51-53, 769 P.2d at 55-56.

14
113 Nev. 80, 930 P.2d 740 (1997).

15
113 Nev. at 87 n.3, 930 P.2d at 744 n.3.

16
See Cable v. Shefchik, 985 P.2d 474 (Alaska 1999); Huang v. Garner,
[Headnotes 3, 4]
Accordingly, we hold that if (1) a violation of a building code provision adopted by
local ordinance is established, (2) an injured party fits within the class of persons that a
particular provision of a building code was intended to protect, and (3) the injury suffered is
of the type the provision was intended to prevent, the alleged violation constitutes negligence
per se. We also hold that whether an injured party belongs to the class of persons that the
provision at issue was meant to protect, and whether the injury suffered is the type the
provision was intended to prevent, are questions of law to be determined by the court.
17
If
the district court had utilized Vega's proffered instruction, the jury would have been able to
determine whether the ramp at issue fit within the UBC's definition of a ramp, whether
Eastern Courtyard had, in fact, violated the UBC provision and whether the alleged violation
was the proximate cause of Vega's injuries.
18
Because Vega adduced sufficient evidence at
trial supporting her negligence per se theory, it was reversible error for the district court to
refuse to instruct the jury accordingly.
19

CONCLUSION
The violation of a building code provision may serve as the basis for an action
brought under a negligence per se theory if the plaintiff belongs to the class of persons that
the provision was intended to protect, and the injury the plaintiff suffered is of the type the
provision was intended to prevent. Therefore, the district court incorrectly instructed the jury
concerning Eastern Courtyard's alleged violation of the UBC. Upon remand, the district court
should determine if Vega belongs to the class of persons that the provision was intended to
protect, and the injury Vega allegedly suffered is of the type the provision was intended to
prevent.
__________
203 Cal. Rptr. 800 (Ct. App. 1984), disapproved on other grounds, Aas v. Superior Court, 12 P.3d 1125 (Cal.
2000); Nettleton v. Thompson, 787 P.2d 294 (Idaho Ct. App. 1990); Bills v. Willow Run 1 Apartments, 547
N.W.2d 693 (Minn. 1996); Herbst v. Miller, 830 P.2d 1268 (Mont. 1992); Eduardo v. Clatsop Community
Resource Dev. Corp., 4 P.3d 83 (Or. Ct. App. 2000).

17
See Ashwood, 113 Nev. at 87, 930 P.2d at 744 (concluding as a matter of law that the plaintiff was not a
member of the class of persons that the building code was intended to protect); Barnes, 99 Nev. at 690, 669 P.2d
at 710-11 (concluding that the statutes in question were enacted to protect the class of persons to which the
plaintiff belonged); see also Nunneley v. Edgar Hotel, 225 P.2d 497, 499-500 (Cal. 1950) (determining that
whether the plaintiff was one of the class of persons for whose protection the ordinance was adopted is a
question of law).

18
Barnes, 99 Nev. at 690, 669 P.2d at 711.

19
Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983) (party is entitled to have jury instructed on
its theory of the case if sufficient evidence supports the theory).
Vega allegedly suffered is of the type the provision was intended to prevent. If the district
court so finds, it must instruct the jury regarding the negligence per se doctrine. Accordingly,
we reverse the district court's judgment, as well as the district court's order granting attorney
fees, and remand this matter to the district court for further proceedings consistent with this
opinion.
Shearing, Leavitt and Becker, JJ., concur.
Maupin, C. J., with whom Young and Agosti, JJ., agree, dissenting:
I would affirm the district court's decision in this instance. In 1969 we decided Price
v. Sinnott.
1
The appellant in Price argued that an administrative rule promulgated by the
Nevada Liquefied Petroleum Gas Board, which had been violated by the respondent, should
serve as a basis for the appellant's theory of negligence per se. Holding that the administrative
rule in that case did not rise to the level of a state statute, this court held that evidence of the
rule's violation could be considered by a jury as evidence of negligence, but not considered as
negligence per se.
2

More recently, we decided Ashwood v. Clark County,
3
in which we noted in the
margin:
[T]here is some question as to whether the Clark County Building Code is an
appropriate basis for application of the negligence per se doctrine. In Price v. Sinnott,
we held that proof of a deviation from an administrative regulation is only evidence of
negligence; not negligence per se. . . . We reasoned that, [t]his point of view best
serves all interests since it accords appropriate dignity to administrative rules and
concomitantly affords some leeway for those instances where the rule in issue may be
arbitrary and its violation not necessarily unreasonable.
Although the Clark County Building Code is promulgated as a legislative ordinance, it
appears, at least arguably, administrative in nature. Nevertheless, because this issue was
neither raised before the district court, nor briefed on appeal, and because resolution of
this issue would not affect the outcome of this case, we decline to consider this issue at
the present time.
4

Although we declined to decide the issue, we likened the build
__________

1
85 Nev. 600, 460 P.2d 837 (1969).

2
Id. at 605, 460 P.2d at 840.

3
113 Nev. 80, 930 P.2d 740 (1997).

4
Id. at 87 n.3, 930 P.2d at 744 n.3 (citation omitted) (quoting Price, 85 Nev. at 605, 460 P.2d at 840).
ing code at issue in Ashwood to the administrative regulation discussed in Price.
While other courts that have addressed this issue have ruled that violation of a validly
adopted provision of the UBC would constitute negligence per se,
5
such a rule is not
uniform. Citing the Restatement (Second) of Torts 286 (1965), the Wyoming Supreme
Court ruled in Pullman v. Outzen
6
that not all ordinances may properly serve as a basis for
negligence per se.
7
Therefore, the Wyoming Supreme Court held that the violation of the
UBC should only be utilized by the jury as evidence of the defendant's negligence.
8
Prosser
and Keeton note that many courts that have applied a per se rule with regard to violations of
statutory enactments have taken a less stringent view with regard to violations of local
building codes or administrative regulations.
9

I believe the better view is that which permits the jury to hear evidence of a building
code violation when considering the issue of negligence, but that a building code violation
should not be considered negligence per se since building code provisions are not uniformly
applied. This is underscored by the fact that many building code provisions are often waived
or made subject to variances by the local governments.
I certainly agree that persons claiming damages in a premises liability matter must be
able to litigate the question of whether the defendant has violated a building code provision
and whether the violation was the proximate cause of the plaintiff's damages. An instruction
that such a violation is evidence of negligence sufficiently facilitates the ability to press these
issues. The inherent ability of local governments to waive enforcement or formally provide
variances is an important reason why building code ordinances should not be treated in the
same way as we treat the violation of state legislative measures in such matters.
__________

5
See Cable v. Shefchik, 985 P.2d 474 (Alaska 1999); Huang v. Garner, 203 Cal. Rptr. 800 (Ct. App. 1984),
disapproved on other grounds, Aas v. Superior Court, 12 P.3d 1125 (Cal. 2000); Nettleton v. Thompson, 787
P.2d 294 (Idaho Ct. App. 1990); Bills v. Willow Run 1 Apartments, 547 N.W.2d 693 (Minn. 1996); Herbst v.
Miller, 830 P.2d 1268 (Mont. 1992); Eduardo v. Clatsop Cmty. Res. Dev. Corp., 4 P.3d 83 (Or. Ct. App. 2000).

6
924 P.2d 416 (Wyo. 1996).

7
Id. at 417.

8
Id. at 418.

9
Keeton et al., Prosser and Keeton on the Law of Torts 36 (5th ed. 1984).
____________
117 Nev. 444, 444 (2001) Tarango v. SIIS
ANGEL TARANGO, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
Agency of the State of Nevada, nka EMPLOYERS INSURANCE COMPANY OF
NEVADA; and CHAMPION DRYWALL, Respondents.
No. 34462
June 13, 2001 25 P.3d 175
Appeal from an order of the district court denying appellant's petition for judicial
review. Eighth Judicial District Court, Clark County; James C. Mahan, Judge.
Claimant, an undocumented alien, appealed from a decision of the district court
upholding workers' compensation appeals officer's decision to award permanent partial
disability benefits, but deny vocational rehabilitation benefits. The supreme court, Leavitt, J.,
held that, as a matter of first impression: (1) Immigration Reform and Control Act (IRCA)
precluded employer from providing claimant with modified employment within his physical
abilities, (2) priority system of vocational rehabilitation statute precluded claimant from
receiving vocational rehabilitation benefits, and (3) State Industrial Insurance System's denial
of vocational rehabilitation benefits to claimant did not violate the Equal Protection Clause.
Affirmed.
Maupin, C. J., dissented in part.
Greenman, Goldberg, Raby & Martinez and Esther Rodriguez and Lisa M. Anderson,
Las Vegas, for Appellant.
Kimberly A. Wanker, Ltd., Henderson, for Respondent Champion Drywall.
Javier A. Arguello, Associate General Counsel, Las Vegas, for Respondent Employers
Insurance Company of Nevada.
Gugino & Schwartz and John P. Lavery, Las Vegas, for Amicus Curiae Nevada
Contractor's Network Self-Insured Group.
Nevada's workers' compensation laws apply to all injured workers within the state, regardless of immigration status. NRS
616A.105.
2. Aliens; States.
Congress has the power to impose alienage legislation on the states.
3. Aliens.
Immigration legislation is unquestionably exclusively a federal power.
4. States.
Although the states do have some authority to deal with aliens in a manner that mirrors federal objectives and furthers a
legitimate state goal, state interests must ultimately give way to the federal government's broad power to
regulate matters of alienage.
goal, state interests must ultimately give way to the federal government's broad power to regulate matters of alienage.
5. Aliens.
Congressional power to oversee immigration not only extends to the admission and naturalization of aliens, but also to the
regulation of their conduct before naturalization.
6. States; Workers' Compensation.
Because of the federal government's plenary power in the area of alienage, any legislation created by Congress, such as the
Immigration Reform and Control Act (IRCA), preempts Nevada's workers' compensation laws as those laws have an effect on aliens in
state. Immigration and Nationality, 274A, as amended, 8 U.S.C. 1324a.
7. Aliens; Labor Relations.
The Immigration Reform and Control Act (IRCA) was designed by Congress to establish procedures that make it more arduous
to employ unauthorized aliens, and to punish those employers who knowingly offer jobs to unauthorized aliens. Immigration and
Nationality, 274A, as amended, 8 U.S.C. 1324a.
Once employer determined that workers' compensation claimant was an undocumented alien who could not substantiate his
right to work in United States, employer could not continue to employ him without violating the Immigration Reform and Control Act
(IRCA), and thus, employer was precluded from providing claimant with modified employment within his physical abilities, as
required under the Industrial Insurance Act. Immigration and Nationality, 274A, as amended, 8 U.S.C. 1324a; NRS 616C.530.
Priority system of vocational rehabilitation statute precluded workers' compensation claimant, as an alien who could not
substantiate his right to work in United States, from receiving vocational rehabilitation benefits, as his entitlement to such benefits was
based solely on his undocumented status, not on his capacity to work. Claimant was not incapacitated and could have returned to
similar employment within the United States, but such employment would violate the Immigration Reform and Control Act (IRCA).
Immigration and Nationality, 274A, as amended, 8 U.S.C. 1324a; NRS 616C.530.
10. Statutes.
In statutes, the word may is permissive and shall is mandatory unless the statute demands a different construction to carry
out the clear intent of the legislature.
11. Statutes.
Statutory interpretation should avoid absurd or unreasonable results.
State Industrial Insurance System (SIIS) is a state agency.
13. Statutes.
When the language of a statute is plain, its intention must be deduced from such language, and the court has no right to go
beyond it.
14. Constitutional Law; Workers' Compensation.
State Industrial Insurance System's denial of vocational rehabilitation benefits to workers' compensation claimant who was an
undocumented alien was fairly related to a legitimate government purpose, and thus did not violate the Equal Protection Clause. To
offer vocational training to claimant, who was physically able to return to work in modified capacity, merely because he was illegally
in country would violate equal protection by allowing him to unfairly benefit from services prohibited to all
similarly situated legal workers who would be entitled only to job placement assistance.
equal protection by allowing him to unfairly benefit from services prohibited to all similarly situated legal workers who would be
entitled only to job placement assistance. U.S. Const. amend. 14; NRS 616C.530.
Aliens, whether documented or undocumented, are to be provided equal protection of the laws. U.S. Const. amend. 14.
16. Constitutional Law; Workers' Compensation.
Because State Industrial Insurance System (SIIS) is a governmental agency acting as an arm of the State of Nevada, it must
comply with the Equal Protection Clause even when administering workers' compensation benefits to undocumented alien workers.
In considering an equal protection challenge, the court must first determine the appropriate standard of review. U.S. Const.
amend. 14.
The proper standard of review for examining the validity of legislation under the Equal Protection Clause depends on the
classification to be considered, and the appropriate level of scrutiny to be applied to the affected interest. U.S. Const. amend. 14.
The highest level of scrutiny, strict scrutiny, is applied in equal protection cases involving fundamental rights or a suspect class.
Under strict scrutiny analysis for equal protection challenges, legislation should only be upheld if it is necessary to advance a
compelling state interest, and it is narrowly tailored to achieve that interest. U.S. Const. amend. 14.
A lesser standard of review for examining the validity of legislation under the Equal Protection Clause is required when a
classification does not affect fundamental liberties. Under this level of scrutiny, legislation meets its burden of review so long as it is
rationally related to a legitimate government interest. U.S. Const. amend. 14.
The rational basis test for analyzing an equal protection challenge generally presumes that the law is constitutional, and thus, the
courts show deference to the legislation. U.S. Const. amend. 14.
State action disfavoring undocumented aliens with disparate treatment is not prohibited so long as the legislation is fairly related
to a legitimate state purpose. U.S. Const. amend. 14.
OPINION
This appeal is from an order of the district court denying a petition for judicial review.
Appellant Angel Tarango is an undocumented worker who was injured during the course of
his employment with a Nevada employer. Although Tarango received workers'
compensation benefits under Nevada's Industrial Insurance Act, he was denied vocational
rehabilitation benefits.
workers' compensation benefits under Nevada's Industrial Insurance Act, he was denied
vocational rehabilitation benefits. The primary question presented on appeal is whether an
undocumented alien is precluded from receiving vocational training under Nevada's workers'
compensation scheme if those benefits would be in violation of federal law, state law, or the
Equal Protection Clause. We conclude that although compensation can be paid to an injured
undocumented worker pursuant to the state's workers' compensation scheme, formal
vocational training must be denied if that training is required solely because of immigration
status. Therefore, we affirm the district court's order awarding Tarango permanent partial
disability payments, but denying him vocational rehabilitation benefits.
FACTS
Appellant Tarango suffered an industrial injury in January 1996 after he fell from an
eight-foot ladder while putting up drywall. Tarango was taken to a University Medical Center
Quick Care facility, and there he was diagnosed with a lumbosacral sprain. By early 1997,
Tarango's physician stated that Tarango had received maximum medical treatment, and
Tarango was cleared to return to the workforce. However, because of the injury, Tarango was
limited to permanent medium duty work in which he was to lift no more than fifty pounds.
Since Tarango's position with Champion Drywall required more vigorous activity than
Tarango's medical clearance would allow, Tarango's physician recommended vocational
rehabilitation.
In June 1997, insurer State Industrial Insurance System (SIIS) awarded Tarango
permanent partial disability (PPD) based upon a ten percent whole person impairment.
Additionally, because of the permanent work restrictions placed upon him, Tarango also
applied for vocational rehabilitation benefits, pursuant to NRS 616C.530.
Commensurate with federal law, however, SIIS issued a written determination stating
that before Tarango could receive vocational rehabilitation benefits, he was required to
submit Immigration and Naturalization Form I-9. The form is required as proof of an alien's
legal right to work in the United States. When Tarango failed to satisfy the verification
requirement, SIIS suspended his benefits until such proof could be presented.
In two separate proceedings in August and October, 1997, a hearing officer affirmed
both the SIIS decisions to award Tarango ten percent PPD, and to deny Tarango vocational
rehabilitation benefits absent proof of a legal right to work.
On appeal of the hearing officer's determination, the appeals officer held that the ten
percent PPD award was supported by the totality of the documentary evidence.
totality of the documentary evidence. Further, the appeals officer determined that federal law
supported SIIS's denial of vocational rehabilitation benefits. Specifically, the appeals officer
stated that the federal Immigration Reform and Control Act
1
(IRCA)which prohibits
individuals, entities, or state agencies from providing employment opportunities for illegal
alienspreempted SIIS's duties to provide Tarango with vocational rehabilitation benefits
under NRS 616C.530.
Tarango's subsequent petition for judicial review was denied by the Honorable James
C. Mahan on May 26, 1999. The district court held that there was substantial evidence in the
record to support the appeals officer's decision. Tarango now appeals.
DISCUSSION
[Headnote 1]
This is a case of first impression. The Nevada Industrial Insurance Act (NIIA) states
that an employee or worker includes every person in the service of an employer under any
appointment or contract of hire or apprenticeship, express or implied, oral or written, whether
lawfully or unlawfully employed.
2
Therefore, Nevada's workers' compensation laws apply
to all injured workers within the state, regardless of immigration status. However, the issue
before this court is not whether Tarango can receive workers' compensation under our laws;
rather, we must determine whether an injured undocumented worker's access extends to the
full depths of the workers' compensation scheme.
Unlike compensatory benefits which award monetary relief, vocational rehabilitation
benefits are designed to return the injured worker to the workforce by helping him obtain
employment within his physical abilities. We conclude that if Champion Drywall provided
Tarango with modified employment, Champion Drywall would be circumventing the IRCA.
Further, if SIIS provided Tarango with vocational rehabilitation benefits to obtain further
training, SIIS would be violating state law and the Equal Protection Clause.
[Headnotes 24]
It is well settled that Congress has the power to impose alienage legislation on the
states.
3
Moreover, it is well established that immigration legislation is unquestionably
exclusively a federal power.
4
Although the states do have some authority to deal with
aliens in a manner that "mirrors federal objectives and furthers a legitimate state goal,"
state interests must ultimately give way to the federal government's broad power to
regulate matters of alienage.
__________

1
8 U.S.C. 1324a (1998).

2
NRS 616A.105 (emphasis added).

3
See Free v. Bland, 369 U.S. 663, 666 (1962).

4
See De Canas v. Bica, 424 U.S. 351, 354 (1976); see also Takahashi v. Fish & Game Comm'n, 334 U.S.
410, 419 (1948).
aliens in a manner that mirrors federal objectives and furthers a legitimate state goal, state
interests must ultimately give way to the federal government's broad power to regulate
matters of alienage.
5

Congressional power to oversee immigration stems from a variety of sources.
Primarily, the United States Constitution grants Congress the authority to establish an
uniform Rule of Naturalization.
6
Further, Congress has plenary power with respect to both
foreign relations and global commerce.
7
These powers, coupled with the inherent authority
of the sovereign to close its borders, have created an intricate scheme governing the
admission and status of aliens within the United States.
8

[Headnotes 5, 6]
The United States Supreme Court has expanded this authority further by recognizing
the power as plenary, or largely immune from judicial inquiry and interference.
9
Specifically, the Court has stated that the obvious need for delicate policy judgments has
counseled the Judicial Branch to avoid intrusion into this field.
10
Similarly, the Court has
held that it is the business of the political branches of the Federal Government, rather than
that of either the States or the Federal Judiciary, to regulate the conditions of entry and
residence of aliens.
11
This power not only extends to the admission and naturalization of
aliens, but also to the regulation of their conduct before naturalization.
12
As a result, we
must conclude that because of the federal government's plenary power in the area of alienage,
any legislation created by Congresssuch as the IRCApreempts Nevada's workers'
compensation laws as those laws have an effect on aliens in this state.
[Headnote 7]
The IRCA was designed by Congress to establish procedures that make it more
arduous to employ unauthorized aliens, and to punish those employers who knowingly offer
jobs to unauthorized aliens.
13
The Act defines an unauthorized alien as an individual who
is not "lawfully admitted for permanent residence, or . . . authorized to be so employed" in
the United States.
__________

5
Plyler v. Doe, 457 U.S. 202, 219 n.19, 225 (1982) (citing De Canas, 424 U.S. 351).

6
U.S. Const. art. I, 8, cl. 4.

7
See id.; Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976).

8
See Plyler, 457 U.S. at 225; see also Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

9
Harisiades, 342 U.S. at 588-89.

10
Plyler, 457 U.S. at 225.

11
Mathews, 426 U.S. at 84.

12
Takahashi, 334 U.S. at 419.

13
See Dowling v. Slotnik, 712 A.2d 396, 404 (Conn. 1998).
ual who is not lawfully admitted for permanent residence, or . . . authorized to be so
employed in the United States.
14

Specifically, the Act precludes employers not only from hiring unauthorized aliens,
but also from continuing to employ those workers once the employer becomes aware of the
employee's illegal status.
15
Violators are punished with substantial fines as well as possible
imprisonment.
16

[Headnote 8]
We conclude that because Tarango could not substantiate his legal right to work with
an Immigration and Naturalization Form I-9, he squarely fell into Congress' definition of an
unauthorized alien. As a result, Champion Drywall could no longer continue to employ
Tarangoonce Tarango's undocumented status was determinedwithout violating the IRCA
and incurring federal penalties.
We note, however, that although the language of the IRCA focuses on punishing the
employer of unauthorized aliens, or those agencies that refer unauthorized aliens for a fee, the
Act does not provide a reference point for the insurer's role. SIIS is not employing Tarango or
referring him for a fee. Thus, it is our view that although SIIS would be facilitating future
employment for an unauthorized alien by providing vocational rehabilitation benefits, there is
no indication that SIIS is prohibited or would be punished under the IRCA for its
involvement. Further, we do not consider it outside the realm of possibility that appellant's
future employment lies outside the boundaries of the United States, and such vocational
training could be put to use elsewhere.
[Headnote 9]
Nonetheless, we conclude that SIIS is precluded from providing vocational training
pursuant to state law. The state law in question is NRS 616C.530. The statute provides:
An insurer shall adhere to the following priorities in returning an injured employee to
work:
1. Return the injured employee to the job he had before his injury.
2. Return the injured employee to a job with the employer he worked for before his
accident that accommodates any limitation imposed by his injury.
3. Return the injured employee to employment with another employer in a job that
uses his existing skills.
4. Provide training for the injured employee while he is working in another vocation.
__________

14
8 U.S.C. 1324a(h)(3).

15
See 8 U.S.C. 1324a(a)(2).

16
See 8 U.S.C. 1324a(e)(4), (f)(1).
5. Provide formal training or education for the injured employee in another vocation.
17

[Headnote 10]
We have held in the past that [t]he intent of the legislature is the controlling factor in
statutory interpretation.
18
Here, NRS 616C.530 declares itself to be based on priority, and
as a result, we conclude that the intent of the legislature is clear and should be given its
ordinary meaning.
19
Thus, the statute provides that the insurer shall first attempt to return the
injured worker to his former job, and lastly, the insurer shall provide formal training or
education.
20

In this instance, SIIS determined to deny all vocational training benefits because
Tarango failed to provide proof of his lawful right to work in the United States. We conclude
that this determination was in harmony with the IRCA and NRS 616C.530.
Foremost, if Tarango was a documented worker, he clearly could have returned to
similar employment in the United States. Tarango was not incapacitated. Rather, the record
indicates that the only limitation on Tarango's abilities was that he should lift no more than
fifty pounds.
Tarango's ability to work placed SIIS in a precarious position. First, SIIS could have
returned Tarango to the workforce in a capacity provided by NRS 616C.530, and thereby
caused an employer to violate the IRCA by hiring Tarango. Second, SIIS could have ignored
the priority scheme established by the legislature in the vocational rehabilitation statute and
awarded Tarango formal training based solely on his illegal status. Or third, SIIS could have
denied all vocational rehabilitation benefits. We conclude that the latter option was the only
logical choice.
[Headnote 11]
As to the first alternative, Tarango's injury prevented him from returning to Champion
Drywall in his former role. Therefore, NRS 616C.530(1) was never at issue. However, NRS
616C.530(2) and (3) were clearly applicable. Because Tarango could return to the workforce
in a limited role, SIIS was required by the priority scheme to return Tarango to Champion
Drywall or to a similarly situated employer.
__________

17
NRS 616C.530.

18
Cramer v. Peavy, 116 Nev. 575, 580, 3 P.3d 665, 669 (2000) (quoting Cleghorn v. Hess, 109 Nev. 544,
548, 853 P.2d 1260, 1262 (1993)).

19

20
NRS 616C.530. [I]n statutes, may' is permissive and shall' is mandatory unless the statute demands a
different construction to carry out the clear intent of the legislature. S.N.E.A. v. Daines, 108 Nev. 15, 19, 824
P.2d 276, 278 (1992).
situated employer. Yet, as previously noted, such placement by SIIS would have required the
employer to knowingly violate the IRCA and incur substantial penalties. Although SIIS
would not have incurred those penalties, we conclude that this alternative would have led to
an illogical and absurd result.
21

[Headnote 12]
Under the second alternative, SIIS would be required to ignore the priority scheme
established by the legislature in NRS 616C.530 and to provide Tarango with formal training
based solely on his illegal status.
22
Yet, we conclude that the agency's authority is not so
broadly extended. Although SIIS is impliedly clothed with power to construe the relevant
laws and set necessary precedent to administrative action, it is not permitted to circumvent
the legislature's clear intent in creating the prioritized rehabilitation scheme.
23

Further, we fail to comprehend how providing Tarango with formal training would
create more efficiency in the workers' compensation system. The system is designed to
ensure the quick and efficient payment of compensation to injured and disabled employees
at a reasonable cost to the employers.
24
Awarding Tarango formal vocational training under
NRS 616C.530(4) and (5) diametrically opposes the express intent of our workers'
compensation scheme.
Specifically, NRS 616C.530(4) necessitates providing Tarango with formal vocational
training that runs concurrent with his employment. The IRCA prohibits Tarango's
employment in the United States. Thus, SIIS would be required to provide training outside of
Nevada. The NIIA was not intended as a means to expand the agency's powers to award
vocational benefits beyond the borders of Nevadalet alone the borders of the United States.
25

Likewise, it is our view that dangerous precedent is set in allowing an undocumented
worker to skip through the priority scheme directly to NRS 616C.530{5).
__________

21
Statutory interpretation should avoid absurd or unreasonable results. General Motors v. Jackson, 111 Nev.
1026, 1029, 900 P.2d 345, 348 (1995).

22
NRS 616C.530(4)(5).

23
SIIS v. Miller, 112 Nev. 1112, 1118, 923 P.2d 577, 581 (1996). SIIS is clearly a state agency for the
following reasons: (1) it is subject to the approval and control of the Governor, the legislature, and other
agencies of the government; (2) it is treated as the State or a state agency throughout the Nevada Revised
Statutes; and (3) it possesses certain powers of a sovereign authority. Northern Nev. Ass'n Injured Workers v.
SIIS, 107 Nev. 108, 112-13, 807 P.2d 728, 731 (1991) (emphasis added) (footnotes omitted).

24
NRS 616A.010.

25
NRS 616C.580 states that [e]xcept as otherwise provided in this section, vocational rehabilitation services
must not be provided outside of this state.
allowing an undocumented worker to skip through the priority scheme directly to NRS
616C.530(5). Under this option, SIIS would be required to offer Tarango formal training for a
different vocation outside the United States. However, it is clear that this training would only
be available to Tarango because of his undocumented status. If he were a legal worker, this
option would never become available.
More importantly, by allowing an undocumented worker to advance to NRS
616C.530(5)without regard for his injuriesthis court would be providing a pathway that
would lead all injured undocumented workers to the most expensive remedy provided under
the scheme. The formal vocational training would bear no relationship to medical
eligibility,' the extent of disability or need for retraining.
26
Not only would the costs of such
training create an excessive burden on SIIS and the employers of Nevada, but it would also
undermine the purpose behind Nevada's workers' compensation scheme.
[Headnote 13]
Vocational rehabilitation was designed to provide methods to promptly return the
employee to the workforce. But here, Tarango would not be using the scheme to return to his
former or a similar job. Rather, he would be using Nevada's workers' compensation scheme
as an avenue to a better career. This was not the intent of the legislature. The legislature
intended a priority scheme to be established in order to provide efficiency and
cost-effectiveness. [W]hen the language of a statute is plain, its intention must be deduced
from such language, and the court has no right to go beyond it.
27
As a result, we conclude
that SIIS properly denied Tarango's vocational rehabilitation claim because of his
undocumented status.
[Headnote 14]
It should be noted that Tarango also contends that SIIS's denial of his vocational
rehabilitation benefits violates the 14th Amendment. We disagree.
The 14th Amendment to the United States Constitution states that:
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
__________

26
Del Taco v. Workers' Comp. App. Board, 94 Cal. Rptr. 2d 825, 828-29 (Cal. Ct. App. 2000).

27
Cirac v. Lander County, 95 Nev. 723, 729, 602 P.2d 1012, 1015 (1979) (quoting State ex rel. Hess v. The
County Commissioners of Washoe County, 6 Nev. 104, 107 (1870)).
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
28

[Headnotes 15, 16]
In analyzing the language of the 14th Amendment, the United States Supreme Court
has recognized that aliens are considered persons for purposes under that amendment.
29
Further, the Court has held that the amendment's phrase within its jurisdiction emphasizes
that the umbrella of equal protection covers all within a State's boundaries, and to all upon
whom the State would impose the obligations of its laws.
30
Therefore, alienswhether
documented or undocumentedare to be provided such protections.
31
And as a result,
appellant contends that because SIIS is a governmental agency acting as an arm of the State
of Nevada, it must comply with the Equal Protection Clause even when administering
workers' compensation benefits to undocumented workers. We agree.
[Headnotes 17, 18]
In considering an equal protection challenge, the court must first determine the
appropriate standard of review. This court's standard for examining the validity of legislation
under the Equal Protection Clause is the same as the federal standard.
32
Thus, the proper
standard of review depends on the classification to be considered, and the appropriate level of
scrutiny to be applied to the affected interest.
33

[Headnotes 19, 20]
The highest level of scrutinystrict scrutinyis applied in cases involving
fundamental rights or a suspect class.
34
Under strict scrutiny, legislation should only be
upheld if it is necessary to advance a compelling state interest, and it is narrowly tailored to
achieve that interest.
35

[Headnotes 21, 22]
Comparatively, a lesser standard of review is required when the classification does not
affect fundamental liberties.
36
Under this level of scrutiny, legislation meets its burden of
review so long as it is rationally related to a legitimate government interest.
__________

28
U.S. Const. art. XIV, 1 (emphasis added).

29
See Plyler, 457 U.S. at 210.

30
Id. at 214.

31
See id.

32
See Laakonen v. District Court, 91 Nev. 506, 538 P.2d 574 (1975).

33
See Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000).

34
See id.

35
See id.

36
See id.
level of scrutiny, legislation meets its burden of review so long as it is rationally related to a
legitimate government interest.
37
The rational basis test generally presumes that the law is
constitutional, and thus, the courts show deference to the legislation.
38

Between these two standards of review lies an intermediate level of scrutiny, which
generally has been applied to matters of gender or illegitimacy.
39

Appellant contends that the standard of review should meet that of a compelling state
interest. Under the due process guarantee, the courts will require a compelling interest
whenever laws distinguish persons based on classification.
40
Thus, classifications based on
alienage, like those based on nationality or race, are inherently suspect and subject to close
judicial scrutiny.
41
This court has applied similar reasoning in affording aliens the
protection of strict scrutiny review.
42

However, although we conclude that undocumented aliens have a right to equal
protection under the 14th Amendment, the United States Supreme Court has reject[ed] the
claim that illegal aliens' are a suspect class.'
43
To the contrary, entry into the
undocumented alien classification is not done by some involuntary action such as entry into
suspect classifications based on minority or origin. Rather, the Court has stated that entry
into this class, by virtue of entry into this country, is the product of voluntary action. Indeed,
entry into the class is itself a crime.
44

[Headnote 23]
As a result, the Plyler Court refused to acknowledge undocumented aliens as a
suspect class, and in doing so, the Court stated that deference must be given to the legislature
in determining classification schemes for those illegally in the United States.
45
Further, the
Court held that state legislation concerning those individuals must only include some fair
relationship to a legitimate public purpose.
46
Consequently, it is our view that state action
disfavoring undocumented aliens with disparate treatment is not prohibited so long as the
legislation is fairly related to a legitimate state purpose.
__________

37
See Sereika v. State, 114 Nev. 142, 143-45, 955 P.2d 175, 179 (1998).

38
See Plyler, 457 U.S. at 216.

39
See Clark v. Jeter, 486 U.S. 456, 461 (1988).

40
See Graham v. Richardson, 403 U.S. 365, 371-72 (1971).

41
Id. at 372; see also U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

42
See State v. Chumphol, 97 Nev. 440, 441, 634 P.2d 451, 451 (1981).

43
Plyler, 457 U.S. at 219 n.19.

44
Id.

45
See id. at 216.

46
Id.
action disfavoring undocumented aliens with disparate treatment is not prohibited so long as
the legislation is fairly related to a legitimate state purpose.
47

Here, the priority scheme of NRS 616C.530 was designed by the legislature with the
intent to efficiently return injured employees back into the workforce. If SIIS were required to
offer Tarango vocational training merely because Tarango was illegally in the country, he
would unfairly benefit from services prohibited to all legal workers solely because of his
undocumented status.
48
Such a consequence would result in disparate treatment of those
lawfully entitled to work in Nevada, and would be in violation of the Equal Protection Clause
since all those similarly situated must be treated in a like manner.
49

Appellant Tarango is an undocumented alien. Unauthorized entry into the United
States is a crime.
50
Consequently, the United States Supreme Court has stated that benefits
may be withheld from those whose very presence within the United States is the product of
their own unlawful conduct.
51
As a result, we conclude that SIIS's denial of appellant's
vocational rehabilitation benefits was fairly related to a legitimate government purpose.
CONCLUSION
We conclude that the IRCA preempts Nevada's workers' compensation scheme insofar
as it provides undocumented aliens with employment within the boundaries of the United
States. Further, the legislature's priority scheme under NRS 616C.530, and the Equal
Protection Clause, preclude SIIS from awarding formal vocational training to undocumented
workers. As a result of these conclusions, we affirm the order of the district court awarding
__________

47
Id.

48
All employees legally working in Nevada who could return to work in a modified role would be precluded
from formal training. Based on the vocational rehabilitation priority scheme, NRS 616C.555(2) provides: If the
counselor determined . . . that the injured employee has existing marketable skills, the plan [for vocational
rehabilitation benefits] must consist of job placement assistance only. (Emphasis added.)

49
See Romer v. Evans, 517 U.S. 620, 631-35 (1996); see also Del Taco, 94 Cal. Rptr. 2d at 828-29. The Del
Taco court concluded that awarding injured undocumented aliens vocational training not commensurate with
injuries violated the Equal Protection Clause as to the employer as well as third parties not before the court. See
id. Specifically, the court stated that requiring the employer to pay more in workers' compensation for an
undocumented worker who was injured than a legal worker solely because of immigration status was irrational
and arbitrary and violated the Clause. Id.

50
See 8 U.S.C. 1325(a).

51
Plyler, 457 U.S. at 219.
appellant permanent partial disability, but denying appellant vocational rehabilitation
benefits.
Young, Agosti, Rose and Becker, JJ., concur.
Shearing, J., concurring:
I agree with Chief Justice Maupin's analysis of the law; however, I do not agree that a
remand is required for a more fact-intensive determination.
The record is clear that Angel Tarango is employable in his present condition. SIIS
has already found that he is fully capable of employment, but is only restricted from lifting
over fifty pounds. He has been compensated for this ten percent disability. He can work but
just not at a job requiring lifting more than fifty pounds and not legally in this country.
Therefore, he is not eligible for rehabilitation benefits.
I agree with the majority in affirming the judgment of the district court.
Angel Tarango is an undocumented alien worker who was severely injured in the
course and scope of his employment with a Las Vegas drywall contractor. After collecting
wage, medical, and disability benefits, he submitted a claim for vocational rehabilitation to
the SIIS.
1
An administrative appeals officer upheld denial of the claim on the ground that
providing rehabilitation services to Mr. Tarango would violate the federal Immigration
Reform and Control Act (IRCA) of 1986. The district court denied Mr. Tarango's petition
for judicial review of that decision.
I would remand this matter for a more fact-intensive determination of his actual
ability to undertake substitute employment given his physical limitations. If he is actually
employable apart from his immigration status and despite his physical disability, I agree he is
ineligible for retraining and rehabilitation under our workers' compensation laws. If
re-employment is not feasible apart from his immigration status, he should be entitled to
rehabilitation benefits because IRCA, in my view, does not per se preempt state laws
allowing participation in the legal aspects of a rehabilitation program.
Legality of vocational rehabilitation benefits
The majority correctly observes that, under the priorities of NRS 616C.530, legal
workers may not receive the benefits of a rehabilitation program if they can re-enter the
workforce in one of the enumerated capacities.
__________

1
NRS 616C.530.
the enumerated capacities. Accordingly, if Mr. Tarango would be re-employable but for his
undocumented status, he would be ineligible as a matter of state law for retraining and
rehabilitation. Thus, if Mr. Tarango is physically re-employable, his forced admission into a
rehabilitation program provided under NRS 616C.530 would be mandated only because of
his illegal status. This, as also noted by the majority, would be manifestly unfair. Certainly,
what is illegal for a documented worker must be illegal for an undocumented worker. I
therefore further agree that there is no impediment under the state or federal constitutions to
his exclusion from a program under this alternative.
As noted below, however, the analysis of eligibility under state law changes if Mr.
Tarango is not, in any event, able to pursue re-employment or substitute employment.
Preemption
The majority concludes that IRCA preempts the Nevada Industrial Insurance Act
(NIIA) merely because it may have an effect on aliens working in the State of Nevada. On
the other hand, the majority observes that there is no indication that the SIIS is prohibited
from or would be punished under IRCA for providing certain rehabilitation services to Mr.
Tarango. While I agree with the second position taken by the majority, I disagree with the
first and conclude that IRCA does not preempt the provisions of the NIIA that provide
rehabilitation services, short of job placement, to an undocumented alien. Without
preemption, there is no federal prohibition against Mr. Tarango's participation in a program
that does not violate IRCA.
It is true that, under the Supremacy Clause
2
of the United States Constitution, any
state law in conflict with federal law must yield to the federal mandate. However, the United
States Supreme Court has always exercised restraint and caution in determining whether a
particular state law conflicts with federal law.
3
Indeed, in Chicago & North Western
Transportation Co. v. Kalo Brick & Tile Co.,
4
the Court stated that [p]re-emption of state
law by federal statute or regulation is not favored in the absence of persuasive
reasonseither that the nature of the regulated subject matter permits no other conclusion or
that the Congress has unmistakenly so ordained.'
As discussed in De Canas v. Bica,
5
the United States Supreme Court employs a
three-part test to determine whether federal law must preempt state law.
__________

2
U.S. Const. art. VI, cl. 2.

3
See, e.g., Chicago & N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); De Canas v. Bica,
424 U.S. 351 (1976); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).

4
450 U.S. at 317 (quoting Florida Lime Growers, 373 U.S. at 142).

5
424 U.S. 351 (1976).
Court employs a three-part test to determine whether federal law must preempt state law.
First, federal law preempts state law when a state purports to regulate an area exclusively
reserved for the federal government.
6
Second, federal law preempts state law if Congress has
sought to occupy the field: that is, when Congress clearly intends to oust state authority to
regulate that type of conduct, even if the state regulation is consistent with federal objectives.
7
Third, federal law preempts state law if it stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.'
8
Failure on any one of these
three tests results in federal preemption.
There is no real dispute in this case that the NIIA rehabilitation scheme satisfies the
first two tests. Nevada clearly has the authority to protect its workers (lawfully and unlawfully
employed) under a no-fault workers' compensation system. This notwithstanding, all three
tests are discussed below.
Under the first De Canas test, we must determine whether the state enactment that in
some way impacts aliens is a regulation of immigration. Because the power to regulate
immigration is exclusively a federal power, state statutes that regulate immigration are
constitutionally proscribed.
9
In this instance, the NIIA provides benefits for all employees,
undocumented or otherwise.
10
However, the De Canas Court emphasized that a state
enactment does not automatically equate to a regulation of immigration, and ipso facto
preemption of state law, because it deals in some manner with aliens.
11
The Supreme Court
noted that state statutes should not be branded as regulatory merely because the legislation
has some purely speculative and indirect impact on immigration.
12
The NIIA rehabilitation
scheme is intended to provide certain benefits to all Nevada workers; it does not, in any
respect, purport to regulate immigration.
Likewise, under the second De Canas test, it cannot be said that there is any
manifestation of Congress's intent to oust state authority to rehabilitate undocumented injured
workers.
13
Prior to IRCA's enactment, it was long established that undocumented alien
workers were able to collect workers' compensation benefits.
__________

6
Id. at 354-56.

7
Id. at 356-63.

8
Id. at 363 (quoting Florida Lime Growers, 373 U.S. at 141; Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

9
Id. at 354-56.

10
NRS 616A.105.

11
De Canas, 424 U.S. at 355.

12
Id.

13
See Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998) (holding that IRCA does not diminish state's authority
to award workers' compensation benefits to undocumented alien workers).
IRCA's enactment, it was long established that undocumented alien workers were able to
collect workers' compensation benefits.
14
Had Congress intended to preclude states from
continuing to provide these benefits, it could have explicitly done so under IRCA.
In my view, only the third De Canas test, i.e., whether the state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
Congress, provides an arguable basis for federal preemption. However, I do not believe that
the rehabilitation of undocumented workers under the NIIA interferes with federal legislative
objectives.
Congress enacted IRCA in an effort to reduce the illegal immigration of alien workers
to the United States.
15
Recognizing that the most effective method of discouraging illegal
immigration is to make undocumented workers less attractive employees, Congress
criminalized the employer's side of the employment relationship. This policy is underscored
by the legislative history of the federal act:
Employment is the magnet that attracts aliens here illegally or, in the case of
nonimmigrants, leads them to accept employment in violation of their status.
Employers will be deterred by the penalties in this legislation from hiring unauthorized
aliens and this, in turn, will deter aliens from entering illegally or violating their status
in search of employment.
16

Thus, IRCA makes it unlawful to [knowingly] hire, or to recruit or refer for a fee, any
unauthorized alien for employment in the United States.
17
IRCA does not, however, reduce
the legal protections and remedies for undocumented workers under other laws.
18
Indeed, to
do so would exacerbate the appeal of illegal workers to unscrupulous employers," and
directly contravene Congress's intent in enacting IRCA.
__________

14
Michelle Mcaloon, Comment, Working But Not Available to Work: Reconciling the Rights of
Undocumented Laborers With the Immigration Reform and Control Act of 1986, 15 Chicano-Latino L. Rev. 92,
109 (1994); John W. Sagaser, Casenote, Rights Without a RemedyIllegal Aliens Under the National Labor
Relations Act: Sure-Tan, Inc. and Surak Leather Company v. NLRB, 27 B.C. L. Rev. 407, 445 (1986).

15
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 481 (1991); see also Elizabeth M. Dunne, Comment,
The Embarrassing Secret of Immigration Policy: Understanding Why Congress Should Enact an Enforcement
Statute for Undocumented Workers, 49 Emory L.J. 623, 626 (2000) (citing Pub. L. No. 99-603, 100 Stat. 3359;
Philip Shenon, Startling Surge is Reported in Illegal Aliens from Mexico, N.Y. Times, Feb. 21, 1986, at A1).

16
H.R. Rep. No. 99-682(I), at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650.

17
8 U.S.C. 1324a (1986).

18
Nat'l Labor Relations Bd. v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir. 1997).
workers to unscrupulous employers, and directly contravene Congress's intent in enacting
IRCA.
19
I wish to note in this connection that there is no evidence of any untoward behavior
by this employer. This, however, does not change the policy behind preserving certain
protections afforded to undocumented workers.
In contrast, beyond the placement of a worker in new or substitute employment, the
NIIA contains no requirement affecting alien workers that would constitute illegal
misconduct under IRCA. Rather, the NIIA primarily alters a worker's ability to sue his
employer in tort in exchange for no-fault employment benefits. Under NIIA, [t]he
employee forfeits his common-law right to sue his employer for negligence, while the
employer gives up most common-law defenses.
20
The purpose of this statutory construct is
to efficiently provide compensation to workers for injuries suffered as the result of their
employment.
21
Absent a workers' compensation scheme, an undocumented worker, like a
documented one, could sue his employer in a common law tort action. His immigration status
would be no bar to such a suit.
22
By simply replacing the employee's negligence cause of
action with the workers' compensation scheme, Nevada does not encourage illegal
immigration; instead, it merely provides a vehicle to compensate for workplace injuries.
Thus, the NIIA does not stand as an obstacle to the accomplishment and execution of the
purposes and objectives of IRCA.
23

The NIIA provides the following options to the workers' compensation insurer: (1)
return the employee to his original position; (2) return the employee to the original position in
a modified role; (3) return the employee to employment with another employer in order to
make use of his existing skills; (4) provide formal retraining while he works in another
profession; and (5) provide formal training or education for a new vocational endeavor.
24

I agree that substitute employment under the NIIA rehabilitation scheme would
violate IRCA. However, as the majority seemingly agrees, the SIIS need not violate IRCA
under the facts of this case. Because Mr. Tarango's prior job requires more vigorous work
than his permanent disability permits, he is eligible for vocational retraining under Nevada
law if he is otherwise not medically eligible for re-employment or substitute employment.
__________

19
Id.

20
Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 631, 729 P.2d 1355, 1356 (1986).

21
Id.

22
See Peterson v. Neme, 281 S.E.2d 869, 870-71 (Va. 1981) (recognizing that in a majority of jurisdictions,
unlawful aliens have standing to sue).

23
See Dowling, 712 A.2d 396 (holding that IRCA does not prevent a state from awarding workers'
compensation benefits to an undocumented alien, injured in the course of her employment).

24
NRS 616C.530.
vocational retraining under Nevada law if he is otherwise not medically eligible for
re-employment or substitute employment.
25
Vocational retraining does not entail job
placement or referral of an undocumented worker for a fee. Providing a pure rehabilitation
program to someone injured while in the service of a domestic employer does not per se
violate the act and, certainly, the Immigration and Naturalization Service can deport him at
any time.
26

Thus, I disagree that Mr. Tarango is absolutely barred from eligibility. If he is
medically ineligible for re-employment because of the nature of his work-related injuries, he
should be eligible to participate in a legal rehabilitation program if the department of
immigration would let him do so. Again, however, if found to be re-employable on a
substitute basis or otherwise, Mr. Tarango is precluded from participation in any
rehabilitation program legally unavailable to legal workers.
I would therefore hold that IRCA does not preempt the NIIA. If IRCA does not
preempt the NIIA in this instance, there is no federal impediment preventing the SIIS from
awarding rehabilitation benefits short of placement in the workforce. Hence, I would reverse
and remand this matter with instructions for the district court to order the SIIS to reconsider
Mr. Tarango's request for vocational retraining.
27

I also would not reach the issue of whether granting vocational retraining benefits to
Mr. Tarango violates some unknown, documented worker's equal protection rights because
that hypothetical worker is not a represented party before this court in this matter.
28

__________

25
Id.

26
Additionally, IRCA criminalizes the transport of an alien into the United States through non-designated
ports of entry, illegal transport of aliens within the United States, the knowing or reckless harboring of
undocumented aliens, and the knowing or reckless encouragement of undocumented aliens to enter or reside in
the United States. 8 U.S.C. 1324(a) (1994). Placing undocumented workers in a rehabilitation program does
not, in and of itself, implicate any of these prohibitions. The worker may still be deported at any timethe
program does nothing to prevent the Immigration and Naturalization Service from acquitting its responsibilities.

27
The majority suggests that Mr. Tarango is not incapacitated or permanently disabled. Although he was
cleared for light duty work at the administrative level, the record is unclear as to whether he is able to pursue any
of the employment options under NRS 616C.530. This is underscored by the fact that the employer in this case
has no position available that would accommodate Mr. Tarango's physical infirmities. This, of course, eliminates
the first two employment options under NRS 616C.530. Thus, I would remand this matter as suggested.

28
See, e.g., Hoffman Plastic Compounds, Inc. v. Nat'l Labor Relations Bd., 237 F.3d 639, 650 (D.C. Cir.
2001) (holding that the respondents do not have standing to assert the equal protection rights of third parties).
____________
117 Nev. 463, 463 (2001) Hernandez v. State
FERNANDO HERNANDEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36859
June 14, 2001 24 P.3d 767
Motion in a capital case for leave to file an opening brief of 124 pages. Eighth Judicial
District Court, Clark County; Sally L. Loehrer, Judge.
Defendant was convicted in the district court of murder and sentenced to death. On
direct appeal, defendant moved for leave to file a 124-page opening brief. The supreme court
held that: (1) motion would be denied, as proposed brief submitted by defense counsel was so
long that it did not meet counsel's duty to submit a cogent, effective brief; but (2) defendant
would be permitted to submit an 80-page brief, given circumstances of case.
Motion denied.
Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant's motion for leave to file a 124-page opening brief on direct appeal from his murder conviction and sentence of death
would be denied by supreme court, where proposed brief submitted by defense counsel, which enumerated 48 issues and subissues as
grounds for relief, was so long that it did not meet counsel's duty to submit a cogent, effective brief that would best serve interests of
defendant. However, defendant would be granted relief from rule which generally limits briefs to 30 pages, and would be permitted to
file an opening brief of not more than 80 pages, with State permitted to file an 80-page answering brief. NRAP 28(g).
2. Criminal Law.
It is not counsel's obligation to present every nonfrivolous claim on direct appeal, even on appeal from a capital sentence. SCR
250.
3. Criminal Law.
An appellate brief that raises every colorable issue runs the risk of burying good arguments, and appellate counsel need not, and
should not, raise every nonfrivolous claim, but rather, may select from among them in order to maximize the likelihood of success on
appeal.
4. Criminal Law.
Statement of the case in an appellate brief should indicate briefly the nature of the case, the course of proceedings, and its
disposition in the court below. This is not a procedural history, as the only pertinent course of proceedings is that which brings the
case before appellate court, and other procedural facts, if relevant, belong in the statement of facts.
5. Criminal Law.
Statement of facts contained in an appellate brief should present only facts which are material in light of the issues, and
unessential details and repetitive recitations should be eliminated.
6. Criminal Law.
Counsel must be selective in citing authorities in an appellate brief. A single governing statute may be all the support needed to
establish a point, and a string cite of cases is only occasionally warranted, as reliance on one or two cases is more often appropriate and
more effective, if they are shown to be apposite and controlling or at least persuasive.
7. Criminal Law.
While appellate counsel may sometimes consider it necessary to raise a claim in a criminal appeal, despite contrary controlling
decisions, in order to exhaust state remedies and preserve the claim for federal habeas review, this merely requires an appellant to
provide reviewing court with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.
Key is to make a federal constitutional claim explicit and clear, and exhaustion does not require an extended or elaborate argument.
A reasonable limit on the length of appellate briefs is also necessary for the functioning of an appellate court and is consistent
with due process. U.S. Const. amend. 14.
Due process requires a criminal appeals system to provide each defendant a fair opportunity to obtain an adjudication on the
merits of his appeal. U.S. Const. amend. 14.
OPINION
Per Curiam:
Appellant Fernando Hernandez has moved for leave to file a 124-page opening brief
1
in this direct appeal from a judgment of conviction and sentence of death. As explained
below, we deny the motion, but grant Hernandez permission to file an opening brief of not
more than 80 pages.
FACTS
In September 2000, appellant Fernando Hernandez was convicted of first-degree
murder and sentenced to death for killing his ex-wife in the presence of their young daughter.
Hernandez moves to file a 124-page opening brief. The proposed brief enumerates a total of
48 issues and subissues as grounds for relief.
Hernandez's counsel provides an affidavit which states in part:
Pursuant to the federal Anti-terrorism and Effective Death Penalty Act, and this Court's
Rule 250, I believe that it is my obligation to raise every issue of arguable merit in
this brief.
__________

1
For the purposes of this opinion, we do not count pages 125 and 126 of the brief, which set forth the
certificate of compliance with the Nevada Rules of Appellate Procedure and the certificate of service.
obligation to raise every issue of arguable merit in this brief. Moreover, because of the
possibility of federal habeas review in future proceedings, it was necessary to address
both state and federal law concerning each of these issues. It was not possible to
adequately raise the issues presented within the page [limit] prescribed by this Court's
rules.
DISCUSSION
[Headnote 1]
We conclude that the instant motion should be denied. The proposed brief is so long
that it does not meet counsel's duty to submit a cogent, effective brief which will best serve
the interests of her client.
[Headnotes 2, 3]
Without reference to any specific provisions, counsel cites the federal Antiterrorism
and Effective Death Penalty Act of 1996 and this court's SCR 250 for her belief that she is
obligated to raise every issue of arguable merit. Most assuredly, however, it is not counsel's
obligation to present every nonfrivolous claim. SCR 250 does not impose such a duty, nor,
we are confident, does the federal statute. On the contrary, the United States Supreme Court
warns that a brief that raises every colorable issue runs the risk of burying good arguments
2
and has explicitly held that appellate counsel need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.
3

The Supreme Court discussed this point at some length in Jones v. Barnes.
Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or
at most on a few key issues.
4
Legal contentions, like the currency, depreciate through
over-issue. . . . [M]ultiplying assignments of error will dilute and weaken a good case and
will not save a bad one.'
5
Attempting to deal with a great many [issues] in the limited
number of pages allowed for briefs will mean that none may receive adequate attention.'
6

The Ninth Circuit has further explained that the weeding out of weaker issues is
widely recognized as one of the hallmarks of effective appellate advocacy.
__________

2
Jones v. Barnes, 463 U.S. 745, 753 (1983).

3
Smith v. Robbins, 528 U.S. 259, 288 (2000) (emphasis added).

4
Jones, 463 U.S. at 751-52.

5
Id. at 752 (quoting Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119
(1951)).

6
Id. at 752 (quoting R. Stern, Appellate Practice in the United States 266 (1981)). See also Kirksey v. State,
112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996); Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989).
the weeding out of weaker issues is widely recognized as one of the hallmarks of
effective appellate advocacy. Like other mortals, appellate judges have a finite supply
of time and trust; every weak issue in an appellate brief or argument detracts from the
attention a judge can devote to the stronger issues, and reduces appellate counsel's
credibility before the court. For these reasons, a lawyer who throws in every arguable
pointjust in caseis likely to serve her client less effectively than one who
concentrates solely on the strong arguments.
7

We detect an unfortunate conflict between the interests of the client, which often call
for selectivity, and the interests of counsel, which may be best served by including
every conceivable issue and thereby avoiding a claim that she incompetently omitted an
argument. We must rely on the professionalism of appellate counsel to resolve such
conflicts in favor of the client.
8

Omitting weaker issues, of course, is not the only option available to appellate counsel
for shortening and improving briefs. We do not presume to instruct counsel here on the
specifics of revising the proposed brief, but we offer some advice generally to her and the
appellate bar of this state on the topic.
[Headnotes 47]
The statement of the case should indicate briefly the nature of the case, the course of
proceedings, and its disposition in the court below.
9
This is not a procedural history; the
only pertinent course of proceedings is that which brings the case before this court. Other
procedural facts, if relevant, belong in the statement of facts. The statement of facts, of
course, should present only facts which are material in light of the issues. Unessential details
and repetitive recitations should be eliminated. Counsel must also be selective in citing
authorities. A single governing statute may be all the support needed to establish a point. A
string cite of cases is only occasionally warranted; reliance on one or two cases is more often
appropriate and more effective, if they are shown to be apposite and controlling or at least
persuasive. We appreciate that appellate counsel sometimes consider it necessary to raise a
claim in a criminal appeal, despite contrary controlling decisions by this court, in order to
exhaust state remedies and preserve the claim for federal habeas review. However, this
merely requires an appellant to provide this court "with a 'fair opportunity' to apply
controlling legal principles to the facts bearing upon his constitutional claim.
__________

7
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (citations and footnote omitted).

8
Id. at 1434 n.11 (emphasis added).

9
NRAP 28(a)(3) (emphasis added).
appellant to provide this court with a fair opportunity' to apply controlling legal principles
to the facts bearing upon his constitutional claim.
10
The key is to make a federal
constitutional claim explicit and clear; exhaustion does not require an extended or elaborate
argument.
[Headnotes 8, 9]
To sum up, as long as no critical issue or fact is omitted, a shorter brief provides more
effective advocacy than a longer one. A reasonable limit on the length of appellate briefs is
also necessary for the functioning of this court and is consistent with due process. [P]age
limits, as well as other restrictions on litigants, are ordinary practices employed by courts to
assist in the efficient management of the cases before them.
11
Due process requires a
criminal appeals system to provide each defendant a fair opportunity to obtain an
adjudication on the merits of his appeal.
12
This court has held that the 10-page limit on
briefs in fast track criminal appeals subject to NRAP 3C satisfies this requirement as well as
the state constitutional right to appeal felony convictions.
13

The Fourth Circuit held that a 50-page limit on a brief filed by a capital defendant on
direct appeal did not constitute cause for procedural default.
14
The court explained that the
page limit merely limited the manner in which [appellant] could present his arguments; it
did not wholly prevent him from presenting them.
15
While the page limitation may have
led [appellant's] counsel to make certain strategic choices as to which arguments to include
and which to omit, the page limitation is reasonable.
16

NRAP 28(g) provides: Except by permission of the court, briefs shall not exceed 30
pages, exclusive of pages containing the table of contents, tables of citations and any
addendum containing statutes, rules, regulations, etc. As the rule indicates, we are aware of
the need for briefs longer than 30 pages in some cases, for example, this one, which is a direct
appeal from a conviction
__________

10
Anderson v. Harless, 459 U.S. 4, 6 (1982).

11
Cunningham v. Becker, 96 F. Supp. 2d 369, 374 (D. Del. 2000) (holding that 5-page limit on judicial
misconduct complaints comported with due process); accord Watts v. Thompson, 116 F.3d 220, 224 (7th Cir.
1997) (holding that state supreme court's refusal to waive 50-page limit on brief did not violate due process).

12
Evitts v. Lucey, 469 U.S. 387, 405 (1985).

13
See Wood v. State, 115 Nev. 344, 351-52, 990 P.2d 786, 790-91 (1999); NRAP 3C(e)(1) and (f)(1).

14
Weeks v. Angelone, 176 F.3d 249, 271-72 (4th Cir. 1999), aff'd, 528 U.S. 225 (2000).

15
Id. at 271.

16
Id. at 272; accord Mueller v. Angelone, 181 F.3d 557, 585 (4th Cir.), cert. denied, 527 U.S. 1065 (1999);
Cunningham, 96 F. Supp. 2d at 374.
of first-degree murder and a sentence of death. At the same time, as explained above, there
must remain reasonable limits. Based on our review of the proposed brief and given this
court's experience with other opening briefs of comparable length in a handful of cases
similar to this one, we are convinced that it is so excessively long that it would render a
disservice to Hernandez by obscuring potentially good claims.
CONCLUSION
Therefore, we deny appellant's motion and direct the clerk of the court to return
unfiled the opening brief submitted to this court on April 25, 2001. Given the seriousness and
complexity of this appeal, we grant Hernandez permission to file an opening brief of not more
than 80 pages. We conclude that this will provide him ample and fair opportunity to obtain an
adjudication on the merits of his appeal. We further direct that the State may file an
answering brief of not more than 80 pages. Hernandez shall have 30 days from the date of
this opinion to file and serve his opening brief. Upon the service of that brief, further briefing
shall proceed in accordance with SCR 250(6)(d).
____________
117 Nev. 468, 468 (2001) Clark v. Columbia/HCA Info. Servs.
KENNETH M. CLARK, Appellant, v. COLUMBIA/HCA INFORMATION SERVICES,
INC., a Nevada Corporation; NEVADA PSYCHIATRIC COMPANY, a Nevada
Corporation; IRA PAULY; PHILLIP RICH; LOUIS RICHNAK; JOHN CHAPPEL;
NEAL CURY; THOMAS BITTKER; and JERRY HOWLE, Respondents.
No. 29995
June 21, 2001 25 P.3d 215
Appeal from a district court order granting respondents' motions for summary
judgment and dismissal in an action alleging the wrongful revocation of a physician's staff
privileges. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Psychiatrist sued individual members of peer review board at hospital who revoked
his staff privileges, psychiatrists who testified at hearing, and health care organizations
supervising hospital, alleging wrongful revocation of his staff privileges. The district court
granted summary judgment for defendants. Psychiatrist appealed. The supreme court,
Shearing, J., held that: (1) court had jurisdiction, (2) defendants were not entitled to immunity
as matter of law under Health Care Quality Improvement Act {HCQIA), {3) psychiatrist's
contractual release of legal claims did
(HCQIA), (3) psychiatrist's contractual release of legal claims did not bar instant claim, and
(4) psychiatrist was not collaterally estopped from pursuing instant claim.
Mirch & Mirch, Reno, for Appellant.
Osborne Law Office, Reno, for Respondents Pauly, Rich, Richnak, Chappel, Bittker
and Howle.
Lionel Sawyer & Collins and Allen J. Wilt and Richard W. Horton, Reno, for
Respondents Nevada Psychiatric Company, Cury and Columbia/HCA Information Services,
Inc.
1. Hospitals.
Supreme court had jurisdiction over psychiatrist's appeal from trial court's grant of summary judgment to hospital and individual
members of peer review board in psychiatrist's action alleging wrongful revocation of his staff privileges. Action did not involve purely
administrative decisions, but rather, psychiatrist alleged both tortious conduct in peer review board's decision to terminate his staff
privileges, and that his staff privileges were terminated because he reported violations of medical standards, which, if true, would be
protected as matter of public policy as whistleblowing.
2. Hospitals.
There is no absolute prohibition of judicial review of hospital peer review decisions. Although courts may not have jurisdiction
to review purely administrative decisions of private hospitals, courts do have jurisdiction to hear cases alleging torts, breach of
contract, violation of hospital bylaws or other actions that contravene public policy.
3. Hospitals.
Courts will not stand idly by if hospital peer review board actions are arbitrary or capricious, contravene public policy, or are
contrary to state or federally mandated tort protections; nor will courts decline to review peer review board actions that violate
contracts or a hospital's own bylaws.
4. Hospitals.
Courts are reluctant to interfere in decisions grounded in hospital peer review boards' areas of expertise, but the tangential
involvement of the peer review process does not foreclose judicial intervention in the types of disputes normally dealt with in the
courts.
5. Hospitals.
A physician's report of a hospital's violations of medical standards is protected as a matter of public policy as whistleblowing.
6. Hospitals.
Hospital and individual members of peer review board were not entitled to immunity as matter of law under Health Care Quality
Improvement Act (HCQIA) in psychiatrist's action alleging wrongful revocation of his staff privileges, as psychiatrist overcame
presumption of immunity by demonstrating by preponderance of evidence that revocation was not with reasonable belief that it was in
furtherance of quality health care. While defendants did raise one instance of allegedly poor patient care, record showed that reason for
psychiatrist's dismissal was his apparently good faith reporting of perceived improper hospital conduct to
appropriate outside agencies in order to improve quality of health care at hospital.
apparently good faith reporting of perceived improper hospital conduct to appropriate outside agencies in order to improve quality of
health care at hospital. Health Care Quality Improvement Act of 1986, 412(a)(1), 42 U.S.C. 11112(a)(1).
7. Hospitals.
The standard for granting summary judgment is somewhat unusual in Health Care Quality Improvement Act (HCQIA) cases
because a rebuttable presumption favors a determination of immunity as a matter of law. NRCP 56(c); Health Care Quality
Improvement Act of 1986, 412(a)(1), 42 U.S.C. 11112(a)(1).
8. Hospitals.
The Health Care Quality Improvement Act (HCQIA) was enacted to provide for effective peer review and interstate monitoring
of incompetent physicians, and also to provide qualified immunity for peer review participants. Health Care Quality Improvement Act
of 1986, 402-432, 42 U.S.C. 11101-11152.
9. Hospitals.
The Health Care Quality Improvement Act (HCQIA) grants qualified immunity to peer review participants if the peer review
action meets due process requirements and the fairness standards set forth in HCQIA. Further, HCQIA establishes a rebuttable
presumption that a peer review action meets these fairness standards. U.S. Const. amend. 14; Health Care Quality Improvement Act of
1986, 412(a)(1), 42 U.S.C. 11112(a)(1).
10. Hospitals.
Peer review participants are immune from liability for their decisions as long as the peer review action was taken (1) in the
reasonable belief that the action was in furtherance of quality health care, (2) after a reasonable effort to ascertain the facts of the
matter, (3) after adequate notice and hearing procedures were afforded to the physician involved or after such other procedures as are
fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted based on the known facts.
Health Care Quality Improvement Act of 1986, 412(a)(1), 42 U.S.C. 11112(a)(1).
11. Master and Servant.
Courts protect whistleblowing to encourage individuals to report dangerous or suspect behavior that may infringe on the safe
and proper practice within that particular field.
12. Hospitals.
One instance of an objective basis for disciplining a physician does not per se permit a hospital and its peer review board to
claim immunity under the Health Care Quality Improvement Act (HCQIA), since courts review the peer review board's decision under
the totality of the circumstances. Health Care Quality Improvement Act of 1986, 412(a)(1), 42 U.S.C. 11112(a)(1).
13. Release.
Psychiatrist's contractual release of legal claims did not bar his claim against hospital and individual members of peer review
board, alleging that his staff privileges were wrongfully revoked as result of his good faith reporting of perceived improper hospital
conduct to appropriate outside agencies. Psychiatrist could not have anticipated when he signed release that his staff privileges would
be terminated three years later for whistleblowing, and, in any event, to preclude him from raising his claims on whistleblowing
activity would violate public policy.
14. Release.
Contractual release terms are only enforceable against claims contemplated at the time of the signing of the release and do not
apply to future causes of action unless expressly contracted for by the parties.
15. Contracts.
Courts will not enforce contracts that violate public policy.
16. Judgment.
Psychiatrist was not collaterally estopped from pursuing state court claim against hospital and individual members of peer
review board, alleging that his staff privileges were wrongfully revoked as result of his good faith reporting of perceived improper
hospital conduct to appropriate outside agencies, even though federal court had previously granted summary judgment to same
defendants on psychiatrist's federal antitrust claims on basis of immunity. Federal court dismissed psychiatrist's state law claims,
including wrongful termination claim, without prejudice, and thus, there was no final adjudication of state claims on merits.
17. Courts.
Federal law governs the collateral estoppel effect of a case decided by a federal court.
18. Judgment.
In order for collateral estoppel to apply: (1) the parties to the prior action must be identical to, or in privity with, the parties in
the current action; (2) the initial ruling must have been on the merits and final; and (3) the issues in the two actions must be identical.
19. Judgment.
A dismissal without prejudice is not a final adjudication on the merits, for purposes of collateral estoppel.
20. Pretrial Procedure.
District court's order granting motion to dismiss based on lack of service of complaint and summons would be affirmed, as
plaintiff failed to demonstrate good cause for lack of service. NRCP 4(i).
This case requires that we interpret the federal Health Care Quality Improvement Act
(HCQIA).
1
We must determine whether the immunity provisions of HCQIA apply so as to
bar appellant Kenneth M. Clark's underlying tort and contract claims against respondents.
2
We conclude that Clark has overcome the presumption of respondents' immunity by
demonstrating by a preponderance of the evidence that the revocation of his hospital staff
privileges was not with the reasonable belief that it was in furtherance of quality health
care.
__________

1
42 U.S.C. 11101-11115 (1995).

2
Respondents are individual members of the peer review board at the Truckee Meadows Hospital who
revoked his staff privileges, psychiatrists who testified at the hearing, and the health care organizations
supervising the hospital.
privileges was not with the reasonable belief that it was in furtherance of quality health care.
Thus, respondents are not immune from liability as a matter of law. Accordingly, we reverse
the order of the district court and remand for further proceedings consistent with this opinion.
FACTS
Kenneth M. Clark is a Reno psychiatrist who specializes in child psychiatry. From
1981 to 1993, Clark had intermittent staff privileges at the Truckee Meadows Hospital, now
known as West Hills Hospital.
In September 1992, the Truckee Meadows Hospital alleged that Clark was engaging
in activities or professional conduct which are disruptive to Hospital operations in violation
of Section 8.1-1 of the hospital's Medical Staff Bylaws.
3
The hospital informed Clark that it
would hold a peer review board hearing concerning his conduct. The Statement of Charges
specified the conduct in question as: (1) a May 17, 1991, letter to CHAMPUS (a federal
insurance provider) regarding Clark's concerns about the hospital's closed staff policy and
other derogatory matters; (2) a June 3, 1991, letter to Neal Cury explaining the letter to
CHAMPUS and expressing concerns of substandard child psychiatric care; (3) September 18,
1991, and November 10, 1991, letters to the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) addressing concerns with the hospital's care; (4) Clark's
alleged inquiry regarding another psychiatrist's patient's care; (5) Clark's failure to abide by
his agreement of May 7, 1992, to work internally to rectify his grievances and inform the
hospital of his external actions; (6) Clark's alleged statements that he would never relinquish
pursuing his vendetta against the hospital; (7) an August 1992 report to the Nevada State
Board of Medical Examiners containing false allegations about another psychiatrist regarding
the care of Clark's patient in violation of his May 7, 1992, agreement; and (8) allegedly doing
rounds when he had no patients.
The reports Clark made dealt primarily with his concerns that the hospital did not
follow appropriate procedures in posting random on-call schedules, provided deficient child
psychiatric care, and had policies requiring premature patient discharge when patients ran out
of insurance to cover their care. Clark also alleged that the hospital diverted patients from
him to other psychiatrists.
__________

3
Section 8.1-1 provides:
Whenever the activities or professional conduct of any practitioner with clinical privileges are
detrimental to patient safety or to the delivery of quality patient care that is optimally achievable, or are
disruptive to Hospital operations, corrective action against such practitioner may be initiated by the
MEC, the CEO or the Trustees.
that the hospital diverted patients from him to other psychiatrists. He further alleged that the
hospital improperly used his superior credentials to qualify an affiliate hospital for
accreditation although he did not work there.
At the peer review board hearing, evidence was presented detailing Clark's letters and
reports to outside agencies in 1991. Respondents discussed their concerns that Clark's
reporting was having an adverse impact on hospital operations by taking excessive amounts
of staff time and was encouraging a distrustful atmosphere.
The hospital also mentioned its concerns with one instance involving patient KK,
who had been admitted for a drug overdose and suicidal tendencies. Clark did not keep KK
for observation. Instead, he discharged KK on the day of admission, which the hospital felt
was inappropriate. The hospital further stated that Clark's subsequent report to the Nevada
Board of Medical Examiners concerning the hospital's response to his treatment of KK
violated his agreement to work within internal processes. The hospital also mentioned
allegations that Clark had inquired about another psychiatrist's patient in violation of
confidentiality. Clark presented testimony rebutting these charges and explaining his actions
in discharging KK.
4
No other evidence was presented of deficient psychiatric care or
complaints with Clark's psychiatric practice.
After hearing evidence, the peer review board concluded that Clark's actions in
reporting to outside agencies and failing to proceed with internal processes by his report to
the Nevada Board of Medical Examiners constituted disruptive conduct in violation of
Medical Staff Bylaws section 8.1-1. The board concluded that Clark's disruptive conduct
would likely continue in the future and eventually have an adverse impact on the quality of
health care at the hospital. Hence, the board unanimously recommended revoking Clark's
staff membership and clinical privileges at the Truckee Meadows Hospital. Both the Medical
Executive Committee and the Board of Trustees agreed, and they affirmed the revocation of
Clark's privileges.
Clark filed an action in the United States District Court of Nevada, alleging violations
of various federal antitrust provisions and state tort and contract causes of action.
Respondents filed a motion for summary judgement. The federal district court granted
respondents' motion on the federal antitrust claims, stating that Clark had produced no
evidence to support these claims. The court further concluded that even if Clark had
presented evidence of an antitrust conspiracy and antitrust injury sufficient to survive
summary judgment, the defendants here are expressly insulated from liability by the
Health Care Quality Improvement Act, 42 U.S.C. 11111, 11112.
__________

4
Clark stated that both KK and KK's father refused to voluntarily admit the patient, and he discharged KK
pursuant to their wishes after informing them of the risks.
even if Clark had presented evidence of an antitrust conspiracy and antitrust injury
sufficient to survive summary judgment, the defendants here are expressly insulated
from liability by the Health Care Quality Improvement Act, 42 U.S.C. 11111,
11112. The defendants have submitted voluminous evidence supporting their
contention that the peer review process in this case complied with the statutory
requirements; Clark has not rebutted that presumption.
The federal court declined to maintain supplemental jurisdiction over the pendent state law
claims and dismissed them without prejudice.
Clark then filed a complaint in Washoe County District Court in August 1995. In that
complaint, he alleged that respondents conspired to commit illegal conduct, divert patients
away from him, and improperly terminate his staff privileges. He argued that these actions
constituted tortious interference with his psychiatry practice and breached the implied
covenant of good faith and fair dealing in the Medical Staff Bylaws and Regulations.
Respondents filed a motion for summary judgment, claiming immunity from liability under
HCQIA. The district court granted the motions for summary judgment on the basis of HCQIA
immunity.
5

This court, by a three-judge panel, issued an Order of Reversal and Remand on
December 22, 2000. Respondents filed a petition for rehearing on January 15, 2001, objecting
to this court's conclusions as to the applicability of HCQIA immunity in this case, and the
scope of judicial review of peer review board decisions. This court granted the petition for
rehearing, and transferred this case for en banc consideration. We now vacate the prior panel
order and issue this opinion in place of that order.
DISCUSSION
Jurisdiction
[Headnote 1]
As a preliminary matter, respondents contend that this court lacks jurisdiction to hear
this case, citing specifically to this court's 1985 decision in Lakeside Community Hospital v.
Levenson
6
for that proposition. In Lakeside, a private hospital appealed from a district court's
preliminary injunction that required the hospital to grant a physician staff privileges after the
hospital Board of Trustees had voted to deny those privileges.
7
In that context, this court
held that the district court had no jurisdiction to review the hospital Board's decision.
__________

5
Respondents Columbia/HCA Information Services, Inc., and Ira Pauly filed motions to dismiss instead of
motions for summary judgment, based on HCQIA immunity and improper service of the summons and the
complaint, respectively. Both motions were granted.

6
101 Nev. 777, 710 P.2d 727 (1985).

7
Id. at 778, 710 P.2d at 728.
that context, this court held that the district court had no jurisdiction to review the hospital
Board's decision.
8
This court stated: [t]he weight of judicial authority in this country denies
judicial review of decisions of governing boards of private hospitals to appoint or remove
members of their medical staffs.
9

[Headnote 2]
The language of Lakeside, which suggests an absolute prohibition of judicial review
of hospital peer review decisions, is overly broad. Although courts may not have jurisdiction
to review purely administrative decisions of private hospitals, the courts of this state do have
jurisdiction to hear cases alleging torts, breach of contract, violation of hospital bylaws or
other actions that contravene public policy.
[Headnotes 3, 4]
Most courts now undertake judicial review of hospital peer review board decisions in
various contexts, such as claims alleging race or gender discrimination, penalizing a
physician for whistleblowing, or other tortious conduct.
10
Courts will not stand idly by if
peer review board actions are arbitrary or capricious, contravene public policy, or are contrary
to state or federally mandated tort protections; nor will courts decline to review peer review
board actions that violate contracts or a hospital's own bylaws.
11
Courts are reluctant to
interfere in decisions grounded in the review boards' areas of expertise, but the tangential
involvement of the peer review process does not foreclose judicial intervention in the types of
disputes normally dealt with in the courts.
__________

8
Id.

9
Id.

10
See, e.g., Samuel v. Herrick Memorial Hosp., 201 F.3d 830 (6th Cir. 2000); Menkowitz v. Pottstown
Memorial Medical Center, 154 F.3d 113 (3d Cir. 1998); Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d
422 (6th Cir. 1995); Islami v. Covenant Medical Center, Inc., 822 F. Supp. 1361 (N.D. Iowa 1992); Owens v.
New Britain General Hosp., 643 A.2d 233 (Conn. 1994); Long v. Chelsea Comm. Hosp., 557 N.W.2d 157
(Mich. Ct. App. 1996); Babcock v. Saint Francis Medical Center, 543 N.W.2d 749 (Neb. Ct. App. 1996);
Ponca City Hospital, Inc. v. Murphree, 545 P.2d 738 (Okla. 1976); Cooper v. Delaware Valley Medical Center,
654 A.2d 547 (Pa. 1995); Brinton v. IHC Hospitals, Inc., 973 P.2d 956 (Utah 1998); see Craig W. Dallon,
Understanding Judicial Review of Hospitals' Physician Credentialing and Peer Review Decisions, 73 Temp. L.
Rev. 597 (2000); see also Kathleen M. Dorr, Exclusion of, or Discrimination Against, Physician or Surgeon by
Hospital, 28 A.L.R.5th 107 (1995 & Supp. 2000).

11
See, e.g., Samuel, 201 F.3d 830; Menkowitz, 154 F.3d 113; Muzquiz, 70 F.3d 422; Islami, 822 F. Supp.
1361; Owens, 643 A.2d 233; Long, 557 N.W.2d 157; Babcock, 543 N.W.2d 749; Ponca City Hospital, Inc., 545
P.2d 738; Cooper, 654 A.2d 547; Brinton, 973 P.2d 956. See Dallon, supra note 10; see also Dorr, supra note
10.
[Headnote 5]
In his complaint, Clark has alleged tortious conduct by respondents in the peer review
board's decision to terminate his staff privileges. He has also alleged that respondents
terminated his staff privileges because he reported violations of medical standardsconduct
we protect as a matter of public policy as whistleblowing.
12
Because Clark has alleged
conduct that is actionable under our state laws, this court has jurisdiction to hear this case.
13

Immunity
[Headnotes 6, 7]
We now turn to the question of whether the district court erred by granting summary
judgment for respondents on the basis of HCQIA immunity.
14
Summary judgment is
appropriate only if there are no material issues of fact and the moving party is entitled to
judgment as a matter of law.
15
The standard for granting summary judgment is somewhat
unusual in HCQIA cases because a rebuttable presumption favors a determination of
immunity as a matter of law.
16

[Headnotes 8, 9]
HCQIA was enacted to provide for effective peer review and interstate monitoring of
incompetent physicians, and also to provide qualified immunity for peer review participants.
17
To further the second goal, HCQIA grants qualified immunity to peer review participants
if the peer review action meets due process requirements and the fairness standards set forth
in 42 U.S.C. 11112(a), and establishes a rebuttable presumption that a peer review action
meets these fairness standards.
18

[Headnote 10]
Under 11112(a), respondents are immune as long as the peer review action was
taken {1) in the reasonable belief that the action was in furtherance of quality health
care, {2) after a reasonable effort to ascertain the facts of the matter, {3) after adequate
notice and hearing procedures were afforded to the physician involved or after such other
procedures as are fair to the physician under the circumstances, and {4) in the reasonable
belief that the action was warranted based on the known facts.
__________

12
See Wiltsie v. Baby Grand Corp., 105 Nev. 291, 293, 774 P.2d 432, 433 (1989); see also Allum v. Valley
Bank of Nevada, 114 Nev. 1313, 1321-22, 970 P.2d 1062, 1066-67 (1998).

13
See Meyer v. Sunrise Hosp., 117 Nev. 313, 22 P.3d 1142 (2001).

14
Even though Columbia/HCA Information Services filed a motion to dismiss, instead of a motion for
summary judgment, based on HCQIA immunity, we resolve its liability in the context of the motion for summary
judgment with the other respondents.

15
NRCP 56(c); Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).

16
See Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992); see also Bryan v. James E. Holmes Reg'l
Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994).

17
Austin, 979 F.2d at 733.

18
Id. at 734.
review action was taken (1) in the reasonable belief that the action was in furtherance of
quality health care, (2) after a reasonable effort to ascertain the facts of the matter, (3) after
adequate notice and hearing procedures were afforded to the physician involved or after such
other procedures as are fair to the physician under the circumstances, and (4) in the
reasonable belief that the action was warranted based on the known facts.
As a result of 11112(a)'s rebuttable presumption, respondents were entitled to
summary judgment unless a reasonable trier of fact, viewing the facts in the light most
favorable to Clark, could conclude that Clark has shown by a preponderance of the evidence
that respondents' actions fail to satisfy at least one of the provisions of 11112(a).
19

Clark contends respondents are not immune because the revocation of his staff
privileges was not made with the reasonable belief that it was in furtherance of quality health
care. In light of the evidence before us, we agree and therefore conclude that respondents are
not immune from liability as a matter of law.
20

The legislative history of HCQIA focuses on the impact of a physician's acts on
patient care and suggests that this test for immunity is satisfied if the reviewers, with the
information available to them at the time of the professional review action, would reasonably
have concluded that their actions would restrict incompetent behavior or would protect
patients.
21
In this vein, courts have interpreted HCQIA in order to further the stated goals of
improv[ing] the quality of medical care by encouraging physicians to identify and
discipline other physicians who are incompetent or who engage in unprofessional behavior.'
22
HCQIA itself provides that [t]he increasing occurrence of medical malpractice and the
need to improve the quality of medical care have become nationwide problems that warrant
greater efforts than those that can be undertaken by any individual State.'
23

The presumption of immunity has been interpreted by the federal courts almost
exclusively in favor of finding immunity for peer review board members.
24
In fact, in only
two cases have federal courts reversed an order of summary judgment based on immunity
because the physician demonstrated by a preponderance of the evidence that the board
failed to give appropriate fair notice and procedures in accordance with
11112{a){3)Islami v. Covenant Medical Center, Inc.
__________

19
See id. at 734; see also Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994).

20
For further discussion of the interpretation of the other provisions of HCQIA, see this court's recent
opinion in Meyer v. Sunrise Hospital, 117 Nev. 313, 22 P.3d 1142 (2001).

21
Austin, 979 F.2d at 734 (emphasis omitted) (quoting H.R. Rep. No. 99-903, at 10 (1986), reprinted in
1986 U.S.C.C.A.N. 6287, 6392-93).

22
Bryan, 33 F.3d at 1321 (quoting H.R. Rep. No. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. 6287, 6384).

23
Id. (quoting 42 U.S.C. 11101(1)).

24
See, e.g., Pamintuan v. Nanticoke Memorial Hosp., 192 F.3d 378 (3d Cir. 1999); Sugarbaker v. SSM
Health Care, 190 F.3d 905 (8th Cir. 1999);
eral courts reversed an order of summary judgment based on immunity because the physician
demonstrated by a preponderance of the evidence that the board failed to give appropriate fair
notice and procedures in accordance with 11112(a)(3)Islami v. Covenant Medical Center,
Inc.
25
and LeMasters v. Christ Hospital.
26
In addition, in Brown v. Presbyterian Healthcare
Services, the Tenth Circuit upheld a district court's finding that the peer review board lacked
immunity because the board only investigated two patient charts before deciding to revoke
the physician's privileges, which was not a reasonable effort to obtain facts under
11112(a)(4).
27
Moreover, in Brown the board reported false findings to the National
Practitioner Data Bank pursuant to 11137(c).
28

In most of the HCQIA cases interpreting 11112(a)(1), requiring that the action be
based on a reasonable belief that it was in furtherance of quality health care, the plaintiffs
claim the peer review board was not entitled to immunity because its action was based on
personal bias, discrimination, improper motive, or other subjective bases.
29
In these cases,
the only evidence presented was of subjective biases or motives, which did not overcome the
presumption of immunity. None of these cases presented evidence showing that the board's
decision was objectively unreasonable.
In contrast to the myriad other cases, we conclude that Clark has shown by a
preponderance of the evidence that the revocation of his privileges was not based on a
reasonable belief that it was in furtherance of quality health care. A close look at the facts of
Clark's case indicates that Clark's dismissal is unique; the findings of the hospital reflect that
the reason for his dismissal was his apparently good faith reporting of perceived improper
hospital conduct to the appropriate outside agencies, or whistleblowing.
__________
Brader v. Allegheny General Hosp., 167 F.3d 832 (3d Cir. 1999); Wayne v. Genesis Medical Center, 140 F.3d
1145 (8th Cir. 1998); Mathews v. Lancaster General Hosp., 87 F.3d 624 (3d Cir. 1996); Imperial, 37 F.3d
1026; Bryan, 33 F.3d 1318; Austin, 979 F.2d 728; Meyers v. Logan Memorial Hosp., 82 F. Supp. 2d 707 (W.D.
Ky. 2000); Rogers v. Columbia/HCA of Central Louisiana, Inc., 971 F. Supp. 229 (W.D. La. 1997); Egan v.
Athol Memorial Hosp., 971 F. Supp. 37 (D. Mass. 1997); Benjamin v. Aroostook Medical Center, 937 F. Supp.
957 (D. Me. 1996). See also Scott M. Smith, Construction and Application of Health Care Quality Improvement
Act of 1986 (42 USCS 11101-11152), 121 A.L.R. Fed. 255, 271-78, at 6(a)-(c) (1994 & Supp. 2000).

25
822 F. Supp. 1361 (N.D. Iowa 1992).

26
791 F. Supp. 188 (S.D. Ohio 1991).

27
101 F.3d 1324, 1333-34 (10th Cir. 1996).

28
Id. at 1334.

29
See, e.g., Sugarbaker, 190 F.3d at 913-14; Brader, 167 F.3d at 840-41; Mathews, 87 F.3d at 634-36;
Imperial, 37 F.3d at 1029-30; Bryan, 33 F.3d at 1334-35; Austin, 979 F.2d at 734; Meyers, 82 F. Supp. 2d at
714; Rogers, 971 F. Supp. at 234-35; Egan, 971 F. Supp. at 42-43; Benjamin, 937 F. Supp. at 974.
his apparently good faith reporting of perceived improper hospital conduct to the appropriate
outside agencies, or whistleblowing. The reports were apparently made to improve the quality
of health care at the hospital. Revoking Clark's privileges based on this whistleblowing
activity does not objectively further quality health care under 11112(a)(1); thus, respondents
are not entitled to immunity as a matter of law for their decision to revoke Clark's staff
privileges.
The conduct for which Clark was penalized was exclusively based on his reports and
letters to outside doctors and regulatory agencies, complaining about the care and procedures
the hospital employed in its child psychiatric practice, scheduling of doctors, and in-patient
insurance policies. The hospital's findings mentioned only Clark's letter writing in support of
its conclusion that Clark's conduct was disruptive and warranted revocation of his privileges.
Although evidence was presented regarding concerns for Clark's care of KK, the only
findings the board made in support of its decision related to Clark's external reporting.
[Headnote 11]
Under Nevada law, Clark's conduct mirrors our definition of protected
whistleblowing conduct.
30
We protect whistleblowing to encourage individuals to report
dangerous or suspect behavior that may infringe on the safe and proper practice within that
particular field.
31
The thwarting of Clark's good faith reporting of potentially illegal and/or
unsafe psychiatric practices cannot be reasonably construed as restricting incompetent
behavior or protecting patients. Good faith reporting of possible regulatory violations is done
in order to improve or further quality health care. To punish a physician for reporting
potentially dangerous practices to appropriate authorities to improve the quality of patient
care cannot logically be construed to be an action that one could reasonably believe is in
furtherance of quality health care under 11112(a)(1).
Respondents contend, however, that they did raise one instance of poor patient care in
which Clark allegedly prematurely discharged a suicidal patient without sufficient monitoring
or care. This, they contend, is a sufficiently objective reason to support the revocation and
maintain their immunity.
[Headnote 12]
One instance of an objective basis for discipline does not per se permit a hospital to
claim immunity under 11112(a)(1) since we review a peer review board's decision under
the totality of the circumstances.32 Our review of the record indicates that the primary
concern of respondents in their deliberations was his whistleblowing activity.
__________

30
See Wiltsie, 105 Nev. 291, 774 P.2d 432; see also Allum, 114 Nev. at 1321-22, 970 P.2d at 1066-67.

31
See Wiltsie, 105 Nev. at 293, 774 P.2d at 433; see also Allum, 114 Nev. at 1321-22, 970 P.2d at 1066-67.
we review a peer review board's decision under the totality of the circumstances.
32
Our
review of the record indicates that the primary concern of respondents in their deliberations
was his whistleblowing activity. The bulk of the testimony and discussion revolved around
Clark's external reporting, and the board even explicitly stated in its findings that its
predominate concern was the impact Clark's external reporting would have on quality health
care. The allegations involving KK were not only subsidiary, but were not even mentioned in
the board's decision. Moreover, it appears that the board's decision was influenced by the
history of numerous reports made by Clark, and its displeasure with his decision to go outside
of the hospital's internal processes.
In light of these facts, we conclude that Clark has overcome the presumption of
immunity by a preponderance of the evidence; hence, the board is not entitled to immunity as
a matter of law. Accordingly, we reverse the order granting summary judgment and remand
the case to the district court for further proceedings consistent with this opinion. Because we
conclude that Clark has overcome the presumption with respect to 11112(a)(1), we need not
reach his arguments on whether the action complied with the other provisions of 11112(a).
Contract
Respondents also raise two counterarguments that Clark's claims should not move
forward: (1) he signed a contractual release of legal claims; and (2) collateral estoppel bars
his claims in light of the prior federal case. We conclude that neither of these arguments has
merit.
[Headnotes 1315]
The contractual release Clark signed cannot be held enforceable against his claims for
improper revocation of privileges because the claims are based on whistleblowing activity
that was not known at the time he signed the release. Contractual release terms are only
enforceable against claims contemplated at the time of the signing of the release and do not
apply to future causes of action unless expressly contracted for by the parties.
33
Moreover,
this court will not enforce contracts that violate public policy.
34

Clark signed the release in 1988 and his claims arose in 1991; thus, Clark could not
have anticipated when he signed the release that he would have his staff privileges terminated
for whistleblowing that did not occur until 1991. We also conclude that to preclude Clark
from raising his claims on whistleblowing activity would violate public policy.
__________

32
Pamintuan, 192 F.3d at 389; see also Brown, 101 F.3d at 1334 n.9.

33
Chubb v. Amax Coal Co., Inc., 466 N.E.2d 369, 372 (Ill. App. Ct. 1984).

34
See Nelson v. CSAA, 114 Nev. 345, 347-48, 956 P.2d 803, 805 (1998).
preclude Clark from raising his claims on whistleblowing activity would violate public
policy. Hence, the release does not bar his claims.
Collateral estoppel
[Headnotes 1619]
Respondents' collateral estoppel argument also lacks merit. Federal law governs the
collateral estoppel effect of a case decided by a federal court.
35
In order for collateral
estoppel to apply: (1) the parties to the prior action must be identical to, or in privity with, the
parties in the current action; (2) the initial ruling must have been on the merits and final; and
(3) the issues in the two actions must be identical.
36
However, a dismissal without prejudice
is not a final adjudication on the merits.
37

Even though the parties in the federal case are the same as those in the state case, no
final adjudication on the merits occurred, and thus the federal case did not have a preclusive
effect. The federal district court granted respondents' motion for summary judgment only on
the federal antitrust claims on the basis of immunity. That court then dismissed the state law
claims without prejudice, determining that it would not exercise its discretion to maintain
pendent jurisdiction over those claims. Because a dismissal without prejudice is not a final
adjudication, the federal court's decision to dismiss the federal complaint does not preclude
Clark from pursuing his state claims.
38
Thus, we need not address whether the issues were
the same in both causes of action under the third prong.
[Headnote 20]
We also note that respondent Ira Pauly filed a motion to dismiss based on the lack of
service of the complaint and summons pursuant to NRCP 4(i). Because Clark fails to
demonstrate good cause for the lack of service, we affirm the district court's order granting Ira
Pauly's motion to dismiss.
39

__________

35
Fireman's Fund Ins. Co. v. Intern. Market Place, 773 F.2d 1068, 1069 (9th Cir. 1985).

36
Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992).

37
See Pedrina v. Chun, 906 F. Supp. 1377, 1410 (D. Haw. 1995); see also Trustees, Hotel Employers v.
Royco, Inc., 101 Nev. 96, 98, 692 P.2d 1308, 1309 (1985).

38
Moreover, it appears from the federal district court's order that that court reached primarily the sufficiency
of evidence to sustain the antitrust claims. The issue of HCQIA immunity was mentioned merely in passing.
Because the facts and causes of action underlying the state claims are different, we note that this mere mention
of HCQIA does not necessarily mean that the issue was fully litigated and similar enough to preclude Clark's
state claims.

39
See Scrimer v. Dist. Ct., 116 Nev. 507, 998 P.2d 1190 (2000).
CONCLUSION
Accordingly, we conclude that the district court erred in granting summary judgment
for respondents on the basis of HCQIA immunity, given that the hospital decision was made
on factors that do not reasonably further quality health care. Hence, we conclude that
respondents are not immune as a matter of law, and we reverse the judgment of the district
court and remand for further proceedings consistent with this opinion.
40

Maupin, C. J., Rose, Leavitt and Becker, JJ., concur.
____________
117 Nev. 482, 482 (2001) Harris v. Rio Hotel & Casino
BILLY R. HARRIS, Appellant, v. RIO HOTEL & CASINO, INC., a Nevada Corporation,
Respondent.
No. 32816
June 21, 2001 25 P.3d 206
Appeal from an order granting summary judgment and dismissing appellant's personal
injury action against respondent, based on workers' compensation immunity. Eighth Judicial
District Court, Clark County; Nancy A. Becker, Judge.
General contractor's injured employee brought negligence action against landowner.
The district court entered summary judgment for landowner, and employee appealed. The
supreme court, en banc, Maupin, C. J., held that landowner, by hiring a licensed general
contractor to construct improvements to real property, effectively provided and secured
compensation for contractor's injured employee and all the other construction employees and
could fairly be deemed a statutory employer entitled to statutory workers' compensation
immunity under Nevada Industrial Insurance Act (NIIA); overruling, Antonini v. Hanna
Industries, 94 Nev. 12, 573 P.2d 1184 (1978); Corrao Construction Co. v. Curtis, 94 Nev.
569, 584 P.2d 1303 (1978); Alsup v. E. T. Legg & Co., 94 Nev. 297, 579 P.2d 769 (1978);
Hosvepian v. Hilton Hotels Corp., 94 Nev. 768, 587 P.2d 1313 (1978); Whitley v. Jake's
Crane & Rigging, Inc., 95 Nev. 819, 603 P.2d 689 (1979); Ortolano v. Las Vegas Convention
Service, 96 Nev. 308, 608 P.2d 1103 (1980); Leslie v. J. A. Tiberti Construction, 99 Nev.
494, 664 P.2d 963 (1983); Karadanis v. Sourwine, 105 Nev. 793, 783 P.2d 454 (1989).
Affirmed.
__________

40
The Honorable Cliff Young, Justice, and The Honorable Deborah A. Agosti, Justice, voluntarily recused
themselves from participation in the decision of this matter.
McKnight & Hendrix, Las Vegas, for Appellant.
Smith & Kotchka, Las Vegas, for Respondent.
Landowner, by hiring a licensed principal contractor to construct improvements to real property, effectively provided and
secured compensation for contractor's injured employee and all the other construction employees and could fairly be deemed a
statutory employer entitled to statutory workers' compensation immunity under Nevada Industrial Insurance Act (NIIA) for purposes of
negligence action brought against landowner by principal contractor's injured employee. In other words, landowner stood in the shoes
of its licensed principal contractor for purposes of NIIA immunity. NRS 616B.612.
If the defendant in a construction case is a property owner that has contracted with a licensed general contractor for property
improvements, and the contract requires compliance with Nevada Industrial Insurance Act (NIIA), the property owner is immune from
suit as a matter of law for industrial injuries sustained during performance of the construction contract pursuant to workers'
compensation law; overruling, Antonini v. Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (1978); Corrao Construction Co. v. Curtis,
94 Nev. 569, 584 P.2d 1303 (1978); Alsup v. E. T. Legg & Co., 94 Nev. 297, 579 P.2d 769 (1978); Hosvepian v. Hilton Hotels Corp.,
94 Nev. 768, 587 P.2d 1313 (1978); Whitley v. Jake's Crane & Rigging, Inc., 95 Nev. 819, 603 P.2d 689 (1979); Ortolano v. Las
Vegas Convention Service, 96 Nev. 308, 608 P.2d 1103 (1980); Leslie v. J. A. Tiberti Construction, 99 Nev. 494, 664 P.2d 963
(1983); Karadanis v. Sourwine, 105 Nev. 793, 783 P.2d 454 (1989). NRS 616A.020(1).
OPINION
The Nevada Industrial Insurance Act (NIIA or the Act) provides exclusive
remedies for Nevada workers injured by accidents arising out of and in the course of
employment.
1
The Act generally immunizes employers, who must procure workers'
compensation coverage for their employees, from common law liability for workplace
injuries.
2
Principal contractors are deemed to be employers of their subcontractors,
independent contractors and employees of either.
__________

1
See NRS 616A.020(1), which states in part:
The rights and remedies provided [by the NIIA] for an employee on account of an injury by accident
sustained arising out of and in the course of the employment shall be exclusive, except as otherwise
provided [in the NIIA], of all other rights and remedies of the employee, his personal or legal
representatives, dependents or next of kin, at common law or otherwise, on account of such injury.

2
See NRS 616C.215(2)(a), which provides in part:
employers of their subcontractors, independent contractors and employees of either.
3
The
statutory definition of a principal contractor as a person who coordinates all work on a
project, contracts to complete a project, contracts for the services of subcontractors and
independent contractors, or is responsible for paying subcontractors and independent
contractors,
4
encompasses the commonly used term general contractor.
We are asked in this appeal to decide whether a landowner that constructs
improvements to real property through a licensed general contractor enjoys the same
immunity under the NIIA as the contractor. Cognizant of the considerable confusion that has
developed over the years in our jurisprudence on the subject, we conclude that the property
owner stands in the shoes of the general contractor and is immune from liability.
Appellant, Billy R. Harris, was severely injured during construction of an addition to
the Rio Hotel and Casino (the Rio) in Las Vegas, Nevada. Harris claimed and recovered
Nevada workers' compensation benefits from his direct employer, Marnell Corrao
Construction Company, the project's licensed general contractor. He then filed a common law
action against the Rio on the theory that the Rio's scheduling demands created an atmosphere
of recklessness on the job site.
The Rio moved to dismiss the action, claiming immunity under the NIIA. The district
court treated the motion as one for summary judgment under NRCP 56. It concluded, as a
matter of law, that landowners as well as general contractors are immunized under the NIIA
from common law actions brought by employees of the general contractor and
sub-contractors, when the injuries sustained arise in the course of performance of a general
construction contract. The district court based its ruling upon our 1976 decision in Frith v.
Harrah South Shore Corp.
5
Accordingly, the district court granted summary judgment in
favor of the Rio. Harris appeals.
DISCUSSION
Issues concerning NIIA immunity of owners to persons involved in the construction of
improvements to real property have
__________
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:
(a) The injured employee, or in case of death his dependents, may take proceedings against that
person to recover damages . . . .

3
See NRS 616A.210; NRS 616B.603.

4
NRS 616A.285.

5
92 Nev. 447, 552 P.2d 337 (1976).
surfaced from time to time in our jurisprudence since 1957. Our cases, as well as legislative
amendments to the NIIA, have generated much confusion as to the precise nature of the
immunity enjoyed by landowners in construction as well as non-construction settings. Cases
that illustrate the long-standing debate over this issue include Oliver v. Barrick Goldstrike
Mines,
6
Sims v. General Telephone & Electric,
7
Karadanis v. Sourwine,
8
Meers v.
Haughton Elevator,
9
Leslie v. J. A. Tiberti Construction,
10
Antonini v. Hanna Industries,
11
Frith,
12
Weaver v. Shell Oil Co.,
13
Titanium Metals v. District Court,
14
Simon Service v.
Mitchell,
15
and most recently, Tucker v. Action Equipment and Scaffold Co.
16
In Tucker, we
resolved in large part the standards for immunity in non-construction matters, and partially
resolved the standards applicable in construction cases. In our resolution of this appeal, we
now undertake to clarify our prior cases on this subject and provide a definitive statement of
the rule of workplace immunity under the NIIA in cases arising from the performance of
construction contracts.
Harris argues on appeal that the district court erroneously relied upon Frith in its
conclusion that his suit is barred as a matter of law. Frith held, at least implicitly, that a real
property owner is not, as a matter of law, subject to common law liability for workplace
injuries incurred by employees performing construction work on the property pursuant to a
general construction contract.
In Frith, an injured worker alleged that the property owneralthough having hired a
general contractor to construct improvementsenjoyed no NIIA immunity because it
retained a degree of control over the construction project.
17
We affirmed the district court's
conclusion that the property owner was statutorily immune regardless of whether [the
owner] or [the general contractor] was in fact [the injured worker's] employer.
18
We further
held that:
__________

6
111 Nev. 1338, 905 P.2d 168 (1995).

7
107 Nev. 516, 815 P.2d 151 (1991).

8
105 Nev. 793, 783 P.2d 454 (1989).

9
101 Nev. 283, 701 P.2d 1006 (1985).

10
99 Nev. 494, 664 P.2d 963 (1983).

11
94 Nev. 12, 573 P.2d 1184 (1978).

12
92 Nev. 447, 552 P.2d 337.

13
91 Nev. 324, 535 P.2d 787 (1975).

14
76 Nev. 72, 349 P.2d 444 (1960).

15
73 Nev. 9, 307 P.2d 110 (1957).

16
113 Nev. 1349, 951 P.2d 1027 (1997).

17
92 Nev. at 451, 552 P.2d at 340.

18
Id. at 449-50, 552 P.2d at 339.
If Harrah[, the owner,] could be deemed the principal contractor and the principal
employer of Frith[, the injured worker], it would not be excluded from coverage under
the Nevada Industrial Insurance Act and the insulation from common law liability just
because it was also the owner of the real property where the injury occurred. If
Campbell Construction Company[, the general contractor that directly employed Frith,]
is the bona fide employer of Frith, then both Harrah and Campbell would be insulated
by the Nevada Industrial Insurance Act from any common law liability.
19

Frith implies that, with or without retention of some control over the course of construction
by the owner, the owner and its general contractor stand in the same shoes for the purposes of
NIIA immunity. This proposition is underscored by the rationale for the decision, that if
immunity were not granted, no owner of real property in this state would dare allow a
workman upon his property.
20

In concluding that NIIA immunity barred the worker's common law suit against the
property owner regardless of the control the owner exercised over the project, the Frith court
relied in part on our decision in Simon Service v. Mitchell.
21
Simon Service is the seminal
case in which we articulated a broad-based immunity under the NIIA.
In Simon Service, a real property owner constructed improvements through various
independent contractors without using a general contractor as an intermediary.
22
A worker
employed by one of the independent contractors was injured during the course of construction
and sued the property owner in a common law negligence action.
23
Both the owner and the
worker's employer paid premiums for industrial insurance for their respective employees.
24

Relying on the general purposes of the Nevada workers' compensation laws and the
language of NRS 616.085(1) (re-codified as NRS 616A.210(1)) that subcontractors,
independent contractors and the employees of either shall be deemed employees of the
principal contractor, this court concluded that the landowner was immune under the Act. We
equated an owner parceling work to various independent contractors with a general contractor
working through subcontractors. Notwithstanding that the 1951 Legislature had previously
eliminated explicit immunity for "other person[s] [persons other than principal
contractors] having the work done,"
__________

19
Id. at 453, 552 P.2d at 341 (citations omitted).

20
Id. at 453, 552 P.2d at 341.

21
73 Nev. 9, 307 P.2d 110 (1957).

22
Id. at 10-11, 307 P.2d at 110-11.

23
Id. at 11, 307 P.2d at 111.

24
Id.
Legislature had previously eliminated explicit immunity for other person[s] [persons other
than principal contractors] having the work done,
25
the court noted that to conclude
otherwise would compel an owner, who is himself an experienced construction [person], to
employ a principal contractor' who would, perchance, let out every phase of the work in
subcontracts precisely as the owner would do without the intervention of a principal
contractor.'
26
Thus, we reasoned that a contrary construction of the statute would
encourage property owners with construction expertise to undergo the unnecessary expense of
hiring an intermediary to avoid loss of NIIA immunity. This statement of policy tipped the
balance in favor of immunity in that instance.
The decision in Simon Service did not explicitly reach the question whether a
landowner that retains a general contractor to undertake all phases of a construction project
enjoys NIIA immunity. It did note in dictum that the 1951 amendment abrogated immunity to
an owner whose only status was as owner, but who might be said, as such owner, to be the
person having the work done.
27
Nevertheless, by placing an owner undertaking construction
without intervention of a principal contractor in the same position under the NIIA as a
principal contractor,
28
Simon Service provided logical authority for the court's later decision
in Frith that the landowner stands in the shoes of its general contractor for immunity
purposes.
The decisions in Simon Service and Frith are fundamentally sound. Indeed, they are
compelled by fidelity to the principles underlying the workers' compensation scheme.
Employers are required by the NIIA to provide and secure industrial insurance for employees,
who are thereby guaranteed compensation for industrial injuries; and in return, the NIIA
grants employers immunity from common law actions. Since a principal contractor or
principal employer undertaking a construction project is held responsible, statutorily, for all
the workers on the project, the principal should enjoy the corresponding benefit of statutory
immunity.
In the years following Frith, this court developed a control test, which it applied in
varying degrees in both construction and non-construction cases. Under this test, an owner
who exercised significant operational control over the details of the construction work for
which he had contracted assumed employer status for the purposes of [NIIA immunity].
__________

25
Id. at 10, 307 P.2d at 110 (emphasis omitted).

26
Id. at 14, 307 P.2d at 112.

27
Id. at 15, 307 P.2d at 112-13.

28
Id. at 13, 307 P.2d at 112.
work for which he had contracted assumed employer status for the purposes of [NIIA
immunity].
29
The control test had roots in earlier NIIA immunity cases that sought to define
a standard for determining when an independent contractor was an employee covered by
the Act.
30
We used a control analysis on numerous occasions, in Leslie v. J. A. Tiberti
Construction
31
(a construction case), Ortolano v. Las Vegas Convention Service
32
(a
non-construction case), Whitley v. Jake's Crane & Rigging, Inc.
33
(a construction case),
Alsup v. E. T. Legg & Co.
34
(a non-construction case), Antonini v. Hanna Industries
35
(a
non-construction case), Corrao Construction Co. v. Curtis
36
(a construction case), and
Hosvepian v. Hilton Hotels Corp.
37
(a construction case). Additionally, Simon Service and
Titanium Metals v. District Court
38
are based upon a traditional control analysis.
Harris contends that Antonini and Karadanis v. Sourwine
39
have limited Frith to its
special facts and require that cases such as this be analyzed under the control testa test
which the Rio, as an inactive landowner, arguably cannot satisfy. We disagree. Because the
control test no longer applies, and for the following reasons, we re-affirm Frith and
conclude that the district court's ruling was not in error.
As acknowledged in Tucker,
40
our attempts to objectify criteria for NIIA immunity in
construction and non-construction settings have resulted in much confusion. In Tucker, we
noted inconsistencies created in Leslie, Sims, Oliver, McDowell and Weaver, and to a degree,
resolved much of the historical confusion in this area. Thus, Tucker abandoned the control
test as the primary standard applicable to determine whether one is immune from suit under
the NIIA, stating that control is only one factor to be considered in resolving
non-construction cases.41 Tucker also entirely abandoned the use of the "control test"
when the workplace accident occurs in the course of a construction project.
__________

29
See Antonini v. Hanna Industries, 94 Nev. 12, 15, 573 P.2d 1184, 1186 (1978).

30
See, e.g., McDowell Constr. Supply v. Williams, 90 Nev. 75, 518 P.2d 604 (1974), overruled by Tucker v.
Action Equip. and Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997); Nevada Ind. Comm'n v. Bibb, 78 Nev.
377, 374 P.2d 531 (1962).

31
99 Nev. 494, 664 P.2d 963 (1983).

32
96 Nev. 308, 608 P.2d 1103 (1980).

33
95 Nev. 819, 603 P.2d 689 (1979).

34
94 Nev. 297, 579 P.2d 769 (1978).

35
94 Nev. 12, 573 P.2d 1184 (1978).

36
94 Nev. 569, 584 P.2d 1303 (1978).

37
94 Nev. 768, 587 P.2d 1313 (1978).

38
76 Nev. 72, 349 P.2d 444 (1960).

39
105 Nev. 793, 783 P.2d 454 (1989).

40
113 Nev. at 1355, 951 P.2d at 1031.
sidered in resolving non-construction cases.
41
Tucker also entirely abandoned the use of the
control test when the workplace accident occurs in the course of a construction project.
We now turn to the cases primarily relied upon by Harris in this matter, Antonini and
Karadanis. Antonini, a non-construction case, relied on Frith and Simon Service, two
construction cases, and applied the control test to determine whether a convention exhibit
owner was a statutory co-employer immune from common law liability for injuries sustained
by a contract laborer dismantling the exhibit under the owner's supervision. The Antonini
court noted:
Thus, we have held that an inactive owner of property does not become an employer
under the NIIA merely through his status as a contractee for services to his property.
Frith v. Harrah's [sic] South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976). [Sic]
Simon Service v. Mitchell, [73 Nev. 9, 307 P.2d 110 (1957)]; Titanium Metals v.
District Court, 76 Nev. 72, 349 P.2d 444 (1960). Therefore, in what apparently was
[the contractor's] normal contract procedure, in which [a convention] exhibitor merely
engaged [the contractor] to erect and disassemble an exhibit under the direction of [the
contractor] personnel, the inactive exhibitor did not become, by reason of its status as
an owner-contractee, an employer subject to the NIIA.
42

The footnote in Antonini quoted above discloses the foundational precept underlying
the line of construction and nonconstruction cases that adopted the control analysis after
Frith. We stress that, contrary to the quoted language, Frith more precisely holds that a
defendant's status as a property owner does not, of necessity, preclude immunity under the
NIIA.
The control cases decided after Frith seemingly undermine its implied ruling that a
landowner that utilizes a general contractor to construct improvements enjoys NIIA
immunity. As noted above, however, the control test has now been discarded by our recent
decision in Tucker.
43
Accordingly, to the extent that Antonini, Corrao, Alsup, Hosvepian,
Whitley, Ortolano, Leslie, or other Nevada cases embrace the control test as a primary method
for resolving NIIA immunity issues, they are now expressly overruled.
Karadanis, as the district court noted in its written decision, seemingly conflicts with
Frith. Karadanis, a case decided fourteen years after Frith, rejected the contention of a
long-term lessee of property {the equivalent of an owner for these purposes) that, under
Frith, NIIA immunity shielded it against a negligence claim brought by a general
contractor's statutory employee.
__________

41
Id. at 1354-58, 951 P.2d at 1030-33; see also Leslie, 99 Nev. 494, 664 P.2d 963 (rejected as continuing
authority in Tucker).

42
94 Nev. at 15 n.4, 573 P.2d at 1186 n.4.

43
See Tucker, 113 Nev. 1349, 951 P.2d 1027.
years after Frith, rejected the contention of a long-term lessee of property (the equivalent of
an owner for these purposes) that, under Frith, NIIA immunity shielded it against a
negligence claim brought by a general contractor's statutory employee.
44

In Karadanis, members of a partnership that leased (owned) the property and operated
a resort hotel on the premises were also members of a separate partnership retained as the
general contractor to improve the hotel property. The Karadanis court attempted to
distinguish Frith on the grounds that the partnership that owned and operated the property
was a separate entity from the general contracting partnership:
The [lessee/owner] claim[s] that once immunity attaches to Karadanis and Maloff as
partners in the construction firm that immunity also immunizes them as partners in the
casino partnership . . . . The clients cite Frith v. Harrah South Shore Corp., 92 Nev.
447, 552 P.2d 337 (1976), in which an injured worker attempted to sue Harrahs as an
owner of the premises where the injury occurred even though the Harrahs corporation
was immune as the statutory employer of the injured worker. We held in Frith that
Harrahs did not lose its immunity as an employer just because it was also the owner of
the real property where the injury occurred.
45

The decision in Karadanis stressed the separate identity of the resort partnership and
the contractor partnership, also indicating without explanation that the defendant in Frith was
acting both as the owner and the construction company. In fact, the recitation of facts in Frith
only notes that Harrah was the owner and that the claimant was the direct employee of a
separate general contractor hired to construct a new hotel facility on the property. Thus,
Karadanis and Frith cannot be distinguished as suggested in the Karadanis decision.
The Karadanis decision also characterizes Frith simply as a rejection of the dual
capacity doctrine,
46
which this court discussed in a series of cases starting in 1981 with
Noland v. Westinghouse Electric Corp.
47
In those cases, injured workers sought to avoid the
NIIA exclusive remedy provision and the immunity afforded to statutory co-employees on the
theory that the alleged tortfeasors acted not only as co-employees, but also in other capacities,
such as a product supplier or a landlord of a statutory employer.
__________

44
105 Nev. at 794, 783 P.2d at 454.

45
Id. at 795, 783 P.2d at 455 (quoting Frith, 92 Nev. at 453, 552 P.2d at 341).

46
Id. at 795 n.1, 783 P.2d at 455 n.1.

47
97 Nev. 268, 628 P.2d 1123 (1981).
statutory employer.
48
This court in Noland and subsequent cases directly reaching the issue
rejected the doctrine, citing the broadbased immunity provided under the NIIA. While Frith
can be read consistently with Noland and its progeny, Frith was not decided under the dual
capacity doctrine, and the doctrine is not at issue in this case.
On the other hand, Frith cannot be read consistently with Karadanis. Both cases
involved claims of immunity by a landowner that had retained a general contractor to
construct property improvements, but the decisions reached diametrically opposite results.
Because we now re-affirm Frith, we conclude that Karadanis is no longer valid and we
expressly overrule it.
Having decided that Antonini, Karadanis and the control test no longer govern our
analysis, we must now determine whether a landowner that retains a licensed general
contractor to construct property improvements is immune, under Frith and the NIIA, from
common law liability for industrial injuries incurred during performance of the construction
contract.
As noted, in Tucker we re-visited the scope of NIIA immunity in light of 1991
amendments to the Act. We observed that the enactment of NRS 616.262 (re-codified as NRS
616B.603) manifested the Legislature's intent to codify the test enunciated in Meers v.
Haughton Elevator
49
for non-construction cases, thus abrogating use of the control test for
determining employer immunity in non-construction cases.
The Legislature's codification of Meers in NRS 616B.603, which is located in the
section of the NIIA governing liability for provision of coverage, addresses the relationship
between independent enterprises that contract with each other. NRS 616B.603(1) provides
that a person is not an employer for NIIA purposes if:
(a) He enters into a contract with another person or business which is an independent
enterprise; and
(b) He is not in the same trade, business, profession or occupation as the independent
enterprise.
NRS 616B.603(2) defines independent enterprise, as used in the section, as a person who
holds himself out as being engaged in a separate business and:
__________

48
See id.; see also Watson v. G.C. Associates Ltd., 100 Nev. 586, 691 P.2d 417 (1984); Howard v. District
Court, 98 Nev. 87, 640 P.2d 1320 (1982).

49
101 Nev. 283, 701 P.2d 1006 (1985) (holding that a non-construction independent contractor is immune
from common law suit when the work it performs on behalf of a contracting party is normally carried out in that
business through the contractee's own employees and not through independent contractors).
(a) Holds a business or occupational license in his own name; or
(b) Owns, rents or leases property used in furtherance of his business.
Thus, under NRS 616B.603 and Meers, upon which the statute is based, a person who
enters into a contract with an independent enterprise in a different line of work, to perform
work not normally carried out by the person's own employees, is not considered a statutory
employer.
50
This makes sense, given the overall purpose of workers' compensation, because
it places responsibility on independent enterprises, which are separate business entities, for
their own employees and not the employees of other independent enterprises with which they
interact. Such contracting independent enterprises do not enjoy employer immunity from suit
by the other's employees, but their liability for providing workers' compensation coverage is
clearly defined and limited in scope.
Tucker, having explained the test to be used in non-construction cases, then
considered the test to be used in construction cases. NRS 616B.603(3) provides that the
provisions of NRS 616B.603 do not apply to principal contractors licensed under NRS
chapter 624. Based upon NRS 616B.603(3), and building upon our earlier decision in Oliver,
we established the following test for determining immunity in construction cases:
[I]f the defendant in a construction case is not a principal contractor licensed pursuant
to NRS chapter 624, or is not working pursuant to a construction agreement with such a
licensed principal contractor, the Meers test must be applied to determine immunity. On
the other hand, if the defendant in a construction case is a principal contractor licensed
pursuant to NRS chapter 624, or is a licensed contractor working pursuant to a
construction agreement with a licensed principal contractor, and the defendant is
performing part of the construction work for which it is licensed when the injury
occurs, that contractor is immune from further suit as a matter of law. No further factual
analysis is necessary.
51

Upon further reflection, we conclude that our articulation in Tucker of the test to be
applied in construction cases is not as clear as we intended it to be. The test does not plainly
encompass landowners who are not themselves contractors, but who hire licensed general
contractors to construct improvements. Here, because the Rio is not a principal contractor
licensed pursuant to NRS chapter 624, and is not a licensed contractor working pursuant to
a construction agreement with such a licensed principal contractor, Tucker would seem to
require application of the Meers test to determine immunity.
__________

50
See NRS 616B.603(1); Meers, 101 Nev. at 286, 701 P.2d at 1007-08.

51
113 Nev. at 1357, 961 P.2d at 1032 (footnotes omitted).
NRS chapter 624, and is not a licensed contractor working pursuant to a construction
agreement with such a licensed principal contractor, Tucker would seem to require
application of the Meers test to determine immunity.
We conclude, however, that broad application of the Meers test is not mandated by the
NIIA in construction casesdespite the fact that NRS 616B.603(3) does not expressly
exempt landowners that retain licensed principal contractors. We therefore modify Tucker to
clarify that if the defendant in a construction case is a landowner that has contracted with a
licensed principal contractor, the landowner is immune from suit as a matter of law for
industrial injuries sustained during performance of the construction contract.
Strong policy considerations support this conclusion. First, workers' compensation
coverage should equally protect the property owner who, in hiring the contractor, is
indirectly paying for the cost of such coverage, which the contractor presumably has
calculated into the contract price.
52
Since the principal contractor is required by the NIIA to
ensure that all the construction workers have workers' compensation coverage,
53
requiring
the property owner to duplicate that coverage or risk suit in case of injuries is unnecessary as
well as unreasonably costly. Further, failure to immunize property owners from suits by
workers injured while constructing property improvements places commercial property
owners at greater monetary risk than if their own employees performed the tasks.
54
Finally,
property owners without construction expertise should be encouraged to retain qualified
general contractors who are in a better position to reduce the risks of injury because they
have more knowledge and expertise . . . with respect to the dangers that normally arise
during the course of the contractor's normal work routine.
55

[Headnote 1]
In addition, this interpretation of the NIIA comports with the overall purpose of the
Actto ensure compensation for injured employees at reasonable cost to employers, with a
mutual renunciation of common law rights and defensesand with the legislative declaration
that the Act must be interpreted and construed neutrally, so that neither employers nor
employees are favored over the other.
__________

52
Privette v. Superior Court, 854 P.2d 721, 728 (Cal. 1993); see also Antonini, 94 Nev. at 19, 573 P.2d at
1189 (noting that a labor broker's industrial insurance costs will ultimately be borne by the customer-contractee
using the laborers).

53
See NRS 616A.210(1); NRS 616B.612(1).

54
See Peone v. Regulus Stud Mills, Inc., 744 P.2d 102, 106 (Idaho 1987); see also Frith, 92 Nev. at 453, 552
P.2d at 341.

55
Peone, 744 P.2d at 107.
over the other.
56
The Rio, by hiring a licensed principal contractor, effectively provided and
secured compensation for Harris and all the other construction employees and can fairly be
deemed a statutory employer entitled to statutory immunity,
57
without incurring separate
liability for providing industrial insurance coverage.
58
The general contractor is statutorily
responsible for ensuring that all the construction employees are covered,
59
and may be sued
by injured workers who are not covered,
60
but can factor the costs of complying with this
requirement into the construction agreement. Harris and the other workers are guaranteed
compensation for any industrial injuries incurred during the construction project, and they
have recourse against the general contractor if workers' compensation is not provided for
them.
61

Finally, while application of the Meers test in this case to determine immunity would
not necessarily lead to a different result, we are confident that the Legislature never intended
for it to apply in circumstances like these. Meers, a non-construction case, strongly implied
that the normal work test it was adopting to determine immunity would apply only outside the
construction field.
62
Meers applied the normal work test to determine whether a telephone
company that sub-contracted elevator maintenance for its office building to an independent
company was the subcontractor's statutory employer. Noting that the normal work test had
often been applied in cases involving sub-contracted maintenance activities, Meers concluded
that the specialized, subcontracted elevator maintenance work was not part of the telephone
company's normal business, and thus the telephone company was not the independent
maintenance company's statutory employer.
63

While Meers and NRS 616B.603 address the employment relationship between
independent enterprises that contract with each other, like the telephone company and the
elevator maintenance company, they do not address the relationship at issue in this case. The
relationship of one independent enterprise with another that contracts to perform specialty
work is different from the relationship of a property owner with a general contractor that
contracts to construct property improvements. In contrast to the two independent enterprises
conducting separate businesses, the property owner and general contractor can more
accurately be described as dependent enterprises conducting a single business: real
property development.
__________

56
See NRS 616A.010.

57
See NRS 616B.612.

58
See NRS 616B.642.

59
See NRS 616A.210(1); NRS 616B.612(1).

60
See NRS 616B.636.

61
Id.

62
101 Nev. at 285 n.3, 701 P.2d at 1007 n.3.

63
Id. at 286, 701 P.2d at 1007-08.
pendent enterprises conducting separate businesses, the property owner and general
contractor can more accurately be described as dependent enterprises conducting a single
business: real property development.
[Headnote 2]
The Meers test is not well-suited for determining immunity in this kind of
construction setting, and by specifying that the provisions of NRS 616B.603 do not apply to
licensed principal contractors,
64
we believe the Legislature manifested its intent that the
Meers test not be used to determine immunity in circumstances like these. Instead, under the
Tucker test as modified herein, if the defendant in a construction case is a property owner that
has contracted with a licensed general contractor for property improvements, and where the
contract requires compliance with the NIIA, the property owner is immune from suit as a
matter of law for industrial injuries sustained during performance of the construction contract.
CONCLUSION
Were we to agree with Harris that the Rio is not immune from liability in this case,
our decision would necessarily provide an incentive for inexperienced owners to construct
their own property improvements in order to immunize themselves from common law
liability, or require them to duplicate workers' compensation coverage at additional and
unreasonable expense. Double coverage would not benefit construction employees, who are
precluded by the NIIA from double recovery. We believe that the Legislature did not intend
such a result, and that the NIIA does not mandate it.
Because the Rio stands in the shoes of its licensed general contractor for purposes of
NIIA immunity, we hereby affirm the judgment of the district court.
65

Young, Shearing, Agosti and Leavitt, JJ., concur.
Rose, J., concurring:
I concur in the majority opinion and believe it provides a clear and needed analysis of
the law regarding immunity under the Nevada Industrial Insurance Act. However, I do want
to note that, in my opinion, this court erred a long time ago in rejecting the dual capacity
doctrine, and I would be willing to recognize it in the appropriate case.
__________

64
NRS 616B.603(3)(a).

65
The Honorable Nancy A. Becker, Justice, did not participate in the decision of this matter.
As we explained in Noland v. Westinghouse,
This theory, known as the dual capacity doctrine, has been defined in the following
terms:
[A]n employer normally shielded from tort liability by the exclusive remedy principle
may become liable in tort to his own employee if he occupies, in addition to his
capacity as employer, a second capacity that confers on him obligations independent of
those imposed on him as employer.
1

In Noland, an employee for a subcontractor was injured when an elevator installed on
the construction site by Westinghouse, another subcontractor, free-fell a number of floors.
Noland claimed that his suit against Westinghouse was not barred by immunity because
Westinghouse was not only acting as a subcontractor, but also as the manufacturer, seller,
installer, and maintainer of the elevator in question. I believe this Court erred in approving
the dismissal of Noland's strict liability claims against Westinghouse and should have
recognized the dual capacity in which Westinghouse was serving.
Needless to say, instances such as the one presented in the Noland case would
constitute rare exceptions to the general immunity granted contractors and property owners
under our industrial insurance law. In the case at issue, for instance, Harris's claims asserting
an independent duty on the Rio Hotel are inextricably connected to the construction project
and have no separate factual basis to support an independent duty. Accordingly, the dual
capacity doctrine would not be of any benefit to Harris even if we did recognize it.
____________
117 Nev. 496, 496 (2001) In re Discipline of Schaefer
In re: Discipline of J. MICHAEL SCHAEFER.
No. 36173
June 21, 2001 25 P.3d 191
Automatic appeal from a decision by a Southern Nevada Disciplinary Board hearing
panel, recommending disbarment.
Attorney disciplinary proceeding was brought. The Southern Nevada Disciplinary
Board hearing panel recommended disbarment. On automatic appeal, the supreme court held
that: (1) professional conduct rule prohibiting lawyer from directly contacting represented
parties applies to a lawyer appearing pro se and to a lawyer who litigates on behalf of
corporation of which he is a principal; {2) rule was vague as applied to attorney, who
represented himself in litigation at issue; {3) rule was not overbroad; and {4) misconduct
including lack of candor toward tribunal, requesting that witness refrain from providing
information, directly contacting represented party while acting as corporate counsel, and
engaging in misconduct involving dishonesty, deceit, fraud, or misrepresentation
warranted disbarment.
__________

1
Noland v. Westinghouse Elec. Corp., 97 Nev. 268, 269 n.1, 628 P.2d 1123, 1125 n.1 (1981) (citations
omitted).
principal; (2) rule was vague as applied to attorney, who represented himself in litigation at
issue; (3) rule was not overbroad; and (4) misconduct including lack of candor toward
tribunal, requesting that witness refrain from providing information, directly contacting
represented party while acting as corporate counsel, and engaging in misconduct involving
dishonesty, deceit, fraud, or misrepresentation warranted disbarment.
Recommendation approved.
[Rehearing denied September 10, 2001]
J. Michael Schaefer and Potter Law Offices, Las Vegas, for attorney John Michael
Schaefer.
Rob W. Bare, Bar Counsel, and Michael J. Warhola and Felicia Galatti, Assistant Bar
Counsel, for State Bar of Nevada.
Purposes of rule of professional conduct prohibiting lawyer, in representing a client, from directly contacting represented party
without consent of party's counsel are to prevent lawyers from taking advantage of laypersons and to preserve integrity of
attorney-client relationship. Rule also prevents inadvertent disclosure of privileged information by the layperson. SCR 182.
Rule of professional conduct prohibiting lawyer, in representing a client, from directly contacting represented party without
consent of party's counsel applies to a lawyer appearing pro se, and bars lawyer from directly contacting an opposing party who is
represented by counsel. SCR 182.
Lawyer who litigates on behalf of corporation of which he is a principal is subject to rule of professional conduct prohibiting
lawyer, in representing a client, from directly contacting represented party without consent of party's counsel. A lawyer principal who
appears on behalf of his corporation is clearly acting in his capacity as a lawyer representing a client, not as a principal of corporation.
SCR 182.
4. Attorney and Client; Constitutional Law.
consent of party's counsel is not void for vagueness as applied to situation in which lawyer litigates on behalf of corporation of which
he is a principal, in light of supreme court's clear rulings on issue. SCR 182.
Attorney's contact with officers and employees of corporation of which he was a shareholder was within scope of rule of
professional conduct prohibiting lawyer, in representing a client, from directly contacting represented party without consent of party's
counsel. Although several letters in record raised shareholder-type concerns, many did not, and even those including shareholder
concerns also discussed pending litigation. SCR 182.
Supreme court was not required to consider attorney's argument that professional conduct rule prohibiting lawyer
from directly contacting represented parties was a presumptively invalid content-based restriction that was
required to withstand strict scrutiny to be constitutional under free speech clause, where attorney cited no
authority in support of his argument, in attorney disciplinary proceeding.
professional conduct rule prohibiting lawyer from directly contacting represented parties was a presumptively invalid content-based
restriction that was required to withstand strict scrutiny to be constitutional under free speech clause, where attorney cited no authority
in support of his argument, in attorney disciplinary proceeding. U.S. Const. amend. 1; SCR 182.
Professional conduct rule prohibiting lawyer from directly contacting represented parties was a not a presumptively invalid
content-based restriction, but rather, was a content-neutral restriction on speech, and as such, rule did not violate Free Speech Clause if
it was within government's power, it furthered an important government interest unrelated to suppression of free expression, and
incidental restriction on free expression was no greater than necessary. U.S. Const. amend. 1; SCR 182.
Regulation is not an invalid content-based restriction under Free Speech Clause merely because one must review the speech's
content to determine whether regulation has been violated. U.S. Const. amend. 1.
Professional conduct rule prohibiting lawyer from directly contacting represented parties was a content-neutral restriction which
did not violate Free Speech Clause. It was within supreme court's power to promulgate rules governing legal profession, rule furthered
important interests of protecting attorney-client relationship from interference and protecting laypersons from overbearing by an
opposing lawyer, that interest was unrelated to suppression of free expression, and restriction on speech was no greater than necessary.
U.S. Const. amend. 1; SCR 182.
10. Administrative Law and Procedure; Statutes.
A statute or rule is impermissibly vague if it either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application.
11. Statutes.
Touchstone for determining whether statute is impermissibly vague is whether statute, either standing alone or as construed,
made it reasonably clear at relevant time that the conduct was prohibited.
Questions of vagueness must be more closely examined where First Amendment rights are implicated. U.S. Const. amend. 1.
consent of party's counsel was vague as applied to attorney who represented himself in litigation at issue, in light of non-binding nature
of formal opinion of state bar's Standing Committee on Ethics and Professional Responsibility determining that rule applied to a lawyer
appearing pro se, together with existence of conflicting authority from other jurisdictions. SCR 182.
Attorney's 1981 public reprimand in part for violating rule prohibiting lawyer from communicating upon subject of controversy
with a party represented by counsel did not provide sufficient notice to attorney concerning current version of rule, in case involving
attorney's pro se appearance, where current version of rule prohibited lawyer, in representing a client, from directly contacting
represented party without consent of party's counsel, prior version did not include the prefatory language of current version, "in
representing a client," and prior version clearly forbade a lawyer from contacting a represented party under
all circumstances concerning the subject of controversy.
language of current version, in representing a client, and prior version clearly forbade a lawyer from contacting a represented party
under all circumstances concerning the subject of controversy. SCR 182.
Due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior
judicial decisions has fairly disclosed to be within its scope. U.S. Const. amend. 14.
Supreme court was not required to consider attorney's overbreadth challenge to professional conduct rule prohibiting lawyer, in
representing a client, from directly contacting represented party without consent of party's counsel, where attorney cited no relevant
authority in support of his argument, in attorney disciplinary proceeding. SCR 182.
For an enactment to be overbroad on its face, it must reach a substantial amount of constitutionally protected conduct.
Lawyer's speech concerning pending case is subject to greater regulation than other forms of speech. U.S. Const. amend. 1.
consent of party's counsel was not facially overbroad, in that rule did not reach a substantial amount of constitutionally protected
speech. U.S. Const. amend. 1.
Attorney who had been a pro se defendant in criminal case was not authorized by law to contact witnesses in case, as claimed
by attorney in attorney disciplinary proceeding, where a no-contact order was entered, one witness was a represented defendant in civil
conspiracy case, attorney's communication concerned civil conspiracy case and not only the criminal case, and substance of attorney's
contact was an attempt to persuade witnesses to change their testimony in the criminal case in favor of attorney.
Attorney was not entitled to continuance of second hearing date in attorney disciplinary proceedings to obtain counsel, on basis
that second hearing was reset for January 4, not later in the month, and attorney not able to find new counsel because no one wanted to
work on his case over the holidays, where attorney stated on the record that he needed no more than one week's notice of the continued
hearing, and was aware from November 17 that he needed to find counsel immediately, attorney was notified no later than December 6
of new hearing date, and even from December 6, attorney had four weeks to obtain new counsel and to prepare for the continued
hearing.
Although recommendations of disciplinary panel are persuasive, supreme court is not bound by panel's findings and
recommendation, and must examine record anew and exercise independent judgment, in attorney disciplinary proceeding.
Ethical violations by attorney must be proven by clear and convincing evidence.
Attorney's deliberate inclusion of award of costs to his corporation which was involved in litigation, in order attorney prepared
when district court had not awarded any costs, and attorney's subsequent refusal to stipulate to a modification of order, thus forcing
opposing counsel to file a motion to amend, violated professional conduct rule prohibiting the knowing disobedience of obligation
under rules of a tribunal. SCR 173(3).
Attorney's act of offering to dismiss witness from conspiracy case in exchange for favorable testimony in criminal case violated
professional conduct rule prohibiting lawyer from requesting that witness refrain from providing information. SCR 173(6).
Violations of professional conduct rules not charged in attorney disciplinary complaint could not be considered by supreme
court.
Attorney's acts of repeatedly contacting condominium association president directly concerning global settlement, despite a
specific request that all contact be through counsel, while attorney was representing attorney's corporation which owned several
condominium units, violated professional conduct rule prohibiting lawyer, in representing a client, from directly contacting represented
party without consent of party's counsel. SCR 182.
Attorney's acts of including a trust as a party-plaintiff in frivolous receivership case when trustee had not authorized him to do
so, and at a time when he knew trustee was out of country for several months and would not discover his actions, and in persistently
refusing to pay $5,000 in sanctions imposed by district court for filing a frivolous complaint, violated professional conduct rule
concerning meritorious claims, and was misconduct involving dishonesty, deceit, fraud, or misrepresentation. SCR 170, 203(3).
By claiming he had not been subject to discipline within pertinent time period, when in fact he had, attorney violated
professional conduct rule requiring candor toward tribunal and engaged in misconduct involving dishonesty, deceit, fraud, or
misrepresentation. SCR 172, 203(3).
Lack of candor toward tribunal, knowing disobedience of obligation under rules of a tribunal, requesting that witness refrain
from providing information, directly contacting represented party while acting as corporate counsel, filing frivolous claim, and
engaging in misconduct involving dishonesty, deceit, fraud, or misrepresentation warranted disbarment. SCR 170, 172, 173(3), (6),
182, 203(3).
OPINION
Per Curiam:
Two formal disciplinary complaints representing four grievances against attorney
John Michael Schaefer were brought by the state bar and were consolidated for hearing
before a panel of the Southern Nevada Disciplinary Board.
state bar and were consolidated for hearing before a panel of the Southern Nevada
Disciplinary Board. The panel found that Schaefer had violated several professional conduct
rules, including Supreme Court Rule 182, which prohibits a lawyer from directly contacting a
represented party without the consent of that party's counsel, unless the contact is otherwise
authorized by law. Some of the SCR 182 violations found by the panel occurred during the
course of litigation in which Schaefer was representing himself. Schaefer asserts that he did
not violate SCR 182 by contacting represented parties while he was representing only
himself.
We conclude that the purposes underlying SCR 182 are better served by applying the
rule to lawyers representing themselves, as well as when representing other clients. But given
the existence of conflicting authority from other jurisdictions and the absence of guidance
from this court on the rule's scope at the time of Schaefer's actions, SCR 182 is
unconstitutionally vague as applied to Schaefer's conduct when he was representing himself.
Accordingly, these violations cannot be considered in determining the appropriate discipline
to be imposed. We conclude, however, that the bulk of the remaining violations are supported
by clear and convincing evidence, and that disbarment is warranted in light of Schaefer's
conduct.
FACTUAL AND PROCEDURAL HISTORY
First disciplinary complaint
The first disciplinary complaint filed against Schaefer included three counts. Count I
of the first complaint alleged violations of SCR 151 (competence), SCR 170 (meritorious
claims), SCR 172 (candor toward the tribunal), SCR 173 (fairness toward opposing party and
counsel), and SCR 203(3) (misconduct involving dishonesty, deceit, fraud or
misrepresentation). Count II alleged violations of SCR 172 (candor toward the tribunal) and
SCR 203(3) (misconduct involving dishonesty, deceit, fraud or misrepresentation). Count III
alleged violations of SCR 173 (fairness toward opposing party and counsel), SCR 182
(communication with person represented by counsel) and SCR 203(4) (conduct prejudicial to
the administration of justice).
Counts I and III
Counts I and III were based on Schaefer's conduct during the litigation of several
disputes between Schaefer and his condominium association. Schaefer is president of
Schaefer, Inc., which owns several condominium units at Wimbledon Tennis Club
Condominiums in Southern Nevada. Schaefer lives in one of the units; the others are leased
to tenants.
units; the others are leased to tenants. He has had several disputes with his neighbors and with
the Wimbledon Tennis Club Condominium Association (the Association). The record
reflects that in 1996 and 1997, these disputes became so pervasive that realtors attempting to
market other condominium units were compelled to disclose to potential buyers that a
litigious attorney lived there.
The first litigation pertinent to this case was commenced in March 1997. On behalf of
Schaefer, Inc., Schaefer filed a complaint against the Association, seeking a permanent
injunction that would preserve his voting rights in the Association and confirm his eligibility
to run for the Association's governing board. The Association stipulated to this relief, and the
court approved the stipulation; no costs were awarded to either party. Schaefer was directed
to prepare the order. Despite the fact that no costs were awarded, Schaefer included an award
of costs to Schaefer, Inc., in the draft order. He then submitted the order to the court for
signature, without providing it to opposing counsel for approval despite counsel's request that
he do so. The court inadvertently entered the order. When opposing counsel became aware of
the order, he asked Schaefer to stipulate to the entry of an amended order deleting the cost
award. Schaefer refused, and so opposing counsel was required to file a motion to amend the
order, which the court granted.
In April 1997, Schaefer filed an action against the Association and its board members,
alleging that they conspired to have another resident assault him. Two weeks later, Schaefer
was charged with five counts of misdemeanor battery. One of the complaining witnesses was
a Mrs. Fox, the spouse of an Association board member; another was the resident with whom
the Association board members had allegedly conspired. Schaefer was later convicted of two
counts of misdemeanor battery, after which post-trial proceedings continued for
approximately one year. Those proceedings included a motion for a new trial and an appeal.
During the criminal case, the justice's court verbally issued a no-contact order,
expressly prohibiting Schaefer from having any contact with Mrs. Fox. At the time the order
was entered, Schaefer and the Foxes all lived in the condominium complex.
After the no-contact order was entered, and while the criminal case was still pending,
the Foxes moved to a house in Las Vegas. On the evening of March 9, 1998, Schaefer went to
their house and knocked on the door. Mrs. Fox answered and demanded that he leave
immediately. Schaefer gave her a handwritten letter for Mr. Fox. In the letter, Schaefer
offered to dismiss Mr. Fox as a defendant in the conspiracy case if the Foxes agreed to
cooperate with Schaefer in the criminal case.
with Schaefer in the criminal case. Schaefer also left his business card with a note referencing
the letter on the windshield of the Foxes' car.
During the disciplinary proceedings in this case, Schaefer admitted in both his written
papers and his testimony at the hearing that he knew Mr. Fox was represented by counsel in
the conspiracy case, and that the no-contact order was in effect at the time of this encounter.
In August 1997, Schaefer filed an action seeking a receiver for the Association.
Named as plaintiffs were Schaefer, Inc., an individual resident, and a family trust that owned
one of the units. Five days before the complaint was filed, the trustee had left on an extended
trip to Europe. The trustee did not authorize Schaefer to file a complaint and was not aware
that the trust had been included as a plaintiff.
When the trustee returned to Las Vegas, she discovered the litigation. A receivership
was contrary to the trust's best interests, as the trustee was trying to sell the unit owned by the
trust and a receivership could cloud the title and impair the marketability of the unit. The
trustee notified Schaefer of her anger and unwillingness to be a party to the litigation.
Schaefer responded with a letter attempting to persuade the trustee to change her mind, and
asking her to sign a sworn statement granting retroactive authorization for the lawsuit. The
trustee refused and notified the Association's attorney that Schaefer was not authorized to
represent the trust.
In his testimony at the disciplinary hearing, Schaefer admitted that he did not notify
the trustee of his intent to initiate a receivership complaint, that he neither requested nor
received the trustee's authorization to act for the trust, and that he improperly commenced
legal proceedings on behalf of the trust. He asserted in his trial brief to the hearing panel that
he had previously represented the trustee in other unrelated matters, and that he felt he had a
certain leeway to represent her interests while she was away.
Schaefer also directed written communication to six Association board members in an
effort to persuade them to join the receivership action as plaintiffs. He did so even though he
was aware that the Association was represented by counsel.
The action was dismissed, and Schaefer was sanctioned $5,000 for filing a frivolous
complaint. As of the date of the disciplinary hearing in this matter, over two years later,
Schaefer still had not paid the sanctions.
Schaefer and the Association's counsel engaged in negotiations for a global settlement
of the pending litigation, with the exception of Schaefer's conspiracy action, which was being
handled by the Association's insurance defense counsel.
the Association's insurance defense counsel. During the settlement negotiations, Schaefer
repeatedly directed communications to the Association's president, despite Schaefer's
knowledge that the Association was represented by counsel, in an attempt to coerce the
president into dismissing counsel. Schaefer also asked to be substituted in as counsel for the
Association, despite the fact that he was counsel for an adverse party (Schaefer, Inc.) in the
litigation. The president was greatly disturbed by these communications, and his wife was
frightened because Schaefer had slipped some of the communications under their door late at
night. Schaefer also contacted several board members about the settlement without counsel's
consent.
In both his written papers before the hearing panel and in his testimony at the hearing,
Schaefer admitted to authoring the letters at issue, and that he attempted to have himself
substituted as counsel for the Association.
Count II
Count II of the first complaint was based on Schaefer's failure to disclose his
disciplinary history in a pro hac vice application to a Texas court. Schaefer filed the
application in order to represent a trust of which he was trustee. In his affidavit, dated in
November 1998, he represented that he had not been subject to discipline for any events
occurring within the last five years, but admitted that he had received a public reprimand for
conduct occurring in December 1992, before the five-year period.
Schaefer's affidavit was inaccurate and misleading. In fact, Schaefer had been publicly
reprimanded in California in 1993 for conduct that occurred at least in part in 1993, and
received a public reprimand from this court as reciprocal discipline in 1995. Schaefer was
also suspended in California in October 1997, for which he also received reciprocal discipline
in Nevada in May 1998. Schaefer failed to disclose this disciplinary history to the Texas
court.
The panel found that Schaefer had violated SCR 172 (candor toward the tribunal),
SCR 203(3) (misconduct involving dishonesty, deceit, fraud or misrepresentation) and SCR
203(4) (conduct prejudicial to the administration of justice).
Second disciplinary complaint
A second disciplinary complaint was filed after the first complaint, and contained one
count. This count alleged violations of SCR 151 (competence), SCR 172 (candor toward the
tribunal), SCR 182 (communication with person represented by counsel), SCR 197
(communication with prospective clients) and SCR 203(4) (conduct prejudicial to the
administration of justice). The charges were based on Schaefer's conduct during litigation
between Schaefer and Mirage Resorts, Inc.
charges were based on Schaefer's conduct during litigation between Schaefer and Mirage
Resorts, Inc.
Schaefer filed two lawsuits on his own behalf against Mirage Resorts, Inc., and its
subsidiaries. The claims asserted were based on Mirage's refusal to extend credit to Schaefer,
and its decision to bar Schaefer from all Mirage properties. While these cases were pending,
Schaefer was specifically instructed by general counsel for Mirage Resorts, Inc., to direct all
communication through him. Despite this instruction, Schaefer repeatedly sent letters to
various representatives of the Mirage companies, including the Mirage Resorts CEO, the
Mirage Resorts secretary, the Bellagio general counsel, who had been named as a defendant
in one of the suits, the Bellagio president, the Mirage general counsel, and two attorneys in
the Mirage general counsel's office. All of the communications referred to the pending cases;
some also mentioned that Schaefer owned Mirage stock. The panel found that Schaefer
violated SCR 182 by communicating directly with officers, directors and employees of the
Mirage concerning the pending litigation.
Disciplinary proceedings
The two disciplinary complaints were consolidated for formal hearing before a
hearing panel of the Southern Nevada Disciplinary Board. The record reflects that Schaefer
and the state bar orally agreed in June 1999 to set the hearing for November 17, 1999, and
this date was confirmed by both parties in written correspondence. The state bar served
formal notice of the hearing on Schaefer by certified mail, return receipt requested, on
October 13, 1999. The return receipt was signed on October 14, 1999.
On October 23, 1999, Schaefer moved to continue the hearing, claiming that the press
of other work, including a campaign for public office in San Francisco, prevented him from
preparing for the hearing. The state bar opposed the motion. An order denying the motion to
continue was entered by the chair of the Southern Nevada Disciplinary Board on November
5, 1999.
The day before the November 17 hearing, Schaefer's counsel and bar counsel were
engaged in settlement discussions. By the end of the day, it appeared that an agreement had
been reached for a conditional guilty plea in exchange for a stated form of discipline. Based
on this agreement, bar counsel notified the seven anticipated witnesses that they need not
appear, and informed the panel members that instead of a full hearing, there would be a
presentation of the agreement for approval.
At the November 17 hearing, Schaefer's counsel indicated that, contrary to his advice,
Schaefer would not accept the plea agreement without a ruling from the panel on the scope
of SCR 1S2, specifically, whether it applied to an attorney appearing on his own behalf.
ment without a ruling from the panel on the scope of SCR 182, specifically, whether it
applied to an attorney appearing on his own behalf. Schaefer's counsel then withdrew. The
panel asked bar counsel whether the state bar would agree to severing the SCR 182 violations
from the rest of the case, and bar counsel explained that the state bar would not agree.
Accordingly, as no witnesses were present, the panel had no alternative but to continue the
hearing.
Schaefer stated that he needed to obtain new counsel. The panel chair suggested that
Schaefer should do so immediately, as every attempt would be made to reschedule the
hearing as soon as possible. Schaefer indicated that he needed only a week's notice. Bar
counsel explained that given the schedules of bar personnel, the panel members, Schaefer and
his new counsel, and the witnesses, the continued hearing would likely be in January
sometime. The continued hearing was set for January 4, 2000, notice of which was served on
Schaefer by certified mail, return receipt requested, on November 30, 1999; the return receipt
was signed by Schaefer on December 6, 1999. On December 16, 1999, Schaefer moved for a
continuance of the January 4 date; the motion was denied on December 23, 1999.
After the hearing and receipt of post-trial briefs from both Schaefer and the state bar,
the panel issued its findings and recommendation.
In connection with the counts based on the litigation with the Association, the panel
found that Schaefer had committed one violation of SCR 170 (meritorious claims), one
violation of SCR 173(3) (fairness to opposing party and counsel: disobeying obligation to
tribunal), one violation of SCR 173(6) (fairness to opposing party and counsel: request that
witness refrain from providing information), three violations of SCR 182 (communication
with represented person), one violation of SCR 203(1) (violation of the rules of professional
conduct), one violation of SCR 203(2) (criminal act reflecting adversely on lawyer's fitness to
practice), one violation of SCR 203(3) (misconduct involving dishonesty, deceit, fraud or
misrepresentation) and four violations of SCR 203(4) (conduct prejudicial to administration
of justice).
In connection with the Texas case, the panel found that Schaefer had violated SCR
172 (candor toward the tribunal), SCR 203(3) (misconduct involving dishonesty, deceit, fraud
or misrepresentation), and SCR 203(4) (conduct prejudicial to administration of justice).
With respect to the Mirage Resorts litigation, the panel found that Schaefer had violated SCR
182 (contact with represented persons).
The panel also found that the aggravating factors of a pattern of misconduct, multiple
offenses, and a refusal by Schaefer to acknowledge the wrongfulness of his actions had
been shown by clear and convincing evidence.
acknowledge the wrongfulness of his actions had been shown by clear and convincing
evidence. Based on these findings, the panel recommended that Schaefer be disbarred.
DISCUSSION
We are presented with several issues in this case. First, we must determine whether
SCR 182, a rule of professional conduct that prohibits lawyers from directly contacting
represented parties, applies to communications by a lawyer appearing pro se. If so, we must
decide whether the rule may constitutionally be enforced in this case. A related issue is
whether a lawyer who is a corporate principal, and who litigates on behalf of the corporation,
may be considered to be appearing pro se. With respect to the hearing panel's findings and
recommendation, we must decide whether the ethical violations found by the panel are
supported by clear and convincing evidence, and if so, whether disbarment is the appropriate
discipline. Finally, Schaefer raises a procedural issue concerning the scheduling of the formal
hearing.
Scope of SCR 182
[Headnote 1]
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, unless the lawyer has the consent of the other lawyer or is authorized by law to
do so.
The purpose of the rule is generally regarded as twofold: first, it prevents lawyers from taking
advantage of laypersons, and second, it preserves the integrity of the attorney-client
relationship.
1
The rule also prevents inadvertent disclosure of privileged information by the
layperson.
2
The issue in this case is whether the word client in the introductory phrase
includes the lawyer himself, or means only a separate person who retains the lawyer.
Schaefer argues that SCR 182 does not prohibit a lawyer who is representing himself
in a case from directly contacting another party to the case who is represented by counsel. In
support, Schaefer cites to the commentary to ABA Model Rule 4.2, which is nearly identical
to SCR 182, as well as authority from other jurisdictions holding that SCR 1S2 does not
prohibit a lawyer representing himself from contacting represented parties.
__________

1
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95- 396 (1995); see Faison v.
Thornton, 863 F. Supp. 1204, 1213 (D. Nev. 1993) (recognizing that SCR 182 is designed to preserve the
integrity of the attorney-client relationship).

2
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995).
jurisdictions holding that SCR 182 does not prohibit a lawyer representing himself from
contacting represented parties.
Comment 1 to Model Rule 4.2 provides that parties to a matter may communicate
directly with each other.
3
The comment does not specifically address the situation of a
lawyer appearing pro se. Courts in some jurisdictions that have adopted Model Rule 4.2 have
concluded that the rule does not prohibit contact when the lawyer represents himself.
4

The majority of courts considering the issue, however, have noted that the purposes
served by the rule are equally present when the lawyer appears pro se.
5
The lawyer still has
an advantage over the average layperson, and the integrity of the relationship between the
represented person and counsel is not entitled to less protection merely because the lawyer is
appearing pro se. Consequently, these courts have enforced the rule in situations where a pro
se lawyer makes direct contact with a represented party.
[Headnote 2]
The state bar's Standing Committee on Ethics and Professional Responsibility came to
the same conclusion in a 1988 nonbinding formal opinion (Formal Opinion 8).
6
The
committee determined that SCR 182 applies to a lawyer appearing pro se, and bars the lawyer
from directly contacting an opposing party who is represented by counsel.
7
We agree, and
conclude that the purposes of the rule are better served by applying it to lawyers who are
representing themselves.
[Headnote 3]
A related issue is whether a lawyer who litigates on behalf of a corporation of which
he is a principal is subject to the rule's restrictions on contact. Schaefer argues that SCR 44,
which provides that nothing in the Supreme Court Rules prohibits a person from representing
himself in any court except the supreme court,
__________

3
American Bar Association, Annotated Model Rules of Professional Conduct 397 (4th ed. 1999).

4
See, e.g., Pinsky v. Statewide Grievance Committee, 578 A.2d 1075 (Conn. 1990); California Rule of
Professional Conduct 2-100 cmt. (discussing California's version of Model Rule 4.2, nearly identical to Nevada's
SCR 182, and stating that a lawyer who is also a party may communicate on his own behalf with a represented
party, as the lawyer has independent rights as a party that are not abrogated by his professional status).

5
See, e.g., Runsvold v. Idaho State Bar, 925 P.2d 1118 (Idaho 1996); In re Segall, 509 N.E.2d 988 (Ill.
1987); Sandstrom v. Sandstrom, 880 P.2d 103 (Wyo. 1994); see also D.C. Bar Legal Ethics Comm., Op. 258
(1995).

6
State Bar of Nevada Standing Comm. on Ethics and Professional Responsibility, Formal Op. 8 (1988).

7
Id.
together with SCR 2(8), which provides that person includes a corporation, means that he is
entitled to represent Schaefer, Inc., as a pro se litigant. Thus, according to Schaefer, he is not
representing a separate client, and so the rule does not apply.
[Headnote 4]
We have consistently held that a legal entity such as a corporation cannot appear
except through counsel, and we have prohibited non-lawyer principals from representing
these types of entities.
8
Based on our prior cases, a lawyer principal who appears on behalf
of his corporation is clearly acting in his capacity as a lawyer representing a client, not as a
principal of the corporation. We therefore conclude that SCR 182 applies in these situations.
In addition, in light of our clear rulings on this issue, we reject Schaefer's argument that SCR
182 as applied to such situations is void for vagueness.
[Headnote 5]
Finally, Schaefer contends that his contact with the Mirage Resorts officers and
employees was permissible because he is a Mirage shareholder. According to Schaefer, SCR
182 only prohibits communication concerning the subject of the litigation. Schaefer thus
argues that his letters to Mirage employees
9
and directors did not violate SCR 182 as they
concerned shareholder matters.
SCR 182 bars only communication concerning the subject of the representation.
Thus, communications from Schaefer concerning matters of interest to Mirage shareholders
unrelated to the pending litigation would not be barred by the rule. Here, however, while
several letters in the record raise shareholder-type concerns, many do not. In addition, even
those including shareholder concerns also discuss the pending litigation. Accordingly,
Schaefer's conduct was within the scope of SCR 182.
Constitutionality of SCR 182
Schaefer makes several constitutional arguments against enforcement of SCR 182.
First, Schaefer argues that since the rule prohibits speech about a particular subject, i.e., the
subject of the representation, it is a presumptively invalid content-based restriction that must
withstand strict scrutiny to be constitutional.
__________

8
Guerin v. Guerin, 116 Nev. 210, 993 P.2d 1256; Sunde v. Contel of California, 112 Nev. 541, 915 P.2d 298
(1996); Salman v. Newell, 110 Nev. 1333, 885 P.2d 607 (1994).

9
The particular employees here were unquestionably within the scope of SCR 182, as they were all
management-level employees. See Cronin v. District Court, 105 Nev. 635, 781 P.2d 1150 (1989).
[Headnotes 68]
We note that Schaefer cites no authority in support of his argument, and so it need not
be considered.
10
Moreover, the argument is clearly without merit. In Gentile v. State Bar of
Nevada,
11
the United States Supreme Court held that a lawyer's speech in pending cases is
subject to a greater degree of regulation than that of the press. In addition, the Supreme Court
has pointed out that the term content-based generally refers to whether the speech is
prohibited on the basis of viewpoint,
12
and that laws that confer benefits or impose burdens
on speech without reference to the ideas or views expressed are in most instances content
neutral.
13
A regulation is not an invalid content-based restriction merely because one must
review the speech's content in order to determine whether the regulation has been violated.
14
We thus conclude that SCR 182 is not a content-based restriction, but rather is content
neutral.
[Headnote 9]
As a content neutral restriction on speech, SCR 182 is constitutional if it is within the
government's power, it furthers an important government interest unrelated to the suppression
of free expression, and the incidental restriction on free expression is no greater than
necessary.
15
We conclude that under this test, SCR 182 is constitutional. First, it is within
this court's power to promulgate rules governing the legal profession, and so SCR 182 is
within the government's power. Next, the rule furthers the important interests of protecting
the attorney-client relationship from interference and protecting laypersons from overbearing
by an opposing lawyer; this interest is unrelated to the suppression of free expression. Finally,
the restriction on speech is no greater than necessary. A lawyer is not prohibited from all
speech or contact; rather, the lawyer must obtain permission from opposing counsel, or must
otherwise be authorized by law to make direct contact with a represented person regarding the
subject of the representation.
Schaefer next argues that SCR 182, as applied to him when he was representing
himself or Schaefer, Inc., is unconstitutionally vague, in that SCR 182 does not make clear
what conduct is prohibited. Schaefer argues that the introductory phrase of the rule, "[i]n
representing a client," suggests that the lawyer and the client are not the same, and
consequently, a self-represented lawyer is not subject to the rule.
__________

10
SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984).

11
501 U.S. 1030, 1074 (1991).

12
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

13
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994).

14
Hill v. Colorado, 530 U.S. 703, 721 (2000).

15
United States v. O'Brien, 391 U.S. 367, 377 (1968).
[i]n representing a client, suggests that the lawyer and the client are not the same, and
consequently, a self-represented lawyer is not subject to the rule. In support, he cites authority
from California and Connecticut indicating that the rule does not apply to lawyers appearing
pro se.
16
He also argues that Formal Opinion 8 is not binding, and moreover does not clearly
state that lawyers appearing pro se are prohibited from contacting represented parties.
The state bar argues that, as Schaefer is a lawyer, he should be held to a greater
understanding of the rules than a layperson unfamiliar with statutory interpretation. In
support, the state bar cites Wisconsin authority holding that a rule requiring a lawyer to
abstain from an offensive personality clearly established the prohibited conduct,
17
and a
Ninth Circuit decision indicating that a rule requiring a lawyer to refrain from conduct
unbecoming a member of the bar was sufficiently clear.
18
The state bar argues that Schaefer
was on notice that his conduct was prohibited by Formal Opinion 8, and by Schaefer's 1981
public reprimand for similar conduct.
Schaefer is correct in noting that Formal Opinion 8 is nonbinding. But Schaefer's
analysis of the opinion is flawed. The opinion clearly prohibits contact between a
lawyer-party and opposing parties whom the lawyer knows are represented by counsel. The
committee acknowledged that the rule could be subject to different interpretations, and noted
the existence of conflicting authority. Nevertheless, the committee concluded that the
better-reasoned position is that SCR 182 applies to lawyers appearing pro se.
[Headnotes 1012]
As stated by the United States Supreme Court in 1926, a statute or rule is
impermissibly vague if it either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning and differ as to its
application.
19
This remains the test today.
20
It is well-settled that, in evaluating whether a
statute is vague, judicial opinions construing the statute should be considered.
21
[T]he
touchstone is whether the statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the . . . conduct was [prohibited].
__________

16
Pinsky, 578 A.2d at 1079; California Rule of Prof'l Conduct 2-100 cmt.

17
Matter of Beaver, 510 N.W.2d 129, 133 (Wis. 1994).

18
United States v. Hearst, 638 F.2d 1190, 1197 (9th Cir. 1980).

19
Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

20
United States v. Lanier, 520 U.S. 259, 266 (1997).

21
Lanier, 520 U.S. at 266-67; Bouie v. City of Columbia, 378 U.S. 347, 355, 362 (1964); Winters v. New
York, 333 U.S. 507, 514-15 (1948) (noting that an individual is chargeable with knowledge of the scope of
subsequent interpretation of a statute); Minnesota v. Probate Court, 309 U.S. 270, 273-
the statute, either standing alone or as construed, made it reasonably clear at the relevant time
that the . . . conduct was [prohibited].
22
In addition, questions of vagueness must be more
closely examined where First Amendment rights are implicated.
23

[Headnote 13]
We conclude that the non-binding nature of Formal Opinion 8, together with the
existence of conflicting authority from other jurisdictions, renders SCR 182 vague as applied
to Schaefer when he represented himself in the litigation at issue. In the absence of clear
guidance from this court, Schaefer could have reasonably concluded that the rule did not
apply in situations where he was self-represented. While a lawyer-party's insistence on
contacting represented parties, even in the face of specific requests not to do so, could be
viewed as unprofessional, SCR 182 arguably did not clearly prohibit the contact.
We are not persuaded otherwise by the state bar's cited authority. In Matter of Beaver,
the Wisconsin court considered that the term offensive personality had been sufficiently
defined by case law and by its incorporation into the ethical rules of the state.
24
Here, no
binding case law from this court interpreting SCR 182 was available during the time period at
issue. Additionally, the rule in California, where Schaefer is also admitted to practice, permits
direct contact by a self-represented lawyer with a represented person.
In United States v. Hearst,
25
the Ninth Circuit referred Patricia Hearst's defense
counsel, F. Lee Bailey and J. Albert Johnson, for investigation by disciplinary authorities
based on their contract for a book about the case, which created at least a potential conflict of
interest with their client. The court interpreted the term conduct unbecoming a member of
the bar to incorporate the legal profession's code of behavior; in addition, the court relied
on several other specific rules in determining that the lawyers' conduct should be investigated
more fully in a disciplinary proceeding.
26
Here, no additional code or rules render SCR
182 any more clear with respect to a self-represented lawyer.
__________
74 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 456 (1939); Hicklin v. Coney, 290 U.S. 169, 172 (1933);
Bandini Co. v. Superior Court, 284 U.S. 8, 17-18 (1931); Fox v. Washington, 236 U.S. 273, 277 (1915).

22
Lanier, 520 U.S. at 267.

23
Ashton v. Kentucky, 384 U.S. 195, 200 (1966); see also Reno v. American Civil Liberties Union, 521 U.S.
844, 870-72 (1997) (noting that even if a statute is not so vague as to violate due process, it may be
impermissibly vague under the First Amendment if it chills protected speech). As discussed above, we conclude
that SCR 182 does not violate the First Amendment.

24
510 N.W.2d at 132-34.

25
638 F.2d at 1193-95.

26
Id. at 1197-99.
[Headnote 14]
In addition, we decline to consider Schaefer's 1981 reprimand as providing notice
concerning SCR 182. Schaefer was publicly reprimanded in part for violating SCR 190,
which in 1981, provided as follows:
A member of the state bar shall not in any way communicate upon the subject of
controversy with a party represented by counsel . . . .
This version of the rule did not include the prefatory language of the current version of SCR
182, [i]n representing a client, and clearly forbade a lawyer from contacting a represented
party under all circumstances concerning the subject of controversy. In contrast, the current
version of SCR 182 arguably lends itself to some confusion when a lawyer is
self-represented.
[Headnote 15]
Accordingly, to the extent that the violations of SCR 182 found by the panel rely on
instances in which Schaefer was representing himself, they may not be considered in
determining the appropriate discipline to be imposed in this case. [D]ue process bars courts
from applying a novel construction of a criminal statute to conduct that neither the statute nor
any prior judicial decisions has fairly disclosed to be within its scope.
27
While SCR 182 is
not a criminal statute, nor is our construction precisely novel in light of Formal Opinion 8
and the decisions of several other jurisdictions, SCR 182 did not fairly disclose that direct
contacts with represented parties while a lawyer is self-represented are forbidden. Nevada's
lawyers are now on notice, however, that SCR 182 applies to them even when they are
representing themselves. As discussed above, Schaefer's argument that the rule is vague as
applied to situations where he represented Schaefer, Inc., is without merit.
[Headnote 16]
Schaefer next argues that SCR 182 is unconstitutionally overbroad because
unobjectionable contact such as settlement discussions are included within the rule's scope.
He cites no relevant authority in support of his argument, and it therefore need not be
considered.
28
In addition, we note that a settlement discussion between a lawyer-party and a
represented party is precisely the type of contact that raises some of the major concerns
addressed by the rule. The lay party is at a disadvantage, and may inadvertently disclose
privileged information during the course of such discussions.
__________

27
Lanier, 520 U.S. at 266; see also Bouie, 378 U.S. at 355, 362 (providing that judicial construction can cure
vagueness, but not retroactively, particularly where the construction broadens the conduct covered by the
statute).

28
Buckley, 100 Nev. at 382, 682 P.2d at 1390.
tently disclose privileged information during the course of such discussions.
[Headnotes 1719]
For an enactment to be overbroad on its face, it must reach a substantial amount of
constitutionally protected conduct.
29
Here, the rule only proscribes contact concerning the
subject matter of a pending case with respect to which the lawyer knows the party to be
represented. This proscription protects the party from potentially domineering behavior and
preserves the attorney-client relationship between the party and counsel. As discussed above,
a lawyer's speech concerning a pending case is subject to greater regulation than other forms
of speech.
30
Accordingly, the rule does not reach a substantial amount of constitutionally
protected speech. As Schaefer has not articulated how the rule is overbroad as applied to him,
and the rule is not overbroad on its face, we conclude that his argument is without merit.
[Headnote 20]
Schaefer's final constitutional argument concerns his Sixth Amendment rights as a
criminal defendant. He asserts that his contact with the Foxes was authorized by law
because as a pro se defendant in the criminal case, he had a right to contact the witnesses in
that case. He claims that he had this right even though a no-contact order had been entered,
and even though Mr. Fox was a represented defendant in the civil conspiracy case.
Here, Schaefer's communication concerned the civil conspiracy case, not only the
criminal case. Also, a no-contact order had been entered by the court, and Schaefer violated
it. Finally, the substance of Schaefer's contact was an attempt to persuade the Foxes to change
their testimony in the criminal case to favor Schaeferan illegal communication.
31
Accordingly, Schaefer's argument is without merit.
Propriety of continued hearing
[Headnote 21]
Schaefer challenges the denial of his request for a continuance of the second hearing
date so that he could obtain counsel. Schaefer argues that he is entitled to a new hearing
because the second hearing was reset for January 4, not later in the month. According to
Schaefer, he was not able to find new counsel because no one wanted to work on his case
over the holidays.
__________

29
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 (1982).

30
Gentile, 501 U.S. at 1074.

31
NRS 199.240 (providing that offering compensation or reward to a witness to influence his testimony in an
official proceeding is a category C felony).
We are not persuaded by Schaefer's argument. Schaefer stated on the record that he
needed no more than one week's notice of the continued hearing, and was aware from
November 17, 1999, that he needed to find counsel immediately. Additionally, he was
notified no later than December 6, 1999, of the new hearing date. Even from December 6,
Schaefer had four weeks to obtain new counsel and to prepare for the continued hearing.
Schaefer has not demonstrated that this period was insufficient and that he is entitled to a new
hearing.
Adequacy of evidence supporting violations
[Headnotes 22, 23]
Although the recommendations of the disciplinary panel are persuasive, this court is
not bound by the panel's findings and recommendation, and must examine the record anew
and exercise independent judgment.
32
Ethical violations must be proven by clear and
convincing evidence, which this court has described as evidence which need not possess
such a degree of force as to be irresistible, but there must be evidence of tangible facts from
which a legitimate inference . . . may be drawn.'
33

[Headnote 24]
In connection with the order Schaefer prepared in the injunction case, the panel found
that Schaefer violated SCR 173(3) (fairness to opposing party and counsel: disobeying
obligation to tribunal) and SCR 203(4) (conduct prejudicial to the administration of justice).
The record demonstrates that Schaefer deliberately included an award of costs to Schaefer,
Inc., in the order he prepared when the district court had not awarded any costs. He
subsequently refused to stipulate to a modification of the order, thus forcing opposing counsel
to file a motion to amend. We conclude that the violation of SCR 173(3) is supported by clear
and convincing evidence. We disregard the violation of SCR 203(4), as no such violation was
charged for this conduct in the complaint.
34

[Headnote 25]
With respect to Schaefer's visit to the Foxes, the panel found that Schaefer had
violated SCR 173(6) (fairness to opposing party and counsel: request that witness refrain
from providing information), SCR 1S2 {communication with represented person), SCR
203{2) {criminal act adversely reflecting on fitness to practice), and SCR 203{4) {conduct
prejudicial to the administration of justice).
__________

32
In re Kenick, 100 Nev. 273, 680 P.2d 972 (1984).

33
In re Stuhff, 108 Nev. 629, 635, 837 P.2d 853, 856 (1992) (quoting Gruber v. Baker, 20 Nev. 453, 477, 23
P. 858, 865 (1890)).

34
Burgess v. Storey County, 116 Nev. 121, 992 P.2d 856 (2000) (holding that due process requires that party
be notified of charges against him); State Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988)
(noting that due process requirements must be met in bar proceedings).
and counsel: request that witness refrain from providing information), SCR 182
(communication with represented person), SCR 203(2) (criminal act adversely reflecting on
fitness to practice), and SCR 203(4) (conduct prejudicial to the administration of justice). We
conclude that clear and convincing evidence supports the panel's finding that by offering to
dismiss Mr. Fox from the conspiracy case in exchange for favorable testimony in the criminal
case, Schaefer violated SCR 173(6).
[Headnote 26]
The panel did not make any findings to support its determination that Schaefer
violated SCR 203(2), and the basis for the finding is not clear from the record. Also, the
complaint did not include a charge that Schaefer violated this rule, but rather SCR 203(3). In
addition, the complaint did not charge violations of SCR 182 or SCR 203(4) for this conduct.
Accordingly, we conclude that these violations may not be considered.
35

[Headnote 27]
Concerning the global settlement, the panel found that Schaefer violated SCR 182
(communication with represented party). The record demonstrates that Schaefer repeatedly
contacted the Association president directly concerning the settlement, despite a specific
request that all contact be through counsel. The violation of SCR 182 is thus supported by
clear and convincing evidence. As Schaefer was representing Schaefer, Inc., in this matter,
the violation may be considered in determining an appropriate sanction.
[Headnote 28]
In the receivership case, the panel found that Schaefer violated SCR 170 (meritorious
claims), SCR 182 (communication with represented party), SCR 203(1) (violation of the rules
of professional conduct), SCR 203(3) (misconduct involving dishonesty, deceit, fraud or
misrepresentation), and SCR 203(4) (conduct prejudicial to administration of justice). The
record reflects that Schaefer included the Thaler Trust as a party-plaintiff when the trustee
had not authorized him to do so, and at a time when he knew the trustee was out of the
country for several months and would not discover his actions. The record also reflects that
the complaint was frivolous, and that the district court imposed sanctions of $5,000, which
Schaefer persistently refused to pay. We conclude that the violations of SCR 170 and SCR
203(3) are supported by clear and convincing evidence. As the complaint did not charge
violations of SCR 1S2, SCR 203{1) or SCR 203{4) based on this conduct, these violations
will not be considered.
__________

35
Id.; see also Robison v. Robison, 100 Nev. 668, 691 P.2d 451 (1984) (noting that a tribunal's findings must
include a sufficient factual basis for its ultimate conclusions).
charge violations of SCR 182, SCR 203(1) or SCR 203(4) based on this conduct, these
violations will not be considered.
36

With respect to the Mirage cases, the panel found that Schaefer violated SCR 182 by
directly contacting officers, directors and employees of the Mirage, even after specifically
requested by Mirage Resorts' general counsel to refrain from such contact. The record
contains clear and convincing evidence of these contacts. But since Schaefer was representing
himself in these cases, we do not consider this violation in determining the appropriate
discipline to be imposed.
[Headnote 29]
In the Texas case, the panel found that Schaefer violated SCR 172 (candor toward the
tribunal), SCR 203(3) (misconduct involving dishonesty, deceit, fraud or misrepresentation),
and SCR 203(4) (conduct prejudicial to the administration of justice) by submitting a false
affidavit in support of his application for admission pro hac vice. SCR 99 provides that this
court has disciplinary jurisdiction over attorneys admitted in this state. Moreover, SCR 203.5
specifically provides that this court has jurisdiction over a lawyer licensed in Nevada even if
practicing elsewhere. Thus, Schaefer's conduct in Texas is subject to discipline in Nevada.
We conclude that by claiming he had not been subject to discipline within the pertinent time
period, when in fact he had, Schaefer violated SCR 172 and SCR 203(3). We disregard the
panel's finding that Schaefer violated SCR 203(4), as no such violation was charged in the
complaint.
37

Propriety of recommended discipline
The panel found one violation of SCR 170 (meritorious claims), one violation of SCR
172 (candor toward the tribunal), one violation of SCR 173(3) (fairness to opposing party and
counsel: disobeying obligation to tribunal), one violation of SCR 173(6) (fairness to opposing
party and counsel: request that witness refrain from providing information), four violations of
SCR 182 (communication with represented party), one violation of SCR 203(1) (violation of
the rules of professional conduct), one violation of SCR 203(2) (criminal act adversely
reflecting on lawyer's fitness), two violations of SCR 203(3) (misconduct involving
dishonesty, deceit, fraud or misrepresentation), and five violations of SCR 203(4) (conduct
prejudicial to administration of justice). As discussed above, we do not consider one of the
SCR 1S2 violations, since Schaefer was representing himself in that instance.
__________

36
Burgess, 116 Nev. at 124-25, 992 P.2d at 858; Claiborne, 104 Nev. at 216-17, 756 P.2d at 530.

37
Burgess, 116 Nev. at 124-25, 992 P.2d at 858; Claiborne, 104 Nev. at 216-17, 756 P.2d at 530.
182 violations, since Schaefer was representing himself in that instance. We also disregard
two of the SCR 182 violations, the SCR 203(1) violation, the SCR 203(2) violation and four
of the SCR 203(4) violations, as no such violations were charged in the complaint based upon
the particular conduct relied upon by the panel.
The panel also found that the aggravating factors of a pattern of misconduct, multiple
offenses, and Schaefer's refusal to acknowledge the wrongfulness of his actions had been
shown by clear and convincing evidence. We conclude that the record supports the panel's
finding of aggravating factors. Multiple offenses have been shown, as has a pattern of
misconduct. In addition, Schaefer steadfastly maintains that all of his conduct was
permissible, and fails to acknowledge in any way that his conduct was wrongful.
Schaefer's discipline history is of relevance in determining the appropriate sanction to
be imposed, and it includes two public reprimands and a suspension. The first public
reprimand was by this court in 1981 for taking a default without notice to opposing counsel
even though counsel had appeared in the action, and for engaging in settlement discussions
with a represented party without counsel's consent. Schaefer also received a public reprimand
from this court in 1995, as reciprocal discipline based on a 1993 California order including
numerous probationary conditions, for (1) willfully failing to maintain the respect due the
courts by disobeying a United States District Court order of October 13, 1993; (2) making a
threatening statement to opposing counsel; and (3) failing to safeguard a client's files after the
termination of his representation. In 1998, Schaefer received a one-year stayed suspension
from this court, with 30 days actually served, as reciprocal discipline for a 1997 California
order, based on Schaefer's failure to comply with the probationary conditions imposed by the
California court's 1993 disciplinary order.
CONCLUSION
[Headnote 30]
We conclude that disbarment is warranted. The record reflects a blatant disregard by
Schaefer for the rights of others and the administration of justice. This pattern is
demonstrated by Schaefer's actions in naming the Thaler Trust as a party without
authorization, his attempt to influence a witness's testimony, his self-serving award of costs
without court order, and his false affidavit to the Texas court. Schaefer's persistent refusal to
recognize that any of his actions were improper indicates that his behavior is not likely to
improve in the future. Under these circumstances, disbarment is the only sanction that will
adequately serve the purposes of attorney discipline: to protect the public and the integrity
of the bar.
poses of attorney discipline: to protect the public and the integrity of the bar.
38

Accordingly, John Michael Schaefer is disbarred. Schaefer shall pay the costs of the
disciplinary proceeding within thirty (30) days, and Schaefer and the state bar shall comply
with SCR 115.
____________
117 Nev. 519, 519 (2001) Besnilian v. Wilkinson
GLENDA LEE BESNILIAN, Appellant, v. GIZELE WILKINSON, SILVA CHANG, and
GEORGE BESNILIAN, Respondents.
No. 32032
June 21, 2001 25 P.3d 187
Appeal from the district court's judgment denying a claim for quiet title to real estate
and a post-judgment order retaxing costs. Second Judicial District Court, Washoe County;
Steven P. Elliott, Judge.
Wife sued husband's grantees to quiet title to real property that she and husband held
in joint tenancy, but which they both declared to be homestead property prior to his death.
The district court entered judgment for grantees. Wife appealed. The en banc supreme court,
Shearing, J., held that: (1) laches did not bar wife's claim, and (2) one spouse who is party to
declaration of homestead cannot convey or transfer title to homestead property without
consent of other spouse.
[En banc reconsideration denied July 17, 2001]
Richard G. Hill, Reno, for Appellant.
C. Nicholas Pereos, Reno, for Respondents Wilkinson and Chang.
George Besnilian, Reseda, California, in Proper Person.
Husband's grantees lacked standing to appeal denial of their summary judgment motion in wife's action to quiet title to real
property that she and husband acquired as joint tenants prior to his death, but in which husband had alienated his interest unbeknownst
to wife. Denial of motion for summary judgment was not appealable order, and grantees were not aggrieved by district court's final
judgment, which was in their favor. NRAP 3A.
__________

38
Claiborne, 104 Nev. at 219, 756 P.2d at 531.
2. Equity.
Laches, an equitable doctrine, may be invoked when delay by one party prejudices the other party such that granting relief to the
delaying party would be inequitable.
3. Equity.
To invoke laches, the party must show that the delay caused actual prejudice.
4. Quieting Title.
Husband's grantees were not prejudiced by loss of husband's legal records, and thus, laches did not bar wife's action against
grantees to quiet title to real property that she and husband acquired as joint tenants prior to his death, but in which husband had
alienated his interest, unbeknownst to wife. Despite claim that such records were necessary to prove that husband was competent when
he conveyed his interest in joint tenancy as gift deed, issue was not husband's competency when executing gift deed, but rather, issue
was matter of law regarding effect of one party's gift deed to homestead property.
5. Quieting Title.
Husband's grantees were not prejudiced by loss of husband's medical records, and thus, laches did not bar wife's action against
grantees to quiet title to real property that she and husband acquired as joint tenants prior to his death, but in which husband had
alienated his interest, unbeknownst to wife, despite claim that such records were necessary to prove husband's incompetency at time of
declaration of homestead. Despite unavailability of records prepared by doctor who testified that he had no recollection of ever having
seen husband incompetent, duplicate records were available from hospital, but grantees did not obtain them.
6. Homestead; Quieting Title.
Husband could not, without wife's knowledge and consent, alienate his interest in property they held in joint tenancy, but which
they both declared to be homestead property. Thus, to extent that homestead property did not exceed value stated in homestead statute,
wife was entitled to prevail in her quiet title action against husband's grantees. Const. art. 4, 30; NRS 115.010.
7. Homestead.
Homestead law, unknown to common law, is a constitutional and statutory reflection of public policy and sentiment. Const. art.
4, 30; NRS 115.005 et seq.
8. Homestead.
The purpose of the homestead law is to preserve the family home despite financial distress, insolvency or calamitous
circumstances, and to strengthen family security and stability for the benefit of the family, its individual members, and the community
and state in which the family resides. Const. art. 4, 30; NRS 115.005 et seq.
9. Homestead.
There is a judicial tendency to construe homestead laws liberally in favor of the class of persons for whose benefit they were
enacted. Const. art. 4, 30; NRS 115.005 et seq.
10. Homestead.
One spouse who is a party to a declaration of homestead cannot convey or transfer title to the homestead property without the
consent of the other spouse. Const. art. 4, 30; NRS 115.005 et seq.
OPINION
The principal issue in this case is whether one party to a declaration of homestead can
alienate his interest in the homestead property without the knowledge or consent of the other
party. The district court held that one party may not alienate homestead property, but found
that appellant's delay in filing her action to quiet title precluded her recovery. We agree that
one party may not alienate homestead property without the consent of the other party, but
disagree that appellant's claim is barred by laches. Therefore, we reverse the judgment of the
district court and the order retaxing costs.
FACTS
Simon Besnilian and Glenda Besnilian, husband and wife, acquired real property in
joint tenancy in 1975. In 1990, they jointly executed a declaration of homestead on the
property. Subsequently, unbeknownst to Glenda, Simon executed a deed giving his half of the
property to Gizele Wilkinson, Silva Chang and George Besnilian. Simon died and Wilkinson
served as executrix of his estate. The real property was not listed as an asset of the probate
estate and apparently Glenda did not participate in the probate proceeding. Glenda continued
to live on the property and paid all debt service, maintenance, taxes and insurance after her
husband's death.
[Headnote 1]
In 1995, Glenda filed an action with several claims for relief, including a claim to
quiet title to the real property. A district judge granted partial summary judgment to Glenda
on her quiet title claim, concluding that both spouses must join in any conveyance of
homestead property or else the conveyance would be void. Before trial on the remaining
issues, the initial district judge died, and a new district judge conducted the trial. After trial,
the district court ruled that Glenda was barred by laches from pursuing her claim and taxed
her with costs. Glenda appealed.
1

__________

1
Respondents filed a cross-appeal from the district judge's order denying respondents' motion for summary
judgment. This court dismissed the cross-appeal. Denial of a motion for summary judgment is not an appealable
order, and respondents were not aggrieved by the district court's final judgment. NRAP 3A; see also Taylor
Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984). Therefore, respondents lacked standing to
appeal.
DISCUSSION
Laches
[Headnotes 2, 3]
Laches, an equitable doctrine, may be invoked when delay by one party prejudices the
other party such that granting relief to the delaying party would be inequitable.
2
However, to
invoke laches, the party must show that the delay caused actual prejudice.
3

[Headnote 4]
In this case, the district court found that Glenda's delay in filing the action to quiet
title resulted in valuable evidence being lost; namely, the legal and medical records of Simon
Besnilian. The district court concluded that respondents were prejudiced by the loss of the
legal and medical records. We disagree.
Respondents argue that Simon's legal records were necessary to prove that Simon was
competent when he conveyed his interest in the joint tenancy as a gift deed. But Simon's
competency when executing the gift deed was not at issue in the case. The disputed issue was
a matter of law regarding the effect of one party's gift deed to homestead property. Thus,
Simon's legal records were irrelevant and their loss did not cause actual prejudice to
respondents.
[Headnote 5]
Respondents also argue that Simon's medical records were necessary to show Simon's
incompetency at the time of the declaration of homestead. Simon's doctor testified that he had
no recollection of ever having seen Simon incompetent. Although the doctor's own records
were not available at the time of trial, duplicate records were available from St. Mary's
Hospital, but respondents did not obtain them. Thus, even if the records would have belied
the doctor's testimony regarding Simon's competence, respondents could have obtained the
records from the hospital and, therefore, did not suffer actual prejudice by the loss of the
doctor's records. Because Glenda's delay did not cause respondents actual prejudice, it cannot
amount to laches.
4
Hence, the district court erred in concluding that laches barred appellant's
claim.
__________

2
Building & Constr. Trades v. Public Works, 108 Nev. 605, 610-11, 836 P.2d 633, 636-37 (1992).

3
State, Gaming Comm'n v. Rosenthal, 107 Nev. 772, 778, 819 P.2d 1296, 1301 (1991).

4
Memory Gardens v. Pet Ponderosa, 88 Nev. 1, 5, 492 P.2d 123, 125 (1972).
Homestead law
[Headnotes 69]
The issue presented in this case is the effect of a gift deed on property held in joint
tenancy, but declared to be homestead property by both joint tenants. Nevada's homestead law
is established in Article 4, Section 30 of the Constitution of the State of Nevada and NRS
Chapter 115. The Nevada Constitution provides that a homestead shall not be alienated
without the joint consent of husband and wife when that relation exists.
5
Homestead law,
unknown to common law, is a constitutional and statutory reflection of public policy and
sentiment.
6
The purpose of the homestead law is to preserve the family home despite
financial distress, insolvency or calamitous circumstances, and to strengthen family security
and stability for the benefit of the family, its individual members, and the community and
state in which the family resides.
7
The case law of this court and other jurisdictions reflects a
judicial tendency to construe homestead laws liberally in favor of the class of persons for
whose benefit they were enacted.
8

[Headnote 10]
Considering both the express language of the Nevada Constitution and the policy
behind the homestead law of protecting the individual members of a family, one spouse who
is a party to a declaration of homestead may not convey or transfer title to the homestead
property without the consent of the other spouse. Glenda Besnilian was clearly a member of
the class the homestead laws were enacted to protect. She lived on the homestead property
with her husband from the time they jointly acquired it in 1975 until his death. She and her
husband jointly signed the declaration of homestead, and she was her husband's surviving
spouse. Prohibiting a spouse from conveying his or her interest in a homesteaded, joint
tenancy estate without the knowledge and consent of his or her joint tenant spouse, not only
comports with our constitutional provision but also advances the public policy of the
homestead laws.
9
For this reason, we conclude that the district court correctly determined
that one party to a declaration of homestead cannot alienate a homestead property
without the other's consent.
__________

5

6
Jackman v. Nance, 109 Nev. 716, 718, 857 P.2d 7, 8 (1993).

7
Id.

8
Id.; Herndon v. Grilz, 112 Nev. 873, 878, 920 P.2d 998, 1001 (1996); Tramel v. Stewart, 697 So. 2d 821,
824 (Fla. 1997); Shamban v. Masidlover, 705 N.E.2d 1136, 1138 (Mass. 1999); Neel v. First Federal Sav. and
Loan Assoc., 675 P.2d 96, 102 (Mont. 1984); Woods v. Alvarado State Bank, 19 S.W.2d 35 (Tex. 1929).

9
Cf. Mullikin v. Jones, 71 Nev. 14, 278 P.2d 876 (1955) (husband could alienate his share of joint tenancy
estate when homestead was not declared pursuant to statute).
court correctly determined that one party to a declaration of homestead cannot alienate a
homestead property without the other's consent. To the extent that the homestead property
here did not exceed the statutory value stated in NRS 115.010, Glenda is entitled to prevail on
her quiet title action.
CONCLUSION
For the foregoing reasons, we reverse the district court's judgment and order retaxing
costs, and remand this case for proceedings consistent with this opinion. In light of our
decision, we need not address the parties' arguments concerning the order retaxing costs.
Maupin, C. J., Young, Leavitt and Becker, JJ., concur.
I concur. I write separately to point out the impact this decision has upon married
couples who hold property in joint tenancy.
Attorneys in Nevada will need to take special care to advise their clients concerning
whether or not to file a homestead declaration when the real property is held in joint tenancy.
Traditionally, a joint tenant enjoys the power to convey his or her interest in the property held
in joint tenancy with another, without the other's knowledge or consent. Such a conveyance
by a joint tenant terminates the joint tenancy.
1
As pointed out by the dissent, today's decision
does, in effect, transmute property held in joint tenancy into community property. NRS
123.230(3) forbids either spouse to convey or encumber real property which is community
property unless both spouses participate in the conveyance or encumbrance. Today's decision
permits the act of filing a homestead declaration to create rights each joint tenant has in the
undivided whole which heretofore did not exist. The holding subjects homesteaded property
held in joint tenancy between spouses to the same dispositional limitations as are described in
NRS 123.230(3). The decision does so without reference to or consideration of the amount of
the homestead exemption which the legislature sets and from time to time changes.
While I do not quarrel with the result reached by the majority in this case, I believe it
raises many more questions than it answers. The filing of a homestead exemption which was
once an innocuous act designed to protect property will now be sufficiently complicated by
legal consequences that consumers will be wise not to seek the exemption without first
seeking the advice of a qualified attorney.
__________

1
Smolen v. Smolen, 114 Nev. 342, 344, 956 P.2d 128, 130 (1998).
The majority opinion effectively changes joint tenancy ownership in real property to
community property once a homestead declaration is filed. I do not find any indication of this
intent in Nevada law, and it is not necessary to recognize such a transformation of property
status to give full effect to a homestead declaration. Since I agree with the majority in its view
that sufficient facts were not shown to impose laches on appellant, I would reverse both the
district court's judgment at trial and the district court's grant of partial summary judgment on
Glenda's quiet title claim and remand the entire matter for further proceedings.
____________
117 Nev. 525, 525 (2001) Moran v. Bonneville Square Assocs.
ANDREA MORAN, Appellant, v. BONNEVILLE SQUARE ASSOCIATES, a Nevada
Limited Partnership; AMTECH ELEVATOR SERVICES, a Foreign Corporation; and
B. MAX, INC., dba MAXTON MANUFACTURING, a Foreign Corporation,
Respondents.
No. 36433
June 27, 2001 25 P.3d 898
Jurisdictional screening of an appeal from a judgment on a jury verdict and an order
denying appellant's motion for additur in a personal injury action. Eighth Judicial District
Court, Clark County; Valorie J. Vega, Judge.
In personal injury action, the district court entered judgment on jury verdict and order
denying plaintiff's motion for additur. Plaintiff appealed. The supreme court held that
appellate counsel would be sanctioned five hundred dollars for his failure to provide full and
accurate responses to docketing statement requests.
Sanctions imposed on counsel for appellant.
Kirk T. Kennedy, Las Vegas, for Appellant.
Pico & Mitchell and Daniel E. Carvalho, Las Vegas, for Respondent Bonneville
Square Associates.
Rawlings Olson Cannon Gormley & Desruisseaux and Bryan W. Lewis, Las Vegas,
for Respondent Amtech Elevator Services.
Law Offices of Robert A. Weaver, Las Vegas, for Respondent B. Max, Inc., dba
Maxton Manufacturing.
Appellate counsel would be sanctioned five hundred dollars for his conduct in failing to provide full and accurate responses to
various docketing statement requests.
eting statement requests. Counsel failed to disclose that motion for new trial had been filed in trial court, failed to attach copy of
written order resolving the motion, and failed to attach copy of defendant's cross-claims. NRAP 14(a).
Since the supreme court is one of limited, appellate jurisdiction, court may not presume that it has jurisdiction over a docketed
appeal.
Burden rests squarely upon the shoulders of a party seeking to invoke the supreme court's jurisdiction to establish, to court's
satisfaction, that court does in fact have jurisdiction.
A notice of appeal filed after the timely filing of a post-judgment tolling motion, but before the formal disposition of the motion,
is ineffective and fails to vest jurisdiction in the appellate court. NRAP 4(a)(2); NRCP 59.
A single written order entered by a trial court formally resolving a post-judgment tolling motion can be dispositive as to whether
an appeal has been perfected. NRAP 4(a)(2).
As a general rule, an appeal may not be taken before the entry of a final written judgment.
7. Judgment.
A final written judgment adjudicates all the rights and liabilities of all the parties.
Appellate court lacks jurisdiction over the appeal if the notice of appeal is prematurely filed, before the entry of a final written
judgment.
9. Costs.
Sanctions may result if the appellate docketing statement is not fully and accurately completed, with all required documentation
attached. NRAP 14(a).
Before Young, Leavitt and Becker, JJ.
OPINION
Per Curiam:
This is an appeal from a judgment on a jury verdict, and an order denying appellant's
motion for additur, in a personal injury action. Our preliminary review of the documents
transmitted to this court pursuant to NRAP 3(e), along with the docketing statement, revealed
several potential jurisdictional defects. Accordingly, we ordered appellant Andrea Moran to
show cause why this appeal should not be dismissed for lack of jurisdiction.
[Headnote 1]
In addition, that same order directed Moran's counsel, Kirk T. Kennedy, to
demonstrate why he should not be sanctioned under NRAP 14{c) for his failure to provide
full and accurate responses to various docketing statement requests, including requests
17 and 23.
NRAP 14(c) for his failure to provide full and accurate responses to various docketing
statement requests, including requests 17 and 23. The docketing statement submitted to this
court by Kennedy contained the required, signed verification in which he declared that the
information provided in [the] docketing statement is true and complete.
Docketing statement request 17 unambiguously required counsel to (1) disclose that a
motion for new trial pursuant to NRCP 59 was filed, and (2) attach to the docketing statement
a copy of the written order resolving the motion for new trial. Kennedy, however, failed to
disclose that the motion for new trial was filed and failed to attach a copy of the written order
denying the motion.
Request 23 instructed counsel to [a]ttach copies of the last-filed version of all
complaints, counterclaims, and/or cross-claims filed in the district court. Nevertheless,
Kennedy failed to attach a copy of respondent B. Max, Inc.'s last-filed cross-claims.
1

The importance of the docketing statement in a civil appeal is clearly set forth in
NRAP 14(a). As stated in the rule, [t]he purpose of the docketing statement is to assist the
Supreme Court in identifying jurisdictional defects, scheduling cases for oral argument and
settlement conferences, classifying cases for expedited treatment, and compiling statistical
information.
[Headnotes 2, 3]
Since this court is one of limited, appellate jurisdiction, we may not presume that we
have jurisdiction over a docketed appeal.
2
Rather, the burden rests squarely upon the
shoulders of a party seeking to invoke our jurisdiction to establish, to our satisfaction, that
this court does in fact have jurisdiction.
The docketing statement has specifically evolved over the years to aid us in making a
preliminary assessment as to whether jurisdiction over a given appeal exists. Whereas
appellate counsel may be intimately familiar with the multitude of proceedings before the
district court and their outcomes, this court has no such familiarity with the underlying case
when an appeal is initially docketed. The only materials from which we may preliminarily
assess the existence or non-existence of appellate jurisdiction are those few documents
transmitted to us by the clerk of the district court,
3
coupled with the docketing statement
and its attachments, prepared by counsel.
__________

1
We further note that the directions on the first page of the docketing statement requested that counsel use
tab dividers to separate any attached documents. Kennedy also failed to comply with this request.

2
Nev. Const. art. 6, 4; see Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984).

3
See NRAP 3(e), which reads:
Upon the filing of the notice of appeal, the clerk of the district court shall immediately transmit to the
clerk of the Supreme Court . . . two
coupled with the docketing statement and its attachments, prepared by counsel.
Consequently, the current docketing statement form contains a conspicuous
admonition on the first page:
WARNING
This statement must be completed fully, accurately and on time. NRAP 14(c). The
Supreme Court may impose sanctions on counsel or appellant if it appears that the
information provided is incomplete or inaccurate. Id. Failure to attach documents as
requested in this statement, completely fill out the statement, or to fail to file it in a
timely manner, will constitute grounds for the imposition of sanctions, including a fine
and/or dismissal of the appeal.
This court has noted that when attorneys do not take seriously their obligations under
NRAP 14 to complete the docketing statement properly and conscientiously, they waste
the valuable judicial resources of this court, making the imposition of sanctions
appropriate. . . .
As pointed out in the docketing statement, when appellate counsel fail to fully comply
with NRAP 14, this court is needlessly forced to allocate its limited resources in an effort to
address the deficiencies. Here, since attorney Kennedy did not provide essential information
in the docketing statement and did not attach all required documentation, we necessarily
issued an order directing the appellant to show cause why her appeal should not be dismissed
for lack of jurisdiction. Thereafter, we were required to invest additional resources in tracking
and evaluating the response. This process consumed untold hours and needlessly delayed
resolution of the appeal.
4

[Headnote 4]
Specifically, in response to docketing statement request 17, Kennedy failed to disclose
the existence of a motion for new trial and failed to attach a copy of the district court's written
order resolving the motion. These failures frustrated our preliminary jurisdictional
assessment, as an NRCP 59 motion for new trial is one of the post-judgment motions
expressly identified in NRAP 4{a){2) as a tolling motion.
__________
(2) certified, file-stamped copies of the following documents: (1) notice of appeal; (2) case appeal
statement; (3) the district court docket entries; (4) the judgment(s) or order(s) appealed from; (5) any
notice of entry of the judgment(s) or order(s) appealed from; (6) any certification order directing entry of
judgment pursuant to NRCP 54(b); (7) the minutes of the district court proceedings; and (8) a list of
exhibits offered into evidence, if any.

4
On June 13, 2001, we dismissed this appeal for lack of jurisdiction in an unpublished order.
one of the post-judgment motions expressly identified in NRAP 4(a)(2) as a tolling motion. A
timely-filed tolling motion terminates the running of the time for filing a notice of appeal,
5
and a notice of appeal filed after the timely filing of a post-judgment tolling motion, but
before the formal disposition of the motion, is ineffective and fails to vest jurisdiction in this
court.
6

[Headnote 5]
Thus, under NRAP 4(a)(2), a single written order entered by a district court formally
resolving a post-judgment tolling motion can be dispositive as to whether an appeal has been
perfected. This tenet, that a single written, district court order can indicate whether we have
jurisdiction over an appeal, is implicitly recognized by docketing statement request 17.
[Headnotes 68]
Docketing statement request 23 is no less important than request 17. As a general rule,
an appeal may not be taken before the entry of a final written judgment.
7
A final written
judgment adjudicates all the rights and liabilities of all the parties.
8
It is, therefore,
imperative that counsel attach to the docketing statement file-stamped copies of the last-filed
version of all complaints, counterclaims, andJor cross-claims filed in the district court.
__________

5
See NRAP 4(a)(2), which reads:
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.

6
See id.

7
See NRAP 3A(b)(1); Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987).

8
See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (explaining that a final judgment is
one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the
court, except for post-judgment issues); see also Rae v. All American Life & Cas. Co., 95 Nev. 920, 605 P.2d
196 (1979).
plaints, counterclaims, and/or cross-claims filed in the district court. In many appeals, our
review of those documents assists in determining whether a particular claim, counterclaim, or
cross-claim remains pending before the district court. In such instances, absent a valid and
proper NRCP 54(b) certification,
9
we lack jurisdiction over the appeal, given the notice of
appeal is prematurely filed, before the entry of a final written judgment.
10

As we stated more than ten years ago in KDI Sylvan Pools v. Workman, [w]hen
attorneys do not take seriously their obligations under NRAP 14 to properly and
conscientiously complete the docketing statement, they waste the valuable [and limited]
judicial resources of this court, making the imposition of sanctions appropriate.
11
In that
case, we sanctioned the appellant's and cross-appellant's attorneys one hundred dollars each
for their respective, deficient docketing statements. Here, in response to our show cause
order, Kennedy admits to the obvious flaws in the docketing statement[,] and that he made
neglectful errors in the completion of the docketing statement. Like the responses in KDI
Sylvan Pools, Kennedy's response indicates that he did not consider the docketing statement
important enough to warrant [his] careful attention.
12

[Headnote 9]
Kennedy is not alone; many attorneys apparently pay little attention to the docketing
statement before submitting it to this court, even though the statement contains a prominent
warning that sanctions may result. Consequently, this court issues innumerable show cause
orders in an attempt to obtain needed information regarding jurisdictioninformation that
should have been included in the docketing statement. We have previously sanctioned various
attorneys in unpublished orders because they were careless in completing the docketing
statement; we issue this opinion so that all state bar members are on notice that sanctions may
result if the docketing statement is not fully and accurately completed, with all required
documentation attached.
13

__________

9
See Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 797 P.2d 978 (1990); Hallicrafters Co. v.
Moore, 102 Nev. 526, 728 P.2d 441 (1986).

10
See KDI Sylvan Pools v. Workman, 107 Nev. 340, 342-43, 810 P.2d 1217, 1219 (1991).

11
Id. at 344, 810 P.2d at 1220; see also NRAP 14(c).

12
KDI Sylvan Pools, 107 Nev. at 344, 810 P.2d at 1220.

13
We note that NRAP 14 is not the only Nevada Rule of Appellate Procedure that imposes affirmative
obligations on appellate counsel. Violations of rules other than NRAP 14 are also customarily addressed by this
court through unpublished orders imposing sanctions on the offending attorney. As we stated in Smith v. Emery,
109 Nev. 737, 743, 856 P.2d 1386, 1390 (1993), a case in which we imposed a one thousand dollar sanction on
counsel for violating NRAP 28, [w]e intend to impress upon the members
Accordingly, as a sanction for his conduct, attorney Kirk T. Kennedy shall, within
thirty days from the date of this opinion, personally pay to the Clark County Law Library the
sum of five hundred dollars. In addition, Kennedy shall provide the clerk of this court with
proof of payment no later than fifteen days after he remits payment to the Clark County Law
Library.
____________
117 Nev. 531, 531 (2001) Nevada Mining Ass'n v. Erdoes
NEVADA MINING ASSOCIATION, a Nevada Non-Profit Corporation, Including Members
Such as BARRICK GOLDSTRIKE, INC.; NEWMONT MINING CORPORATION;
ANGLOGOLD CORP.; PLACERDOME U.S., INC.; KENNECOTT RAWHIDE
MINING COMPANY; NEVADA RESORT ASSOCIATION, a Nevada Non-Profit
Corporation; MGMMIRAGE, a Nevada Corporation; SIERRA PACIFIC
RESOURCES; NEVADA POWER COMPANY; SIERRA PACIFIC POWER
COMPANY; NEVADA BELL TELEPHONE COMPANY; CENTRAL
TELEPHONE COMPANYNEVADA, dba SPRINT OF NEVADA; and DEAN A.
RHOADS, Nevada Senator From Northern District, Petitioners, v. BRENDA
ERDOES, LEGISLATIVE COUNSEL BUREAU, Respondent.
No. 38039
NEVADA ASSOCIATION OF COUNTIES, a Nevada Non-profit Corporation; and
NEVADA ASSOCIATION OF COUNTY CLERKS and COUNTY ELECTION
OFFICIALS, a Nevada Not-For-Profit Corporation, Petitioners, v. BRENDA
ERDOES, LEGISLATIVE COUNSEL BUREAU, Respondent.
No. 38053
July 17, 2001 26 P.3d 753
These original petitions for writs of mandamus seek to compel Legislative Counsel to
enroll Assembly Bills No. 94 and No. 661, and deliver the bills to the Governor for action.
In two separate cases, petitioners sought writs of mandamus compelling Legislative
Counsel to enroll and deliver to Governor for action assembly bills on which final action had
been taken by State Legislature between midnight and 1:00 a.m. Pacific daylight saving time
on final day of legislative session. The supreme court,
__________
of the bar our resolve to end . . . lackadaisical practices . . . and to enforce the Nevada Rules of Appellate
Procedure.
Shearing, J., held that: (1) day on which regular legislative session commenced is included in
applying provision of State Constitution which requires Legislature to adjourn sine die by
midnight Pacific standard time 120 calendar days following commencement of session; and
(2) 1:00 a.m. Pacific daylight saving time was the equivalent of midnight Pacific standard
time, so that bills were validly enacted, and Legislative Counsel had duty to enroll bills.
Petitions granted.
Maupin, C. J., and Leavitt, J., dissented.
Wadhams & Akridge, Las Vegas, for Petitioner Newmont Mining Corporation.
Ann C. Pongracz, Las Vegas, for Petitioner Central Telephone Company-Nevada, dba
Sprint of Nevada.
Sierra Pacific Resources, Reno, William E. Peterson, General Counsel, Reno, for
Petitioners Sierra Pacific Resources, Sierra Pacific Power Company, and Nevada Power
Company.
Lionel Sawyer & Collins and Rory J. Reid, E. Leif Reid and Harvey Whittemore,
Reno, for Petitioners Nevada Mining Association, MGM-Mirage, Nevada Bell Telephone
Company, and Dean A. Rhoads.
Andrew A. List, Carson City, for Petitioners Nevada Association of Counties, and
Nevada Association of County Clerks and County Election Officials.
Brenda J. Erdoes, Legislative Counsel, and Kevin C. Powers, Principal Deputy
Legislative Counsel, Carson City, for Respondent.
1. Mandamus.
A writ of mandamus is available to compel a public officer to perform an act that the law requires as a duty resulting from an
office, trust or station. NRS 34.160.
2. Mandamus.
A writ of mandamus will not issue to compel a public officer to perform an act that the officer has no legal duty or authority to
perform.
3. Mandamus.
A writ of mandamus will not issue if the petitioner has a plain, speedy, and adequate remedy at law. NRS 34.170.
4. Mandamus.
Petitions for extraordinary relief, such as mandamus, are addressed to the sound discretion of the court.
5. Mandamus.
Petitions for writs of mandamus in which petitioners sought to compel Legislative Counsel to enroll assembly bills
that had been passed during last hour prior to conclusion of legislative session, and deliver bills to Governor
for action, would be considered by supreme court.
pel Legislative Counsel to enroll assembly bills that had been passed during last hour prior to conclusion of legislative session, and
deliver bills to Governor for action, would be considered by supreme court. Petitioners did not have a plain, speedy, and adequate
remedy at law, and petitions raised an issue of first impression regarding constitutional deadline for adjournment of Legislature that
needed clarification and was a matter of public importance. Const. art. 4, 2; NRS 34.160, 34.170.
6. Statutes.
For State Legislature, which is bicameral, to pass a bill, both houses must concur in and pass the same version of the bill during
the same legislative session. Thus, if each house passes a different version of a bill, both houses must subsequently concur in and pass
the same version of the bill before they adjourn the legislative session, and if each house passes a different version of a bill, and both
houses do not subsequently concur in the same version, the bill has not passed, and no provision of the bill can become law. Const. art.
4, 18.
7. Statutes.
In carrying out the statutory duties regarding enrolling of bills passed by Legislature, and delivery of such bills to Governor,
Legislative Counsel is complying with constitutional mandate that every bill which may have passed the Legislature must be presented
to the Governor before it becomes law, and consequently, Legislative Counsel has a duty to enroll and deliver to Governor all bills
validly passed before Legislature's constitutional adjournment deadline. Const. art. 4, 2; NRS 218.340, 218.380.
In construing constitutional provisions, courts use the same rules of construction used to interpret statutes.
Court's primary task in interpreting a constitutional provision is to ascertain the intent of those who enacted provision, and to
adopt an interpretation that best captures their objective.
Courts must give words used in a constitutional provision their plain meaning unless doing so would violate the spirit of the
provision.
11. States.
Under provision of State Constitution which requires State Legislature to adjourn sine die not later than midnight Pacific
standard time 120 calendar days following commencement of each regular legislative session, day on which regular session
commenced is included in determining date by which Legislature must adjourn. Const. art. 4, 2.
12. States; Time.
Midnight Pacific standard time, as used in provision of State Constitution requiring State Legislature to adjourn sine die not
later than midnight Pacific standard time 120 calendar days following commencement of each regular legislative session, is equivalent
to 1:00 a.m. Pacific daylight saving time, and thus, when change to daylight saving time from standard time has occurred during
course of legislative session, deadline for adjournment is 1:00 a.m. on 120th day following commencement, rather than midnight.
Const. art. 4, 2.
13. Statutes.
Assembly bills on which final action was taken by State Legislature between midnight and 1:00 a.m. Pacific daylight saving
time on 120th day following commencement of regular legislative session, during which shift to daylight saving time from standard
time had occurred, were validly enacted before deadline for adjournment under State Constitution, so that
Legislative Counsel was obligated to enroll bills, and deliver them to Governor for action.
validly enacted before deadline for adjournment under State Constitution, so that Legislative Counsel was obligated to enroll bills, and
deliver them to Governor for action. Midnight Pacific standard time on 120th day following commencement of session, by which time
session must be adjourned, is equivalent of 1:00 a.m. Pacific daylight saving time. Const. art. 4, 2; NRS 218.340, 218.380.
14. Statutes.
State Legislature is entitled to deference in its counseled selection of interpretation of statute.
15. Time.
Pacific standard time is, by design and definition, one hour earlier than Pacific daylight saving time.
16. States.
Fundamental intent of provision of State Constitution which requires State Legislature to adjourn sine die not later than
midnight Pacific standard time 120 calendar days following commencement of each regular legislative session is to set a durational
limit on legislative sessions. Const. art. 4, 2.
OPINION
The Nevada Constitution requires the Legislature to adjourn its regular session not
later than midnight Pacific standard time 120 calendar days following its commencement,
and deems any action taken after the deadline void unless it is taken during a special session.
The Nevada Legislature commenced its 71st session on Monday, February 5, 2001, and took
its final action on Assembly Bills No. 94 and No. 661 on Tuesday, June 5, 2001, between
midnight and 1:00 a.m. Pacific daylight saving time. The question presented by these writ
petitions is whether the legislative action was constitutional. We conclude that it was,
because midnight Pacific standard time (PST) is equivalent to 1:00 a.m. Pacific daylight
saving time (PDST); thus, the Legislature's final action on the bills was taken before the
constitutional deadline and the bills must be enrolled and delivered to the Governor.
FACTS
Docket No. 38039
Assembly Bill No. 661 was introduced and read for the first time in the Assembly on
March 26, amended on May 22, and passed as amended on May 23, 2001. A.B. 661 was then
introduced and read for the first time in the Senate on May 24, amended on May 30 and again
on June 4, and finally passed as amended at 11:57:50 p.m. PDST on June 4, 2001 (10:57:50
p.m.
(PST)). A.B. 661 was returned to the Assembly, which concurred with the Senate's three
amendments to A.B. 661 at 12:24:17 a.m., 12:25:15 a.m. and 12:25:47 a.m. PDST on June 5,
2001 (11:24:17 p.m., 11:25:15 p.m. and 11:25:47 p.m. PST on June 4, 2001).
Thereafter, Brenda Erdoes of the Legislative Counsel Bureau declined to enroll A.B.
661 and did not deliver the bill to the Governor for his action.
On June 15, 2001, the Nevada Mining Association, several mining companies, the
Nevada Resort Association, a casino resort, several power and telephone companies, and
Senator Dean Rhoads filed an original petition for a writ of mandamus (docketed as No.
38039) to compel Legislative Counsel to fulfill her constitutional and statutory duties to
enroll A.B. 661 and deliver the bill to the Governor for his action.
Docket No. 38053
Assembly Bill No. 94 was introduced and read for the first time in the Assembly on
February 12, amended on April 20, and passed as amended on May 23, 2001. A.B. 94 was
then introduced and read for the first time in the Senate on April 24, amended on May 28, and
passed as amended on May 28, 2001. A.B. 94 was returned to the Assembly, which did not
concur with the Senate's amendments. The Senate did not recede from its amendments, so
each chamber appointed the First Conference Committee on A.B. 94. On June 4, 2001, the
Committee reported back to the Assembly with the recommendation to concur with the
Senate's amendments of A.B. 94 and to further amend the bill. The Assembly adopted the
First Conference Committee Report for A.B. 94, and the Report was sent to the Senate. The
Senate adopted the Report at 12:38:59 a.m. PDST on June 5, 2001 (11:38:59 p.m. PST on
June 4, 2001).
Thereafter, Brenda Erdoes of the Legislative Counsel Bureau declined to enroll A.B.
94 and did not deliver the bill to the Governor for his action.
On June 20, 2001, the Nevada Association of Counties and the Nevada Association of
County Clerks and County Election Officials filed an original petition for a writ of mandamus
(docketed as No. 38053) to compel Legislative Counsel to fulfill her constitutional and
statutory duties to enroll A.B. 94 and deliver the bill to the Governor for his action.
PROPRIETY OF WRIT RELIEF
[Headnotes 14]
A writ of mandamus is available to compel a public officer to perform an act that the
law requires as a duty resulting from an office, trust or station.
office, trust or station.
1
A writ of mandamus will not issue, however, to compel a public
officer to perform an act that the officer has no legal duty or authority to perform.
2
A writ of
mandamus also will not issue if the petitioner has a plain, speedy, and adequate remedy at
law.
3
Petitions for extraordinary relief are addressed to the sound discretion of this court.
4

[Headnote 5]
Here, petitioners do not have a plain, speedy and adequate remedy at law. Moreover,
these writ petitions raise an issue of first impression, one that needs clarification and is a
matter of public importance: What, precisely, is the constitutional deadline for adjournment,
before which a bill that has passed both houses must be enrolled and delivered to the
Governor for action and after which any legislative action is void? We conclude that our
consideration of these writ petitions is warranted.
5

LEGISLATIVE PROCESS
[Headnote 6]
Under Nevada's Constitution, a majority of all the members elected to each house is
necessary to pass every bill or joint resolution, and an affirmative vote of not fewer than
two-thirds of the members elected to each house is necessary to pass a bill or joint resolution
which creates, generates, or increases any public revenue in any form.
6
For a bicameral
legislature such as Nevada's to pass a bill, both houses of the legislature must concur in and
pass the same version of the bill during the same legislative session.
7
Thus, if each house
passes a different version of a bill, both houses must subsequently concur in and pass the
same version of the bill before they adjourn the legislative session.
__________

1
NRS 34.160; see Brewery Arts Ctr. v. State Bd. Examiners, 108 Nev. 1050, 1053, 843 P.2d 369, 372
(1992).

2
Conklin ex rel. v. Buckingham, 58 Nev. 450, 453-54, 83 P.2d 462, 463 (1938).

3
NRS 34.170.

4
Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991).

5
Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998) (noting that when an
important issue of law needs clarification and public policy is served by this court's invocation of its original
jurisdiction, . . . consideration of a petition for extraordinary relief may be justified).

6
Nev. Const. art. 4, 18(1) & (2).

7
McDougal v. Davis, 143 S.W.2d 571, 571 (Ark. 1940) (observing, as an elementary proposition, that [i]t is
essential, of course, to the enactment of a bill into a law that both the House and the Senate shall concur in and
pass the same bill); accord Lee v. City of Decatur, 172 So. 284, 285 (Ala. 1937); Watts v. Town of Homer, 207
So. 2d 844, 846 (La. Ct. App. 1968); Opinion of the Justices, 83 A.2d 738, 741 (N.H. 1950).
version of the bill before they adjourn the legislative session.
8
If each house passes a
different version of a bill and both houses do not subsequently concur in the same version, the
bill has not passed the legislature, and no provision of the bill can become law.
9

[Headnote 7]
Under NRS 218.340, [w]hen any bill or resolution is passed by both houses, the
secretary of the senate or the chief clerk of the assembly shall immediately transmit the same
to the legislative counsel to be enrolled. NRS 218.380 provides that [a]n enrolled bill must
be delivered by the legislative counsel, or such person as he designates in writing, to the
governor for his action. In carrying out the statutory duties set forth in NRS 218.340 and
NRS 218.380, Legislative Counsel is complying with the constitutional mandate that [e]very
bill which may have passed the Legislature, shall, before it becomes a law be presented to the
Governor.
10
Consequently, if A.B. 94 and A.B. 661 were passed before the constitutional
adjournment deadline, Legislative Counsel has a duty to enroll them and deliver them to the
Governor. We conclude that the bills were passed, and that they therefore must be enrolled
and delivered.
DURATION OF THE REGULAR SESSION
The sessions of the Nevada Legislature are biennial and, under the Nevada
Constitution, must commence on the 1st Monday of February following the election of
members of the Assembly, unless the Governor of the State shall, in the interim, convene the
Legislature by proclamation.
11
The time for adjournment is constitutionally mandated under
article 4, section 2, subsection 2, which provides:
The Legislature shall adjourn sine die each regular session not later than midnight
Pacific standard time 120 calendar days following its commencement. Any legislative
action taken after midnight Pacific standard time on the 120th calendar day is void,
unless the legislative action is conducted during a special session convened by the
Governor.
__________

8
See Conway v. Searles, 954 F. Supp. 756, 768 (D. Vt. 1997); PA AFL-CIO ex rel. George v. Com., 757
A.2d 917, 921-23 (Pa. 2000); League of Women Voters v. Com., 683 A.2d 685, 688 (Pa. Commw. Ct. 1996).

9
See McDougal, 143 S.W.2d at 571; Moore v. Neece, 114 N.W. 767, 768-69 (Neb. 1908); see also State ex
rel. Grendell v. Davidson, 716 N.E.2d 704, 709 (Ohio 1999) (noting that Relators' contention that when the
House and Senate pass different versions of a bill, the nondiffering provisions contained in the differing versions
become law, is consequently meritless).

10

11
endar day is void, unless the legislative action is conducted during a special session
convened by the Governor.
Although this provision seems plain on its face, petitioners and Legislative Counsel
advocate different interpretations of two essential parts: 120 calendar days following its
commencement and midnight Pacific standard time.
12
We must therefore decide whether
the first day of the regular legislative session is included in the 120-day durational limit and
whether midnight Pacific standard time is the same as midnight Pacific daylight saving time.
CONSTITUTIONAL CONSTRUCTION
[Headnotes 810]
When construing constitutional provisions, we use the same rules of construction used
to interpret statutes.
13
Our primary task, then, is to ascertain the intent of those who enacted
the durational limit on legislative sessions, and to adopt an interpretation that best captures
their objective.
14
We must give words their plain meaning unless doing so would violate the
spirit of the provision.
15
We are concerned here with a narrow legal issue, not with the
legislation itself; we express no opinion on the merits of A.B. 94 or A.B. 661.
DISCUSSION
[Headnote 11]
We first consider the meaning of the phrase 120 calendar days following its
commencement. Petitioners urge us to apply the common law rule, which is reflected in
Nevada's rules of court procedure,
16
that the day of the act or event from which the
designated period begins to run should not be included. Under this interpretation, which
would in effect create a 121-day durational limit, June 5, 2001, would have been the last day
of the 71st regular legislative session.
17

__________

12
We note that near midnight, the Legislature asked Legislative Counsel whether it could reasonably interpret
midnight Pacific standard time to mean one hour later than midnight Pacific daylight saving time, so that it could
work an additional hour. Legislative Counsel replied that it could, but cautioned the Legislature against doing so.
In response to these petitions, Legislative Counsel argues that midnight Pacific standard time should be
interpreted to mean the time on the clock.

13
Rogers v. Heller, 117 Nev. 169, 176 n.17, 18 P.3d 1034, 1038 n.17 (2001).

14
McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986); State v. Glenn, 18 Nev. 34,
42, 1 P. 186, 189 (1883).

15
McKay, 102 Nev. at 648, 730 P.2d at 442.

16
See, e.g., NRAP 26(a); NRCP 6(a).

17
See Alaska Christian Bible Inst. v. State, 772 P.2d 1079, 1080-81 (Alaska 1989) (applying the prevailing
common law rule and concluding that Alaska's
Although the argument is a reasonable one and is consistent with common practice,
18
we reject it because the intent of the provision's framers and the voters who ratified it is clear.
This constitutional amendment was proposed and passed by the 1995 Legislature, agreed to
and passed by the 1997 Legislature, and approved and ratified by the citizens of Nevada at the
1998 general election. The ballot question submitted to the voters at the general election read
(emphasis ours):
Shall the Nevada Constitution be amended to limit the length of Nevada's regular
legislative sessions to not more than 120 calendar days and require the Governor to
submit the proposed executive budget to the Legislature at least 14 days before the start
of each regular session?
The explanation that accompanied the ballot question also specified that the amendment
would limit future regular sessions to not more than 120 calendar days, starting in the 1999
session. This clear statement of intent dissolves any ambiguity inherent in the phrase 120
calendar days following its commencement. The day of commencement is included, and the
adjournment deadline for the 71st regular legislative session was midnight Pacific standard
time on the 120th calendar day: June 4, 2001.
[Headnotes 12, 13]
But precisely when was midnight Pacific standard time? Nevada's change from
Pacific standard time to Pacific daylight saving time on the first Sunday of April, midway
through the regular session, created an ambiguity in the deadline. Is midnight Pacific standard
time the same as midnight Pacific daylight saving time? We conclude that it is not and cannot
be the same.
[Headnote 14]
First, the terms Pacific standard time and Pacific daylight saving time are clear
and distinct, with commonly understood meanings. Pacific daylight saving time denotes a
time one hour later than Pacific standard time, and results from advancing the clock one hour
every April, from 2:00 a.m. to 3:00 a.m. When the constitutional amendment was drafted, the
Legislature obviously knew that the adjournment deadline would come sometime in early
June after Nevada had changed over to Pacific daylight saving time. But instead of specifying
that the regular session must end at midnight Pacific daylight saving time, or just
"midnight," the Legislature presented to the voters and the voters approved "midnight
Pacific standard time" as the end of the session.
__________
120-day limit resulted in a 121-day session because the day the legislature convenes is not counted).

18
See, e.g., Nyberg v. Nevada Indus. Comm'n, 100 Nev. 322, 323-25, 683 P.2d 3, 5 (1984); Rogers v. State,
85 Nev. 361, 364, 455 P.2d 172, 173-74 (1969); Alaska Christian Bible Inst., 772 P.2d at 1081.
midnight, the Legislature presented to the voters and the voters approved midnight Pacific
standard time as the end of the session. We should give effect to this purposeful choice,
rather than try to redefine midnight Pacific standard time as midnight Pacific daylight
saving time. In choosing this interpretation, the Legislature acted on Legislative Counsel's
opinion that this is a reasonable construction of the provision. We agree that it is, and the
Legislature is entitled to deference in its counseled selection of this interpretation.
Second, the historical development of these terms supports the conclusion that they
are not interchangeable. During the 1880s, railroad companies divided the United States into
four standard time zones to regulate train schedules and to avoid the uncertainties caused by
the use of solar time.
19
In 1918, the United States Congress established standard time as
the law of the nation.
20
The territory of the United States was divided into five zones, and a
standard time for each zone was fixed based on the mean astronomical or solar time of a
specified degree of longitude west from Greenwich.
21

The Act of 1918 also established daylight saving time, but that provision was repealed
in 1919. Daylight saving time was reestablished by Congress during World War II, but after
the war its use varied among state and local governments.
22
In 1966, Congress enacted the
Uniform Time Act, which standardized the dates on which daylight saving time begins and
ends, but allowed states to exempt all or portions of their territories from its observance.
23
Congress enacted earlier starting dates for daylight saving time in 1974 and 1975, energy
crisis years, but amended the Act in 1986 so that daylight saving time always begins on the
first Sunday in April and ends on the last Sunday in October.
A simple illustration demonstrates why midnight Pacific standard time is not the same
as midnight Pacific daylight saving time. Nevada lies within the fifth time zone, which is
designated and known as Pacific standard time.
24
Utah and Arizona, which border Nevada,
lie within the fourth time zone, which is designated and known as mountain standard time.
__________

19
McFarlane v. Whitney, 134 S.W.2d 1047, 1051 (Tex. Comm'n App. 1940); State v. Badolati, 6 N.W.2d
220 (Wis. 1942).

20
McFarlane, 134 S.W.2d at 1051; see also 15 U.S.C. 260-67 (West 1997 & Supp. 2001).

21
McFarlane, 134 S.W.2d at 1051.

22
See Annotation, Standard or System of Time, 143 A.L.R. 1238 (1943).

23
See 15 U.S.C. 260-267.

24
There are now nine standard time zones, from east to west: Atlantic standard time, eastern standard time,
central standard time, mountain standard time, Pacific standard time, Alaska standard time, Hawaii-Aleutian
standard time, Samoa standard time and Chamorro standard time. 15 U.S.C. 263.
and known as mountain standard time. Arizona has exempted itself from daylight saving
time,
25
but Nevada and Utah have not. Consequently, when Nevada and Utah advance their
clocks on the first Sunday in April, and change from Pacific standard time to Pacific daylight
saving time and from mountain standard time to mountain daylight saving time, respectively,
Arizona remains on mountain standard time. Arizona does not change times, but its clocks
become synchronized with Nevada's clocks instead of Utah's. Since Nevada's Pacific daylight
saving time is the same as Arizona's mountain standard time, it is not and cannot be the same
as Pacific standard time as well.
Similarly, had Nevada exempted itself from daylight saving time, or should it choose
to do so in the future, Nevada would remain on standard time when its fifth time zone
neighbors change to daylight saving time. After the change, Nevada and California would
both still be on Pacific time, but Nevada would be on Pacific standard time and California
would be on Pacific daylight saving time. As a result, their clocks would not strike midnight
simultaneously; at midnight in Nevada it would be 1:00 a.m. in California. Clearly, Pacific
standard time is not the same as Pacific daylight saving time.
[Headnote 15]
The standard time zones do not change, and standard time also does not change.
Although daylight saving time may become the standard for nearly seven months out of the
year for those states in the Pacific zone that choose to use it, it does not become Pacific
standard time. That term is precise and specific. Pacific standard time is, by design and
definition,
26
one hour earlier than Pacific daylight saving time. We are not free to presume
that the framers of the durational limit and those who enacted it meant anything other than
exactly what they said.
27

Third, article 4, section 2, subsection 2 gives the Legislature 120 days for its regular
session. A day consists of 24 hours, so the Legislature has 2,880 hours before it must adjourn
under the constitutional deadline. When Nevada advanced its clocks on the first Sunday in
April, that day was shortened to 23 hours. Although the Legislature may choose not to use
every hour allotted to itit does not, for instance, convene at 12:01 a.m.
__________

25
The Navajo Indian Reservation in Arizona has not exempted itself; the Navajo Nation, which extends into
Arizona, Utah and New Mexico, observes daylight saving time.

26
Webster's Tenth Collegiate Dictionary 294 (10th ed. 1997) (daylight saving time defined as time
[usually] one hour ahead of standard time).

27
See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967) (noting that when the Legislature
chooses one option and not another, it is presumed that the Legislature did so purposely).
although it couldits last available hour expired not at midnight Pacific daylight saving time
on June 4, 2001, but instead one hour later.
28

CONCLUSION
[Headnote 16]
The fundamental intent of the constitutional amendment is to set a durational limit on
legislative sessions. Our construction of the provision gives full effect to the 120-day
limitation, without extending the limitation beyond its terms or frustrating its purpose. It
would be absurd for us to interpret Pacific standard time to be the same as Pacific daylight
saving time, and we decline to do so.
29
Midnight Pacific standard time on June 4, 2001, was
the equivalent of 1:00 a.m. Pacific daylight saving time on June 5, 2001, and the Legislature
had authority to act until the clock struck 1:00 a.m. Since A.B. 94 and A.B. 661 were passed
by both houses before the adjournment deadline, Legislative Counsel has a constitutional and
statutory duty to enroll the bills and deliver them to the Governor.
Accordingly, we grant these petitions. The clerk of this court shall issue writs of
mandamus compelling Legislative Counsel to enroll Assembly Bills No. 94 and No. 661, and
deliver them to the Governor for action.
Young, Rose and Becker, JJ., concur.
I concur in the result reached by the majority. I believe that the words Pacific
standard time must be given their common and ordinary meaning. When that is done, it is
clear that the Legislature lawfully proceeded to consider and pass laws until 1:00 a.m. Pacific
daylight saving time.
I write separately because I disagree with the majority's conclusion that the words
120 calendar days following its commencement are ambiguous. I believe that the phrase is
clear and unambiguous, and therefore that resort to rules of construction is improper.
1
Another way of saying that the Legislature shall adjourn the regular session "120 calendar
days following its commencement" is to say that the Legislature must adjourn the session
120 days after it starts.
__________

28
See Ellard v. Goodall, 83 So. 568, 569 (Ala. 1919) (holding that a bill of exceptions presented 45 minutes
before the expiration of the 90th day if measured by central standard time, but 15 minutes late if measured by
daylight saving time, was timely because a state statute allowed 90 days of 24 hours each within which to present
a bill of exceptions).

29
See Rogers, 117 Nev. at 176 n.17, 18 P.3d at 1038 n.17; General Motors v. Jackson, 111 Nev. 1026, 1029,
900 P.2d 345, 348 (1995) (noting that statutory interpretation should avoid absurd or unreasonable results).

1
See, e.g., County of Clark v. Doumani, 114 Nev. 46, 52, 952 P.2d 13, 16 (1998) (holding that when a
statute's language is plain and unambiguous,
adjourn the regular session 120 calendar days following its commencement is to say that
the Legislature must adjourn the session 120 days after it starts. That does not mean that the
Legislature can meet for 121 days. Such a conclusion is as unreasonable as concluding that a
five-day workweek means six actual days of work, or that a three-month summer vacation
from school really means four months off.
Maupin, C. J., dissenting:
Article 4, section 2, subsection 2 of the Nevada State Constitution provides:
The Legislature shall adjourn sine die each regular session not later than midnight
Pacific standard time 120 calendar days following its commencement. Any legislative
action taken after midnight Pacific standard time on the 120th calendar day is void,
unless the legislative action is conducted during a special session convened by the
Governor.
This court has been asked to determine whether legislative approval of two measures
between 12:00 a.m., Pacific daylight saving time, June 4, 2001, and 1:00 a.m., Pacific
daylight saving time, June 5, 2001, are in compliance with the above-quoted provision.
This court has determined that these writ petitions present two primary issues of
interpretation: (1) whether 120 days following commencement includes the first day of the
session; and (2) whether 1:00 a.m. Pacific daylight saving time equates to midnight Pacific
standard time.
120 days
I agree with all six of my colleagues that the people of this state intended the State
Legislature to deliberate over its legislative responsibilities during a period totaling, or
limited to, 120 calendar days. This conclusion is based upon the following language in a
ballot question, which appeared on the 1998 general election ballot:
Shall the Nevada Constitution be amended to limit the length of Nevada's regular
legislative sessions to not more than 120 calendar days . . . ?
The contrary construction urged by petitioners, made by analogy to our rules for
calculating legal deadlines, is not of necessity unreasonable.
__________
there is no room for construction and courts are not permitted to search for its meaning beyond the statute itself);
see also Rogers v. Heller, 117 Nev. 169, 176 n.17, 18 P.3d 1034, 1038 n.17 (2001) (holding that the rules
governing statutory construction also govern the construction of constitutional provisions).
sity unreasonable. However, our interpretation resolving this first threshold issue is more in
line with the intent of the voters.
Midnight
The second issue presents a more interesting and unique problem. The term
midnight, in and of itself, is not ambiguous. Going further, the language of the
constitutional amendment establishing an adjournment deadline of midnight Pacific standard
time seems perfectly plain and unambiguous in writing. This language is, however,
tantalizingly ambiguous in application because Nevada changes from Pacific standard time to
Pacific daylight saving time during the regular legislative session. Thus, the constitutional
provision cannot be applied as written. As I will explain below, the deadline urged by
petitioners, midnight Pacific standard time, if it is the functional equivalent of 1:00 a.m.
Pacific daylight saving time, did not occur on the 120th day of the session.
The majority, correctly in my view, indicates that the term standard time, in its
ordinary meaning, is different than daylight saving time. I would therefore have to agree
that, standing alone, adjournment at midnight Pacific standard time meant 1:00 a.m. daylight
saving time. Having said this, the language pertaining to midnight adjournment must be read
in conjunction with the requirement that the session must not exceed 120 calendar days.
When this exercise in construction is accomplished, the majority's conclusion arguably
becomes problematic.
First, under the 120-day limitation, the final day of the legislative session was set for
Monday, June 4, 2001. Second, although midnight Pacific standard time, again standing
alone, may equate to 1:00 a.m. daylight saving time, the one-hour time frame between 12:00
a.m. and 1:00 a.m. Pacific daylight saving time legally elapsed on Tuesday, June 5, 2001. In
other words, the measures that are the subject of these writ petitions were, as a matter of law,
finally approved by both houses of the Legislature on Tuesday, June 5, not Monday, June 4.
Thus, regardless of how we interpret the meaning of the term midnight Pacific standard
time, the legislative measures that are the subject of this controversy were actually approved
on the one hundred and twenty-first calendar day of the legislative session.
To conclude, the pertinent language of article 4 of the Nevada Constitution requires
that the Legislature adjourn any regular biennial session not later than midnight Pacific
standard time 120 calendar days following its commencement. As noted, the ambiguity
created by the change from standard to daylight saving time during regular legislative
sessions renders this provision internally inconsistent. It is evident to me that, if midnight
"Pacific standard time" means anything other than midnight "Pacific daylight saving
time," the midnight adjournment does not and cannot occur on the 120th "calendar" day
of the session.
Pacific standard time means anything other than midnight Pacific daylight saving time,
the midnight adjournment does not and cannot occur on the 120th calendar day of the
session. Thus, at least in my view, that internal inconsistency cannot be resolved unless
midnight standard time is construed in accordance with Justice Leavitt's discussion in his
separate dissent.
In light of the above, I would deny these petitions.
Concluding remarks
I would additionally note that resolving this matter was not as simple as one might
conclude from a superficial recapitulation of the issues presented. We have been charged with
deciding whether midnight means 1:00 a.m., Pacific standard time, or whether standard time
means daylight saving time. Neither, of course, is literally true. Although it appears that we
have been engaged, as some have said, in an intellectual exercise akin to angels dancing on
the head of a pin, such is not the case. This is simply the inevitable result of a process that
requires this court to resolve a very troubling, albeit technical, internal inconsistency in the
constitutional provision at issue here. That I happen to disagree with our majority does not
undermine the thoughtfulness with which this court as a whole has resolved this historic
dispute.
Leavitt, J., dissenting:
I respectfully dissent because I disagree with the majority that midnight is 1:00 a.m.
The majority agrees with petitioners that Nevada Constitution article 4, section 2's use of
Pacific standard time is meant to differentiate from daylight saving time, as the measure
of when the Legislature must adjourn. Thus, under their conclusion, midnight is not really
midnight; instead, midnight is 1:00 a.m. I am not convinced that logic and reason lead to
midnight being 1:00 a.m.
The dictionary defines the term standard time as the time of a region or country
that is established by law or general usage as civil time.
1
This definition is consistent with
the conclusion: standard time is the time reflected on the clock, the time generally used in a
particular area. A reading of the pertinent federal statute leads to this same conclusion.
Under section 260a of the Uniform Time Act of 1966, commencing the first Sunday
of April and ending the last Sunday of October each year, the standard time of each zone is
advanced one hour. This advanced time becomes the standard time:
During the period commencing at 2 o'clock antemeridian on the first Sunday of April of
each year and ending at 2 o'clock antemeridian on the last Sunday of October of each
year, the standard time of each zone established by sections 261 to 264 of this title,
as modified by section 265 of this title, shall be advanced one hour and such time as
so advanced shall for purposes of such sections 261 to 264, as so modified, be the
standard time of such zone during such period.
__________

1
Webster's Tenth Collegiate Dictionary 1146 (1997 ed.).
antemeridian on the last Sunday of October of each year, the standard time of each zone
established by sections 261 to 264 of this title, as modified by section 265 of this title,
shall be advanced one hour and such time as so advanced shall for purposes of such
sections 261 to 264, as so modified, be the standard time of such zone during such
period.
2

Thus, within a particular zone, the advanced, daylight saving time becomes the standard
time for that zone during the designated period from April to October.
3
Under the provisions
of section 260a, a state may by law exempt itself from the application of advanced time.
4
Nevada, however, has not done so. In the absence of Nevada law establishing a standard of
time for this state, the federal statute dictates the observance of federal standard time.
5

The majority states that the term Pacific standard time is precise and specific.
Moreover, the majority insists that they are not free to presume any other meaning than that
given by the framers, and yet, that is precisely what the majority has done, by presuming that
midnight is 1:00 a.m.
The entire phrase, midnight Pacific standard time, read together results in only one
conclusion: midnight Pacific standard time is midnight on the Legislature's clock in Carson
City, Nevada. This state falls into the Pacific time zone and all of our citizens, as well as our
state government, conduct their business and social affairs in accordance with the time on the
clock. To conclude that the Legislature is free to follow a different clock than all of the
people of this state is an absurd and unreasonable result.
The legislative history reveals that the Legislature previously had a tradition of
literally covering the clock on the last day of the regular session to allow extra time in which
to complete its business. Article 4, section 2 prevents the Legislature from covering the
clock and continuing until midnight in some time zone west of Nevada. The phrase
Pacific standard time is intended to specify the time in Carson City, not Hawaii-Aleutian
standard time or Samoa standard time.
__________

2
15 U.S.C. 260a (1994) (emphasis added).

3
Cf. Miracle Auto Ctr. v. Superior Court, 80 Cal. Rptr. 2d 587, 588-89 (1998) (construing analogous state
statutes and concluding that standard time means the time then in effect, whether it is Standard Pacific Time
or Daylight Saving Time).

4
15 U.S.C. 260a(a) (providing that a state by law may exempt itself from observing advanced time
applicable during the designated period from April through October).

5
See, e.g., State Election Board v. McClure, 189 N.E.2d 711, 714 (Ind. 1963); State v. Frye, 157 N.W.2d
830, 831-32 (N.D. 1968); see generally McFarlane v. Whitney, 134 S.W.2d 1047, 1051 (Tex. Comm'n App.
1940); Anderson v. Cook, 130 P.2d 278, 281-82 (Utah 1942).
to specify the time in Carson City, not Hawaii-Aleutian standard time or Samoa standard
time.
Further, in these petitions, the Legislature itself, which drafted this provision, has
taken the position that midnight is midnight. The Legislature is entitled to deference in its
interpretation of the provision's terms.
6
As an additional indication of the Legislature's
position, in 1999, after the 120-day limit was passed, the Nevada Legislature adopted a Joint
Standing Rule 14.3 of the Senate and Assembly that set deadlines for bills and final actions
on bills by standing committees in both houses. Those deadlines were used to create a
deadline calendar for the 120-day session. The deadline calendar numbered the day of
commencement as day one for the 120-day period. The Legislature finally adjourned by
midnight on the 120th day.
7

The legislative history leaves no doubt that article 4, section 2 is intended to limit
regular legislative sessions to 120 total days and to give the Legislature a clear time, midnight
Pacific standard time, to end business for the session. To suggest, as the majority does, that
the Legislature may create additional time for itself, should the need arise, is contrary to the
Legislature's intent to limit the time in which it must conduct business to a total of 120 days.
In my view, midnight Pacific standard time means midnight by the clock. This
interpretation is the only reasonable one: otherwise, midnight is not midnight, and the
Legislature is on a clock that ticks differently than every other in Nevada.
For these reasons, I dissent.
__________

6
See NRS 218.240(1) (establishing procedures for assistance of legislative counsel bureau in preparation of
legislative measures); cf. State ex rel. Tax Comm'n v. Saveway, 99 Nev. 626, 630, 668 P.2d 291, 294 (1983)
(stating that [g]reat deference will be afforded to an administrative body's interpretation when it is within the
statutory language; moreover, the Legislature's acquiescence in an agency's reasonable interpretation indicates
that the interpretation is consistent with legislative intent).

7
State v. Howell, 26 Nev. 93, 104, 64 P. 466, 468 (1901) (noting that, while not binding upon this court, a
contemporaneous construction placed upon a constitutional provision by the Legislature should be given great
weight).
___________
117 Nev. 548, 548 (2001) Finger v. State
FREDERICK FINGER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32716
July 24, 2001 27 P.3d 66
Appeal from judgment of conviction, pursuant to a plea of guilty but mentally ill, of
second-degree murder and a sentence of life imprisonment. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court pursuant to plea of guilty but mentally
ill, of second-degree murder. Defendant appealed. The supreme court, Becker, J., held that:
(1) Legislature's abolishment of insanity as defense in criminal prosecutions violated due
process; (2) lay witness should not be permitted to use the word insane since that is term of
art, disapproving Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); (3) defendant is not
entitled to jury instruction on issue of insanity unless he presents evidence that complies with
M'Naghten standard, overruling Aldana v. State, 102 Nev. 245, 720 P.2d 1217 (1986); and (4)
defendant was entitled to withdraw his plea.
Shearing, J., with whom Maupin, C. J., and Rose, J., agreed, dissented.
Morgan D. Harris, Public Defender, and Howard S. Brooks, Deputy Public Defender,
Attorney, James Tufteland, Chief Deputy District Attorney, and Gregory D. Knapp, Deputy
1. Statutes.
Penal statutes should be strictly construed and resolved in favor of the defendant when the applicability of such statute is
uncertain.
Legislature's abolishment of insanity as defense in criminal prosecutions violated Due Process Clauses of both Federal and State
Constitutions. While neither constitution required that legal insanity be procedurally raised as affirmative defense or by way of plea of
not guilty by reason of insanity, both constitutions prohibited individual from being convicted of criminal offense without possessing
requisite criminal intent to commit crime. Const. art. 1, 8; U.S. Const. amend. 14; NRS 193.220.
Due process mandates protection of those principles deemed fundamental to the American scheme of justice. Const. art. 1, 8;
4. Criminal Law.
Legal insanity means that a person has a complete defense to a criminal act based upon the person's inability to form the
requisite criminal intent. NRS 174.035(4), 194.010 (1994).
Legal insanity is a fundamental principle entitled to protection under the Due Process Clause. Const. art. 1, 8; U.S. Const.
amend. 14.
The Legislature cannot abolish insanity as a complete defense to a criminal offense, as legal insanity is protected by the Due
Process Clauses of both the Federal and State Constitutions. Const. art. 1, 8; U.S. Const. amend. 14; NRS 174.035(4), 194.010
(1994).
7. Criminal Law.
The Legislature is free to decide what method to use in presenting the issue of legal insanity to a trier of fact, i.e., as an
affirmative defense or rebuttable presumption of sanity. It may also determine that legal insanity be proven by the defendant by any one
of the established standards.
8. Criminal Law.
So long as a crime requires some mental intent, legal insanity must be a complete defense to that crime.
9. Statutes.
When one provision of an act is unconstitutional and its other provisions cannot be severed without defeating the whole scope
and object of the law, then the entire law should be stricken.
10. Criminal Law.
To qualify as being legally insane, a defendant must be in a delusional state such that he cannot know or understand the nature
and capacity of his act, or his delusion must be such that he cannot appreciate the wrongfulness of his act, that is, that the act is not
authorized by law. NRS 174.035(4), 194.010 (1994).
11. Criminal Law.
If a jury believes the defendant was suffering from a delusional state, and if the facts as he believed them to be in his delusional
state would justify his actions, he is insane and entitled to acquittal. If, however, the delusional facts would not amount to a legal
defense, then he is not insane. NRS 174.035(4), 194.010 (1994).
12. Criminal Law.
Persons suffering from a delusion that someone is shooting at them, so they shot back in self-defense, are legally insane under
the M'Naghten rule; however, persons who are paranoid and believe that the victim is going to get them some time in the future, so
they hunt down the victim first, are not. NRS 174.035(4), 194.010 (1994).
13. Criminal Law.
Although a lay witness can testify as to their observations of a defendant's behavior and can use other words, such as crazy or
abnormal, a lay witness should not be permitted to use the word insane since that is a term of art; disapproving Criswell v. State,
84 Nev. 459, 443 P.2d 552 (1968). NRS 174.035(4), 194.010 (1994).
14. Criminal Law.
The M'Naghten standard for legal insanity is a very narrow one, and unless the defendant presents evidence that complies with
this standard, he or she is not entitled to have the jury instructed on the issue of insanity; overruling Aldana v. State, 102 Nev. 245, 720
P.2d 1217 (1986). NRS 174.035(4), 194.010 (1994).
15. Criminal Law.
Evidence that does not rise to the level of legal insanity may be considered in evaluating whether the prosecution has proven
each element of an offense beyond a reasonable doubt, for example in determining whether a killing is first- or second-degree murder
or manslaughter or some other argument regarding diminished capacity.
16. Criminal Law.
Defendant's plea of guilty, but mentally ill was not knowingly entered, and he was thus entitled to withdraw it on remand,
where such plea was based on his belief that Legislature's abolishment of insanity as defense in criminal prosecutions would preclude
him from introducing evidence of insanity, and where such legislation was declared unconstitutional on his appeal. NRS 174.035(4),
194.010 (1994).
17. Homicide.
If murder defendant killed his mother because of his delusional belief that she was conspiring with others to kill him and he
needed to kill her before she could carry out her scheme, defendant would not qualify as legally insane, as there was no evidence that,
in his delusion, he believed he was in imminent danger which, if true, would justify self-defense. NRS 174.035(4), 194.010 (1994).
OPINION
In April of 1996, appellant Frederick Finger was charged with one count of open
murder with the use of a deadly weapon. Finger was accused of murdering his mother,
Franziska Brassaw, by stabbing her in the head with a kitchen knife. Finger intended to assert
legal insanity as a defense. However, at the time of his arraignment, the district court denied
Finger's request to enter a plea of not guilty by reason of insanity as that plea had been
abolished by the 1995 Nevada Legislature. Subsequently, Finger entered a plea of guilty but
mentally ill to a charge of second-degree murder. The district court convicted Finger of
second-degree murder and sentenced him to serve life in prison with minimum parole
eligibility after ten years.
Finger challenges his conviction on constitutional grounds, alleging that the
abolishment of insanity as an affirmative defense violates the 8th and 14th Amendments to
the United States Constitution and Article 1, Sections 6 and 8(5), of the Nevada Constitution.
Finger asserts that punishing an insane individual constitutes cruel and unusual punishment
while prohibiting an accused from asserting a defense of legal insanity violates due process
requirements.
While we conclude that neither the United States nor the Nevada Constitutions require
that legal insanity be procedurally raised as an affirmative defense or by way of a plea of not
guilty by reason of insanity," both Constitutions prohibit an individual from being
convicted of a criminal offense without possessing the requisite criminal intent to commit
the crime.
by reason of insanity, both Constitutions prohibit an individual from being convicted of a
criminal offense without possessing the requisite criminal intent to commit the crime. For the
reasons discussed herein, we conclude that Nevada's current statutory scheme would permit
an individual to be convicted of a criminal offense under circumstances where the individual
lacked the mental capacity to form the applicable intent to commit the crime, a necessary
element of the offense. Such a statutory scheme violates the due process clauses of the United
States and Nevada Constitutions. In light of our conclusion that Nevada's scheme does not
comport with due process, we need not address Finger's arguments regarding the prohibition
against cruel and unusual punishment. Because Finger was prohibited from raising the issue
of legal insanity, we remand this matter to the district court with instructions to permit Finger
to withdraw his plea of guilty, but mentally ill, vacate the judgment of conviction and for
FACTS
On April 10, 1996, at approximately 4:00 a.m., Jeff Jordan, a neighbor of Finger,
woke to the sound of a woman screaming. A short time later, Finger pounded on Jordan's
door while shouting someone killed my mother! She's hurt real bad! I think she might be
dead! Jordan called 911 then got dressed and opened his door. Finger was not in sight. When
the police arrived, Jordan noticed that Finger was now standing some distance down the
block. Jordan pointed Finger out to the police. Police officers approached Finger who turned
and ran away. The officers pursued and detained Finger. As the officers caught up with
Finger, they noticed he was covered in blood. Prior to being detained, Finger announced that
someone beat my mother and killed her and the Mexican guy who lives in her house killed
her. Because of the large amount of blood found on Finger as well as information received
from Jordan, the officers wished to verify the safety of Brassaw or any other occupants inside
Finger's residence. Jose Rivera, who shared occupancy of the residence with Finger and
Brassaw, granted permission for the officers to enter the house. Upon entering the residence,
police discovered Brassaw lying dead on the kitchen floor. Brassaw had been stabbed one
time in the head with a kitchen knife, and had bled to death from the wound.
Officers interviewed another neighbor, Lawrence Collins, who related to the officers
that he was awakened by talking outside his window. When he looked out the window, he
observed Finger mumbling to himself. Collins told the police that he thought Finger said I
framed my mother and that Finger was holding an object in his hand. Collins also led police
to a bloodied kitchen knife that Collins found in his yard not far from the place
whereFinger had been standing.
knife that Collins found in his yard not far from the place where Finger had been standing.
Rivera was also interviewed. He told the police that he was sleeping when he was
awakened by the sound of a fight. He opened the door to his room and saw Brassaw
staggering as if injured. Rivera then barricaded himself in his room until the noises stopped.
Rivera had no blood on his clothes.
Finger gave a voluntary statement to the police. In it he claimed that he heard his
mother screaming and that Rivera was stabbing her. He tried to stop Rivera and that's how he
ended up with the bloodied kitchen knife and the blood on his clothes. Based upon the
witness statements, the lack of blood on Rivera's clothes, the amount of blood on Finger's
clothes and his statement to detectives, Finger was arrested for the murder.
Finger has an extensive history of mental illness. He was first determined to be
mentally ill in 1972 at the age of seventeen. Finger has been diagnosed as suffering from
schizophrenia, manic depressive disorder with homicidal and suicidal tendencies, intermittent
explosive disorder and paranoia. Finger periodically suffers from visual and auditory
hallucinations. In addition, Finger had a long history of violence and co-dependency with his
mother and had been institutionalized in mental heath facilities several times due to delusions
and attacks on his mother or other members of his family.
Upon interviewing Finger, it was immediately apparent to defense counsel that Finger
was of questionable mental capacity. Counsel sought psychiatric evaluations. Two of the
three evaluations concluded that Finger was unable to aid in his own defense. Based upon the
evaluations, the district court committed Finger to the Lakes Crossing Center for the
Criminally Insane until such time as he was found competent to participate in judicial
proceedings.
In the course of these evaluations, Finger gave two different versions of what
happened to his mother. The first version was consistent with his statements to the police.
Finger claimed that Rivera had killed his mother, but could not give a coherent explanation
for the blood on his clothes or his possession of the knife. The second version was an
admission that he had stabbed his mother because she had been plotting to kill him and he
decided to kill her before she had the opportunity to carry out her plot.
On December 18, 1996, Finger was deemed competent and Finger's case was
remanded for a preliminary hearing. The hearing was conducted and Finger was bound over
for trial. In the district court, Finger filed a motion seeking leave to enter a plea of not guilty
by reason of insanity. Finger's counsel filed the motion because the 1995 Nevada Legislature
had amended the laws concerning the treatment of insanity as a defense to criminal
culpability.
bility. Counsel believed, based upon the legislative history of the amendments, that he would
be prohibited from arguing that Finger should be acquitted of the murder charges on the
grounds of legal insanity.
The motion was never argued and no order disposing of the motion was ever entered
by the district court. Instead, the record reflects that at the time of his arraignment, Finger
requested permission from the district court to enter a plea of not guilty by reason of insanity.
The State objected and the district court denied the request without explanation. There is no
indication in the record that the district court considered the legal issues raised in the written
motion.
After the district court denied his request, Finger declined to enter a plea. The district
court then entered a plea of not guilty pursuant to NRS 174.035(5) and set a trial date. Based
upon the district court's denial of his request to plead not guilty by reason of insanity and, by
inference, his ability to raise insanity as a complete defense to the murder charge, Finger
determined that there were no issues to be resolved by a trial. Therefore, Finger entered his
plea of guilty but mentally ill, deciding to raise the constitutional issues relating to legal
insanity through an appeal pursuant to NRS 174.035(3). Based upon his plea, Finger was
convicted of second-degree murder. This appeal followed.
DISCUSSION
Finger contends that the ability of an accused to pursue a defense of legal insanity is a
fundamental right under the due process clauses of the United States and Nevada
Constitutions.
1
He asserts that various amendments to the provisions of the criminal
procedure statutes in Senate Bill 314 (hereinafter S.B. 314) enacted by the 1995 Legislature
changed the substantive and procedural law regarding how the issue of legal insanity is
treated in a criminal case and that these changes have resulted in an unconstitutional statutory
scheme.
In 1995 the Legislature abolished the plea of not guilty by reason of insanity and
created a new plea of guilty but mentally ill."
__________

1
Finger asserts two additional grounds for relief. Finger contends that Nevada's statutory treatment scheme
improperly discriminates between individuals who enter a plea of guilty but mentally ill and individuals with
mental illnesses who are convicted after a jury trial in violation of the Equal Protection Clause of the Federal and
State Constitutions. Further, Finger alleges that the statutory scheme creates an improper chilling effect upon a
defendant's right to a jury trial, because a mentally ill defendant will be forced to plead guilty if he or she wishes
to avail themselves of appropriate treatment options in prison. In light of our decision declaring the 1995
statutory scheme to be unconstitutional on other grounds, we decline to address these issues.
tally ill. In addition, the Legislature amended the statutes that define what types of
individuals can be punished for the violation of a criminal law. Finally, the Legislature
enacted language declaring that an act committed by a person while in a state of insanity is no
less criminal by reason of insanity and repealing the statute authorizing commitment of the
criminally insane. At the same time, however, by enacting S.B. 314, the Legislature permitted
insanity to be taken into consideration whenever purpose, motive or intent is a necessary
element of a criminal offense. See 1985 Nev. Stat., ch. 637, at 2448-85 (amending NRS
174.035, 193.220 and 194.010 and repealing 175.521).
Under the post-1995 statutory scheme, an individual pleading guilty but mentally ill
is still subject to the same punishment as an individual who enters an unconditional plea of
guilty or is found guilty upon trial. In the case of guilty but mentally ill defendants, however,
the district court may suggest that the prison system provide certain types of treatment to the
convicted individual. The status of an insane individual, however, is unclear. The
Legislature deleted the term insanity from a number of statutes that define criminal
culpability and criminal defenses. Insanity as it relates to liability for a criminal offense is
now found only in NRS 193.220, which provides that:
No act committed by a person while in a state of insanity or voluntary intoxication shall
be deemed less criminal by reason of his condition, but whenever the actual existence
of any particular purpose, motive or intent is a necessary element to constitute a
particular species or degree of crime, the fact of his insanity or intoxication may be
taken into consideration in determining the purpose, motive or intent.
Finger argues that language of NRS 193.220, together with the elimination of insanity
as an affirmative defense, permits persons to be convicted of crimes even though they did not
possess the mental ability to form the criminal intent designated as an element of an offense.
Finger contends that such a conviction violates the Due Process Clauses of the Federal and
State Constitutions.
[Headnote 1]
On its face, NRS 193.220 is a contradiction in terms. It states that a person who is
insane cannot be relieved of criminal culpability, i.e., acquitted, as a result of that insanity.
Yet it also recognizes that insanity can be considered when determining whether or not an
element of the crime has been proven beyond a reasonable doubt. Normally, when faced with
such a statute, a court will construe the statute in favor of the accused. [P]enal statutes
should be strictly construed and resolved in favor of the defendant when the applicability of
such statute is uncertain. Anderson v. State, 95 Nev. 625, 629 600 P.2d 241, 243 {1979).
State, 95 Nev. 625, 629, 600 P.2d 241, 243 (1979). Thus we could construe NRS 193.220 to
simply be a change in the procedure by which the issue of legal insanity is presented to the
jury, rather than a change in the substantive law of insanity. In part, this is the dissent's
position. However, because NRS 193.220 was not the only statute affected by the 1995
legislative enactment, we conclude a review of the legislative history behind S.B. 314 is
necessary to understand the relationship of NRS 193.220 to the law of legal insanity and
Finger's expectation of how a trial would be conducted under the new statutory scheme.
When considering the history of S.B. 314, it is also necessary to review the historical
development of the insanity defense and its application in Nevada prior to the 1995 legislative
amendments.
I. Historical perspective
For hundreds of years, societies recognized that insane individuals are incapable of
understanding when their conduct violates a legal or moral standard, and they were therefore
relieved of criminal liability for their actions. Such individuals did not escape responsibility
for their actions; they were still locked away, but in asylums, not prisons.
This concept of treating individuals differently based upon their mental capacity is
called legal insanity. It recognizes that a crime involves something more than just the
commission of a particular act, it also involves a certain mental component. This mental
component is usually referred to as the mens rea of a crime, or criminal intent. The term
mens rea refers to the mental state of a person at the time of the commission of the criminal
act. Most serious crimes, either at common law or by statute, require a particular degree of
mens rea, or criminal intent, to be proven as a material element of the offense. This is usually
demonstrated by the use of such words as knowingly, willfully, or deliberately. See
generally American Law Institute Model Penal Code 2.02 (1985). Where a person is unable
to form the required criminal intent, the mens rea, that person is considered to be legally
insane.
The American Bar Association has researched and documented centuries of references
to this idea.
As early as the sixth century B.C., commentary on the Hebrew scriptures distinguished
between harmful acts traceable to fault and those that occur without fault. To those
ancient scholars, the paradigm of the latter type of act was one committed by a child,
who was seen as incapable of weighing the moral implications of personal behavior,
even when willful; retarded and insane persons were likened to children. See Platt &
Diamond, The Origins and Development of the "Wild Beast" Concept of Mental
Illness and Its Relation to Theories of Criminal Responsibility.
Development of the Wild Beast Concept of Mental Illness and Its Relation to
Theories of Criminal Responsibility. 1 J. Hist. Behav. Sci. 355, 366 (1965).
ABA Criminal Justice Mental Health Standards 324 (1989).
Although the general concept of legal insanity in relation to criminal culpability is
centuries old, the definition of what constitutes legal insanity and how it should be presented
to a jury under the American legal system is not so ancient. It first became a topic of intense
legal discussion as a result of a singular instance in English history. In 1843, Daniel
M'Naghten attempted to assassinate the prime minister of Britain. M'Naghten suffered from a
paranoid delusion. He believed that the prime minister was conspiring to kill him. As a result
of this delusional belief, M'Naghten determined that he would kill the prime minister before
the prime minister could act against M'Naghten. M'Naghten shot at the prime minister's
carriage, killing the prime minister's secretary, a passenger in the carriage. M'Naghten was
acquitted of the crime based upon the definition of insanity which was given to the jury in the
judge's instructions.
The acquittal was met with public outrage. Queen Victoria and the House of Lords
summoned the judges of the common-law courts to answer questions regarding the concept of
insanity and its relationship to moral and criminal culpability. Fourteen of the fifteen justices
agreed that the instructions given to the jury were improper and that M'Naghten should not
have been acquitted. The judges then endorsed the following definition of legal insanity,
which has become known as the M'Naghten rule.
[T]he jurors ought to be told in all cases that every man is to be presumed to be sane,
and to possess a sufficient degree of reason to be responsible for his crimes, until the
contrary be proved to their satisfaction; and that to establish a defence on the ground of
insanity, it must be clearly proved that, at the time of the committing of the act, the
party accused was laboring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing; or, if he did know it, that he
did not know he was doing what was wrong.
M'Naghten's Case, 8 Eng. Rep. 718, 10 Cl. & Fin. 200, 209 (1843). M'Naghten created a very
strict guideline for determining insanity. The fact that a person had mental health problems
did not necessarily mean that he or she could meet the M'Naghten test for insanity.
In order to be considered legally insane under M'Naghten, a defendant must labor
under a delusion so great that he is incapable of appreciating his surroundings. This delusion
must do one of two things: {1) rob the defendant of the ability to understand what he is
doing; or {2) deprive the defendant of the ability to appreciate that his action is wrong,
that is, not authorized by law.
of two things: (1) rob the defendant of the ability to understand what he is doing; or (2)
deprive the defendant of the ability to appreciate that his action is wrong, that is, not
authorized by law. For example, persons who think that they are shooting at a target shaped
like a human being would meet the first factor of the standard. They would not understand the
nature and quality of their act (i.e., shooting at a person, not a target). Similarly, persons who
thought they were soldiers in the middle of a battlefield and that the individuals they were
killing were enemy forces would meet the second factor of M'Naghten. Such persons would
know they were shooting and killing human beings, but would not understand that it was
wrong because of their delusional belief they were in the middle of a war.
Addressing the House of Lords, Lord Chief Justice Tindal described the relationship
of delusional states to legal insanity:
The fourth question which your Lordships have proposed to us is this: If a person,
under an insane delusion as to existing facts, commits an offense in consequence
thereof, is he thereby excused? To which question the answer must, of course, depend
on the nature of the delusion: but, making the same assumption as we did before,
namely, that he labours under such partial delusion only, and is not in other respects
insane, we think he must be considered in the same situation as to responsibility as if
the facts with respect to which the delusion exists were real. For example, if, under the
influence of his delusion, he supposes another man to be in the act of attempting to take
away his life, and he kills that man, as he supposes, in self-defence, he would be
exempt from punishment. If his delusion was that the deceased had inflicted a serious
injury to his character and fortune, and he killed him in revenge for such supposed
injury, he would be liable to punishment.
M'Naghten's Case, 8 Eng. Rep. 718, 10 Cl. & Fin. 200, 211 (1843). Using this standard, the
English common-law judges then concluded that M'Naghten was not legally insane because,
even if his delusion were true and the prime minister was conspiring to kill M'Naghten, this
would not entitle M'Naghten to take the law into his own hands and hunt down the prime
minister.
While such severe delusional states do exist, they are not the kind of mental illness
most commonly encountered in the criminal justice system. In the past one hundred and fifty
years, few defendants with mental health problems have been acquitted based upon the legal
insanity test set forth in M'Naghten. Cynthia G. Hawkins-Len, Literature as Law: The
History of the Insanity Plea and a Fictional Application Within the Law & Literature Canon,
72 Temp. L. Rev. 381, 409 (1999).
Beginning in the early 1900s, some legal scholars and mental health professionals
began to advocate for an expanded definition of legal insanity. They felt the M'Naghten rule
was too limited and that people with severe mental illnesses were being improperly convicted
of crimes. The M'Naghten rule looks only to the cognitive condition of the defendant's state
of mind. That is, the ability of the defendant to perceive reality and make rational choices
based upon that perception. If you can form the criminal intent to do an act, then the reasons
why you think you must do the act are irrelevant. Advocates for change believed that
individuals who suffered from partial delusions, such as a conspiracy complex, should not be
subject to criminal incarceration, but should be committed to a treatment facility for the
mentally ill. Although such individuals had the mental capacity to form the required mens rea
or criminal intent, advocates argued that these individuals could not control their acts and that
to handle such individuals through the criminal justice system was inhumane. This is referred
to as the volitional component of legal insanity. Henry T. Miller, Recent Changes in
Criminal Law: The Federal Insanity Defense, 46 La. L. Rev. 337, 343-47 (1985).
This advocacy resulted in some courts adopting a new standard for legal insanity, the
irresistible impulse test. Under this theory, a defendant is legally insane if he suffers from a
mental condition that creates overwhelming compulsions urging him to commit the illegal
acts. See Smith v. United States, 36 F.2d 548 (D.C. Cir. 1929). For example, if a person was
under a delusion that God wanted certain people killed and, based upon hearing the voice of
God, that individual immediately began killing people around him, then that person would be
legally insane under the irresistible impulse test, but not under the M'Naghten standard. The
individual knew that he was killing human beings and that he was not authorized by law to
take a human life, but he could not resist what he perceived to be the will of God and acted
under the impulse of his delusion. Hawkins-Len, supra, at 393-95.
Discussions and debates over the definition of legal insanity continued into the 1950s.
Additional tests were proposed or adopted. In Durham v. United States, 214 F.2d 862 (D.C.
Cir. 1954), the Circuit Court of Appeals for the District of Columbia held that a person is not
responsible for actions that are the product of a mental disease or defect. Under the Durham
standard, individuals were legally insane if they would not have committed the criminal act
but for the existence of a mental disease or defect. In other words, if I did not have a delusion,
I would not have committed the criminal act.
However, Durham was criticized as being too expansive. Another proposal,
developed by the American Law Institute (ALI), combined elements of the M'Naghten rule,
the irresistible impulse test and Durham.
impulse test and Durham. Under this theory, a person is not responsible for criminal conduct
committed during a time when, as a result of a severe mental disease or defect, that person
lacks substantial capacity either to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of law. American Law Institute Model Penal
Code 4.01 (1985). The ALI Model Penal Code, however, excluded conditions that
manifested only through repeated criminal or anti-social conduct, in other words, you are not
legally insane simply because you commit violent acts. To be considered legally insane under
the ALI Model Penal Code, a person does not have to be totally incapacitated, as with the
M'Naghten rule, but they must have a substantial impairment of their mental capacity as
opposed to simply having some impairment as under Durham. Hawkins-Len, supra, at
397-99.
In addition to discussing what test to use in determining legal insanity, courts and
scholars have also debated over the procedural method for asserting the issue. Under
M'Naghten, insanity is considered an affirmative defense which must be proven by the
defendant. The burden of proof can be either: (1) by a preponderance of the evidence, (2) by
clear and convincing evidence or (3) beyond a reasonable doubt. See Leland v. Oregon, 343
U.S. 790 (1952). In contrast, other jurisdictions have determined that insanity is not an
affirmative defense, but an issue of presumptions. A person is presumed to be sane. This
presumption can be rebutted by the introduction of evidence tending to show that the
defendant is legally insane. Once such evidence is presented, the prosecution has the burden
of proving the defendant's sanity beyond a reasonable doubt. See Davis v. United States, 160
U.S. 469 (1895).
Combining definitions of legal insanity with the procedural mechanism for asserting
the subject leads to a range of methods for dealing with the issue. The most restrictive method
is the M'Naghten definition of legal insanity combined with a defendant having to prove legal
insanity beyond a reasonable doubt as an affirmative defense. The least restrictive would be
the use of the Durham test of legal insanity combined with the requirement that the
prosecution must prove sanity beyond a reasonable doubt once a defendant introduces
evidence rebutting the presumption of sanity.
The trend to expand the definition of legal insanity continued into the early 1980s. It
ceased, however, as a result of John Hinckley's acquittal in the attempted assassination and
shooting of President Ronald Reagan. Hinckley asserted the insanity defense, alleging he was
under an irresistible compulsion brought on by a mental disease or defect. Hinckley would
not have been able to assert his defense under the M'Naghten rule, but was successful in
convincing a jury that he was legally insane under the lesser standards embodied by Durham
that governed his trial.
standards embodied by Durham that governed his trial.
2
United States v. Hinckley, 672 F.2d
115 (D.C. Cir. 1982).
In response to the Hinckley case, many jurisdictions made changes to their laws
regarding the concept of legal insanity. Some adopted a compromise approach between
M'Naghten and the irresistible impulse or Durham tests. Others changed the burden and
standards of proof relating to the insanity defense. Some did both. See, e.g., The Insanity
Defense Reform Act of 1984, 18 U.S.C. 17 (1988); Hawkins-Len, supra, at 402-03.
In addition to the above changes, two new approaches to dealing with mentally ill
defendants were considered. The first of these new theories incorporates the idea that a
person can be found guilty, but mentally ill, of a criminal offense. It was originally intended
as an additional verdict or plea, not as a replacement for the insanity defense. It gives the
criminal justice system an alternative to either finding mentally ill persons guilty of a criminal
offense or totally acquitting them of any criminal liability.
This allows states to maintain a stricter definition of insanity, but still provide for a
verdict with different penalty implications for persons with mental health conditions that did
not rise to the level of legal insanity. It has sometimes been described as a codification of the
rule of diminished capacity. In such a case, the state mandates different treatment for such
individuals than would be accorded to them under a more traditional finding of guilt. Thus a
jury would be less inclined, out of sympathy for the defendant's mental condition, to
improperly acquit a defendant because they would have another option. See Christopher
Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come,
53 Geo. Wash. L. Rev. 494 (1985); Ira Mickenberg, A Pleasant Surprise: The Guilty But
Mentally Ill Verdict Has Both Succeeded in Its Own Right and Successfully Preserved the
Traditional Role of the Insanity Defense, 55 U. Cin. L. Rev. 943 (1987).
The second theory to be developed after Hinckley involved abolishing legal insanity as
a defense. Insanity is only admissible as it relates to a material element of a criminal offense,
such as intent. Only where the level of mental illness completely negates a necessary element
would a defendant be entitled to an acquittal. In addition, the definition of legal insanity
under this theory is narrowed to include only the first part of the M'Naghten rule. Under this
new theory, mens rea, or criminal intent, is viewed more in the context of strict liability,
that is, so long as you had the intent to commit a particular act, you would be held liable
for that act even though the definition of the crime might require a more specific mental
state, such as an element of malice.
__________

2
Hinckley was obsessed with actress Jodi Foster and presidential assassins. He attempted to kill President
Reagan in an effort to gain her attention and secure a place in history. While his thought process was clearly
irrational, Hinckley knew that he was shooting at a human being and that such an action was illegal, indeed
Hinckley intended to commit murder.
more in the context of strict liability, that is, so long as you had the intent to commit a
particular act, you would be held liable for that act even though the definition of the crime
might require a more specific mental state, such as an element of malice. Professor Joshua
Dressler best described the difference by using the following example:
[I]f D is prosecuted for intentionally killing V, D may introduce evidence that, due to
mental illness, she believed she was squeezing a lemon rather than strangling V and,
therefore, that she lacked the intent to kill. Evidence of D's mental condition would be
inadmissible, however, to show that she did not realize that taking a life is morally or
legally wrong, that she acted on the basis of an irresistible impulse to kill, or even that
she killed V because she hallucinated that V was trying to kill her.
Joshua Dressler, Understanding Criminal Law 25.07(C)(1), at 330 (2d ed. 1995).
This approach has been designated by legal scholars as the mens rea model because it
defines mens rea, or criminal intent, only in terms of the decision to do a certain act and
eliminates the concept of the appreciation of the wrongfulness of the act. As long as a
defendant can appreciate the nature and quality of his act, he is not legally insane and is
capable of forming the necessary mens rea. Therefore, the person who thought he was
shooting at a target would still be legally insane, but the individual who believes he is killing
an enemy soldier would not qualify as insane under the law. Under this approach, because the
latter individual is capable of recognizing he was killing a human being, he possesses the
requisite intent to kill.
The mens rea model alters the focus of criminal intent, without actually changing the
elements of the crimes themselves. It assumes that all crimes require the simple intent to do
an act and it ignores the fact that most crimes have a required element of knowledge,
willfulness or something beyond the mere performance of an act. It treats all criminal intent
more like an aspect of strict liability. Idaho, Montana and Utah have adopted some form of
the mens rea approach. See Catherine E. Lilly, Recent Developments (pt. G.), State v.
Herrera: The Utah Supreme Court Rules in Favor of Utah's Controversial Insanity Defense
Statute, 22 J. Contemp. L. 221 (1996); Brian E. Elkins, Idaho's Repeal of the Insanity
Defense: What Are We Trying to Prove?, 31 Idaho L. Rev. 151 (1994); Due
ProcessInsanity DefenseIdaho Supreme Court Upholds Abolition of Insanity Defense
Against State and Federal Constitutional Challenges, 104 Harv. L. Rev. 1132 (1991).
As can be seen from the above discussion, federal and state laws regarding the
insanity defense cover a broad spectrum of theories with respect to the treatment
accorded to a mentally ill defendant.
laws regarding the insanity defense cover a broad spectrum of theories with respect to the
treatment accorded to a mentally ill defendant. They are the product of society's continuing
struggle over the need to protect the public from the actions of such individuals versus our
recognition that a severally mentally ill individual may not possess the same level of
culpability as a person who has no mental health problems.
II. Nevada law and the 1995 amendments
Prior to the 1995 Legislative Session, Nevada's statutes codified the rule that a person
cannot be convicted of a criminal offense if they lack the capacity to appreciate the
wrongfulness of their act. NRS 194.010 provided, in part, that:
All persons are liable to punishment except those belonging to the following classes:
1. Children under the age of 8 years.
2. Children between the ages of 8 years and 14 years, in the absence of clear proof
that at the time of committing the act charged against them they knew its wrongfulness.
3. Idiots.
4. Lunatics and persons who committed the act or made the omission charged in a
state of insanity.
The statutory language discusses the same classes of people as the ancient scholars referenced
by the American Bar Association Standards and Platt & Diamond: children, retarded or
insane individuals.
3

In determining what constitutes legal insanity, Nevada courts applied the M'Naghten
rule. See Williams v. State, 85 Nev. 169, 451 P.2d 848 (1969), cert. denied, 396 U.S. 916
(1969); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Sollars v. State, 73 Nev. 248, 316
P.2d 917 (1957); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889). In addition, Nevada
procedurally considered insanity to be an affirmative defense. NRS 174.035(4) provided that:
4. The defendant may, in the alternative or in addition to any one of the pleas
permitted by subsection 1, plead not guilty by reason of insanity. A defendant who has
not so pleaded may offer the defense of insanity during trial upon good cause shown.
Under such a plea or defense, the burden of proof is upon the defendant to establish his
insanity by a preponderance of the evidence.
__________

3
The terms idiot or retarded, while unfortunate, are not intended to be pejorative in nature. They
encompass those individuals who possess defects existing from birth that prohibit individuals from developing
the mental maturity necessary to know right from wrong regardless of their chronological age. Singleton v. State,
90 Nev. 216, 522 P.2d 1221 (1974).
See also Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968) (the defendant must establish
his insanity by a preponderance of the evidence).
Moreover, in adopting the M'Naghten standard, we also adopted the M'Naghten
guideline for evaluating delusional states as they relate to the concept of legal insanity.
In Browne's Medical Jurisprudence of Insanity the author approves the decision in
McNaghten's [sic] Case, and, in the course of the discussion, says: The rule that the
nature of the delusion is always to be considered in relation to the nature of the act; that
when the facts which are falsely believed are such as would, if they had really existed,
have justified the act, the act shall be justified, and when they are such as, even
supposing they were true, would not have justified the act of which the prisoner is
accused, then his act is criminal.
Lewis, 20 Nev. at 362, 22 P. at 252.
Finally, in rare instances where individuals were found to be not guilty by reason of
insanity, they were immediately committed to a mental health facility. They would only be
released if a judge determined that they were no longer mentally ill and that they were not a
danger to themselves or others. See former NRS 175.521 (1994).
Thus, prior to the 1995 amendments, Nevada took a very strict approach to the issue
of legal insanity. Nevada was not one of the states that reacted to the Hinckley decision and
instituted new procedures or laws regarding legal insanity. Such actions were not necessary
since Nevada already adhered to a very narrow view of legal insanity.
In 1995, at the urging of the Nevada District Attorney's Association, the Nevada
Legislature considered several amendments to the laws involving the insanity defense. These
amendments were proposed to resolve perceived problems with Nevada's statutory or case
law that had developed subsequent to Hinckley. Hearing on S.B. 314 Before the Senate
Committee on Judiciary, 67th Leg. (Nev., April 4, 1995).
The prosecutors believed that too many courts were allowing defendants to present
evidence of mental health problems and argue for an insanity acquittal even when that
evidence did not relate to, or support, a M'Naghten defense. Instead such evidence appeared
to be more aligned with concepts of the irresistible impulse, Durham or ALI Model Penal
Code tests, theories of legal insanity which were not recognized under Nevada law. This was
particularly true when lay and expert witnesses were allowed to give opinions regarding the
defendant's sanity without understanding the legal standard for determining insanity under
M'Naghten.
M'Naghten. Hearing on S.B. 314 Before the Senate Committee on Judiciary, 67th Leg. (Nev.,
April 4, 1995); see also Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968) (a father testified
about his son's generally peculiar behavior and then indicated his belief that his son was
insane); Clark v. State, 95 Nev. 24, 588 P.2d 1027 (1979) (doctors testified that the
defendant suffered from severe postpartum depression and was therefore incapable of
realizing that abandoning her two-week-old baby in the desert was wrong).
Finally, juries and expert witnesses were only given the basic M'Naghten instruction
about whether a defendant was capable of knowing or understanding the nature and quality of
their acts or incapable of knowing or understanding that the act was wrong. The delusional
analysis regarding knowing right from wrong was not presented to the witnesses or jurors.
Prosecutors also testified that courts were reluctant to exclude consideration of legal
insanity because of the general principle that a defendant is entitled to present evidence and
request jury instructions encompassing his or her theory of the case. See Aldana v. State, 102
Nev. 245, 720 P.2d 1217 (1986) (witnesses testified that defendant was acting abnormally on
the days before he shot his wife, he was crazy and he believed his wife was trying to poison
him).
The Association did not give specific case names in its testimony, but it did relate
anecdotal stories targeting the facts of the cases cited in the preceding paragraphs. To add to
the confusion, representatives of the defense bar also gave definitions of legal insanity which
did not use the M'Naghten standard. On the face of the information contained in these case
opinions in the testimony, it is questionable that any of the defendants referred to in those
examples would meet the M'Naghten standard as discussed in Lewis. Thus, given the cases
and testimony, the Legislature could not ascertain an accurate picture of what constituted
legal insanity under Nevada law. Specifically, the Legislature could not determine whether
the court had intended to expand M'Naghten informally without adopting some new test for
legal insanity or if the court had simply improperly analyzed those cases by not considering
the relationship of delusions to wrongfulness and criminal intent as required by Lewis.
While the Association acknowledged that no one had been acquitted improperly, the
admission of such evidence, and the need for the prosecution to hire its own experts to rebut
such evidence, was a costly and time-consuming process. To correct this situation, the
Association proposed the adoption of a legislative scheme based on the Idaho, Montana and
Utah statutes that embraced the mens rea model. Insanity would no longer be treated as an
affirmative defense, legal insanity would be abolished and a new plea, "guilty but mentally
ill," would be created.
ished and a new plea, guilty but mentally ill, would be created.
4
Hearing on S.B. 314
Before the Senate Committee on Judiciary, 67th Leg. (Nev., April 4, 1995).
Under the new system, a defendant who entered a plea of guilty but mentally ill would
still be convicted of a criminal offense. Prior to sentencing, the judge would then determine
whether or not the defendant was suffering from a mental illness and, if so, what type of
treatment regime should be suggested to the division of parole and probation or the prison for
supervising the defendant's sentence.
Given the confusion in our case law and the testimony presented at the hearings, the
Legislature determined to abolish the concept of legal insanity as a defense to culpability and
enacted laws following the mens rea model. As a result of the 1995 amendments, NRS
174.035 now reads, in part, as follows:
1. A defendant may plead not guilty, guilty, guilty but mentally ill or, with the
consent of the court, nolo contendere. The court may refuse to accept a plea of guilty or
guilty but mentally ill.
. . . .
4. A plea of guilty but mentally ill is not a defense to the alleged offense. A defendant
who enters such a plea is subject to the same penalties as a defendant who pleads guilty.
In addition to amending NRS 174.035, the Legislature also amended NRS 194.010 to
delete the provisions dealing with lunatics or insanity and repealed NRS 175.521, the
criminal commitment statute. Finally, the Legislature amended NRS 193.220 to codify the
mens rea model. As noted above, NRS 193.220 now states that:
No act committed by a person while in a state of insanity or voluntary intoxication shall
be deemed less criminal by reason of his condition, but whenever the actual existence
of any particular purpose, motive or intent is a necessary element to constitute a
particular species or degree of crime, the fact of his insanity or intoxication may be
taken into consideration in determining the purpose, motive or intent.
5

(Emphasis added.)
__________

4
The amendments only provide for a plea of guilty but mentally ill. There is no provision for a jury to render
such a verdict. Moreover, the procedure adopted by the Legislature does not follow the rationale or policies
usually associated with this concept as discussed by Professors Slobogin and Mickenberg. Unlike some of the
other states that have adopted the guilty but mentally ill approach, Nevada has no separate facilities for the
incarceration and treatment of defendants who are not legally insane but may suffer from mental illness.

5
Previously this section only referred to voluntary intoxication. Several
The Legislature also enacted new sections of the Nevada Revised Statutes setting
forth the procedures a court must follow when accepting a plea of guilty but mentally ill. NRS
174.041 and NRS 176.127 are two of the new statutes. NRS 174.041 provides that:
1. If a plea of guilty but mentally ill is entered by a defendant, the court shall hold a
hearing within a reasonable time to determine whether the defendant was mentally ill at
the time of the commission of the alleged offense to which the plea is entered.
2. The court may order the examination of the defendant or receive the testimony of
any expert witness offered by the defendant or the prosecuting attorney, or both.
3. At the hearing, the court shall advise the defendant that a plea of guilty but
mentally ill is a plea of guilty and not a defense to the alleged offense.
4. The court shall accept the plea of guilty but mentally ill only if it determines that
the defendant was mentally ill at the time of the alleged offense to which the plea is
entered.
NRS 176.127 provides that:
1. If a court accepts a plea of guilty but mentally ill pursuant to NRS 174.041, the
court shall, before imposing sentence, afford the defendant an opportunity to present
evidence of his present mental condition. If the defendant claims that he is mentally ill
at the time of sentencing, the burden of proof is upon the defendant to establish that fact
by a preponderance of the evidence.
2. If the defendant has been ordered to the custody of the department of prisons, the
court may order the department to cause an examination of the defendant to be
conducted to determine his mental condition, and may receive the evidence of any
expert witness offered by the defendant or the prosecuting attorney.
3. If the court finds:
(a) That the defendant is not mentally ill at the time of sentencing, it shall impose any
sentence that it is authorized to impose upon a defendant who pleads or is found guilty
of the same offense.
(b) By a preponderance of the evidence that the defendant is mentally ill at the time of
sentencing, it shall impose any sentence that it is authorized to impose upon a defendant
who pleads or is found guilty of the same offense and include in that sentence an
order that the defendant, during the period of his confinement or probation, be
given such treatment as is available for his mental illness if the court determines
that the relative risks and benefits of the available treatment are such that a
reasonable person would consent to such treatment.
__________
other provisions of the statutes were also amended to delete any reference to insanity or add language
referencing a plea of guilty but mentally ill. The provisions of those statutes have no bearing upon our decision
and are therefore not referenced in this opinion.
who pleads or is found guilty of the same offense and include in that sentence an order
that the defendant, during the period of his confinement or probation, be given such
treatment as is available for his mental illness if the court determines that the relative
risks and benefits of the available treatment are such that a reasonable person would
consent to such treatment. The treatment must be provided by the department of
prisons.
In summary, under the current law, an accused cannot argue that he or she should be
acquitted on the basis of legal insanity. He or she can only argue that the State has not proven
intent beyond a reasonable doubt. If a jury does acquit a defendant because they are not
convinced that the person had the mental capacity to form the intent to commit the crime,
then that person is no longer immediately transferred to a mental health facility. Instead, a
person could only be held under provisions of the civil involuntary commitment statutes. See
NRS 433A.115 et. seq.
III. Constitutional analysis
[Headnote 2]
Finger contends that NRS 193.220, if interpreted in accordance with the mens rea
model as intended by the Legislature, is unconstitutional because it would permit an
individual to be convicted of a criminal offense without being able to form the necessary
criminal intent. Finger argues that due process requires that the concept of mens rea, at least
with the most serious crimes, incorporates an element of wrongfulness; that is, a person not
only intends to do the specific act, but also understands the act is wrong because it is not
permitted by law. Finger also contends that due process requires that a defendant be able to
present the issue of legal insanity by asserting legal insanity as an affirmative defense.
The State argues that while insanity is no longer a defense, the provisions of NRS
193.220 permit a defendant to introduce evidence regarding insanity as it relates to the ability
of the defendant to form intent. If the Legislature requires the mens rea of a crime to include
an element of wrongfulness, then both tests under M'Naghten apply. If the criminal statute
does not specify such a requirement, then individuals would only be legally insane if they
failed to know and understand the nature and quality of their acts or the first test of
M'Naghten. An individual who lacks the required intent could not be convicted of a criminal
offense. Thus NRS 193.220 is constitutional because there is no requirement that legal
insanity be asserted by way of an affirmative defense, only that a person who is legally insane
cannot be convicted of an offense.
The State, however, has referenced the statutory schemes and cases from Idaho,
Montana and Utah in its arguments. In doing so, the State appears to be adopting the concept
inherent in the mens rea model that knowledge that one's actions are wrong is not generally
an element of a crime, even a specific intent crime, and it is not a requirement of murder.
Moreover, the mens rea model, adopted by the Nevada Legislature, assumes that
wrongfulness is never an element of intent, regardless of the crime. If this is so, then the
State's argument that the 1995 legislative amendments only affect the method by which the
issue of insanity is addressed must fail.
A. Due Process Clause
[Headnote 3]
The Due Process Clause mandates protection of those principles deemed
fundamental to the American scheme of justice. Duncan v. Louisiana, 391 U.S. 145, 149
(1968). The history of American jurisprudence reflects that it is a fundamental principle of
our law that a defendant who is incapable of forming the requisite intent, or mens rea, to
commit a crime cannot be convicted of a crime. One who does not possess the necessary
criminal intent is not subject to criminal punishment.
The contention that an injury can amount to a crime only when inflicted by intention
[i.e., culpable mental state] is no provincial or transient notion. It is as universal and
persistent in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good and evil.
A relation between some mental element and punishment for a harmful act is almost as
instinctive as the child's familiar exculpatory But I didn't mean to, and has afforded
the rational basis for a tardy and unfinished substitution of deterrence and reformation
in place of retaliation and vengeance as the motivation for public prosecution.
Morissette v. United States, 342 U.S. 246, 250-51 (1952).
[Headnote 4]
Mens rea is a fundamental aspect of criminal law. Thus it follows that the concept of
legal insanity, that a person is not culpable for a criminal act because he or she cannot form
the necessary mens rea, is also a fundamental principle. Indeed the term legal insanity
simply means that a person has a complete defense to a criminal act based upon the person's
inability to form the requisite criminal intent. Congress, even in the face of the public outrage
following the Hinckley trial, refused to completely abolish the concept of legal insanity,
recognizing that culpability is a prerequisite to a criminal prosecution.
requisite to a criminal prosecution. See H.R. Rep. No. 98-577 at 7-8 (1983). While courts and
scholars may debate what standard or definition should apply in determining what constitutes
legal insanity, or by what method it should be raised, all have agreed that due process requires
that a defendant be able to present evidence and argue that he or she lacked the mens rea to
commit the criminal act.
[Headnote 5]
It is because legal insanity is a corollary of mens rea, the mental state that imposes
criminal responsibility upon an individual, that legal insanity is a fundamental principle under
the Due Process Clause. What constitutes a fundamental principle is largely a matter of
historical development. Our primary guide in determining whether the principle in question
is fundamental is, of course, historical practice. Montana v. Egelhoff, 518 U.S. 37, 43
(1996). Historical practice overwhelmingly supports the conclusion that legal insanity is a
fundamental principle. As Justice Stewart notes in his dissenting opinion in State v. Herrera,
895 P.2d 359, 372 (Utah 1995):
[R]ecognition of insanity as a defense is a core principle that has been recognized for
centuries by every civilized system of law in one form or another. Historically, the
defense has been formulated differently, but given the extent of knowledge concerning
principles of human nature at any given point in time, the essence of the defense,
however formulated, has been that a defendant must have the mental capacity to know
the nature of his act and that it was wrong.
Legal insanity has been an established concept in English common law for centuries.
See Anthony Platt and Bernard L. Diamond, The Origins of the Right and Wrong Test of
Criminal Responsibility and Its Subsequent Development in the United States: An Historical
Survey, 54 Calif. L. Rev. 1227, 1229-30 (1966). Since the reign of Edward II (1307-1321),
English law acknowledged that an individual who does not know what he is doing or that
what he is doing is wrong cannot be held criminally liable. State v. Searcy, 798 P.2d 914, 928
(Idaho 1990) (quoting from Biggs, The Guilty Mind, 83 (1955)). In his dissent in Searcy,
Justice McDevitt outlines the extensive history of the insanity defense at common law.
Searcy, 798 P.2d at 928-31.
The same conclusion was reached by the American Bar Association's Standing
Committee on Association Standards for Criminal Justice. Commenting on the mens rea
model, the Committee stated that:
This approach, which would permit evidence of mental condition on the requisite
mental element of the crime but eliminate mental nonresponsiblity as an
independent, exculpatory doctrine, has been proposed in several bills in Congress
and adopted in Montana, Idaho and Utah.
inate mental nonresponsiblity as an independent, exculpatory doctrine, has been
proposed in several bills in Congress and adopted in Montana, Idaho and Utah. The
ABA has rejected it out of hand. Such a jarring reversal of hundreds of years of moral
and legal history would constitute an unfortunate and unwarranted overreaction to the
Hinckley verdict.
American Bar Association, Standing Committee on Association Standards for Criminal
Justice, Report to the House of Delegates, August, 1984, Standard 7-6.1, Commentary P. 327.
The State does not contest that the need to establish criminal intent beyond a
reasonable doubt is a fundamental principle. Instead the State argues that NRS 193.220 does
not interfere with or negate this principle. We disagree. The mens rea model has the effect of
eliminating the concept of wrongfulness from all crimes, in effect changing the criminal
intent to be established regardless of the statutory definition of the offense. This would permit
an individual to be convicted of a crime where the State failed to prove an element of the
offense beyond a reasonable doubt.
Our decision is consistent with other courts that have considered this issue. In State v.
Strasburg, 110 P. 1020 (Wash. 1910), the Washington Supreme Court declared
unconstitutional a Washington statute that provided that insanity was not a defense to a crime
and specifically prohibited the introduction of any evidence on the issue of legal insanity.
Similar rationale is found in the case of Sinclair v. State, 132 So. 581 (Miss. 1931). The
Mississippi statute stated that insanity was not a defense to the crime of murder. The
Mississippi Supreme Court determined that the statute was unconstitutional holding that:
One of the essential ingredients of crime is intent. Intent involves an exercise of the
reasoning powers in which the result of the criminal act is foreseen and clearly
understood. Another essential element of crime is animus. Animus involves an exercise
of reasoning powers, in which the result of the criminal act is recognized as being
contrary to the rules of law and justice. If a person is mentally unsound, one or both of
these elements may be, and usually are, wanting.
Sinclair, 132 So. at 584.
The State contends that the rationale of Strasburg and Sinclair are inapplicable to the
Nevada statutory scheme, because NRS 193.220 specifically permits evidence of insanity to
be considered in determining intent, something which was not present in the Washington and
Mississippi statutes. Instead, the State argues we should follow the reasoning of the Idaho,
Montana and Utah Supreme Courts upholding the constitutionality of their respective mens
rea model insanity statutes. In each of these cases, the courts determined that there is no
federal constitutional right to assert a defense of insanity.
courts determined that there is no federal constitutional right to assert a defense of insanity. A
mens rea model statutory scheme is permissible so long as a defendant is allowed to
introduce evidence to show he lacked the mental capacity to form the intent to do the act,
regardless of whether or not he knew the act was wrong. State v. Herrera, 895 P.2d 359 (Utah
1995); State v. Searcy, 798 P.2d 914 (Idaho 1990); State v. Korell, 690 P.2d 992 (Mont.
1984).
6

The courts in Herrera, Searcy and Korell concluded that there is no federal due
process right to assert insanity as a defense to criminal culpability. They reasoned that
because the definition of legal insanity has been the subject of much debate and change, it
does not possess the requisite historical certainty necessary to rise to a fundamental right
under the Due Process Clause. Herrera, 895 P.2d at 365; Searcy, 798 P.2d at 918; Korell, 690
P.2d at 1000-01.
These courts also place heavy emphasis on the fact that the United States Supreme
Court has never held that a defense of insanity is a fundamental principle under the Due
Process Clause. In addition, relying on two instances of obiter dictum, they conclude that the
United States Supreme Court would not extend due process protection to the concept of legal
insanity. All three cases cite to a brief statement by the United States Supreme Court in
Powell v. Texas, 392 U.S. 514 (1968) in support of their analysis. In Powell the Supreme
Court was considering the constitutionality of a statute that made it a crime to be drunk in a
public place. The court concluded this was not an unconstitutional status crime. In the
opinion, the court stated that:
We cannot cast aside the centuries-long evolution of the collection of inter-locking and
overlapping concepts which the common law has utilized to assess the moral
accountability of an individual for his antisocial deeds. The doctrines of actus reus,
mens rea, insanity, mistake, justification, and duress have historically provided the
tools for a constantly shifting adjustment of the tension between the evolving aims of
the criminal law and changing religious, moral, philosophical, and medical views of the
nature of man. This process of adjustment has always been thought to be the province
of the States.
Powell, 392 U.S. at 535-36. In addition to this comment from Powell, the Idaho, Montana and
Utah courts also rely on a single sentence contained in Justice Rehnquist's dissenting opinion
in Ake v. Oklahoma, 470 U.S. 6S {19S5). "It is highly doubtful that due process requires a
State to make available an insanity defense to a criminal defendant, but in any event if
such a defense is afforded the burden of proving insanity can be placed on the
defendant."
__________

6
Prior to their abolishment of the defense of insanity, none of these jurisdictions applied the strict M'Naghten
standard to determine insanity. Each used a more expansive definition. None of the defendants in these cases
would qualify as legally insane under M'Naghten.
Ake v. Oklahoma, 470 U.S. 68 (1985). It is highly doubtful that due process requires a State
to make available an insanity defense to a criminal defendant, but in any event if such a
defense is afforded the burden of proving insanity can be placed on the defendant. Ake, 470
U.S. at 91.
While Chief Justice Rehnquist's statement certainly supports the decisions in Herrera,
Searcy and Korell, the same cannot be said of Justice Marshall's commentary in Powell.
When read in context, the comments in Powell support the Supreme Court's longstanding
policy to generally permit the states to determine the details of how to implement
well-established doctrines. In other words, how a state chooses to present the issue of legal
insanity is left up to state law. Powell cannot be read to stand for the proposition that the
concept of legal insanity, i.e., an inability to form the requisite mens rea, is not a fundamental
principle of our jurisprudence entitled to protection under the Due Process Clause.
The ideas embodied in Powell regarding giving the states discretion on the procedural
method for determining legal insanity are also expressed in Leland v. Oregon, 343 U.S. 790
(1952). In Leland, the High Court upheld Oregon's legal insanity statute. The statute required
that a defendant prove legal insanity beyond a reasonable doubt. Oregon also followed the
M'Naghten rule. The defendant was challenging Oregon's requirement that he prove, as an
affirmative defense, that he was legally insane beyond a reasonable doubt. This, he argued,
was an impermissible shift to the defendant of the burden of proof. The Supreme Court found
that this scheme did not violate generally accepted concepts of basic standards of justice
because the state still had the burden to prove every element of the crime beyond a reasonable
doubt. Leland, 343 U.S. at 799.
In reaching this conclusion, the High Court's discussion of legal insanity implies that
it viewed the issues of legal insanity and mens rea to be intertwined. Due process requires
that the prosecution prove the mens rea, or intent, of a crime beyond a reasonable doubt.
Legal insanity negates criminal intent, but how the issue of legal insanity is raised is a
procedural issue left to the judgment of the individual state and requiring a defendant to
establish legal insanity as an affirmative defense was a permissible method for accomplishing
this task. While the Court did not adopt any one procedure or test for establishing legal
insanity, it implied that legal insanity is a fundamental principle of our system of justice.
Leland, 343 U.S. at 799.
It is also interesting to note that the Supreme Court in Leland did not withdraw from
any of the language in Davis v. United States that discusses the importance of legal insanity.
The Court only found that the procedure for litigating the issue of legal insanity set forth in
Davis was not constitutionally mandated. In Davis, Justice Harlan stated that:
Davis, Justice Harlan stated that:
We are unable to assent to the doctrine that in a prosecution for murder, the defence
being insanity, and the fact of the killing with a deadly weapon being clearly
established, it is the duty of the jury to convict where the evidence is equally balanced
on the issue as to the sanity of the accused at the time of the killing. On the contrary, he
is entitled to an acquittal of the specific crime charged if, upon all the evidence, there is
reasonable doubt whether he was capable in law of committing crime.
No one, we assume, would wish either the courts or juries, when trying a case of
murder, to disregard the humane principle, existing at common law and recognized in
all the cases tending to support the charge of the court below, that to make a complete
crime cognizable by human laws, there must be both a will and an act;
. . . .
Although the killing of one human being by another human being with a deadly weapon
is presumed to be malicious until the contrary appears, yet, in order to constitute a
crime, a person must have intelligence and capacity enough to have a criminal intent
and purpose; and if his reason and mental powers are either so deficient that he has no
will, no conscience, or controlling mental power, or if, through the overwhelming
violence of mental disease, his intellectual power is for the time obliterated, he is not a
responsible moral agent, and is not punishable for criminal acts. Com. v. Rogers, 7
Metc. (Mass.) 501. Neither in the adjudged cases nor in the elementary treatises upon
criminal law is there to be found any dissent from these general propositions.
Davis, 160 U.S. at 484-85.
The commentary contained in Powell is merely a reaffirmation of the general policy
stated by Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97 (1934) that a state is free
to regulate the procedure of its courts in accordance with its own conception of policy and
fairness, unless in so doing it offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental. Snyder, 291 U.S. at 105.
Moreover, the significance of the isolated comments in Powell and Ake becomes more
tenuous in the face of other statements of the High Court affirming the importance of legal
insanity as a defense to criminal culpability. Justice O'Connor relied upon the protections
afforded by the defense of insanity when determining that the imposition of the death
penalty upon a mentally retarded defendant did not constitute cruel and unusual
punishment.
that the imposition of the death penalty upon a mentally retarded defendant did not constitute
cruel and unusual punishment. The Court acknowledged that there is a constitutional
prohibition against executing a legally insane person, but that mental retardation did not
equate to legal insanity. Further, Justice O'Connor noted that there were sufficient safeguards
to ensure that a mentally incompetent individual who was incapable of forming the requisite
mens rea would not be convicted, among them the insanity defense.
The common law prohibition against punishing idiots for their crimes suggests that it
may indeed be cruel and unusual punishment to execute persons who are profoundly
or severely retarded and wholly lacking the capacity to appreciate the wrongfulness of
their actions. Because of the protections afforded by the insanity defense today, such a
person is not likely to be convicted or face the prospect of punishment.
Penry v. Lynaugh, 492 U.S. 302, 333 (1989). Given the Supreme Court's discussion of
insanity in Leland, Morissette and Penry, we cannot agree with the analysis of federal law
contained in the majority opinions of Herrera, Searcy and Korell.
Finally we note that these opinions appear to assume that wrongfulness, that is the
knowledge that you are acting in an unauthorized manner, is not a necessary component of
the crime of murder. In fact, Herrera specifically indicates that the only element of intent in
murder is the intent to kill a human being. It is this approach that distinguishes the mens rea
model.
7
But murder is generally not defined as just the killing of another human being. In
Nevada, as in most states, murder requires something more than the intent to kill. Nevada
defines murder as the unlawful killing of a human being, with malice aforethought, either
express or implied . . . NRS 200.010 (emphasis added). Malice is defined in NRS 200.020.
Express malice involves the deliberate intention to unlawfully take away the life of a fellow
creature, while malice is implied when, for example, the circumstances of the killing show an
abandoned and malignant heart.
An individual who labors under the total delusion that they are a soldier in a war and
are shooting at enemy soldiers is not capable of forming the intent to kill with malice
aforethought. His delusional state prohibits him from forming the requisite mens reas,
because he believes that his killing is authorized by law.
__________

7
The statutes in Montana and Utah use words such as purposely or knowingly to define criminal
homicide, while Idaho's statute refers to malice. Arguably, Montana and Utah may only require a person to form
an intent to kill a human being to be guilty of murder, however the dissents in Korell and Herrera dispute that
this is the case.
reas, because he believes that his killing is authorized by law. He is legally insane under
M'Naghten. Anytime a statute requires something more than the intent to commit a particular
act, then legal insanity must be a viable defense to the crime and involves both tests under the
M'Naghten rule.
[Headnote 6]
We conclude that legal insanity is a well-established and fundamental principle of the
law of the United States. It is therefore protected by the Due Process Clauses of both the
United States and Nevada Constitutions. The Legislature may not abolish insanity as a
complete defense to a criminal offense. Thus the provisions of S.B. 314 abolishing the
insanity defense are unconstitutional and unenforceable.
[Headnotes 7, 8]
The Legislature is free to decide what method to use in presenting the issue of legal
insanity to a trier of fact, i.e., as an affirmative defense or rebuttable presumption of sanity. It
may also determine that legal insanity be proven by the defendant by any one of the
established standards. But it cannot abolish legal insanity or define it in such a way that it
undermines a fundamental principle of our system of justice. Historically, the mens rea of
most crimes, particularly specific intent crimes, incorporates some element of wrongfulness
as that term is used in Lewis and M'Naghten. The Legislature can only eliminate this concept
of wrongfulness if it redefines the crime itself, in other words, if it chooses to make the act,
regardless of the mental state, the crime. Thus murder could simply be defined as the killing
of a human being. But so long as a crime requires some additional mental intent, then legal
insanity must be a complete defense to that crime.
[Headnote 9]
Turning to the remaining provisions of S.B. 314, which created a plea of guilty but
mentally ill, repealed the criminal commitment statutes and abolished the plea of not guilty
by reason of insanity, while these provisions might be construed in a constitutional fashion,
they are inextricably intertwined with the provisions designed to abolish the insanity defense.
To enforce one without the other would be to create unintended consequences and frustrate
the very object of the act; that is, to make it more difficult to be acquitted on the basis of legal
insanity. We agree with the dissent that the act can be construed in a constitutional fashion
and the usual rules of statutory constructions would require such a result. However, there is
an exception to this general rule. In Binegar v. District Court, 112 Nev. 544, 915 P.2d 889
(1996), we noted that when provisions of an act cannot be severed without defeating the
whole scope and object of the law, then the entire law should be stricken.
out defeating the whole scope and object of the law, then the entire law should be stricken. To
construe the laws in the manner urged by the dissent would broaden, not restrict, the scope of
legal insanity in our jurisprudence. Use of the sound mind and discretion language
contained in NRS 193.200, without reference to our prior caselaw involving M'Naghten,
would allow individuals with mental illnesses not amounting to legal insanity under
M'Naghten to argue they did not possess the sound mind and discretion to form the intent to
commit the crime. As this would be in direct contradiction to the intent of the legislation, we
conclude that S.B. 314 should be rejected in its entirety. All prior versions of the statutes
amended or repealed by S.B. 314 remain in full force and effect. Johnson v. Goldman, 94
Nev. 6, 575 P.2d 929 (1978) (because the statute permitting peremptory challenge to judge
upon payment of fee was unconstitutional, the procedures which previously governed judicial
recusal and which were purportedly repealed by the Act in question remained in effect);
C.V.L. Co. v. District Court, 58 Nev. 456, 83 P.2d 1031 (1938) (an unconstitutional statute
has no effect and does not repeal a prior statute).
IV. Clarification of M'Naghten
[Headnotes 1012]
Because of the confusion over the application of M'Naghten evidenced in the
legislative hearings on S.B. 314, we take this opportunity to clarify our previous case law. To
qualify as being legally insane, a defendant must be in a delusional state such that he cannot
know or understand the nature and capacity of his act, or his delusion must be such that he
cannot appreciate the wrongfulness of his act, that is, that the act is not authorized by law. So,
if a jury believes he was suffering from a delusional state, and if the facts as he believed them
to be in his delusional state would justify his actions, he is insane and entitled to acquittal. If,
however, the delusional facts would not amount to a legal defense, then he is not insane.
Persons suffering from a delusion that someone is shooting at them, so they shot back in
self-defense are insane under M'Naghten. Persons who are paranoid and believe that the
victim is going to get them some time in the future, so they hunt down the victim first, are
not.
[Headnote 13]
We also take this opportunity to clarify the proper use of lay opinion in cases
involving legal insanity. Legal insanity has a precise and extremely narrow definition in
Nevada law. To allow a lay witness to testify that someone is insane assumes that the
witness fully understands the complexity of the insanity defense as outlined in M'Naghten and
Lewis. A lay witness can certainly testify as to their observations of a defendant's behavior
and can use other words, such as "crazy" or "abnormal."
testify as to their observations of a defendant's behavior and can use other words, such as
crazy or abnormal. But a lay witness should not be permitted to use the word insane
since that is a term of art. We expressly disapprove of any language in our case law that holds
to the contrary.
[Headnotes 14, 15]
In addition we stress the need for experts and juries to be correctly advised on the
M'Naghten standard. The ability to understand right from wrong under M'Naghten is directly
linked to the nature of the defendant's delusional state. Delusional beliefs can only be the
grounds for legal insanity when the facts of the delusion, if true, would justify the
commission of the criminal act. This is a very narrow standard. Unless a defendant presents
evidence that complies with this standard, he or she is not entitled to have the jury instructed
on the issue of insanity. We expressly overrule Aldana to the extent it implies that any
evidence of mental illness or aberration requires the jury to be instructed on the issue of legal
insanity. Evidence that does not rise to the level of legal insanity may, of course, be
considered in evaluating whether or not the prosecution has proven each element of an
offense beyond a reasonable doubt, for example in determining whether a killing is first- or
second-degree murder or manslaughter or some other argument regarding diminished
capacity.
We understand that few people will qualify as legally insane under the M'Naghten
rule. However, the adoption of a more expansive definition of legal insanity is not required by
the Federal or Nevada Constitutions and is therefore a legislative, not a judicial prerogative.
V. Application to Finger
[Headnotes 16, 17]
Having determined that S.B. 314 is unconstitutional, we must now examine the
consequences of our ruling upon Finger. Finger has a constitutional right to present evidence
demonstrating that he was legally insane under the M'Naghten standard when he killed his
mother. However, Finger does not have a constitutional right to enter a plea of not guilty by
reason of insanity, or to procedurally litigate legal insanity as an affirmative defense. But,
because the legislative history involving S.B. 314 and the amendment of NRS 193.220 led
Finger to believe he would have been prohibited from arguing legal insanity as defined by
M'Naghten, his plea of guilty, but mentally ill was not knowingly entered. He is therefore
entitled to withdraw his plea of guilty but mentally ill, enter a plea of not guilty in accordance
with this opinion and proceed to trial. On the limited record presented to us, it appears that
Finger killed his mother because of his delusional belief that she was conspiring with others
to kill him and he needed to kill her before she could carry out her scheme.
belief that she was conspiring with others to kill him and he needed to kill her before she
could carry out her scheme. If this was his delusional belief, Finger would not qualify as
legally insane. This is because there is no evidence that, in his delusion, he believed he was in
imminent danger which, if true, would justify self-defense. However, we are mindful of the
fact that the record is incomplete. Finger never fully developed his expert testimony on the
record. Therefore, there may be additional evidence to support a M'Naghten defense. We
therefore remand this matter to the district court for further proceedings consistent with this
opinion.
CONCLUSION
Neither the Federal nor the State Constitutions mandate that the issue of insanity be
procedurally litigated as an affirmative defense. However, an individual who lacks the mental
capacity to form the requisite intent or mens rea of a criminal offense cannot be convicted of
that offense without violating the due process provisions of the United States and Nevada
Constitutions. Insanity is a mental condition that interferes with the ability of a person to form
criminal intent. Individuals are considered to be legally insane when their mental condition
rises to a level so as to relieve them of criminal culpability for their actions because they are
incapable of developing the necessary mens rea. Where the mens rea of a crime requires that
defendants understand the nature and consequences of their conduct and that the conduct is
wrong, then legal insanity is established when one of these two elements is missing. This is
the M'Naghten rule. The Legislature cannot abolish the concept of legal insanity. Therefore
Finger has the right to argue that he lacked the required mens rea to commit the crime of
murder and is legally insane. Because he entered his plea of guilty, but mentally ill under
the assumption he could not raise the issue of legal insanity at trial, his plea was not
knowingly entered. Accordingly, we remand this matter to the district court for further
proceedings consistent with this opinion.
Young and Agosti, JJ., concur.
Leavitt, J., concurring:
I agree with the majority that the requirement of a mentally ill defendant to plead
guilty but mentally ill deprives a defendant of liberty without due process of law and is in
violation of the Fourteenth Amendment. The attempt by the Legislature to wipe away more
than a century of criminal jurisprudence tramples on the due process rights of mentally
unsound defendants and is unconstitutional.
The new procedure conflicts with several Nevada statutes.
The criminal justice system does not punish persons unable to form the intent
necessary to commit a crime. Under current Nevada law, to constitute a crime there must be a
joint operation of two essential elements, an act forbidden by law and an intent to do the act.
1
The intent with which an act is done is shown by the facts and circumstances of the case and
the sound mind and discretion of the person accused.
2
A person of sound mind is one who
knows the distinction between good and evil.
3

A defendant entering a plea of guilty to a criminal offense must do so voluntarily,
knowingly and with an understanding of the elements of the crime to which the person is
admitting guilt.
4
Additionally, a defendant entering a plea of guilty waives three valuable
constitutional rights: the privilege against self-incrimination, the right to trial by a jury, and
the right to confront accusers.
5
Further, a defendant must understand the consequences of
pleading guilty.
6
A defendant's federal constitutional rights are involved when a plea of
guilty is entered in a state criminal proceeding.
7
If a defendant's mental illness at the time of
the entry of the plea prevented the defendant from understanding the consequences of such
action, the plea is involuntarily entered and must be set aside. A criminal defendant may not
plead guilty unless he does so competently and intelligently.
8
Complicating the problem is
the rule that when a person enters a plea of guilty, that person may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea.
9

A person who has pleaded guilty but mentally ill is incarcerated in the Nevada State
Prison. Persons who may be incapable of committing crime because of mental illness should
not be placed in prison with criminals who intentionally, willfully and knowingly commit
crime. There is a clear difference between a person who may be incompetent and a mentally
capable defendant. The criminal justice system has always recognized that distinction.
__________

1
NRS 193.190.

2
NRS 193.200.

3
NRS 193.210.

4
Love v. State, 99 Nev. 147, 147-48, 659 P.2d 876, 877 (1983).

5
Higby v. Sheriff, 86 Nev. 774, 781, 476 P.2d 959, 963 (1970).

6
Ramey v. State, 99 Nev. 264, 265, 661 P.2d 1292, 1292 (1983).

7
Boykin v. Alabama, 395 U.S. 238, 243 (1969), superceded by statute on other grounds as stated in United
States v. Gomez-Cuevas, 917 F.2d 1521 (10th Cir. 1990).

8
Godinez v. Moran, 509 U.S. 389, 396 (1993).

9
Webb v. State, 91 Nev. 469, 470, 538 P.2d 164, 165 (1975) (quoting Tollett v. Henderson, 411 U.S. 258,
267 (1973)).
tinction. The new procedure makes the status of mental illness a crime, by confining a person
who cannot form the necessary intent to commit a crime and whose only crime is mental
illness. Such inflicted punishment is cruel and unusual in violation of the 8th Amendment of
the U.S. Constitution.
The legislative scheme as set forth in S.B. 314
10
must be set aside, and the law as it
existed prior to its enactment be reinstated.
Shearing, J., with whom Maupin, C. J., and Rose, J., agree, dissenting:
I would affirm the judgment of conviction adjudicating Frederick Finger guilty of
second-degree murder but mentally ill. I do not agree that he has the right to plead not guilty
by reason of insanity, as he asserts, nor do I agree that the Nevada statutory scheme violates
the Due Process Clause of either the United States Constitution or the Nevada Constitution.
Finger pleaded guilty but mentally ill after the court refused to allow his plea of not
guilty by reason of insanity. Under the Nevada statutory scheme, no one is obligated to plead
guilty. Every person accused of a crime has a right to a trial. When an accused pleads guilty,
he or she does so strictly voluntarily. The court is obligated to canvass the accused to make
sure that the plea is voluntary. Finger argues that NRS 174.035(3), the statute which
authorizes the guilty but mentally ill plea, provides an incentive for pleading guilty, because
of the fear of what could happen at trial. That is the incentive for most pleas and does not
violate any constitutional provision.
If the accused refuses to plead guilty or guilty but mentally ill or nolo contendere, the
court must enter a plea of not guilty
1
and the accused proceeds to trial. The same result
occurred with the previous plea of not guilty by reason of insanity; the case proceeded to trial.
At trial, the defendant had to prove insanity. Under the present statutory scheme, at trial, the
State must prove that the defendant had the necessary mental state.
In 1995 the Nevada Legislature abolished the plea of not guilty by reason of insanity
and substituted a plea of guilty but mentally ill. The majority concludes that the new Nevada
statutory scheme on the culpability of mentally impaired individuals is unconstitutional
because it does not take into account the defendant's criminal intent or mens rea. The Nevada
statutory scheme does take into account the defendant's mental state to the extent necessary to
comply with substantive due process.
__________

10
S.B. 314, 67th Leg. (Nev. 1995), amending NRS 174.035, 193.220 and 194.010 and repealing 175.521.

1
NRS 174.035(5).
At trial, the State must prove every element of the offense charged beyond a
reasonable doubt, including the element of intent, whether general or specific. The defendant
may raise the issue of his or her mental state either by defense evidence or by attacking the
prosecution evidence of intent or mental state. The Legislature left intact two provisions
which make it very clear that the requisite mental state must be proven. NRS 193.190
provides:
In every crime or public offense there must exist a union, or joint operation of act and
intention, or criminal negligence.
NRS 193.200 provides:
Intention is manifested by the circumstances connected with the perpetration of the
offense, and the sound mind and discretion of the person accused.
Furthermore, the accused is also entitled to an instruction to the jury in accordance
with NRS 194.010 which provides in relevant part:
Persons capable of committing crimes. All persons are liable to punishment except
those belonging to the following classes:
. . . .
4. Persons who committed the act or made the omission charged under an ignorance
or mistake of fact, which disproves any criminal intent, where a specific intent is
required to constitute the offense.
5. Persons who committed the act charged without being conscious thereof.
6. Persons who 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.
(Emphasis added.) This statute clearly requires the jury or other fact finder to take into
account the criminal intent of the defendant. Thus, a person who is acting under a delusion or
other mental state negating intent to commit a crime would not be convicted under the
Nevada statutes. Neither would a person who acted with no evil design, intention or culpable
negligence.
2

The Legislature was even more explicit in pointing out that an accused's mental state
is to be considered in the determination of guilt. NRS 193.220 provides:
When insanity or voluntary intoxication may be considered. No act committed by a
person while in a state of insanity or voluntary intoxication shall be deemed less
criminal by reason of his condition, but whenever the actual existence of any
particular purpose, motive or intent is a necessary element to constitute a particular
species or degree of crime, the fact of his insanity or intoxication may be taken into
consideration in determining the purpose, motive or intent.
__________

2
NRS 194.010(6).
ity or voluntary intoxication shall be deemed less criminal by reason of his condition,
but whenever the actual existence of any particular purpose, motive or intent is a
necessary element to constitute a particular species or degree of crime, the fact of his
insanity or intoxication may be taken into consideration in determining the purpose,
motive or intent.
Under the present Nevada law, the mental condition of an accused does not automatically
absolve anyone of a crime, but it is a factor to consider in determining whether every element
of the crime charged has been proven. The Due Process Clauses of the United States and
Nevada Constitutions require no more.
The words of Justice Felix Frankfurter in 1952 on the issue of what culpability is
required to turn homicide into murder are still apt today.
The tests by which such culpability may be determined are varying and conflicting. One
does not have to echo the scepticism uttered by Brian, C.J., in the fifteenth century, that
the devil himself knoweth not the mind of men' to appreciate how vast a darkness still
envelops man's understanding of man's mind. Sanity and insanity are concepts of
incertitude. They are given varying and conflicting content at the same time and from
time to time by specialists in the field. Naturally there has always been conflict between
the psychological views absorbed by law and the contradictory views of students of
mental health at a particular time. At this stage of scientific knowledge it would be
indefensible to impose upon the States, through the due process of law which they must
accord before depriving a person of life or liberty, one test rather than another for
determining criminal culpability, and thereby to displace a State's own choice of such a
test, no matter how backward it may be in the light of the best scientific canons.
3

The United States Supreme Court has clearly indicated that it will not impose any particular
test for determining culpability for crimes.
The safeguards built into the Nevada statutory scheme for determining culpability
clearly comply with the standard for due process set by the courts. The Court in Leland v.
Oregon was considering whether a test other than M'Naghten was required.
4
The Court
pointed out that the choice of a test of legal sanity involves not only scientific knowledge but
also questions of basic policy as to the extent to which that knowledge should determine
criminal responsibility.
__________

3
Leland v. Oregon, 343 U.S. 790, 803 (1952) (Frankfurter dissenting on the issue of burden of proof only).

4
M'Naghten's Case, 8 Eng. Rep. 718, 722 (1843).
to the extent to which that knowledge should determine criminal responsibility.
5
The Court
implied that because of the wide disagreement among those who have studied the question of
criminal responsibility and the policy questions involved, the Court would basically defer to
the states on this matter.
The argument that Finger makes in support of the insanity defense and the M'Naghten
test is largely based on the lengthy history of M'Naghten. Yet it has long been recognized that
the term insanity and the M'Naghten test for insanity under the criminal law have
historically been terms of art with very little relation to medical or behavioral science. The
cases applying the M'Naghten test are replete with outdated words like lunatic and insane
which have little relationship to modern knowledge about human behavior or mental
problems, processes and treatments. The Nevada Legislature has conformed the law to the
more modern views that psychiatry cannot offer sufficient certainty to produce reasonable and
consistent accuracy in resolving questions of criminal responsibility and that it is
therapeutically desirable to treat deviants as responsible for their conduct rather than as
involuntary victims playing a sick role.
6
The jury makes the ultimate determination as to
intent in determining guilt or innocence. There is no requirement for a separate plea or
finding of not guilty by reason of insanity. When determining whether a statutory scheme is
consistent with due process, we must look anew at the fundamental precepts of due process
and not blindly follow historical concepts.
The majority seems to focus on the defendant's knowledge of the wrongfulness of his
act under M'Naghten as being an essential element for constitutionality. Even though the
Nevada statutory scheme does require a knowledge of wrongfulness, I disagree that it must do
so. The United States Supreme Court has never articulated a general constitutional doctrine of
insanity requiring a knowledge of wrongfulness.
7
The Supreme Court in Powell v. Texas
stated:
We cannot cast aside the centuries-long evolution of the collection of interlocking and
overlapping concepts which the common law has utilized to assess the moral
accountability of an individual for his antisocial deeds. The doctrines of actus reus,
mens rea, insanity, mistake, justification, and duress have historically provided the
tools for a constantly shifting adjustment of the tension between the evolving aims
of the criminal law and changing religious, moral, philosophical, and medical views
of the nature of man.
__________

5
Id. at 801.

6
1 National Commission on Reform of Federal Criminal Laws, Working Papers, 248-25l (1970).

7
Powell v. Texas, 392 U.S. 514, 535 (1968) (affirming conviction of an alcoholic for public intoxication).
shifting adjustment of the tension between the evolving aims of the criminal law and
changing religious, moral, philosophical, and medical views of the nature of man. This
process of adjustment has always been thought to be the province of the States.
Nothing could be less fruitful than for this Court to be impelled into defining some
sort of insanity test in constitutional terms. . . . [F]ormulating a constitutional rule
would reduce, if not eliminate, that fruitful experimentation, and freeze the developing
productive dialogue between law and psychiatry into a rigid constitutional mold. It is
simply not yet the time to write the Constitutional formulas cast in terms whose
meaning, let alone relevance, is not yet clear either to doctors or to lawyers.
8

Furthermore, the United States Supreme Court has recognized that it is
constitutionally permissible to enact strict liability crimes.
9
In Lambert v. California, the
Court stated: There is wide latitude in the lawmakers to declare an offense and to exclude
elements of knowledge and diligence from its definition.
10

As the majority notes, the Due Process Clause requires protection of those principles
deemed fundamental to the American scheme of justice. Procedural fairness is one of those
fundamental principles. The Nevada statutory scheme for defendants who were mentally ill at
the time of the alleged crime assures the same procedural due process as other defendants
receive.
A substantive fundamental principle is that no one be held criminally culpable if they
are so mentally impaired that they did not know what they were doing or had no control over
what they were doing. The Nevada statutes do not hold someone criminally culpable if they
do not know what they are doing or have no control. In none of the examples cited by the
majority in which the M'Naghten insanity test would exonerate the defendant, would the
defendant be convicted under the present Nevada statutes. These statutes fully conform to due
process principles and should be upheld.
The majority also acknowledges that the court could construe NRS 193.220 as simply
a change in the procedure by which the issue of legal insanity is presented to the jury, rather
than a change in the substantive law of insanity. If it can do so, it is obligated to do so.
Where a statute is susceptible to both a constitutional and an unconstitutional interpretation,
this court is obliged to construe the statute so that it does not violate the constitution.
__________

8
Id. at 535-537.

9
Lambert v. California, 355 U.S. 225 (1957).

10
Id. at 228.
obliged to construe the statute so that it does not violate the constitution.
11
I disagree with
the proposition that the Legislature may not change the substantive law of insanity to conform
to more modern knowledge of human behavior. However, I stress that even if the majority
believes that criminal intent is constitutionally required, it should, consistent with the rules
governing statutory construction, interpret the entire statutory scheme to require that criminal
intent, since it is perfectly consistent with the Nevada statutory scheme. The majority has
failed to do so, and has thereby failed to honor the long-established principle of statutory
interpretation.
I do not believe that the Legislature has enacted a statute which violates the Due
Process Clause of either the United States or the Nevada Constitutions. Finger's judgment of
conviction should be affirmed.
____________
117 Nev. 585, 585 (2001) United States v. State Engineer
UNITED STATES OF AMERICA, Appellant, v. STATE ENGINEER, STATE OF
NEVADA, Respondent.
No. 32740
July 24, 2001 27 P.3d 51
Appeal from an order of the district court denying a petition for judicial review. Ninth
Judicial District Court, Douglas County; David R. Gamble, Judge.
United States Department of the Interior, Bureau of Land Management (BLM),
petitioned for judicial review of State Engineer's denial of BLM's applications for stockwater
permits on public lands. The district court denied petition and upheld State Engineer's
decision. BLM appealed. The en banc supreme court held that BLM was qualified applicant
for stockwater permits.
Becker, J., dissented in part.
United States Department of Justice, Environment and Natural Resources Division,
and Andrew C. Mergen and Stephen G. Bartell, Washington, D.C., for Appellant.
Frankie Sue Del Papa, Attorney General, and Marta A. Adams, Deputy Attorney
__________

11
Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 874, 883, 878 P.2d 913, 919 (1994) (citing Sheriff v.
Wu, 101 Nev. 687, 689-90, 708 P.2d 305 (1985)).
Allison MacKenzie Hartman Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Amici Curiae Eureka County and Humboldt River Basin Water Authority.
1. Public Lands.
State Engineer was statutorily authorized to issue stockwater permits on public lands to United States Department of Interior,
Bureau of Land Management (BLM). BLM, as owner of those lands, was legally entitled to place livestock thereon, even though it did
not possess either grazing permit or lease. NRS 533.503.
Statutory construction is a question of law which supreme court reviews de novo.
Great deference should be given to the State Engineer's interpretation of a statute pertaining to the appropriation of water when
such interpretation is within the language of the statute. NRS 533.030(1), 533.370(3).
While the State Engineer's interpretation of a statute pertaining to the appropriation of water is not controlling, its decision shall
be presumed correct, and the party challenging the decision has the burden of proving error. NRS 533.030(1), 533.370(3), 533.450(9).
An administrative agency's interpretation of its own regulation or statute is entitled to consideration and respect.
6. Statutes.
beyond it.
An administrative agency's interpretation of a regulation or statute does not control if an alternative reading is compelled by the
plain language of the provision.
8. Statutes.
To be considered ambiguous, a statute must be capable of two or more reasonable but inconsistent interpretations.
9. Public Lands.
The statute governing the issuance of stockwater permits on public lands is unambiguous. It requires only that an applicant have
some legal authority to use the public land for grazing purposes. NRS 533.503.
OPINION
Per Curiam:
This appeal requires us to examine the scope and constitutionality of NRS 533.503,
which regulates the issuance of state water appropriation permits that allow livestock to be
watered on public lands. Respondent, State Engineer, State of Nevada (State Engineer),
denied nine applications filed by the United States Department of the Interior, Bureau of
Land Management {BLM), for stockwater permits on public lands in Douglas County,
Nevada.
Engineer), denied nine applications filed by the United States Department of the Interior,
Bureau of Land Management (BLM), for stockwater permits on public lands in Douglas
County, Nevada. The State Engineer issued the denials after finding that the BLM was not a
qualified applicant for stockwater permits, because it could not establish that it was legally
entitled to place the livestock on the public lands pursuant to NRS 533.503. The BLM
petitioned the district court for judicial review of the State Engineer's ruling. The district
court denied the petition for judicial review and upheld the ruling of the State Engineer.
On appeal, the BLM contends that the plain language of NRS 533.503 authorizes the
State Engineer to issue stockwater permits to the BLM. In the alternative, the BLM contends
that if NRS 533.503 does not authorize the issuance of stockwater permits to the BLM, the
statute is unconstitutional. We conclude that NRS 533.503 is unambiguous and that the plain
language of the statute does not prohibit the BLM from receiving stockwater permits in the
name of the United States. Thus, the statute does not violate the federal or state constitutions.
We therefore reverse the order of the district court and remand the matter for the district court
to enter an order granting the petition for judicial review.
FACTS
On April 7, 1997, the State Engineer issued Ruling No. 4519, denying nine
applications filed by the BLM for permits to appropriate public waters in Douglas County,
Nevada. These applications were filed between 1991 and 1994. The BLM also has
approximately ninety additional stockwater permit applications pending with the Office of the
State Engineer. The nine applications sought to appropriate water from Red Canyon Springs,
5 O'clock Spring, Pinyon Spring, Buena Suerte Spring, and Winter's Mine Springs. The
springs are located on BLM managed public lands within Douglas County, Nevada. The
applications indicated that the water would be primarily appropriated for stockwatering
purposes, with a minor amount of water to be used for the secondary purposes of wildlife and
recreational use. The BLM filed the applications in the name of the appellant, United States.
In the applications, the BLM does not assert that it owns, or has a proprietary interest
in any livestock that would be benefited by a stockwatering permit. The applications state that
the BLM desires to appropriate the water for purposes of granting water rights to individuals
seeking to obtain grazing permits from the BLM. If granted, the BLM, rather than the State of
Nevada, would have the ultimate say in the distribution and use of the stockwater rights
amongst competing interests in the livestock industry.
stockwater rights amongst competing interests in the livestock industry.
The State Engineer found that the sources of water sought to be appropriated by the
BLM would not interfere with existing water rights because they are isolated springs and not
tributaries to other surface water sources on which there are existing water rights. The State
Engineer concluded, however, that the BLM was not a qualified applicant for a stockwater
permit. The State Engineer's determination was based upon an opinion issued by the Nevada
Attorney General's office, dated February 11, 1997, which concluded that NRS 533.503
prohibits the State Engineer from issuing stockwater permits to the BLM, because the BLM is
not a person who is authorized to graze livestock upon public lands. 97-05 Op. Att'y Gen.
27-64 (1997).
The BLM petitioned the district court for judicial review of the State Engineer's denial
of its permit applications. Following a hearing, the district court denied the petition and
affirmed the State Engineer's decision. The BLM timely appealed.
1

DISCUSSION
[Headnote 1]
The BLM contends that the plain language of NRS 533.503 authorizes the State
Engineer to issue stockwater permits to the United States in its own name and that the State
Engineer should have granted the nine applications in question. NRS 533.503 provides that:
1. The state engineer shall not issue:
(a) A permit to appropriate water for the purpose of watering livestock on public lands
unless the applicant for the permit is legally entitled to place the livestock on the public
lands for which the permit is sought.
(b) A certificate of appropriation based upon a permit to appropriate water for the
purpose of watering livestock on public lands unless the person who makes satisfactory
proof that the water has been beneficially used is legally entitled to place on the land
the livestock which have been watered pursuant to the permit.
2. This section must not be construed to impair the vested right of any person to the
use of water for the purpose of watering livestock or to prevent any transfer of
ownership of a water right for the purpose of watering livestock.
(Emphasis added.)
__________

1
Eureka County and Humboldt River Basin Water Authority (HRBWA) filed an amicus curiae brief in this
case.
Specifically, the BLM contends that the phrase legally entitled is not ambiguous and
means that either the landowner, or a person with the landowner's permission to use the land,
is legally entitled to place livestock on the land. According to the BLM, the United States
may be issued stockwater permits because, as the landowner, it is legally entitled to place
livestock on the lands for which the permit is sought.
To the contrary, the State Engineer contends that legally entitled to place the
livestock on the public lands for which the permit is sought means that the applicant must
have a legal right to place livestock on public lands. Livestock cannot be placed upon public
lands without a grazing permit or lease. Thus, the State Engineer reasons that since the United
States, through the BLM, does not possess either a grazing permit or lease, it cannot qualify
for a stockwater permit.
[Headnotes 24]
Statutory construction is a question of law which this court reviews de novo. See
Associated Bldrs. v. So. Nev. Water Auth., 115 Nev. 151, 156, 979 P.2d 224, 227 (1999).
However, the appropriation of water in Nevada is governed by statute, and the State Engineer
is authorized to regulate water appropriations. See NRS 533.030(1); NRS 533.370(3).
Because the State Engineer is charged with administering NRS 533.503, that office has the
implied power to construe the statute. [G]reat deference should be given to the [State
Engineer's] interpretation when it is within the language of the statute. ' Pyramid Lake
Paiute Tribe v. Washoe Co., 112 Nev. 743, 747-48, 918 P.2d 697, 700 (1996) (quoting State
v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (citations omitted)).
Therefore, while the interpretation of the State Engineer is not controlling, its decision shall
be presumed correct, and the party challenging the decision has the burden of proving error.
See NRS 533.450(9).
[Headnotes 57]
The United States asserts that the State Engineer erred because he went beyond the
plain meaning of the statute in construing the statute. We agree. While it is true that an
administrative agency's interpretation of its own regulation or statute is entitled to
consideration and respectespecially where, as here, the State Engineer has a special
familiarity and expertise with water rights issuesit is well established that [w]hen the
language of a statute is plain and unambiguous, a court should give that language its ordinary
meaning and not go beyond it. City Council of Reno v. Reno Newspapers, 105 Nev. 886,
891, 784 P.2d 974, 977 (1989). [A]n [administrative] agency's interpretation of a regulation
or statute does not control if an alternative reading is compelled by the plain language of the
provision."
pelled by the plain language of the provision. Southern Cal. Edison, 102 Cal. Rptr. 2d at 698
(citations omitted); see also Neer v. Oklahoma Tax Comm'n, 982 P.2d 1071, 1078 (Okla.
1999) (administrative construction cannot override plain statutory language).
[Headnotes 8, 9]
NRS 533.503 is not ambiguous. To be considered ambiguous, a statute must be
capable of two or more reasonable but inconsistent interpretations. Gallagher v. City of Las
Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998). The BLM contends that the phrase
legally entitled to place the livestock on the public lands means that an applicant for a
stockwatering permit has a legal right to use the public land for grazing. The State Engineer
contends that the statute is capable of being interpreted in a different fashion. The State
Engineer argues that this phrase means that an applicant must have a BLM grazing permit or
lease. The State Engineer then asserts that since the BLM does not issue permits to itself, it
cannot be a qualified applicant and is not entitled to the livestock watering permits. To say
that the United States, the owner of the public land, must issue itself a permit or lease to graze
livestock upon the land that it owns is an illogical and unreasonable construction of the
statutory language. Therefore, NRS 533.503 is not capable of two or more reasonable
interpretations. A plain reading of the statute indicates it requires an applicant to have some
legal authority to use the public land for grazing purposes and nothing else. The State
Engineer exceeded the scope of his authority by ignoring the plain meaning of the statute and
erroneously resorting to legislative history to interpret the statute.
CONCLUSION
We conclude that the phrase legally entitled to place the livestock on the public lands
for which the permit is sought in NRS 533.503 is unambiguous. It simply requires an
applicant for a stockwater permit to have a legal right to graze livestock on the public land.
As the owner of the BLM land, the United States is entitled, and Congress has authorized, the
grazing of livestock on the public lands managed by BLM. Thus, the BLM is a qualified
applicant under NRS 533.503. Accordingly, we reverse the order of the district court denying
the petition for judicial review and remand the matter to the district court with directions to
grant the petition.
Becker, J., concurring in part and dissenting in part:
I disagree with the majority's conclusion that NRS 533.503 is unambiguous. I believe
the phrase legally entitled to place the livestock on the public lands for which the permit is
sought" is capable of two reasonable constructions.
livestock on the public lands for which the permit is sought is capable of two reasonable
constructions. Therefore, the statute is ambiguous and the State Engineer acted properly when
he sought the Attorney General's opinion as to the meaning of the statute.
If only the words legally entitled are considered in interpreting the statute, then the
United States would be correct in asserting the plain-meaning doctrine. However, the statute
does not state, as argued by the BLM, that an applicant must be legally entitled to place
livestock on public lands. The statute states that an applicant must be legally entitled to
place the livestock on the public lands for which the permit is sought. NRS 533.503
(emphasis added).
In this context, legally entitled might reasonably apply as a qualifier to the words
the livestock rather than to the words on the public lands. This suggests that an applicant
must have a legal right or proprietary interest in the livestock to be watered by the permit as
opposed to the legal right to place the livestock on the public lands. In other words, an
applicant must have control over the livestock, not the land.
The United States does not have a legal interest in the livestock to be watered under
the applications. The applications seek permission to water certain numbers of livestock or
wildlife in a generic fashion. The BLM is not authorized by Congress to raise livestock in the
name of the United States. Therefore, the BLM, as an agent of the United States, would not
be able to qualify for a stockwater permit in the sole name of the United States. Based upon a
review of the Legislative history surrounding the enactment of NRS 533.503, I conclude that
this is precisely what the Legislature intended. However, if the statute is interpreted in the
fashion intended by the Legislature it violates the Supremacy Clause of the United States
Constitution. Therefore I concur in the majority's decision because it construes the statute in
such a way as to avoid any constitutional infirmities.
Nevada's water law, like that of other western states, is exclusively based on the prior
appropriation doctrine, which recognizes water rights based on the time of use, as well as
actual use, of water without regard to the ownership of land contiguous to a water course. The
common law doctrine of riparian rights, where control over water is tied to ownership of land,
has been completely abrogated in Nevada. At common law, a landowner had control over the
waterways passing over or under his or her land under the riparian rights doctrine. Decisions
regarding the use and management of the water were left to the discretion of the individual
landowner.
The prior appropriation doctrine was developed to address problems created by the
riparian rights approach in circumstances where water is a scarce commodity. In arid
conditions, allowing water to be controlled by individual landowners was deemed to be
harmful to the public at large. The government, not the individual, should be entitled to make
decisions affecting water resources. As the driest state in the nation, Nevada's supply of
water, even with the most effective management tools, is often insufficient to supply the
state's needs. Therefore, as a matter of public policy, Nevada has determined that the prior
appropriation doctrine is the best method of allocating this most precious of natural resources.
As such, surface water is declared to be the property of the citizens of the State of Nevada.
See NRS 533.025. Codified as Chapter 533 of Nevada Revised Statutes, allocation of surface
water under the prior appropriation doctrine is determined, measured and limited by
beneficial use. Nonuse leads to loss of appropriated water rights. See NRS 533.030; NRS
533.035; NRS 533.045.
There are two classes of surface water rights by appropriation in Nevada: (1) vested
rights, which were initiated during the early days of the state's development before any
definite laws concerning appropriation of water existed; and (2) appropriation rights under
which water is appropriated and beneficially used by virtue of permits granted by the State
Engineer upon due application made to his office. See NRS 533.085; NRS 533.325. This case
involves the latter class of permitted water rights.
Because the federal government owns a large amount of the land situated within
Nevada, citizens have frequently expressed concern that decisions regarding the management
of those lands will be made by national agencies without considering the detrimental impact
such decisions may have within the state. For example, prior to the enactment of the Taylor
Grazing Act, ch. 865, 48 Stat. 1269-1275 (1934) (codified as amended at 43 U.S.C.
315-316 (1994)), the State of Nevada regulated the issuance of grazing permits on public
land. See 1925 Nevada Stockwatering Act, 1925 Nev. Stat., ch. 201, 1-7, at 348-50; NRS
533.485-533.510. See also Ansolabehere v. Laborde, 73 Nev. 93, 310 P.2d 842 (1957)
(discussing the conflicts between the state and the federal government over the management
of public lands).
As Nevada's population has grown, apprehension over control of water rights has
resulted in the development of new policies or procedures for managing water resources.
Prior to 1980, the BLM had a policy of asserting control over the development of water rights
on lands managed by the BLM. The BLM failed to comply with state law regarding the
development of water rights and, as a result, conflicts arose between the state and the BLM
over water rights.
a result, conflicts arose between the state and the BLM over water rights.
1

The actions of the BLM were looked upon with disfavor because they permitted the
United States to obtain the water rights and then reallocate them amongst competing interests
without input from the State Engineer. The United States would also determine how much of
the permitted water to allocate at any given time.
In response, the State Engineer implemented an informal policy (known as the
three-way system) to deal with the allocation of water rights on federal land. The three-way
system allowed water rights for watering livestock on public lands to be acquired and
perfected by the range user, the federal government, or jointly by the range user and the
federal government depending upon who developed the water right.
A permit allows the applicant to develop the water rights, i.e., drill a well, etc. Before
a certificate of appropriation is issued, the permit recipient must demonstrate that any
improvements have been completed and the water has been put to the beneficial use indicated
in the application for the permit. This latter process is the perfection of the right. Whether the
permit was issued jointly or individually depended upon who was developing the water rights
and the specifics of the beneficial use. The State Engineer encouraged the United States to
utilize joint applications whenever possible and the BLM frequently accommodated the state
in this regard.
2

Periodic actions were taken to prohibit the federal government from obtaining water
rights in its own name. For example, in State v. State Engineer, 104 Nev. 709, 715, 766 P.2d
263, 267 (1988), arguments were made that the federal government could not demonstrate it
was putting water to a beneficial use because it did not own the livestock to be watered. This
court, however, held that the United States was a person under the statutory scheme then in
existence and was entitled to be treated as any other person applying for a water permit. Id. at
717. Since the statute did not require applicants to own the livestock to be watered, such a
requirement could not be imposed upon the United States.
Thus, for a number of years, the BLM was issued stockwatering permits in either its
own name or jointly with the entity grazing the livestock. In the early 1990s, the federal
government, in a desire to improve the management of federal lands, embarked on a course of
action that became known as Rangeland Reform.
__________

1
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., March 15, 1995).

2
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., February 27, 1995).
Rangeland Reform stressed the need for the federal agencies charged with administering
federal lands, to manage those lands so as to gain the most advantage from the land, while
still preserving the land and its resources for future generations. As a major resource, water
was the subject of many of the discussions regarding the content of reform proposals.
Concerned with the possible effect such federal proposals could have on the State of Nevada,
the 1993 Nevada Legislature authorized the creation of an interim study committee, the
Committee on Use, Allocation and Management of Water, to monitor Rangeland Reform
proposals. The Legislature feared that the federal government might depart from its
long-standing policy of deference to the states in the area of water law.
3
Eventually, the
BLM published a proposed regulation, later codified at 43 C.F.R. 4120.3-9 (1995), which
contained the following water rights provision:
Any right acquired on or after August 21, 1995, to use water on public land for the
purpose of livestock watering on public land shall be acquired, perfected, maintained
and administered under the substantive and procedural laws of the State within which
such land is located. To the extent allowed by the law of the State within which the land
is located, any such water right shall be acquired, perfected, maintained, and
administered in the name of the United States.
Id.
The interim study committee expressed concern with the language in the proposed
regulation that directed the federal government to exercise substantial control over water used
for livestock watering on public land. To the committee, this appeared to be an attempt by the
federal government to interfere in the management of Nevada's water. As a result, the interim
committee issued a report recommending that the Legislature enact laws formalizing existing
policies of the State Engineer with respect to the issuance of stockwater permits to the BLM.
The proposed federal regulations also created concern within the state's Department of
Conservation and Natural Resources. The Department was apprehensive about the language
in the proposed regulation which stated that [t]o the extent allowed by the law of the State
water was to be acquired, perfected, maintained, and administered in the name of the United
States. Id. Because the existing three-way system was only an informal policy of the State
Engineer, the Department believed the three-way system needed to be codified to prevent the
United States from using the language of the regulation as grounds for asserting complete
control over the stockwatering rights on public lands.
__________

3
S.B. 327, 67th Leg. (Nev. 1993).
The Department reasoned that the BLM might argue that Nevada had no state law,
only informal policies, and that the BLM was free to act unilaterally to control waters on its
lands. The interim study committee shared these concerns. For this reason, the Department
requested that a bill be drafted to codify existing policies of the State Engineer and the
interim committee recommended support of the bill draft request. This request became Senate
Bill 96 and was introduced at the 1995 legislative session.
4

Senate Bill 96 was assigned to the Senate Natural Resources Committee. The
Committee received advice from the Legislative Counsel Bureau's office that Nevada's ability
to continue to utilize the three-way system in light of the new federal regulations depended on
its adopting the system statutorily. While the bill was originally intended to simply codify the
existing policies, at the subsequent hearings on the bill the entire issue of the propriety of
issuing stockwatering permits to the United States was debated.
As a result of hearings before the Natural Resources Committee and the Assembly
Committee on Government Affairs, significant changes to the initial language of proposed
S.B. 96 were made. The final version of S.B. 96 did not codify the then-existing three-way
system. Instead, it created a new policy for the issuance of stockwatering permits on public
lands. This policy, now codified as NRS 533.503, provides:
(a) A permit to appropriate water for the purpose of watering livestock on public lands
unless the applicant for the permit is legally entitled to place the livestock on the public
lands for which the permit is sought.
(Emphasis added.)
II. Statutory construction of NRS 533.503
When a statute is ambiguous, it should be construed consistent with what reason
and public policy would indicate the legislature intended.' Robert E. v. Justice Court, 99
Nev. 443, 445, 664 P.2d 957, 959 (1983) (quoting Cannon v. Taylor, 87 Nev.
__________

4
S.B. 96, 68th Leg. (Nev. 1995).
285, 288, 486 P.2d 493, 495 (1971), adhered to, withdrawn in part, 88 Nev. 89, 493 P.2d
1313 (1972)). Thus, we look to the legislative history behind NRS 533.503 to determine the
meaning that the Legislature intended for the phrase legally entitled to place the livestock on
the public lands for which the permit is sought within the statute.
Several factors can be used to determine legislative intent. The title of a statute can be
considered. See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248,
1250 (1971). Other words or phrases used in the statute or separate subsections of the statute
can be reviewed to determine the meaning and purpose of the statute. See Bd. of County
Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). Legislators'
statements can be considered in construing the statute when they are a reiteration of events
leading to the adoption of the statute rather than an expression of personal opinion. Khoury v.
Maryland Casualty Co., 108 Nev. 1037, 1040, 843 P.2d 822, 824 (1992), disapproved of on
other grounds by Breithaupt v. USAA Property and Casualty, 110 Nev. 31, 867 P.2d 402
(1994). Finally, the subject matter of the statute and the policy to be effectuated can be used
in statutory construction. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 503
P.2d 457 (1972).
During the course of several hearings, a number of proposed amendments to S.B. 96
were debated and discussed by members of the Legislature. While such comments alone
would not be indicative of legislative intent, the failure to adopt many of the proposed
changes and the adoption of the final language of the bill is relevant in determining legislative
intent.
The comments, together with the consideration of the various proposed amendments,
demonstrate that the lawmakers intended to eliminate the three-way system of issuing
stockwater permits. Instead, the Legislature desired to create a new system that would
prohibit the BLM from obtaining a stockwatering permit in its own name, unless it had some
legal or proprietary interest in the livestock to be watered under the permit. The Legislature
wanted to preserve state primacy over water rights without unconstitutionally discriminating
against the federal government.
First, the Legislature was concerned that Rangeland Reform was an attempt by the
federal government to undermine its longstanding policy of deference to the states in the area
of water law. Thus, the Department of Conservation and Natural Resources lobbied for a
legislative preference for the three-way system of stockwater allocation, rather than have all
stockwater permits issued in the sole name of the BLM. Therefore, the original version of
S.B. 96, provided in part, that:
Section 1. Chapter 533 of NRS is hereby amended by adding thereto a new section to
read as follows:
1. When issuing a certificate of appropriation pursuant to NRS 533.425 for the right
to use water for the purpose of watering livestock on public land, the state engineer
shall issue the certificate of appropriation:
(a) If the application was perfected by a person other than the Federal Government,
in the name of that person;
(b) If the application was perfected by the Federal Government, in the name of the
Federal Government; or
(c) If the application was perfected jointly by a person other than the Federal
Government and by the Federal Government, in the name of that person and the
Federal Government jointly.
2. As used in this section, Federal Government includes any agency, department,
instrumentality or corporation of the Federal Government.
S.B. 96, 68th Leg. (Nev. 1995).
When Senator Mark James introduced S.B. 96 to the Natural Resources Committee on
February 27, 1995, he indicated that the measure was intended to codify the informal
three-way system for issuing stockwater permits that the State Engineer had utilized since the
1980s. This system would allow a rancher to apply for a water right independently, a federal
land management agency to apply independently, or the rancher and federal land management
agency to apply in conjunction with each other. Senator James noted that his understanding of
S.B. 96 was that if the federal government owned cows which were being watered on their
land, then they could get water rights solely in the name of the federal government . . . [but] it
seems the government could never get water rights in their name unless they have livestock.
5

However, HRBWA lobbyist Mike Baughman expressed concern at the hearing that
codifying the three-way system would not be in Nevada's best interest, because it would
inadvertently facilitate the federal government's reform policy of acquiring all water rights
solely in the name of the United States. Baughman noted that while the BLM had been
cooperating with the State Engineer in filing joint applications, the new federal regulation
would compel the BLM to file all applications in the sole name of the United States, if that
were permitted under state law.
In response, Senator James indicated that the interim study committee considered a
bill that outright prohibited the BLM from acquiring stockwater permits in its name.
However, the interim committee felt that the language of the bill draft submitted by the
Department of Conservation and Natural Resources clearly expressed the legislative intent
which was that if everything having to do with perfection [of stockwater rights] was
accomplished by the individual, the federal government will not have any name on there.
__________

5
thing having to do with perfection [of stockwater rights] was accomplished by the individual,
the federal government will not have any name on there. The federal government will be
required to adhere to the exact program that has been outlined under existing policy.
6

Subsequently, at the March 15, 1995, hearing, Baughman presented the committee
with a report detailing the applications, permits and certificates involving stockwater and the
BLM. The report indicated the number of permits issued solely in the name of the BLM, as
well as the number of joint permits issued. Baughman argued that the United States would no
longer seek joint permits due to Rangeland Reform, which would be a substantial change in
current practice. Thus, Baughman encouraged the committee members to amend S.B. 96 to
eliminate the three-way system. Instead, Baughman proposed that the legislature codify a
two-way system. The BLM would only be able to obtain a joint permit with persons having
an interest in the livestock.
7
Baughman proposed the following amendment to S.B. 96:
read as follows:
1. Whenever, pursuant to the provision of this chapter, the federal government seeks
to appropriate water to support livestock watering on public lands, the state engineer
shall require that applications for such water be filed jointly by the federal government
and the permittee having authorization to graze livestock on said lands.
2.[1.] When issuing a certificate of appropriation pursuant to NRS 533.425 for the
right to use water for the purpose of watering livestock on public land, the state
engineer shall issue the certificate of appropriation:
(a) If the application was perfected by a person other than the Federal Government, in
the name of that person;
(b) If the application was perfected jointly by a person other than the Federal
Government and by the Federal Government, in the name of that person and the
Federal Government, jointly. [If the application was perfected by the Federal
Government, in the name of the Federal Government; or]
[(c) If the application was perfected jointly by a person other than the Federal
Government and by the Federal Government, in the name of that person and the Federal
Government jointly.]
__________

6

7
A two-way system allows a rancher to apply for a water right independently or in conjunction with a federal
land management agency.
3.[2.] As used in this section, Federal Government includes any agency,
department, instrumentally [sic] or corporation of the Federal Government.
Hearing on S.B. 96 Before Senate Natural Resources Comm., 68th Leg. (Nev., February 27,
1995); Hearing on S.B. 96 Before Senate Natural Resources Comm., 68th Leg. (Nev., March
15, 1995).
Committee members discussed the proposed amendment, and Senator Dean Rhoads,
Chairman of the Natural Resources Committee, asked Mike Turnipseed, the State Engineer,
why the BLM would receive stockwater certificates if it does not own the livestock for which
the permit is sought. Turnipseed answered that the determination to grant certificates of
appropriation to the BLM resulted from this court's decision in State v. State Engineer, 104
Nev. 709, 766 P.2d 263 (1988), which led the State Engineer to treat the federal government
as fairly as any other appropriator.
8

Following Turnipseed's remarks, Senator James commented that, when considering
the bill draft, the interim study committee was under the erroneous impression that the BLM
had not been filing applications for stockwater permits solely in its name. The Senate
Committee then discussed enacting a two-way system, and Senator James indicated that S.B.
96 would have to be amended, stating that he did not know that the federal government
could file for [the watering of] livestock when it did not own any livestock.
9

No action was taken on the bill. At an additional hearing on June 9, 1995, Baughman
presented the Committee with another proposed version of S.B. 96 which stated:
read as follows:
1. Whenever, pursuant to the provisions of this chapter, a governmental entity
responsible for administration of public lands seeks to appropriate water to support
livestock watering on public lands, the state engineer shall require that applications for
such water be filed jointly by the governmental entity responsible for administration of
public lands and the permittee having authorization to graze livestock on said lands.
__________

8
At the time that State v. State Engineer was decided, the existing statutes did not require any permit holder
to have an ownership interest in the livestock to be watered. The district court attempted to impose such a
requirement upon the United States. This court held that the statute did not make such a distinction and it was,
therefore, improper for the district court to overturn the decision of the State Engineer to issue the permit in the
name of the United States.

9
Hearing on S.B. 96 Before Senate Natural Resources Comm., 68th Leg. (Nev., February 27, 1995).
and the permittee having authorization to graze livestock on said lands.
2.[1.] When issuing a certificate of appropriation pursuant to NRS 533.425 for the
right to use water for the purpose of watering livestock on public land, the state
engineer shall issue the certificate of appropriation:
(a) If the application was perfected by a person other than a governmental entity
responsible for administration of public lands [the Federal Government], in the name
of that person;
(b) If the application was perfected jointly by a person other than a governmental
entity responsible for administration of public lands and by the governmental entity
responsible for administration of public lands, in the name of that person and the
governmental entity responsible for administration of public lands, jointly. [If the
application was perfected by the Federal Government, in the name of the Federal
Government; or]
[(c) If the application was perfected jointly by a person other than the Federal
Government and by the Federal Government, in the name of that person and the Federal
Government, jointly.]
3.[2.] As used in this section, governmental entity responsible for administration of
public lands [Federal Government] includes any agency, department, instrumentally
[sic] or corporation of a local government, the State of Nevada or the Federal
Government.
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 9,
1995).
Peter Morros, Director of the State Department of Conservation and Natural
Resources, expressed concern regarding the constitutionality of this version. Morros
questioned whether the proposed language was consistent with the State v. State Engineer
decision. Morros also expressed similar concerns at previous hearings.
10
Morros commented
that the current three-way system for issuing stockwater rights permits worked well, and that
he felt prolonged litigation would result and obstruct this system if the federal government
was precluded from acquiring stockwater permits in its own name. The Committee agreed to
hold the bill for further work prior to voting on it.
The next hearing was held on June 12, 1995. Morros again expressed concern over the
constitutionality of a bill that would preclude the federal government from acquiring
stockwater permits and certificates in its own name.
__________

10
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., March 15, 1995);
Hearing on S.B. 96 Before the Senate Natural Resources Comm., 68th Leg. (Nev., June 9, 1995).
mits and certificates in its own name. Morros suggested another amendment to S.B. 96 that
read:
No party holding a stock water right on lands managed by a public agency may deny
access to that water to wildlife or to any livestock authorized to graze in the area.
1995).
Committee members expressed dissatisfaction with Morros' proposed amendment
because it would still give a lot of room for the federal government entities to secure water
under their name. Id.
At that same hearing, Gordon DePaoli, a lobbyist with Sierra Pacific Power Company,
offered still another amendment to S.B. 96 as follows:
Amend the bill as a whole by deleting page 1, lines 1 through 25, and page 2, lines 1
through 3, and substituting:
1. Whenever, pursuant to the provisions of this chapter, an application is made for a
permit to appropriate water for watering livestock on public lands, the state engineer
may not issue a permit therefor or a certificate based upon a permit so issued, unless
the person applying for the permit or proving beneficial use is the owner of the
livestock to be watered or which have been watered pursuant to the permit.
2. Nothing in this section is intended to impair the vested right of any person to the
use of water for watering livestock nor shall it prevent the transfer of ownership of a
water right for watering livestock.
1995).
While DePaoli's version alleviated Morros' concerns regarding discrimination against
the federal government, the new language posed its own problems. Specifically, it would
preclude a private landowner who leased pasture for grazing from acquiring rights for
watering livestock. In addition, Turnipseed commented that, under DePaoli's version,
ranchers who finance their livestock through banks would be precluded from obtaining
stockwater permits if the bank actually owns their livestock or has a security interest in the
livestock. Finally, grazing associations do not own the livestock, so they would be precluded
from obtaining stockwater permits if the issuance of permits was based on livestock
ownership. Id.
No resolution was reached and the bill was passed until June 14, 1995. At that
hearing, Turnipseed suggested another amendment to S.B. 96 that stated:
When an application is filed with the state engineer for livestock water on federal
lands:
1. The state engineer shall notify the land management agency as well as all livestock
lessees or permitees of record.
2. Any notified party will have the opportunity to file a concurrent application on the
same source.
3. If the concurrent applications meet the criteria set forth in [Nevada Revised
Statutes] NRS 533.370, all must be approved with the same priority.
4. If at a later date, a change application is filed by any of the holders of such
concurrent rights, the state engineer shall give notice to all other holders of concurrent
rights on the same source.
1995).
Turnipseed explained that the amendment was essentially a notice provision that
would make private ranchers and the federal government aware of any permit or certificate
changes on a water source. Although the Natural Resources Committee noted that
Turnipseed's proposed amendment had merit, it eventually moved to amend and pass S.B. 96
with changes proposed by the Legislative Counsel Bureau which replaced the language
owner of the suggested in DePaoli's proposed amendment with the phrase person legally
entitled to place [livestock] on the [public] land. Id. The bill was then passed, as amended,
by the full Senate and introduced to the Assembly. It was then referred to the Assembly
Government Affairs Committee.
The Government Affairs Committee made some additional amendments to the bill on
issues unrelated to the concepts of legal entitlement, and voted to pass S.B. 96 on June 27,
1995. In its final version, S.B. 96, as amended by Amendment No. 1070 provided, in
pertinent part, that:
Amend section 1, page 1, by deleting lines 3 through 14 and inserting:
(a) A permit to appropriate water for the purpose of watering livestock on public
lands unless the applicant for the permit is legally entitled to place the livestock on the
public lands for which the permit is sought.
S.B. 96, 68th Leg. (Nev. 1995).
In light of the legislative history, I conclude that the legislature intended the phrase
legally entitled to place the livestock on the public lands for which the permit is sought in
NRS 533.503 to mean that the applicant for a stockwater permit must have a legal or
proprietary interest in the livestock to be watered. Thus, since the BLM is not authorized to
raise livestock and has no interest in the livestock to be watered, it is not a qualified applicant
under NRS 533.503 for a stockwater permit solely in its name.
III. Constitutionality of NRS 533.503
Having concluded that NRS 533.503 does require an applicant to have a legal or
proprietary interest in the livestock to be watered under a stockwater permit, I turn to the
United States' contention that NRS 533.503, as interpreted, is unconstitutional. The United
States contends that NRS 533.503 discriminates against the federal government, or frustrates
federal policy, in violation of the Supremacy Clause of the United States Constitution.
11

The constitutionality of a state statute is analyzed de novo by this court, beginning
with the presumption that a legislative enactment is constitutional. See List v. Whisler, 99
Nev. 133, 137-38, 660 P.2d 104, 106 (1983). If reasonably possible, this court should
construe the statute so as to render it constitutional, and the party challenging the statute bears
the burden of establishing that it is unconstitutional. See id.
The claims of the United States focus on two issues. The first is that the State
Engineer has interpreted the term public lands as used in the statute to mean only those
lands managed by the BLM. The statute does not govern other lands owned by the United
States, but managed by a different agency such as the Forestry Service, or lands owned by the
State of Nevada. Thus, the limitations requiring an applicant to have a legal interest in the
livestock to be watered apply only to land managed by the BLM.
The second issue involves the concept of the term legally entitled, and the decision
by the Attorney General and the State Engineer that the United States may not obtain a
stockwater permit, either in its own name or as a joint applicant.
__________

11
U.S. Const. art. VI, cl. 2.
The United States has also argued that the statute violates the Due Process and Equal Protection Clauses of the
Nevada Constitution. I have considered these claims and find them to be without merit.
mit, either in its own name or as a joint applicant.
12
The United States contends that if it is
not permitted to obtain stockwater permits either in its own name or jointly with persons
having a legal interest in livestock grazing on BLM lands, then the ability of the BLM to
properly manage the range land will be substantially frustrated or impeded.
The United States Supreme Court held long ago that a state law violates the
Supremacy Clause of the United States Constitution if it regulates the federal government
directly or discriminates against it, or those with whom it deals. See McCulloch v. Maryland,
17 U.S. 316 (1819). However, a state law that indirectly regulates or affects the federal
government's activity is not unconstitutional per se. In such cases, the Supreme Court has
adopted a functional approach to claims of governmental immunity, accommodating each
sovereign's legislative authority and respecting the primacy role of Congress in resolving
conflicts between the national and state governments. See North Dakota v. United States, 495
U.S. 423, 434-35 (1990). This body of law is generally referred to as the intergovernmental
immunities doctrine.
When analyzing whether a state law discriminates against the federal government, the
state law should not be viewed in isolation and the entire regulatory system should be
analyzed to determine whether it is discriminatory. North Dakota, 495 U.S. at 435. Moreover,
it is not appropriate to look only at those provisions of the state law addressing the federal
government or those with which it deals. See id. at 438. A state law that appears to treat the
federal government differently on the most specific level of analysis may, in its broader
regulatory context, not be discriminatory if the state law does not treat the federal government
any worse than it treats any other entity affected by the law. That is, the federal government is
not placed at a disadvantage in comparison to any other entity. See id.
Finally, a state law may violate the Supremacy Clause if it actually and substantially
interferes with specific federal programs. North Dakota, 495 U.S. at 452 (citations omitted).
A. Public lands and the Supremacy ClauseUnited States as a landowner
The United States first contends that the provisions of NRS 533.503 directly regulate
the federal government because it applies only to lands managed by the BLM. I disagree. As
noted by the State Engineer, the statute, on its face, does not regulate the United States
or the BLM.
__________

12
None of the nine applications in this case are joint applications. However, in its decision denying the
applications, the State Engineer determined that the BLM was also prohibited from filing a joint application. The
United States has raised this issue in the context of the constitutionality of the statute, as interpreted, and the
matter is therefore properly before the court.
by the State Engineer, the statute, on its face, does not regulate the United States or the BLM.
Instead, it regulates the issuance of permits and certificates relating to the appropriation of
Nevada's water for the purpose of watering livestock on public lands. It does not directly
prohibit the BLM, as an agency of the United States, from applying for a permit to water
livestock or from receiving a certificate of appropriation for that purpose. As it does not
directly regulate the United States, there is no prima facie violation of the Supremacy Clause.
The United States also contends that the statute, as interpreted, is discriminatory
because it places the BLM in a worse position than any other landowner seeking to develop
stockwater rights upon their property. In response, the State Engineer argues that the United
States is only considering a very narrow portion of the statutory scheme involving the
appropriation of water in Nevada, and that North Dakota requires the court to review NRS
533.503 in the context of Nevada's entire policy regarding water appropriation.
Turning first to the statute itself, I conclude that it is not discriminatory on its face.
Although NRS 533.503 has the effect of precluding the BLM from obtaining stockwater
permits for livestock, the BLM is not being denied water rights per se. The BLM can obtain a
stockwater permit if it has a legal or proprietary interest in the actual livestock to be watered.
The BLM does not qualify for a permit or certificate only because it is not currently
authorized to raise livestock. Moreover, the federal government is no worse off than a private
individual or the state. Any person who does not have a legal or proprietary interest in the
livestock to be watered will be prohibited from obtaining a stockwater permit.
When considered in the context of livestock water only, the statute clearly treats the
United States (BLM) as a landowner differently than all other landowners in the state.
However, the United States has not demonstrated that this distinction, in and of itself, places
the United States (BLM) at a disadvantage versus any other landowner who wishes to use his
land to water his livestock. This difference, alone, is not enough to constitute a discriminatory
practice in violation of the Supremacy Clause.
Moreover, the distinction becomes even more insignificant when considered in light
of Nevada's entire water appropriation scheme. Only the BLM's right to use the water for
livestock purposes is affected; the BLM is not treated differently than any other landowner
with respect to other permitted uses.
I conclude that NRS 533.503 is not discriminatory simply because the definition of
public lands, as interpreted by the State Engineer, applies only to United States' land managed
by the BLM.
B. United States as a qualified applicant and the Supremacy Clause
Even if NRS 533.503 does not discriminate against the United States (BLM) as a
landowner, the United States asserts that the statutory scheme becomes discriminatory
because it actually and substantially interferes with a federal policy or program. The BLM
argues that the inability to obtain stockwater rights in its own name or jointly with a range
user significantly impairs its power to properly manage federal rangeland in accordance with
congressional mandates.
Alternatively, the BLM contends that this burden violates the pre-emption doctrine as
discussed by Justice Brennan in his concurrence and dissent in North Dakota.
The State Engineer argues that Congress has not expressly preempted state law
concerning water rights on federal land and has, in fact, deferred to the states in this regard. In
addition, the State asserts that the Rangeland Reform regulations only establish a policy of
United States ownership of water rights if permitted by state law. Thus, Nevada's statutory
scheme cannot be discriminatory in violation of the intergovernmental immunities doctrine,
or a significant impairment of a federal policy or program in violation of the pre-emption
doctrine.
I agree with the State that the federal government has not expressly pre-empted state
law on this issue. Moreover, when considering the livestock watering regulations under
Rangeland Reform, the federal government contemplated that the definitions of qualified
applicants and beneficial use would be addressed through state law. See Water Rights for
Purpose of Livestock Grazing on Public Lands, 43 C.F.R. 4120.3-9 (1995).
However, nothing in the commentary to the federal regulations indicates that the
United States contemplated a situation in which the BLM would be prohibited from applying
for livestock watering rights not only under its own name, but also jointly with livestock
grazers. Thus, the United States is still free to argue that the restrictions of NRS 533.503
create an actual and substantial interference with federal policy in violation of the Supremacy
Clause.
While the statute on its face does not bar the BLM from being a qualified applicant in
its own name, it has that effect because the BLM is not a person legally entitled to place the
livestock on the public lands. This provision, together with the fact that the statute, as
interpreted by the State Engineer, only applies to lands managed by the BLM, arguably poses
a greater impact upon the issue of discrimination than that created solely by the restrictive
interpretation of the phrase public lands.
Even considering the two aspects together, I still conclude that the United States has
not shown how it is so disadvantaged by the inability to obtain a permit in its own name, that
it is being discriminated against within the meaning of the Supremacy Clause.
criminated against within the meaning of the Supremacy Clause. Although the BLM may find
it more convenient to possess livestock watering rights solely in its own name, the
commentary
13
to the federal regulations reflects that the BLM contemplated situations where
such would not be permitted by state law. Moreover, NRS 533.503 only affects stockwatering
rights, not any other aspect of the Rangeland Reform program. The fact that it would be
easier to accomplish management of the BLM lands, particularly for grazing purposes, if the
BLM held the livestock watering rights solely in its name, is insufficient to establish
discrimination under criteria discussed in North Dakota and other federal cases. However, I
recognize that this is a close issue. A statute which did not ban the BLM from applying for
stockwatering permits in its own name, but set limits or guidelines for the issuance of such
permits would be preferable from a constitutional perspective.
I reach a different conclusion on the constitutionality of the statute, however, when
considering the issue of joint applications. If NRS 533.503 is construed to prohibit the BLM
from applying for livestock watering rights jointly with the entity who is entitled to place the
livestock on the public lands, then such a restriction, together with the restrictive
interpretation of public lands, violates the Supremacy Clause of the United States
Constitution.
The BLM is required by Congress to develop the resources upon the public lands
under its control. These resources are to be developed so as to maximize the use of the land
while conserving it for future generations. Public Rangeland Improvement Act, 43 U.S.C.
1901 (1994). Water is one of the resources discussed in the Act. In Nevada, under the prior
appropriations doctrine, the BLM may only develop water resources on its land with the
approval of the state. If the BLM is effectively prohibited from filing a joint application for
stockwater, then the decisions on how, when and where to develop water for livestock
purposes would be shifted entirely into the hands of third parties. This would be a significant
interference with the BLM's control and management of its rangelands. Such interference
would constitute discriminatory regulation in violation of the Supremacy Clause.
Under List v. Whisler, 99 Nev. 133, 660 P.2d 104 (1983), we strive to construe
statutes so as to avoid rendering them unconstitutional. Thus I would construe the statute to
permit joint applications. Moreover, I am not persuaded that NRS 533.503 was intended to
prohibit joint applications. The statute itself does not address the issue of joint permits or
certificates of appropriation.
__________

13
43 C.F.R. 4120.3-9 (1995).
This concept was a part of the informal three-way system and is codified at NRS 533.425(1).
NRS 533.425(1) provides that:
Except as otherwise provided in NRS 533.503, as soon as practicable after satisfactory
proof has been made to the state engineer that any application to appropriate water or
any application for permission to change the place of diversion, manner or place of use
of water already appropriated has been perfected in accordance with the provisions of
this chapter, the state engineer shall issue to the holder or holders of the permit a
certificate . . . .
The idea of multiple permit holders was a part of the 1995 amendments to the
Adjudication of Water Rights chapter of the Nevada Revised Statutes. The changes to NRS
533.425(1) formalizing the issuance of certificates to multiple permit holders were included
in the final version of S.B. 96. At the June 27, 1995, hearing before the Assembly
Government Affairs Committee, a motion was made and passed to amend portions of S.B. 96
to add the words or joint holders to NRS 533.425(1). However the final version of the bill
only contained the words or holders.
While this fact is significant in determining the legislative intent, the plain language
of the statute contemplates multiple or joint holders of permits and certificates. The Attorney
General's opinion, as adopted by the State Engineer, concluded that because NRS 533.425(1)
is subject to NRS 533.503, all of the multiple holders would have to meet the requirements of
NRS 533.503. This is a reasonable construction and I would normally defer to the State
Engineer's interpretation of the statute. However, in light of the serious constitutional
implications, I conclude that only one of the joint holders of a permit or certificate need
satisfy the requirements of NRS 533.503. Given this construction, Nevada's statutory scheme
would not violate the Supremacy Clause of the federal Constitution.
CONCLUSION
I conclude that the phrase legally entitled to place the livestock on the public lands
for which the permit is sought in NRS 533.503, requires an applicant for a stockwater permit
to have a legal or proprietary interest in the livestock to be watered under the permit. Thus,
the BLM is not a qualified sole applicant under NRS 533.503, because it does not have a
legal or proprietary interest in the livestock to be watered. I further conclude that NRS
533.503 does not bar the State Engineer from issuing joint permits or certificates of
appropriation so long as one of the joint holders satisfies NRS 533.503. As construed, NRS
533.503 is constitutional. Accordingly, I would affirm the order of the district court denying
the petition for judicial review.
However, the majority's construction of the statute is a reasonable, alternative means
by which to avoid any constitutional infirmities. Moreover, I acknowledge that the United
States Supreme Court, if presented with the issue, might conclude that defining public
lands so as to target BLM managed lands is direct discrimination or regulation of the United
States in violation of the Supremacy Clause. Thus I have no real disagreement with the
majority's position. I simply believe a detailed analysis of the constitutional issues is
important in the event that the Nevada Legislature decides to address concerns regarding the
BLM in the future.
____________
117 Nev. 609, 609 (2001) Evans v. State
VERNELL RAY EVANS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35641
July 24, 2001 28 P.3d 498
Appeal from an order denying a post-conviction petition for a writ of habeas corpus in
a capital case. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Petitioner was convicted in the district court of one count of burglary and four counts
of first-degree murder, and received four death sentences. Petitioner appealed. The supreme
court, Steffen, C. J., 112 Nev. 1172, 926 P.2d 265 (1996), affirmed. Petitioner sought writ of
habeas corpus. The district court denied the petition. Petitioner appealed. In an en banc
decision, the supreme court, Becker, J., held that: (1) child was competent to testify as
eyewitness to murders when she was four, (2) prosecutor's rebuttal closing argument asking
the jury if it had the intestinal fortitude to do its legal duty was highly improper in the penalty
phase, (3) prosecutor's rebuttal closing argument that the jury could consider evidence of the
petitioner's other crimes before deciding eligibility for the death penalty was improper, (4)
attorneys rendered ineffective assistance and prejudiced the petitioner by not challenging the
argument, (5) erroneous admission of prosecution witnesses' irrelevant testimony about their
fears did not require reversal; (6) closing argument in guilt phase did not require reversal, and
(7) attorneys' failure to object to inadmissible evidence and inadequate indictment did not
prejudice the petitioner.
Affirmed in part, reversed in part, and remanded.
[Rehearing denied October 2, 2001]
Maupin, C. J., with whom Leavitt, J., agreed, dissented in part.
117 Nev. 609, 610 (2001) Evans v. State
Respondent.
1. Criminal Law.
A defendant seeking post-conviction relief cannot rely on conclusory claims for relief, but must support any claims with specific
factual allegations that, if true, would entitle him or her to relief.
2. Criminal Law.
A defendant is not entitled to an evidentiary hearing on a motion for post-conviction relief if the allegations are belied or
repelled by the record.
3. Habeas Corpus.
Claims of ineffective assistance of counsel are properly presented in a timely, first post-conviction petition for a writ of habeas
corpus. U.S. Const. amend. 6.
4. Criminal Law.
The failure on direct appeal to raise a claim of ineffective assistance of counsel does not constitute a waiver of the claim for
purposes of post-conviction proceedings. Such a claim is generally not appropriate for review on direct appeal. U.S. Const. amend. 6.
5. Criminal Law.
A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review. U.S.
Const. amend. 6.
6. Criminal Law.
Deficient performance by an attorney is representation that falls below an objective standard of reasonableness. U.S. Const.
amend. 6.
7. Criminal Law.
To show prejudice from attorney's alleged ineffective assistance, the claimant must show a reasonable probability that, but for
counsel's errors, the result of the trial would have been different. U.S. Const. amend. 6.
8. Criminal Law.
Judicial review of a lawyer's representation is highly deferential, and a defendant must overcome the presumption that a
challenged action might be considered sound strategy. U.S. Const. amend. 6.
9. Criminal Law.
A court reviewing a claim of ineffective assistance of counsel must try to avoid the distorting effects of hindsight and evaluate
the conduct under the circumstances and from counsel's perspective at the time. U.S. Const. amend. 6.
10. Criminal Law.
Attorney's alleged ineffective assistance by failing to prevent the admission of hearsay evidence of motive for murder did not
prejudice the defendant in light of other evidence of the motive. U.S. Const. amend. 6.
11. Witnesses.
Young child who was four at the time of the crimes and six at the time of trial was competent to testify as eyewitness to murders
in her apartment. She readily admitted whenever she did not know or could not remember something and did not appear to make up
information just to answer a question, her basic account of the crimes remained coherent and consistent, even under cross-examination,
and her testimony on where the victims were shot was consistent with the evidence.
117 Nev. 609, 611 (2001) Evans v. State
12. Witnesses.
A child is competent to testify if he or she is able to receive just impressions and relate them truthfully.
13. Witnesses.
Courts must evaluate a child's competency on a case-by-case basis, but relevant considerations include: (1) the child's ability to
receive and communicate information, (2) the spontaneity of the child's statements, (3) indications of coaching and rehearsing, (4) the
child's ability to remember, (5) the child's ability to distinguish between truth and falsehood, and (6) the likelihood that the child will
give inherently improbable or incoherent testimony.
14. Criminal Law.
The supreme court will not disturb a finding of competency of a witness absent a clear abuse of discretion.
15. Witnesses.
A child's testimony supports a finding of competency as a witness if it is clear, relevant, and coherent.
16. Witnesses.
Inconsistencies in testimony go to the weight of the evidence, not the competency of the witness.
17. Criminal Law.
Any error in failing to examine child under age ten before she testified was not prejudicial since she was a competent witness.
18. Witnesses.
Evidence failed to establish contamination of child witness's testimony during the roughly two years that passed between the
murders and the trial, even though the child had spoken with several people about her experience. Nothing in the child's behavior or
statements or in the words or conduct of anyone else indicated that the testimony was deliberately or inadvertently tainted.
19. Criminal Law.
Evidence withheld by the prosecutor is material for purposes of the Brady interpretation of the Due Process Clause, if there is
a reasonable probability that the result would have been different if it had been disclosed. Such a reasonable probability is shown when
the nondisclosure undermines confidence in the outcome of the trial. U.S. Const. amend. 14.
20. Habeas Corpus.
Supreme court's prior decision on direct appeal rejecting claim that the State withheld material evidence was the law of the case
barring reconsideration on appeal from denial of petition for writ of habeas corpus.
State's alleged failure to provide information on an investigation of defendant's possible co-conspirators did not violate its due
process obligations under Brady in murder prosecution. The defendant only speculated that material exculpatory information existed,
and he failed to allege the nondisclosure of specific information that linked other suspects to the crimes and indicated that the
defendant was not involved. U.S. Const. amend. 14.
Information that murder victim had acted as an informant in other cases was not material without at least some evidence that
this activity had generated actual threats against her, and thus, the State had no due process duty under Brady to disclose the
information. U.S. Const. amend. 14.
23. Criminal Law.
The State has no duty to compile information or pursue an investigative lead simply because it could conceivably
develop evidence helpful to the defense.
117 Nev. 609, 612 (2001) Evans v. State
tive lead simply because it could conceivably develop evidence helpful to the defense.
24. Homicide.
Prosecution witness's testimony that she was reluctant to cooperate with prosecutors because the defendant had threatened her
twice and she feared him was relevant to guilt in murder prosecution and was admissible without a hearing required by statute on
admitting evidence of collateral acts to prove character. NRS 48.045(2).
25. Witnesses.
Testimony by prosecution witnesses about their fears was irrelevant in murder prosecution. Since the State had initiated every
inquiry into delay and reluctance on the part of the witnesses, their testimony was not relevant to rebut any impeachment by the
defense.
26. Criminal Law.
Erroneous admission of prosecution witnesses' irrelevant testimony about their fears did not prejudice the defendant in a murder
prosecution. One witness disclaimed any fear of the defendant, and the other witness was an inmate who only referred to the general
risk of retaliation from other inmates.
27. Criminal Law.
Erroneous admission of prosecution witnesses' irrelevant testimony about their fears did not require reversal of murder
conviction. Although one witness had expressed fear of harm by the defendant, the defense impeached her on cross-examination by
showing that she continued to live with the defendant after the murders and professed her love for him up until shortly before the trial,
and the source of the other witness's fear was unspecified.
28. Criminal Law; Witnesses.
Evidence that prosecution witness made telephone calls implicating defendant in murders was inadmissible hearsay as a prior
consistent statement offered in the absence of an express or implied charge against the witness of recent fabrication or improper
influence or motive. NRS 51.035(2)(b).
29. Criminal Law.
Attorneys' allegedly ineffective failure to object to inadmissible hearsay that prosecution witness had made telephone calls
implicating defendant did not prejudice the defendant in a murder prosecution. U.S. Const. amend. 6.
30. Criminal Law.
Child eyewitness's statements to her mother about murders were admissible hearsay as excited utterances made soon after
witnessing the murders. NRS 51.095.
31. Witnesses.
The State may counter impeachment of its witnesses by presenting evidence supporting their credibility. NRS 51.035(2)(b).
32. Criminal Law.
State's rebuttal closing argument that defended the police investigation and praised witnesses for testifying despite facing risks
and receiving no benefits did not vouch for the credibility of the witnesses, but was a reasonable response to defendant's argument
challenging the quality of the police investigation and the credibility of the State's witnesses.
33. Criminal Law.
The prosecution may not vouch for the credibility of a witness either by placing the prestige of the government behind the
witness or by indicating that information not presented to the jury supports the witness's testimony.
117 Nev. 609, 613 (2001) Evans v. State
cating that information not presented to the jury supports the witness's testimony.
34. Criminal Law.
Prosecutor's closing argument that no evidence existed for defendant's claim that other persons might have committed the
murders did not shift the burden of proof to the defendant and did not call attention to defendant's failure to testify. U.S. Const. amend.
5.
35. Criminal Law.
Generally, prosecutorial comment on the failure of the defense to present witnesses or evidence impermissibly shifts the burden
of proof.
36. Criminal Law.
Prosecutor's closing argument that a reasonable doubt governing a person in the more weighty affairs of life could apply to
choosing a spouse, a college, or an occupation was improper despite defendant's improper argument that weighty affairs of life could
include deciding whether to end life support for a badly injured child or parent. The prosecutor's remedy was to object to defense
counsel's remarks as impermissible elaboration on the definition of reasonable doubt, not to commit the same error in response.
37. Criminal Law.
District courts and attorneys should not attempt to quantify, supplement, or clarify the statutorily prescribed standard for
reasonable doubt. NRS 175.211(1).
38. Criminal Law.
It is improper to compare reasonable doubt to decisions such as choosing a spouse, buying a house, or changing jobs. NRS
175.211(1).
39. Criminal Law.
Prosecutor's improper closing argument that a reasonable doubt governing a person in the more weighty affairs of life could
apply to choosing a spouse, a college, or an occupation was harmless in murder prosecution where the jury received the proper written
instruction on reasonable doubt.
40. Criminal Law.
Defense attorneys and prosecutors should not explain, elaborate on, or offer analogies or examples based on the statutory
definition of reasonable doubt. They may only argue that evidence and theories in the case before the jury either amount to or fall
short of that definition. NRS 175.211(1).
41. Criminal Law.
Prosecutor's guilt phase closing argument that the defendant was an evil magnet was not improperly inflammatory and did not
disparage legitimate defense tactics.
Prosecutor's penalty phase closing argument could state that the penalty hearing was for retribution and deterrence, not
rehabilitation, the defendant forfeited his right to live by killing four people in a systematic way, and the death penalty could never be
appropriate if not in this case.
A prosecutor in a penalty phase hearing may discuss general theories of penology, such as the merits of punishment, deterrence,
and the death penalty.
44. Criminal Law.
A prosecutor's statements indicative of opinion, belief, or knowledge are unobjectionable when made as a conclusion from the
evidence introduced at trial.
117 Nev. 609, 614 (2001) Evans v. State
Prosecutor's penalty phase closing argument deploring an era of mindless, indiscriminate violence perpetrated by persons who
believe they're a law unto themselves and characterizing the defendant as such inappropriately invoked circumstances beyond the
case at hand, but was not extreme and did not, standing alone, divert the jury from its proper task of sentencing the defendant for his
own crimes.
Prosecutor's rebuttal closing argument asking the jury if it had the resolve, determination, courage, intestinal fortitude, and sense
of commitment to do its legal duty was highly improper in the penalty phase of a capital murder prosecution. The words were designed
to stir the jury's passion and appeal to partiality.
Prosecutor's rebuttal closing argument that the jury could consider evidence of the defendant's other crimes before deciding
eligibility for the death penalty was improper in penalty phase of capital murder prosecution despite the defendant's incomplete
argument which failed to tell the jurors that they could also consider the other evidence if they decided that death was not an
appropriate sentence. The prosecutor's argument did not cure the omission.
Before a jury in a capital case may consider other matter relevant to the sentence, such as other crimes evidence, it must decide
if the defendant is eligible for the death penalty. NRS 175.552(3).
An instruction to guide the jury's consideration of evidence at the penalty hearing, as set out in case, is required in penalty phase
of capital prosecution.
In deciding on an appropriate sentence in a capital case, the jury will consider three types of evidence for its appropriate
purposes: evidence relevant to the existence of aggravating circumstances, evidence relevant to the existence of mitigating
circumstances, and other evidence against the defendant. NRS 175.552(3).
In determining unanimously whether any aggravating circumstance has been proven beyond a reasonable doubt, the jury in a
capital case may consider only evidence relevant to that aggravating circumstance and may not consider other evidence against the
defendant. NRS 175.552(3).
In determining individually whether any mitigating circumstance exists in a capital case, the jury may consider only evidence
relevant to that mitigating circumstance and may not consider other evidence against the defendant. NRS 175.552(3).
In determining individually whether any mitigating circumstances outweigh any aggravating circumstances, the jury in a capital
case may consider only evidence relevant to any mitigating and aggravating circumstances and may not consider other evidence
against the defendant. NRS 175.552(3).
If the jury in a capital case finds unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists
and each juror determines that any mitigating circumstances do not outweigh the aggravating, the defendant is eligible for a death
sentence.
117 Nev. 609, 615 (2001) Evans v. State
When the jury finds the defendant eligible for the death penalty, it must consider all three types of evidence (evidence relevant to
the existence of aggravating circumstances, evidence relevant to the existence of mitigating circumstances, and other evidence against
the defendant) and still has the discretion to impose a sentence less than death. NRS 175.552(3).
The jury in a capital case must decide on a sentence unanimously, whether the sentence is death or imprisonment.
If the jury in a capital case does not decide unanimously that at least one aggravating circumstance has been proven beyond a
reasonable doubt or if at least one juror determines that the mitigating circumstances outweigh the aggravating, the defendant is not
eligible for a death sentence.
Upon determining that the defendant is not eligible for death, the jury must, in determining a sentence other than death, consider
evidence relevant to the existence of aggravating circumstances, evidence relevant to the existence of mitigating circumstances, and
other evidence against the defendant. NRS 175.552(3).
59. Criminal Law.
Defendant's trial and appellate counsel rendered ineffective assistance and prejudiced the defendant by not challenging the
prosecutor's improper rebuttal closing argument that the jury could consider evidence of the defendant's other crimes before deciding
eligibility for the death penalty. U.S. Const. amend. 6; NRS 175.552(3).
The Federal Constitution requires a capital sentencing process to genuinely narrow the class of persons eligible for the death
penalty. Thus, a sentencing scheme must direct and limit the sentencer's discretion to minimize the risk of arbitrary and capricious
action and must provide a principled basis for the sentencer to distinguish defendants who deserve capital punishment from those who
do not. U.S. Const. amend. 8.
61. Criminal Law.
State's disclosure during trial of defendant's letter asking witness to change her testimony did not entitle the defendant to a
continuance of the trial, but was appropriately remedied by postponing the cross-examination of a prosecution witness and the
testimony of two other key witnesses. The refusal to grant a continuance did not prejudice the defendant since he failed to specify how
the cross-examination of any witnesses was inadequate and merely claimed that concern about the letter distracted his counsel's
attention from effectively cross-examining the State's witnesses.
62. Criminal Law.
The district court has broad discretion in fashioning a remedy for violation of discovery statute, and it does not abuse its
discretion absent a showing that the State acted in bad faith or that the nondisclosure caused substantial prejudice to the defendant
which was not alleviated by the court's order. NRS 174.295(1), (2).
63. Criminal Law.
Defense attorneys rendered deficient performance by failing to impeach prosecution witness with two felony convictions: grand
theft in California and attempted possession of a stolen vehicle in Nevada. U.S. Const. amend. 6.
117 Nev. 609, 616 (2001) Evans v. State
64. Criminal Law.
Defense attorneys' deficient performance by failing to impeach prosecution witness with two felony convictions did not
prejudice the defendant, where other witnesses gave the same testimony that the defendant made incriminating admissions about the
murders. U.S. Const. amend. 6.
65. Habeas Corpus.
Supreme court's decision on direct appeal from conviction was the law of the case barring reconsideration of habeas corpus
claim on the admissibility of a federal sentence against a suspect in the murders.
Federal court conviction of murder suspect, an alleged co-perpetrator, for drug trafficking was irrelevant in penalty phase of
capital murder prosecution, although a jury may consider the punishments imposed on co-defendants.
Information alleging that the defendant aided and abetted four murders needed to specify how he did so. NRS 173.075(1), (2).
68. Criminal Law.
Vagueness in information which failed to specify how the defendant aided and abetted four murders was not shown to prejudice
the defendant. He failed to give citations to the record to substantiate his claim that the State varied its theory of the case according to
the whims of its witnesses, and the State's basic theory did not change that the defendant let another man into the victims' apartment
and the two, acting together, fatally shot the victims.
69. Courts.
District court correctly declined to review or adjudicate claims about supreme court's handling of death penalty cases; doing so
would require the district court to exercise supervisory and appellate review over the functioning and decisions of the supreme court.
70. Courts.
Supreme court's decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), on instruction concerning premeditation and
deliberation did not apply retroactively.
71. Habeas Corpus.
Supreme court's alleged error on direct appeal was not good cause to overcome procedural bars to habeas corpus claims.
72. Courts.
Unless a federal court concludes that a determination by the state supreme court is erroneous, the parties and district court
should respect the law of the case as pronounced by the supreme court.
73. Criminal Law.
Attorneys' allegedly deficient performance by failing to ask potential jurors whether they would always impose the death penalty
on a defendant convicted of first-degree murder did not prejudice the defendant, where the potential jurors filled out a questionnaire
asking that question and the district court excused any who answered that they would. U.S. Const. amend. 6.
74. Criminal Law.
Even if attorneys made an unreasonable tactical decision to elicit testimony that the defendant was an ex-felon, that information
did not prejudice the defendant in a capital murder prosecution. U.S. Const. amend. 6.
75. Criminal Law.
Attorneys' allegedly ineffective failure to challenge the prosecutor's endorsement of witnesses and to prepare adequately for the
examination of witnesses was not shown to prejudice the defendant, where he failed to specify how his
counsel could have better cross-examined the State's witnesses.
117 Nev. 609, 617 (2001) Evans v. State
witnesses was not shown to prejudice the defendant, where he failed to specify how his counsel could have better cross-examined the
State's witnesses. U.S. Const. amend. 6.
76. Criminal Law.
A defendant claiming ineffective assistance from the failure to call expert witnesses should have alleged specifically what these
experts could have done to make a different result reasonably probable. U.S. Const. amend. 6.
77. Criminal Law.
A defendant claiming ineffective assistance from the failure to prepare defendant's mother and two sisters for the penalty phase
so that they could provide more mitigating evidence should have alleged with specificity what that evidence would have been. U.S.
Const. amend. 6.
78. Habeas Corpus.
Post-conviction habeas claims that are independent of ineffective assistance claims and that could have been raised on direct
appeal are waived. U.S. Const. amend. 6; NRS 34.810.
79. Habeas Corpus.
Statement in opening brief, on appeal from denial of habeas relief, that trial counsel were ineffective for the reasons set forth
in the issues raised in the rest of the brief was an unacceptable, conclusory, catchall attempt to assert ineffective assistance of counsel.
80. Habeas Corpus.
Habeas corpus claim concerning jury instruction on the possible guilt of other persons was procedurally barred in the absence of
an allegation of ineffective assistance of counsel or cause for failing to raise the claim at trial or on direct appeal. U.S. Const. amend. 6;
NRS 34.810.
81. Criminal Law.
The cumulative effect of multiple errors may violate a defendant's constitutional right to a fair trial even though errors are
harmless individually.
82. Habeas Corpus.
Cumulative deficient performance in response to admission of hearsay, inadmissible evidence of some prosecution witnesses'
fear, inadmissible evidence of prior consistent statements, prosecutor's mischaracterization of the reasonable doubt standard, testimony
by prosecution witness with a criminal history, and inadequate information alleging aiding and abetting did not prejudice the defendant
in the guilt phase of a capital murder prosecution, and thus did not warrant habeas relief. Three witnesses testified that the defendant
made incriminating admissions, and a child eyewitness knew one killer by a name linked to the defendant. U.S. Const. amend. 6.
OPINION
In 1994 appellant Vernell Ray Evans was convicted of burglary and four counts of
first-degree murder and sentenced to death. This court affirmed his conviction and sentence.
He then filed a post-conviction petition for a writ of habeas corpus, which the district court
denied without holding an evidentiary hearing.
117 Nev. 609, 618 (2001) Evans v. State
district court denied without holding an evidentiary hearing. Evans appeals.
The overarching issue is whether any of Evans's claims warranted an evidentiary
hearing. We conclude that a hearing is not necessary to assess the claims, and we affirm the
district court's order insofar as it upholds Evans's conviction. However, we conclude that his
trial and appellate counsel were ineffective in failing to challenge arguments made by the
prosecutor during the penalty phase of the trial. We therefore reverse the district court's order
in part, vacate Evans's death sentence, and remand for a new penalty hearing.
FACTS
In September 1994, a jury convicted Evans of burglary and four counts of first-degree
murder. After a penalty hearing, the jury found that the mitigating circumstances did not
outweigh the aggravating circumstances and imposed four death sentences. The district judge
also entered a consecutive ten-year prison term for the burglary conviction. This court
affirmed Evans's judgment of conviction in Evans v. State,
1
from which the following facts
are largely taken.
Around 1:00 a.m. on May 1, 1992, officers of the Las Vegas Metropolitan Police
Department responded to a report of a shooting at a Wardelle Street apartment. They
discovered four people shot to death: Jermaine Woods, Steven Walker, Lisa Boyer, and
Samantha Scotti. Scotti and her eighteen-month-old son, Francois, were residents of the
apartment.
Four-year-old Adriana Ventura (Adriana) and her mother and infant sister also resided
at the apartment. Adriana witnessed the murders and testified at trial to the following. Two
men entered the apartment carrying guns. Adriana referred to the men as Scary Eyes and
Little Ray. The intruders first shot the two men already in the apartment, Woods and
Walker. They then shot Scotti, who was in the bathroom, and Boyer, who was in the
bedroom. Adriana could not remember how many times the two women were shot or which
one of the intruders fired the shots, and she did not see how the men left the apartment.
Sometime thereafter, Adriana's mother, Alicia Ventura (Ventura), called the apartment.
Adriana answered and told her mother that Scotti was dead. After that, Adriana went to the
apartment next door and told the neighbor that everyone had been killed.
Adriana testified that she did not know Scary Eyes, but she had seen Little Ray
before at the apartment. Adriana was unable to identify Evans as Little Ray either in court
or in a lineup at the jail.
__________

1
112 Nev. 1172, 926 P.2d 265 (1996).
117 Nev. 609, 619 (2001) Evans v. State
lineup at the jail. However, Ventura testified that Adriana usually referred to Evans as either
Little Ray or Uncle Ray.
Ventura testified that earlier that day (April 30) four men had shown up at the
apartment when she, Scotti, and Walker were there. Two of the men were members of a gang
at odds with Walker's gang, and one of the men called Scotti a snitch bitch and wanted to
fight her. Eventually the four men left. Boyer also arrived at the apartment while the four men
were there. She was trying to get away from her boyfriend, Everett Flowers, who had recently
put a gun to her head and threatened to kill her.
Between 7:00 and 7:30 p.m., Ventura received a telephone call from Evans. Evans
warned her about living with Scotti, who was a snitch bitch and was going to get it some
day. Ventura told Scotti about the call, but Scotti was unfazed, having received threats
before.
At 10:30 p.m. Ventura left with her infant daughter for a friend's apartment to do
laundry. Around midnight, Ventura spoke to Scotti on the phone. Scotti sounded normal and
asked Ventura to bring some rock cocaine back to the apartment. Ventura obtained the
cocaine and called back about thirty minutes later. Her daughter Adriana answered the
telephone and said that Uncle Ray had come in and shot everybody. Ventura told Adriana to
take Francois and go to the apartment next door.
Jeffery Grice, who lived in the apartment next door to the crime scene, testified that
he heard apparent gunshots that night. Fifteen minutes later, Adriana pounded on Grice's
door. When he let her in, she said, They're all dead. . . . Uncle Ray-Ray came in, and they
shot them all dead.
Shirannah Rice testified that Evans had admitted his involvement in the murders to
her in a conversation on November 8, 1992. Evans told Rice that Scotti had been working for
the police and had set up Double R (a nickname of Richard Powell's) in a drug deal and
Double R went to jail. Double R therefore wanted to kill Scotti upon his release. They chose
the night following the Rodney King verdicts because the police were occupied with riots in
West Las Vegas. Evans said that he went to Scotti's apartment and was let in. After leaving
the door unlocked, Evans signaled from the window, and his partner came in armed. Evans
first shot Walker and then Woods. Evans then went to the bedroom where he and his partner
shot Boyer. Next, they went into the bathroom and shot Scotti numerous times. Evans said
they wanted to make her suffer. In another conversation a few months later, Evans told Rice
that he was concerned Adriana could be a witness as she got older and that they had better
get her out of town if they know what's best for her.
Tina Jackson testified that Evans made admissions to her in November 1992. Evans
told her that he knew Ventura had been talking to her about the crimes and that he "did do
it."
117 Nev. 609, 620 (2001) Evans v. State
talking to her about the crimes and that he did do it. He showed her a gun and bullets and
said they were for her if she said anything. A few days later, Evans approached Jackson,
pushed her against a wall, and warned her again to keep her mouth shut. Afraid of Evans,
Jackson soon left the Las Vegas area.
Laboratory tests revealed that projectiles recovered from the heads of Woods and
Walker were consistent with bullets fired from a .38 special or a .357 magnum. Two
projectiles from Scotti's body came from the same .38 special or .357 magnum used to kill the
two men, and another was consistent with a 9-millimeter weapon. All three projectiles fired
into Boyer were consistent with the 9-millimeter used to shoot Scotti.
A palm print lifted from a closet door in the apartment matched Evans's left palm.
Other prints were matched to Flowers. Both Evans and Flowers had lived in the apartment
but had moved out weeks before.
Joseph Salley, the father of Ventura's younger daughter, testified as a rebuttal witness
regarding admissions made to him by Evans. In July 1992, with Evans present, Powell and
Flowers told Salley about the murders. Powell described how Evans had shot Walker, Salley's
homey. At some point during this discussion, Evans jumped up and exclaimed that he was
a born killer. Two weeks later, Salley met Powell and Evans to purchase crack cocaine
from them. Evans told Salley that he better pay Powell after selling the cocaine or: I'll have
to do you like I did your homeys. Evans also said that Walker and Woods had been in the
wrong place at the wrong time because the intended victims were two bitches.
At the conclusion of the guilt phase of trial on September 10, 1994, the jury found
Evans guilty of burglary and four counts of first-degree murder. The penalty phase
commenced on September 26, 1994.
The State presented evidence that Evans had a 1992 felony conviction for leaving the
scene of an accident, had a 1989 felony conviction for battery with the use of a deadly
weapon, and was facing drug trafficking and parole violation charges. Members of the
victims' families testified about their losses.
In mitigation, Evans offered his youthful age and the testimony of psychiatrist Dr.
Norton Roitman and of family members. Dr. Roitman testified that although Evans was not
mentally ill, he suffered from anxiety illness. His family testified that he was not a bad person
and asked for mercy on his behalf. Evans also exercised his right of allocution. Although he
did not specifically take responsibility for the murders, he said that he had made mistakes in
his life and would change them if he could. He expressed concern for his family and
daughter and asked the jury to consider giving him a life sentence.
117 Nev. 609, 621 (2001) Evans v. State
cern for his family and daughter and asked the jury to consider giving him a life sentence.
The jury returned death penalty verdicts on all four counts of first-degree murder. The
jurors found beyond a reasonable doubt three aggravating circumstances on each murder
count. They found all four murders were committed by a person previously convicted of a
felony involving the use or threat of violence and by a person who knowingly created a great
risk of death to more than one person. For the murder of Scotti, they also found the murder
involved torture, depravity of mind, or the mutilation of the victim. They found that the other
three murders were committed to avoid or prevent a lawful arrest. The jurors also found that
the aggravating circumstances were not outweighed by mitigating circumstances.
Evans filed a motion for a new trial, which was denied. He separately appealed the
judgment of conviction and the denial of his motion for a new trial. This court affirmed his
conviction and dismissed the appeal of the denial of his motion.
2

In May 1998, Evans petitioned the district court in proper person for a post-conviction
writ of habeas corpus. In August 1999, appointed counsel filed a supplemental petition. The
district court denied the petition without holding an evidentiary hearing.
DISCUSSION
The right to an evidentiary hearing and the application of procedural bars
Evans contends that the district court erred in denying his petition without holding an
evidentiary hearing and allowing him to conduct discovery.
[Headnotes 1, 2]
A defendant seeking post-conviction relief cannot rely on conclusory claims for relief
but must support any claims with specific factual allegations that if true would entitle him or
her to relief.
3
The defendant is not entitled to an evidentiary hearing if the allegations are
belied or repelled by the record.
4

[Headnotes 3, 4]
Further, a court must dismiss a habeas petition if it presents claims that either were or
could have been presented in an earlier proceeding, unless the court finds both cause for
failing to present the claims earlier or for raising them again and actual prejudice to the
petitioner.
__________

2
Id.; Evans v. State, Docket No. 29936 (Order Dismissing Appeal, November 20, 1997).

3
Pangallo v. State, 112 Nev. 1533, 1536, 930 P.2d 100, 102 (1996), limited on other grounds by Hart v.
State, 116 Nev. 558, 562-63, 1 P.3d 969, 972 (2000).

4
Id.
117 Nev. 609, 622 (2001) Evans v. State
sent the claims earlier or for raising them again and actual prejudice to the petitioner.
5
Claims of ineffective assistance of counsel are properly presented in a timely, first
post-conviction petition for a writ of habeas corpus. Because such a claim is generally not
appropriate for review on direct appeal, the failure to raise it on direct appeal does not
constitute a waiver of the claim for purposes of post-conviction proceedings.
6

Claims of ineffective assistance of counsel
Evans contends that his trial and appellate counsel were ineffective in numerous ways.
The standard of review
[Headnotes 57]
A claim of ineffective assistance of counsel presents a mixed question of law and fact,
subject to independent review.
7
To establish ineffective assistance of counsel, a claimant
must show both that counsel's performance was deficient and that the deficient performance
prejudiced the defense.
8
Deficient performance is representation that falls below an objective
standard of reasonableness.
9
To show prejudice, the claimant must show a reasonable
probability that but for counsel's errors the result of the trial would have been different.
10

[Headnotes 8, 9]
Judicial review of a lawyer's representation is highly deferential, and a defendant must
overcome the presumption that a challenged action might be considered sound strategy.
11
The reviewing court must try to avoid the distorting effects of hindsight and evaluate the
conduct under the circumstances and from counsel's perspective at the time.
12

Failing to prevent the admission of hearsay evidence
[Headnote 10]
At trial Gregory Robertson testified for the State that Richard Powell offered him
$10,000 in October 1991 to kill Scotti because Scotti had set Powell up to be arrested for a
drug offense.
__________

5
NRS 34.810.

6
Daniels v. State, 100 Nev. 579, 580, 688 P.2d 315, 316 (1984), modified on other grounds by Varwig v.
State, 104 Nev. 40, 752 P.2d 760 (1988).

7
Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).

8
Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

9
Id.

10
Id. at 988, 923 P.2d at 1107.

11
Strickland, 466 U.S. at 689.

12
Kirksey, 112 Nev. at 987-88, 923 P.2d at 1107.
117 Nev. 609, 623 (2001) Evans v. State
Scotti had set Powell up to be arrested for a drug offense. The State offered this as evidence
of the motive for the murder. The district court admitted the evidence against Evans under
NRS 51.035(3)(e) as a statement by his co-conspirator during the course and in furtherance of
the conspiracy.
Evans contends that his trial and appellate counsel were ineffective in failing to argue
that there was no evidence that a conspiracy existed when Powell made the statement. In
denying Evans's post-conviction petition, the district court acknowledged that it was error to
admit evidence of Powell's statement but the error was harmless. The State does not dispute
that it failed to show that a conspiracy existed when the statement was made, but it maintains
that it was not critical evidence. Evans argues that the hearsay statement was highly
prejudicial because it was the only evidence to explain why he would want to kill Scotti.
Powell's statement was not the sole evidence of motive. Shirannah Rice also testified
that Evans admitted that he helped kill Scotti because Scotti had informed on Powell. We
conclude that even if counsel had succeeded in excluding the hearsay statement there was no
reasonable probability of a different result.
Failing to challenge the competency of a young witness to testify
Evans contends that his counsel were ineffective in failing to challenge the
competency of Adriana Ventura to testify. The district court concluded that the voir dire of
Adriana and her subsequent testimony demonstrated she was competent.
[Headnote 11]
Adriana Ventura was four at the time of the murders and six when she testified. At
trial, the prosecutor first questioned Adriana about her family, the difference between the
truth and lies, and the need to tell the truth. Adriana then testified regarding the murders.
According to Evans, before her trial testimony Adriana testified at a preliminary
hearing, a grand jury hearing, and a federal sentencing hearing and was questioned repeatedly
about the crimes by her mother, neighbors, a detective, a child psychologist, and the media.
Her grandfather allowed reporters to tape her telling her story on several occasions. Evans
argues that there was great potential that the child's testimony was contaminated, particularly
by her mother.
Evans also asserts that Adriana's testimony shows that she was not competent to
testify. For example, she was unable to remember whether she lived in a house or an
apartment at the time of the murders or the name of the other child who was present.
117 Nev. 609, 624 (2001) Evans v. State
Evans also claims that Adriana could not remember whether the murderers left through the
door or jumped out of a window, but this claim is mistaken. Adriana actually said they could
have done either, but she did not know because she did not watch them leave. Our review of
Adriana's trial testimony shows that she readily admitted whenever she did not know or could
not remember something and did not appear to make up information just to answer a
question. For example, she had apparently told defense counsel before trial that each killer
had shot a specific victim. She acknowledged this on cross-examination but maintained, as
she had on direct examination, that she actually did not know who shot whom. The material
facts which Adriana did remember and provide, such as where each victim was when shot,
were consistent with the evidence at the crime scene.
[Headnotes 1216]
A child is competent to testify if he or she is able to receive just impressions and
relate them truthfully.
13
Courts must evaluate a child's competency on a case-by-case basis,
but relevant considerations include:
(1) the child's ability to receive and communicate information; (2) the spontaneity of
the child's statements; (3) indications of coaching and rehearsing; (4) the child's
ability to remember; (5) the child's ability to distinguish between truth and falsehood;
and (6) the likelihood that the child will give inherently improbable or incoherent
testimony.
14

This court will not disturb a finding of competency absent a clear abuse of discretion.
15
A
child's testimony supports a finding of competency if it is clear, relevant, and coherent.
16
Inconsistencies in the testimony go to the weight of the evidence.
17

We conclude that Adriana's testimony indicates that she was competent. Her basic
account of the crimes remained coherent and consistent, even under cross-examination. Her
testimony reflected none of the serious problemsinability to differentiate between fact and
fantasy, confusion between truth and falsehood, inherently improbable testimony, suggestions
of coaching, inability to recall recent eventswhich in other cases have prompted this court
to overturn the district court's finding of competency.
18

__________

13
Felix v. State, 109 Nev. 151, 173, 849 P.2d 220, 235 (1993).

14
Id.

15
Lanoue v. State, 99 Nev. 305, 307, 661 P.2d 874, 874 (1983).

16
Id.

17
Wilson v. State, 96 Nev. 422, 423-24, 610 P.2d 184, 185 (1980).

18
See Felix, 109 Nev. at 174-75, 849 P.2d at 236-37; Lanoue, 99 Nev. at 307, 661 P.2d at 875.
117 Nev. 609, 625 (2001) Evans v. State
[Headnote 17]
Evans also contends that the district court violated this court's directive requiring trial
courts to examine a child under ten years of age before permitting her to testify. He cites this
court's decision in Felix v. State,
19
which stands for this rule. However, at least part of the
foundation for the rule no longer exists. Felix followed a line of authority that relied on
former NRS 48.030(2), which provided that children under ten years of age could not be
witnesses if they appeared incapable of receiving just impressions of the facts . . . or of
relating them truly.
20
Nevada's statutes no longer treat the competency of witnesses younger
than ten as a special case. Even assuming the rule still retains its full force, the district court's
failure to examine Adriana before she testified was prejudicial only if she indeed lacked
competency. We conclude that her testimony shows she was competent.
[Headnote 18]
Nevertheless, Evans's allegations regarding possible contamination of Adriana's
testimony arguably warranted an evidentiary hearing. Roughly two years had passed since the
crimes occurred, and she had apparently talked with a number of people about the murders.
On the other hand, the mere fact that Adriana spoke with people about her experience does
not establish that her testimony was improperly influenced. Evans has not pointed to any
particular behavior by Adriana or to inconsistencies in her statementsor to any words or
conduct by anyone elsethat indicate her testimony was deliberately or inadvertently tainted.
Evans stresses that a detective suspected that Adriana's mother, Ventura, knew that Scotti was
going to be murdered, but he does not explain why this suggests that Ventura manipulated her
daughter's account of the crimes. We conclude that the district court could have reasonably
found that Evans's allegations on this issue were insufficient to warrant an evidentiary
hearing.
Adriana was competent to testify; therefore, counsel's failure to challenge her
competency was not deficient or prejudicial.
Failing to uncover exculpatory information allegedly withheld by the State
Evans asserts that the State had a variety of exculpatory information which it did not
disclose to him in violation of Brady v. Maryland.
21
Alternatively, he argues his counsel
were ineffective in not uncovering this information independently.
__________

19
109 Nev. at 175, 849 P.2d at 236.

20
See Shuff v. State, 86 Nev. 736, 738, 476 P.2d 22, 23 (1970); Martin v. State, 80 Nev. 307, 310, 393 P.2d
141, 143 (1964).

21
373 U.S. 83 (1963).
117 Nev. 609, 626 (2001) Evans v. State
[Headnote 19]
Brady and its progeny require a prosecutor to disclose material evidence favorable to
the defense; evidence is material if there is a reasonable probability that the result would have
been different if it had been disclosed.
22
Such a reasonable probability is shown when the
nondisclosure undermines confidence in the outcome of the trial.
23

[Headnote 20]
Evans first complains that the State withheld information that Joseph Salley testified
for the State in return for witness protection benefits. This court considered this claim in
dismissing Evans's appeal in 1997. The doctrine of the law of the case precludes
reconsidering it.
24

[Headnote 21]
Next, Evans complains that the State provided no information on an investigation of
Ventura and her possible involvement in these murders or the continued investigation of
Flowers. These claims fall short of alleging specifically that the State had exculpatory
information. Evans speculates that material exculpatory information exists, but he does not
describe it. The evidence at trial showed that Evans and at least one other person committed
the crimes. The State did not conceal that it also suspected Everett Flowers and Richard
Powell of the murders, and Evans presented evidence and argument at trial that Flowers had a
violent relationship with and, not long before the murders, had threatened to kill one of the
victimshis girlfriend, Lisa Boyer. Thus, to undermine confidence in the trial's outcome,
Evans would have to allege the nondisclosure of specific information that not only linked
Flowers, or Ventura, to the crimes but also indicated that Evans was not involved. He has not
done so.
Evans also speculates that the State had information that Scotti was an informant in
other cases but did not disclose it to the defense. He argues such information would have
shown that other people had a motive to kill her. During post-conviction proceedings, the
district court ordered discovery on this issue. In denying the habeas petition, the court
concluded that the State did not have a list of such cases and did not have a duty to create
exculpatory information for the defense where none existed. We accept the court's finding
that the State did not have the information sought by Evans.
__________

22
See Jimenez v. State, 112 Nev. 610, 618-19, 918 P.2d 687, 692 (1996).

23
Kyles v. Whitley, 514 U.S. 419, 434 (1995).

24
See Pertgen v. State, 110 Nev. 554, 557-58, 875 P.2d 361, 363 (1994).
117 Nev. 609, 627 (2001) Evans v. State
[Headnotes 22, 23]
In this claim, Evans has described a line of inquiry possibly helpful to the defense. To
prepare his defense, he had a right to pursue this inquiry by means of discovery and obtain
any information the State might have had on Scotti's other informant activities. But
information that Scotti had acted as an informant in other cases, without at least some
evidence that this activity had generated actual threats against her, would not implicate the
State's affirmative duty to disclose potentially exculpatory information to the defense because
such information must be material.
25
Scotti's mere acting as an informant in other cases does
not reach this level. Evans seems to assume that the State has a duty to compile information
or pursue an investigative lead simply because it could conceivably develop evidence helpful
to the defense, but he offers no authority for this proposition, and we reject it.
26

Next, Evans claims that the State failed to inform him of statements made by several
witnesses before trial which varied from their trial testimony. This claim is belied by the
record for the most part, and Evans's general allegations fail to identify any significant
inconsistencies.
Evans's claims of Brady violations did not warrant an evidentiary hearing, and his
alternative claims of ineffective assistance of counsel similarly fail to sufficiently allege either
deficient performance or prejudice.
Failing to challenge the State's elicitation of evidence that witnesses were fearful
Evans contends his counsel were ineffective in failing to challenge evidence elicited
by the State that five witnesses were fearful.
[Headnotes 24, 25]
Tina Jackson testified that she was reluctant to cooperate with prosecutors because
Evans had threatened her twice and she feared him. Shirannah Rice testified that she did not
contact police when Evans first told her about the murders because she was afraid he could
harm her or her family members. Rice's mother testified that she feared someone might harm
her daughter for cooperating with police; however, she feared gang activity, not Evans.
Joseph Salley testified that he was nervous and afraid to be a witness.
__________

25
See, e.g., Mazzan v. Warden, 116 Nev. 48, 73 n.6, 993 P.2d 25, 40 n.6 (2000).

26
See United States v. Harvey, 756 F.2d 636, 643 (8th Cir. 1985) (upholding denial of appellants' request
that witnesses view a particular lineup because government has no obligation to create potentially exculpatory
evidence where none exists).
117 Nev. 609, 628 (2001) Evans v. State
to be a witness. And Gregory Robertson, an inmate, testified that he was concerned about his
safety because he was considered a snitch.
Evans cites Lay v. State, where this court adopted from federal courts the holding that
the prosecution's references to, or implications of, witness intimidation by a defendant are
reversible error unless the prosecutor also produces substantial credible evidence that the
defendant was the source of the intimidation.
27
In Lay, the references to witness
intimidation were not direct references to intimidation or threats by Lay.
28
Most referred to
fears that Lay's fellow gang members might retaliate against witnesses.
29
Although most of
the references were irrelevant to the case, the court concluded they were not misconduct
requiring reversal.
30
Questions about reluctance and fright were relevant to one witness
whom the defense impeached with his prior statement to police that he could not identify the
shooter.
31

Evans also relies on NRS 48.045(2), which prohibits evidence of collateral acts as
proof of a person's character but allows such evidence to prove motive, opportunity, or other
relevant issues. Before admitting collateral-act evidence, the district court must determine
outside the presence of the jury that: the act is relevant to the crime charged; it is proven by
clear and convincing evidence; and the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.
32

We conclude that no error occurred in admitting Jackson's testimony. First, her
testimony provided substantial credible evidence under Lay that Evans threatened her.
Second, we consider NRS 48.045(2) to be inapposite. Evidence that after a crime a defendant
threatened a witness with violence is directly relevant to the question of guilt.
33
Therefore,
evidence of such a threat is neither irrelevant character evidence nor evidence of collateral
acts requiring a hearing before its admission.
34

The testimony of the other four witnesses regarding their fears was improper because
it was irrelevant. The State asserts that the testimony was relevant because it explained why
they did not contact police sooner and why there were minor inconsistencies in their
statements. This assertion is unpersuasive: the State offers no authority, no reference to the
record, and no analysis to support it.
__________

27
110 Nev. 1189, 1193, 886 P.2d 448, 450-51 (1994).

28
Id. at 1193-94, 886 P.2d at 451.

29
Id. at 1194, 886 P.2d at 451.

30
Id.

31
Id.

32
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).

33
Abram v. State, 95 Nev. 352, 356-57, 594 P.2d 1143, 1145 (1979).

34
Cf. Salgado v. State, 114 Nev. 1039, 1042, 968 P.2d 324, 326 (1998).
117 Nev. 609, 629 (2001) Evans v. State
port it. It appears that the State initiated every inquiry into delay and reluctance on the part of
the witnesses; therefore, such inquiry was not relevant to rebut any impeachment by the
defense in this area.
[Headnote 26]
Not all the testimony was equally critical, however. Rice's mother expressly
disclaimed any fear of Evans, and Robertson only referred to the general risk of retaliation
from other inmates. We perceive no prejudice to Evans by their expressions of fear.
[Headnote 27]
The source of Salley's fear remained unspecified, dampening but not wholly avoiding
potential prejudice to Evans: jurors could have assumed Salley felt threatened by Evans
and/or Richard Powell and Everett Flowers, whose conversation he testified to. And as noted,
Rice explicitly stated her fear of Evans. Therefore, the evidence that Salley and Rice were
afraid was potentially prejudicial to Evans, but we conclude that under Lay it was not
reversible misconduct. In particular, we note that trial counsel seriously impeached Rice's
allegation of fear by revealing on cross-examination that she continued to live with Evans for
some time after the murders and then kept in touch with him and professed her love for him
up until shortly before the trial. Trial and appellate counsel should have challenged admission
of the evidence of the witnesses' fear, but Evans has not shown a reasonable probability of a
different result had they done so.
Failing to challenge the State's bolstering of its witnesses
Evans claims that the State improperly elicited evidence of prior consistent statements
and other evidence to bolster the credibility of its witnesses and improperly vouched for its
witnesses in closing argument. We conclude that some of the State's actions were improper
but that counsel's failure to respond did not prejudice Evans.
[Headnotes 2830]
The State improperly elicited evidence that Shirannah Rice made telephone calls to
detectives implicating Evans in the murders. A witness's prior consistent statements are
inadmissible hearsay, unless offered to rebut an express or implied charge against the witness
of recent fabrication or improper influence or motive.
35
But the evidence here was not so
prejudicial that there was a reasonable probability of a different result without it.
36

__________

35
See NRS 51.035(2)(b).

36
Cf. Patterson v. State, 111 Nev. 1525, 1533-34, 907 P.2d 984, 989-90 (1995) (concluding that admission
of prior consistent statements was harmless error where the independent evidence of guilt rose above the
minimal).
117 Nev. 609, 630 (2001) Evans v. State
Evans also contests Alicia Ventura's testimony about her daughter Adriana's statements, but
this evidence was admissible under NRS 51.095 because Adriana's statements were excited
utterances made soon after she witnessed the murders.
[Headnote 31]
The prosecutor elicited other evidence to bolster the credibility of several witnesses,
but nearly all of this evidence was elicited after the defense had attacked the witnesses'
veracity or competency. The State may counter impeachment of its witnesses by presenting
evidence supporting their credibility.
37
Evans cites a small amount of evidence that may
have bolstered Rice's credibility before the defense impeached her veracity. Assuming the
evidence was improper, we conclude it had no effect on the trial's outcome.
[Headnotes 32, 33]
During the rebuttal closing argument, the prosecutor defended the police investigation
and praised Rice, Tina Jackson, and Joseph Salley for testifying despite facing risks and
receiving no benefits. Evans complains that this constituted improper vouching for the
credibility of these witnesses. We disagree. The prosecution may not vouch for the credibility
of a witness either by placing the prestige of the government behind the witness or by
indicating that information not presented to the jury supports the witness's testimony.
38
Here,
defense counsel in closing argument extensively challenged the quality of the police
investigation in this case and the credibility of the State's witnesses. The prosecutor's remarks
were a reasonable response to this challenge. He did not suggest that there was unpresented
evidence to support the witnesses' testimony, nor did he place the prestige of his office behind
the witnesses.
Failing to challenge prosecutorial misconduct during closing argument in the guilt
phase
Evans alleges that four instances of prosecutorial misconduct occurred during closing
argument in the guilt phase and that his counsel were ineffective in failing to challenge them.
[Headnotes 34, 35]
First, in responding to defense counsel's argument that Anthony Collins or other
persons might have committed the murders, the prosecutor asked, where's the evidence?
Evans claims this improperly shifted the burden of proof to the defense.
__________

37
Cf. Barrett v. State, 105 Nev. 356, 359, 776 P.2d 538, 539-40 (1989) (where defendant attacked character
of State's witness, State was entitled to present opinion testimony that witness was truthful).

38
Lisle v. State, 113 Nev. 540, 553, 937 P.2d 473, 481 (1997), clarified on other grounds by 114 Nev. 221,
954 P.2d 744 (1998).
117 Nev. 609, 631 (2001) Evans v. State
improperly shifted the burden of proof to the defense. Generally, prosecutorial comment on
the failure of the defense to present witnesses or evidence impermissibly shifts the burden of
proof.
39
However, this court held that a prosecutor was justified in commenting on a
defendant's failure to call a person to testify where the defendant had injected [the person]
into the testimony as an alibi witness.
40
The Ninth Circuit has held that as long as a
prosecutor's remarks do not call attention to a defendant's failure to testify, it is permissible to
comment on the failure of the defense to counter or explain evidence presented.
41
Here,
Evans injected the theory that someone else had committed the murders, and the prosecutor's
remarks did not call attention to Evans's failure to testify. Therefore, the prosecutor could
properly argue that the defense failed to substantiate its theory with supporting evidence.
[Headnote 36]
Second, in discussing the definition of reasonable doubt as a doubt which would
govern a person in the more weighty affairs of life,
42
the prosecutor said such affairs
included choosing a spouse, a college, or an occupation. Defense counsel had argued that
weighty affairs of life could include deciding whether to end life support for a badly injured
child or parent, and the district court concluded that the prosecutor's assertion was a
permissible response.
[Headnotes 3740]
Defense counsel's remarks were improper, but did not justify the prosecutor's
mischaracterization of reasonable doubt. This court has repeatedly cautioned the district
courts and attorneys not to attempt to quantify, supplement, or clarify the statutorily
prescribed standard for reasonable doubt.
43
In Holmes v. State
44
and Quillen v. State,
45
this
court specifically held that it is improper to compare reasonable doubt to decisions such as
choosing a spouse, buying a house, or changing jobs. The prosecutor's remedy was to object
to defense counsel's remarks as impermissible elaboration on the definition of reasonable
doubt, not to commit the same error in response. The error was harmless, however, because
the jury received the proper written instruction on reasonable doubt.
__________

39
Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996).

40
Colley v. State, 98 Nev. 14, 16, 639 P.2d 530, 532 (1982).

41
U.S. v. Lopez-Alvarez, 970 F.2d 583, 596 (9th Cir. 1992).

42
See NRS 175.211(1).

43
See, e.g., Holmes v. State, 114 Nev. 1357, 1366, 972 P.2d 337, 342-43 (1998).

44
Id.

45
112 Nev. 1369, 1382-83, 929 P.2d 893, 902 (1996).
117 Nev. 609, 632 (2001) Evans v. State
sonable doubt.
46
We again caution the defense bar and prosecutors alike not to explain,
elaborate on, or offer analogies or examples based on the statutory definition of reasonable
doubt. Counsel may argue that evidence and theories in the case before the jury either amount
to or fall short of that definitionnothing more.
Third, in responding to defense counsel's argument that police failed to properly
investigate the role of Everett Flowers in the crimes, the prosecutor conceded Flowers's
possible involvement, referred to the large homicide file, and stated that the investigation was
ongoing. Evans now complains that these remarks argued facts not in evidence. This
complaint is frivolous: the facts supported Evans's own strategy of accusing Flowers of the
murder and certainly did not prejudice Evans.
[Headnote 41]
Fourth, Evans complains that the prosecution made improper remarks, including that
he was an evil magnet. We conclude that the remarks were not improperly inflammatory
and did not disparage legitimate defense tactics.
47

Failing to challenge prosecutorial misconduct during closing argument in the penalty
phase
Evans contends that his counsel failed to respond effectively to prosecutorial
misconduct during closing argument in the penalty phase. We agree that some of the
prosecutor's remarks were erroneous and prejudicial.
[Headnotes 4244]
First, the prosecutor made a number of comments that Evans says expressed personal
opinion and lacked factual support. The prosecutor offered his view that the penalty hearing
was not a rehabilitation hearing and asserted that its purposes were retribution and deterrence
of Evans and others. He argued that when a person kills four people in a systematic way as in
this case, in my view, based upon this evidence, such a person has forfeited the right to
continue to live. He also asked when the death penalty could be appropriate if not this case.
We perceive no error in these remarks. A prosecutor in a penalty phase hearing may discuss
general theories of penology, such as the merits of punishment, deterrence, and the death
penalty.
48
And statements indicative of opinion, belief, or knowledge are unobjectionable
when made as a conclusion from the evidence introduced at trial.
__________

46
See id. at 1383, 929 P.2d at 902.

47
See Jones v. State, 113 Nev. 454, 469, 937 P.2d 55, 65 (1997); Williams v. State, 103 Nev. 106, 109-10,
734 P.2d 700, 702-03 (1987).

48
Jimenez v. State, 106 Nev. 769, 772, 801 P.2d 1366, 1368 (1990).
117 Nev. 609, 633 (2001) Evans v. State
when made as a conclusion from the evidence introduced at trial.
49

[Headnote 45]
The prosecutor also deplored an era of mindless, indiscriminate violence
perpetrated by persons who believe they're a law unto themselves. He argued that Evans is
one of these persons. This is his judgment day. Federal courts have held that it is improper
for a prosecutor to urge the jury to convict in order to solve a social problem.
50
This court
has similarly condemned comments in the penalty phase of a murder prosecution that diverted
jurors' attention from their correct task, which is the determination of the proper sentence for
the defendant before them, based upon his own past conduct.
51
The remarks here
inappropriately invoked circumstances beyond the case at hand, but we believe that they were
not extreme and did not, standing alone, divert the jury from its proper task of sentencing
Evans for his own crimes.
[Headnote 46]
Other prosecutorial remarks were excessive and unacceptable and should have been
challenged at trial and on direct appeal. In rebuttal closing, the prosecutor asked, do you as a
jury have the resolve, the determination, the courage, the intestinal fortitude, the sense of
commitment to do your legal duty? Asking the jury if it had the intestinal fortitude to do
its legal duty was highly improper.
52
The United States Supreme Court held that a
prosecutor erred in trying to exhort the jury to do its job'; that kind of pressure . . . has no
place in the administration of criminal justice.
53
There should be no suggestion that a jury
has a duty to decide one way or the other; such an appeal is designed to stir passion and can
only distract a jury from its actual duty: impartiality.
54
The prosecutor's words
hereresolve, determination, courage, intestinal fortitude, commitment,
"duty"were particularly designed to stir the jury's passion and appeal to partiality.
__________

49
Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068 (1993).

50
See, e.g., U.S. v. Leon-Reyes, 177 F.3d 816, 822-23 (9th Cir. 1999); U.S. v. Tulk, 171 F.3d 596, 599-600
(8th Cir. 1999).

51
Collier v. State, 101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985), modified on other grounds by Howard v.
State, 106 Nev. 713, 719, 800 P.2d 175, 178 (1990).

52
Although this court noted a similar argument in Castillo v. State, 114 Nev. 271, 279-80, 956 P.2d 103,
109, corrected by McKenna v. State, 114 Nev. 1044, 1058 n.4, 968 P.2d 739, 748 n.4 (1998), it addressed only
the prosecutor's argument on future dangerousness, not the reference to the jury's duty.

53
United States v. Young, 470 U.S. 1, 18 (1985).

54
United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir. 1986).
117 Nev. 609, 634 (2001) Evans v. State
dutywere particularly designed to stir the jury's passion and appeal to partiality.
[Headnote 47]
The question is whether the prosecutor's improper remarks prejudiced Evans by
depriving him of a fair penalty hearing.
55
Again, considered alone, perhaps they did not, but
the prosecutor erred further. Commenting on penalty phase evidence that Evans was involved
in cocaine trafficking and convicted of leaving the scene of a car accident, the prosecutor told
the jury:
Ms. Erickson argues that you can't consider or discuss that evidence unless you find
that aggravating circumstances had been proven beyond a reasonable doubt. And it may
be a semantical thing again, but regardless of the punishment you select, it doesn't seem
inappropriate to have all the information you can get about the character of a defendant.
I just take issue with the remark that you have to wait until a certain point in the
deliberation to consider that someone has two prior felony convictions, and that he
made his living by selling poison. It seems to me regardless of the punishment that
ought to be a factor, as reasonable men and women, that you can consider.
(Emphasis added.) This argument was absolutely incorrect.
[Headnote 48]
To determine that a death sentence is warranted, a jury considers three types of
evidence: evidence relating to aggravating circumstances, mitigating circumstances, and
any other matter which the court deems relevant to sentence.'
56
The evidence at issue here
was the third type, other matter evidence. In deciding whether to return a death sentence,
the jury can consider such evidence only after finding the defendant death-eligible, i.e., after
it has found unanimously at least one enumerated aggravator and each juror has found that
any mitigators do not outweigh the aggravators.
57
Of course, if the jury decides that death is
not appropriate, it can still consider other matter evidence in deciding on another sentence.
58

The State contends that the prosecutor was simply amending a statement by defense
counsel, who told the jurors that they could not consider the other matter evidence
introduced by the prosecution unless they first found an aggravating circumstance.
__________

55
See Jones, 113 Nev. at 469, 937 P.2d at 65.

56
Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000) (quoting NRS 175.552(3)).

57
Id. at 746, 6 P.3d at 997.

58
Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998).
117 Nev. 609, 635 (2001) Evans v. State
ecution unless they first found an aggravating circumstance. The State maintains that the
prosecutor's argument was therefore proper. We disagree. Defense counsel's argument was
incomplete in that she did not tell the jurors that they could also consider the other evidence if
they decided that death was not an appropriate sentence.
59
However, even if we assume that
the prosecutor's improper argument was an attempt to cure the omission, it failed to do so.
Instead, it incorrectly informed the jurors that they did not have to wait until a certain point
in the deliberation to consider the other evidence. This was incorrect and in no way
remedied defense counsel's incomplete argument.
Nor does it appear that defense counsel was trying to mislead the jury or somehow
gain an unfair advantage when she failed to address the use of other matter evidence in the
event that the jury rejected death and considered a lesser sentence. She was understandably
concerned with the possibility of a death sentence and wished to prevent the other evidence
from improperly influencing the jury's finding of statutory aggravating circumstances. Her
argument was correct in that regard, as was her concernthe jury returned a death sentence
and never reached the stage of considering sentences less than death. Of course, if the
prosecutor was concerned that the jury might reach that stage, he had a right to inform the
jury of the omission in the defense argument; instead, however, he made an incorrect
argument that introduced affirmative error.
The State also asserts that the jury received proper written instructions. The
instructions were accurate as far as they went but did not explain the restricted use of other
matter evidence. Thus, they did not cure the error introduced by the incorrect argument.
60

[Headnotes 4958]
For future capital cases, we provide the following instruction to guide the jury's
consideration of evidence at the penalty hearing:
In deciding on an appropriate sentence for the defendant, you will consider three types
of evidence: evidence relevant to the existence of aggravating circumstances,
evidence relevant to the existence of mitigating circumstances, and other evidence
presented against the defendant.
__________

59
Defense counsel also incorrectly told the jurors that they could consider the other evidence once they found
an aggravating circumstance. Actually, jurors are not to consider such other evidence until after each has
weighed any mitigating circumstances against the aggravating circumstances. This misstatement, of course, did
not prejudice the State.

60
Cf. Emmons v. State, 107 Nev. 53, 60, 807 P.2d 718, 722 (1991) (holding that prosecutor's deliberate
solicitation of improper remark was not cured by unspecific instruction cautioning jury to disregard evidence to
which objection had been sustained), overruled on other grounds by Harte v. State, 116 Nev. 1054, 13 P.3d 420
(2000).
117 Nev. 609, 636 (2001) Evans v. State
to the existence of aggravating circumstances, evidence relevant to the existence of
mitigating circumstances, and other evidence presented against the defendant. You
must consider each type of evidence for its appropriate purposes.
In determining unanimously whether any aggravating circumstance has been proven
beyond a reasonable doubt, you are to consider only evidence relevant to that
aggravating circumstance. You are not to consider other evidence against the defendant.
In determining individually whether any mitigating circumstance exists, you are to
consider only evidence relevant to that mitigating circumstance. You are not to consider
other evidence presented against the defendant.
In determining individually whether any mitigating circumstances outweigh any
aggravating circumstances, you are to consider only evidence relevant to any mitigating
and aggravating circumstances. You are not to consider other evidence presented
against the defendant.
If you find unanimously and beyond a reasonable doubt that at least one aggravating
circumstance exists and each of you determines that any mitigating circumstances do
not outweigh the aggravating, the defendant is eligible for a death sentence. At this
point, you are to consider all three types of evidence, and you still have the discretion to
impose a sentence less than death. You must decide on a sentence unanimously.
If you do not decide unanimously that at least one aggravating circumstance has been
proven beyond a reasonable doubt or if at least one of you determines that the
mitigating circumstances outweigh the aggravating, the defendant is not eligible for a
death sentence. Upon determining that the defendant is not eligible for death, you are to
consider all three types of evidence in determining a sentence other than death, and you
must decide on such a sentence unanimously.
[Headnote 59]
In this case, we conclude that Evans's trial and appellate counsel were deficient in not
challenging the prosecutor's improper argument, and we conclude that Evans was prejudiced
as a result. This court has recognized the heightened need for reliability in capital cases and
the tremendous risk that improperly admitted character evidence will influence a jury in
setting a punishment for a convicted defendant. This risk is unacceptably high when the
defendant has been convicted of murder and faces the death penalty.
61
Although the
evidence here was not improperly admitted, the prosecutor directed the jury to consider it
improperly to determine death eligibility.
__________

61
Flanagan v. State, 112 Nev. 1409, 1419, 930 P.2d 691, 697 (1996).
117 Nev. 609, 637 (2001) Evans v. State
ted, the prosecutor directed the jury to consider it improperly to determine death eligibility.
[Headnote 60]
The Supreme Court has held that the Constitution requires a capital sentencing
process to genuinely narrow the class of persons eligible for the death penalty.'
62
A
sentencing scheme must direct and limit the sentencer's discretion to minimize the risk of
arbitrary and capricious action.
63
It must provide a principled basis for the sentencer to
distinguish defendants who deserve capital punishment from those who do not.
64
In Nevada,
the finding of enumerated aggravators is essential to this narrowing function, and so is the
weighing of such aggravators against any mitigating evidence. If the jurors relied prematurely
on other matter evidence to find or give weight to enumerated aggravators, then the
narrowing contemplated by the Nevada statutes and required by the Federal Constitution did
not occur.
65
A new penalty hearing is therefore required.
Failing to respond properly to the midtrial disclosure of an incriminating letter written
by appellant
[Headnote 61]
During the trial the prosecutor provided the defense with a copy of a letter to
Shirannah Rice written by Evans. In the letter Evans asked Rice to change her testimony to
help him in this case. Defense counsel learned of the letter after they had begun to
cross-examine Rice. Rice had given the letter to the prosecutor that morning, the prosecutor
did not read it until lunch hour, and then he provided it to the defense. Defense counsel
moved for a complete continuance of the trial until the next morning or at least the
continuance of Rice's cross-examination and any testimony by Alicia and Adriana Ventura
until the next day. The district court granted the latter remedy, and other witnesses testified
that afternoon.
Evans claims that the district court abused its discretion in not continuing the trial for
the afternoon and that he was prejudiced because concern about the letter distracted his
counsel's attention from effectively cross-examining the State's witnesses that afternoon and
Alicia and Adriana Ventura the next day. He also claims that his trial counsel were ineffective
in failing to convince the court to exclude the evidence.
__________

62
See Arave v. Creech, 507 U.S. 463, 474 (1993) (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)).

63
Id. at 470.

64
Id. at 474.

65
See Hollaway, 116 Nev. at 746, 6 P.3d at 997; Middleton, 114 Nev. at 1116-17, 968 P.2d at 314-15.
117 Nev. 609, 638 (2001) Evans v. State
court to exclude the evidence. Evans's claim that he was prejudiced remains conclusory; he
does not specify how the cross-examination of any witnesses was inadequate. Moreover, the
evidence was properly admitted.
[Headnote 62]
NRS 174.295(1) provides that if a party discovers additional material during trial
which is subject to discovery, it shall promptly notify the other party or the court of the
existence of the material. NRS 174.295(2) provides that if a party fails to comply with
discovery provisions, the court may order the discovery of the undisclosed material, prohibit
its introduction into evidence, grant a continuance, or enter such other order as it deems just
under the circumstances. The district court has broad discretion in fashioning a remedy
under this statute; it does not abuse its discretion absent a showing that the State acted in bad
faith or that the nondisclosure caused substantial prejudice to the defendant which was not
alleviated by the court's order.
66

Evans implies that the State may have acted in bad faith: he argues that there is no
evidence that the prosecutor did not already know about the letter before it came into his
possession. We discern no support for this speculation. Evans also asserts that the letter was a
written statement by Evans that was not disclosed to him in violation of NRS 174.235.
67
Assuming that this statute applies here, we conclude that it was complied with.
The record indicates the prosecutor disclosed the letter to the defense as soon as he
learned its significance; therefore, no discovery violation occurred. And, despite the
unavoidably late disclosure of the letter, no substantial prejudice resulted. The district court
provided an appropriate remedy by postponing the cross-examination of the letter's recipient
and the testimony of two other key witnesses.
Failing to adequately impeach the testimony of two witnesses
Evans claims that his trial counsel failed to investigate Joseph Salley and Alicia
Ventura and thus to fully impeach their testimony.
We perceive no prejudicial deficiency in trial counsel's cross-examination of Ventura.
In fact, the record shows that Ventura testified to most of the facts which Evans claims his
counsel failed to elicit.
__________

66
Langford v. State, 95 Nev. 631, 635, 600 P.2d 231, 234-35 (1979).

67
NRS 174.235(1) provides in part:
[A]t the request of a defendant, the prosecuting attorney shall permit the defendant to inspect and to
copy or photograph any:
(a) Written or recorded statements or confessions made by the defendant, . . . within the possession,
custody or control of the state, the existence of which is known, or by the exercise of due diligence may
become known, to the prosecuting attorney[.]
117 Nev. 609, 639 (2001) Evans v. State
tified to most of the facts which Evans claims his counsel failed to elicit.
[Headnote 63]
Evans complains that his counsel failed to impeach Salley with two felony
convictionsgrand theft in California and attempted possession of a stolen vehicle in
Nevadaand the fact that he lied to police about his identity on numerous occasions. Evans
also claims that Salley's criminal history could have been used to establish that he expected to
receive benefits from the police in return for his cooperation in this case and to contradict the
time period he gave for speaking to Evans. The time period claim remains conclusory and
unsupported by specific factual allegations, but we conclude that trial counsel were deficient
in not impeaching Salley with his criminal history, although counsel did confront Salley
forcefully with inconsistencies between his testimony and a prior statement.
[Headnote 64]
The question is whether there was a reasonable probability of a different result if such
impeachment had occurred. Salley's testimonythat Evans made two incriminating
admissions regarding the murderswas significant, and jurors might have discounted it if
they knew he was a felon or suspected he had benefited from testifying. On the other hand,
Shirannah Rice and Tina Jackson also testified that Evans made incriminating admissions
about the murders. Therefore, we conclude that even if jurors had given Salley's testimony
little or no weight, a different result was not reasonably probable.
Not introducing evidence at the penalty phase of a federal sentence received by a
suspect in the murders
[Headnote 65]
Evans contends that his trial counsel were ineffective for not introducing evidence at
the penalty phase that a federal court found that the prosecution failed to prove that Richard
Powell was involved in the murders. The doctrine of the law of the case precludes
reconsidering this issue.
68
On direct appeal this court concluded that the evidence was not
admissible: The final decision reached by the federal court with respect to Powell in no way
relates to Evans' relative culpability.
69

[Headnote 66]
Evans says that this conclusion was wrong because in Flanagan v. State this court
stated that it was proper and helpful for the jury to consider the punishments imposed on
the co-defendants.
__________

68
See Pertgen, 110 Nev. at 557-58, 875 P.2d at 363.

69
Evans, 112 Nev. at 1199, 926 P.2d 282-83.
117 Nev. 609, 640 (2001) Evans v. State
jury to consider the punishments imposed on the co-defendants.
70
Flanagan is
distinguishable, however, because it involved co-defendants all convicted in state court of
murder or manslaughter in regard to the same homicides.
71
Powell's conviction was in
federal court for drug trafficking, not for the murders of which Evans was convicted.
72

Failing to challenge the information for being vague
[Headnote 67]
Evans complains that the criminal information alleged that he aided and abetted in
committing the four murders without specifying how. The information charged that Evans did
wilfully, feloniously, without authority of law and with malice aforethought and
premeditation and/or while in the commission of a burglary, kill [each victim], by
shooting into her [or his] body with a deadly weapon, to-wit: a firearm, said Defendant
acting in concert with and aiding or abetting another person or other persons in the
commission of said crime.
An information must be a plain, concise and definite written statement of the
essential facts constituting the offense charged.
73
It must either specify the means by which
a charged offense was accomplished or allege that the means are unknown.
74
Citing
constitutional due process, this court has held that
where the prosecution seeks to establish a defendant's guilt on a theory of aiding and
abetting, the indictment should specifically allege the defendant aided and abetted, and
should provide additional information as to the specific acts constituting the means of
the aiding and abetting so as to afford the defendant adequate notice to prepare his
defense.
75

[Headnote 68]
The information did not allege any specific acts in regard to aiding and abetting. Thus
Evans is correct that the information failed to give him adequate notice of the State's theory of
aiding and abetting.
__________

70
107 Nev. 243, 248, 810 P.2d 759, 762 (1991), vacated on other grounds, 503 U.S. 930, 931 (1992).

71
See id. at 251 (Rose, J., concurring).

72
See Evans, 112 Nev. at 1198 n.25, 926 P.2d 282 n.25. In fact, Powell was recently convicted in the Eighth
Judicial District Court of four counts of first-degree murder for the murders in this case. He did not receive a
death sentence. He has appealed to this court in Docket No. 37374.

73
NRS 173.075(1).

74
NRS 173.075(2).

75
Barren v. State, 99 Nev. 661, 668, 669 P.2d 725, 729 (1983).
117 Nev. 609, 641 (2001) Evans v. State
and abetting. However, he must also show that he was prejudiced as a result: Where a
defendant has not been prejudiced by the charging instrument's inadequacy the conviction
will not be reversed.
76

Evans claims that the State varied its theory of the case according to the whims of its
witnesses, but he fails to substantiate this claim with citations to the record. It appears that
the State's basic theory of the case did not vary: it alleged that Evans let another man into the
victims' apartment, and the two, acting together, shot the four victims to death. We conclude
that Evans has demonstrated no prejudice due to the vagueness of the information.
Not arguing that this court fails to conduct fair and adequate appellate review
Evans asserts that this court fails to conduct fair and adequate appellate review in
capital cases generally and in this case specifically. He contends that the court's caseload is
so heavy that the justices cannot meaningfully review cases and must rely on staff. Evans
further asserts:
This Court has treated death penalty cases differently from other criminal cases. In
enacting [SCR] 250, the Court has created a climate in which death penalty cases are
singled out for a more expedited review process, in which capital cases receive fewer
attorney resources, fewer appellate court staff resources and less time for preparation
than other cases on the court's docket.
He also asserts that this court's review is limited to reviewing bench memoranda prepared by
recent law school graduates. Evans claims that his appellate counsel was ineffective in not
making these allegations.
[Headnote 69]
The district court concluded that it lacked jurisdiction to review these allegations.
Evans maintains that he simply raised a factual claim which the district court may rule on.
We conclude that the district court correctly declined to review or adjudicate these claims. In
effect, Evans asked the district court to exercise supervisory and appellate review over the
functioning and decisions of this court, in contravention of the order of our judicial system.
This court possesses inherent power to prescribe rules necessary or desirable to handle the
judicial functioning of the courts and is charged with the governance of the district courts,
not vice versa.
__________

76
Koza v. State, 104 Nev. 262, 264, 756 P.2d 1184, 1186 (1988).
117 Nev. 609, 642 (2001) Evans v. State
versa.
77
As for the substance of Evans's allegations, we conclude that they lack any merit.
This court does, of course, treat cases involving the death penalty differently from
other casesas required by federal constitutional law. However, this different treatment does
not entail less time or fewer resources for review of capital cases. On the contrary, SCR 250
and the internal policies of this court ensure that such cases receive extra resources and
heightened scrutiny. For example, SCR 250(6)(c) requires that the entire district court record
be sent to this court in every direct capital appeal, while in other appeals we require the
parties to omit unessential materials from the record and compile and submit an appendix.
78
We try to ensure that capital defendants and appellants receive competent representation by
requiring appointed counsel in capital cases to be qualified pursuant to criteria set forth in
SCR 250(2). The briefing schedule in capital cases is not rushed as well. SCR 250(6)(e) and
(7)(d) provide for a 60-day extension of time to file a brief in any capital appeal upon a
showing of good cause, and capital appellants routinely seek and receive such extensions. In
fact, in this case Evans sought and received an extension of 60 days to file his opening brief;
he later filed an untimely motion for an extension of time to file his reply brief, which we also
granted. In addition, this court permitted Evans to file an opening brief of 120 pages and a
reply brief of 54 pages, far in excess of the normal 30-page limit for briefs prescribed by
NRAP 28(g). All of this contradicts Evans's allegations.
Further, a recent law school graduate working as a law clerk in chambers could indeed
have prepared the initial memo dealing with Evans's direct appeal in 1996, but our review of
any case before us has never been limited to reading memos by our staff. A law clerk
responsible for analyzing any case receives guidance and scrutiny from the law clerk's justice
as well as from other justices and experienced attorneys on this court's central staff.
Moreover, for the past few years this court has assigned all capital cases for analysis and
recommendation to a team of central staff attorneys with experience and expertise in death
penalty jurisprudence. In any case before us, each justice of this court freely consults any and
all parts of the parties' briefs and the record, and we discuss cases directly with the staff
attorney or law clerk to whom a case is assigned. We also hear oral argument in nearly all, if
not all, direct appeals of capital convictions.
__________

77
State v. Dist. Ct., 116 Nev. 953, 963, 11 P.3d 1209, 1215 (2000); NRS 2.120; see also Nev. Const. art. 6,
6 (limiting the appellate jurisdiction of the district courts to cases arising in Justices Courts and such other
inferior tribunals).

78
See NRAP 10(b); NRAP 30.
117 Nev. 609, 643 (2001) Evans v. State
All these facts and considerations belie the charge that this court inadequately reviews
capital cases or devotes less time and fewer resources to them than to other criminal cases,
and in fact the opposite is true.
The instruction on deliberation and premeditation (and the limited holding in Lozada v.
State)
Evans's counsel argued at trial and on direct appeal that the jury instruction on
deliberation and premeditation was erroneous.
79
Nevertheless, Evans asserts that his counsel
did not fully and competently address the issue. He also asserts that this court erred in
deciding the issue on direct appeal and that this error constitutes good cause under Lozada v.
State
80
to raise the issue again in a habeas petition.
The jury in this case received the Kazalyn instruction on premeditation and
deliberation, which this court recently abandoned in Byford v. State.
81
Evans does not
explain how his counsel were deficient in challenging the jury instruction. Thus this claim
lacks specific allegations that if true would warrant relief.
[Headnote 70]
Evans simply argues that under Byford the use of the Kazalyn instruction was error
and that this court is wrong to refuse to apply Byford retroactively. We have held that with
convictions predating Byford, neither the use of the Kazalyn instruction nor the failure to give
instructions equivalent to those set forth in Byford provides grounds for relief.
82
Byford was
decided after Evans was convicted and therefore provides him no relief. Relying on Byford,
Evans also faults his counsel for failing to challenge the constitutionality of Nevada's death
penalty scheme as providing at the time of his trial no meaningful distinction between first-
and second-degree murder. This is simply the same issue in different clothing, and we reject
it.
Incidentally, we note that the proof here that the murders were deliberate and
premeditated was ample: the evidence shows that Evans and Powell planned to murder Scotti
and that after Evans arrived at the apartment he considered his actions and determined to kill
the other adult occupants as well.
[Headnotes 71, 72]
Evans also tries to extend our decision in Lozada inappropriately as authority to
circumvent the doctrine of the law of the case.
__________

79
See Evans, 112 Nev. at 1191-92 & n.22, 926 P.2d at 278 & n.22.

80
110 Nev. 349, 871 P.2d 944 (1994).

81
116 Nev. 215, 233-37, 994 P.2d 700, 712-14, cert. denied, 531 U.S. 1016 (2000).

82
Garner v. State, 116 Nev. 770, 789, 6 P.3d 1013, 1025 (2000), cert. denied, 532 U.S. 929 (2001).
117 Nev. 609, 644 (2001) Evans v. State
ately as authority to circumvent the doctrine of the law of the case. In his briefs, he repeatedly
argues that this court erred on direct appeal and therefore good cause exists under Lozada to
overcome habeas procedural bars. In Lozada, this court held that its own error in rejecting a
claim of ineffective assistance of counsel in an earlier habeas petition constitutes an external
force which excuses the filing of a successive petition.
83
However, this court recognized its
error not because it abandoned the doctrine of the law of the case and reconsidered its
decision at Lozada's urging. Rather, it did so because the federal courts, in considering
Lozada's federal habeas petition, ruled in his favor and contrary to this court's earlier decision.
84
Thus, Lozada is limited by its facts and does not provide a general license to question this
court's holdings: unless a federal court concludes that a determination by this court is
erroneous, Lozada is inapplicable, and the parties and district court should respect the law of
the case as pronounced by this court.
Other claims of ineffective assistance of counsel
After considering the following claims of ineffective assistance of counsel, we
conclude that they warrant no relief.
Evans claims that his trial counsel were deficient in failing to file numerous pretrial
motions. He provides no supporting argument, so the claims warrant no discussion.
85
He
also improperly relies in part on reference to his habeas petition.
86

Evans asserts that his trial counsel did not conduct adequate pretrial investigation and
were thus unprepared to cross-examine some witnesses or call others. His claims remain
vague, failing to include specific factual allegations that, if true, establish prejudice.
[Headnote 73]
Evans asserts that his counsel were ineffective under Morgan v. Illinois
87
in not
asking potential jurors whether they would always impose the death penalty on a defendant
convicted of first-degree murder. Here, unlike in Morgan, potential jurors filled out a
questionnaire asking that question, and the district court excused any who answered that they
would. Therefore, we conclude that Evans has not shown that he was prejudiced.
__________

83
110 Nev. at 357-58, 871 P.2d at 949.

84
Id. at 351-52, 871 P.2d at 945.

85
See Byford, 116 Nev. at 225, 994 P.2d at 707 (this court need not address issues unsupported by cogent
argument).

86
See NRAP 28(e) (a brief to this court cannot incorporate by reference briefs or memoranda filed in district
court).

87
504 U.S. 719 (1992).
117 Nev. 609, 645 (2001) Evans v. State
Evans complains that his counsel did not challenge a number of bench and
in-chambers conferences which were not recorded and took place without his presence. He
maintains that at these conferences the district court took substantive actions that violated his
constitutional rights. He goes so far as to claim that the district court refused to allow
portions of the trial to be recorded. He fails to substantiate this irresponsible claim in any
way. We remind the district courts and attorneys that capital proceedings should be fully
reported and transcribed.
88
But we conclude that Evans presents absolutely no basis for this
court to fear that a substantial or significant portion of the record was omitted or that he has
been prejudiced in any way. Evans argues that it is impossible for him to show that the
secret proceedings were prejudicial precisely because they were unrecorded. However, he
has done nothing to support his vague accusations of wrongdoing and prejudice with any
discussion of the record or a single affidavit.
[Headnote 74]
Evans asserts that his trial counsel were ineffective because they elicited testimony
that he was an ex-felon. It appears that counsel delved into this information based on tactical
decisions. Assuming the decisions were not reasonable, we conclude that the information was
not prejudicial.
89

[Headnote 75]
Evans claims that his counsel failed to challenge the prosecutor's endorsement of
witnesses and to prepare adequately for the examination of witnesses. The gist of this claim
seems to be that the prosecutor's endorsement of witnesses was excessive and untimely.
Evans does not specify how his counsel could have better cross-examined the State's
witnesses and thus fails to show prejudice.
[Headnote 76]
Evans contends that his counsel should have called expert witnesses: an expert on
urban social and cultural demography; an expert on law enforcement practices; and an expert
on the competency of Adriana Ventura to testify. Evans fails to allege specifically what these
experts could have done to make a different result reasonably probable.
Evans alleges that his counsel were ineffective because they failed to challenge the
validity of a wiretap and the admissibility of wiretap evidence. Assuming that this is not
simply a more detailed and precisely focused argument of an issue already decided by this
court in dismissing Evans's appeal from the denial of his motion for a new trial, his
argument still warrants no relief.
__________

88
See SCR 250(5)(a).

89
Cf. Brown v. State, 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998) (concluding that joinder of charges
that revealed that the defendant was an ex-felon did not have a substantial or injurious effect).
117 Nev. 609, 646 (2001) Evans v. State
decided by this court in dismissing Evans's appeal from the denial of his motion for a new
trial, his argument still warrants no relief. Wiretap evidence was not admitted at trial, and
Evans does not show that the prosecution's knowledge of the evidence prejudiced him.
Evans contends that his trial counsel did not properly investigate and prepare for the
penalty phase. He does not identify any fact they should have discovered or any specific
deficiency in the way they handled the penalty phase.
[Headnote 77]
Evans complains that his trial counsel failed to prepare Evans's mother and two sisters
for the penalty phase so that they could provide more mitigating evidence. Evans fails to
allege with any specificity what that evidence would have been.
Evans claims that his appellate counsel was ineffective in not challenging the district
court's refusal to allow individual voir dire of potential jurors. We conclude that this claim
has no merit. As authority Evans cites Hovey v. Superior Court,
90
but he fails to note that
this California Supreme Court decision has been abrogated by statute.
91

Evans contends that his counsel were ineffective in not arguing on several grounds
that Nevada's death penalty scheme is unconstitutional. On direct appeal this court
determined that the aggravators found against Evans were sound, and we reject his facial
challenge to the scheme.
Evans claims that his was the first capital case for both of his trial counsel and
therefore that neither was qualified under SCR 250 to act as first chair at the trial. This claim
deserves no consideration: Evans does not cite the record to support it, nor does he indicate
specifically how he was prejudiced.
Evans contends that his appellate counsel was ineffective because she failed to file a
reply brief on direct appeal to respond to errors in facts and arguments presented in the State's
answering brief. He does not identify any such errors and so fails to show any prejudice.
Waiver of an issue
[Headnote 78]
A court must dismiss a habeas petition if it presents claims that either were or could
have been presented in an earlier proceeding, unless the court finds both cause for failing to
present the claims earlier or for raising them again and actual prejudice to the petitioner.
__________

90
616 P.2d 1301 (Cal. 1980).

91
See Covarrubias v. Superior Court, 71 Cal. Rptr. 2d 91, 92, 94 (Ct. App. 1998).
117 Nev. 609, 647 (2001) Evans v. State
petitioner.
92
Claims of ineffective assistance of counsel are properly presented in a timely,
first post-conviction petition for a writ of habeas corpus. Because such a claim is generally
not appropriate for review on direct appeal, the failure to raise it on direct appeal does not
constitute a waiver of the claim for purposes of post-conviction proceedings.
93
However,
post-conviction habeas claims that are independent of ineffective assistance claims and that
could have been raised on direct appeal are waived.
94

[Headnote 79]
Although this is a post-conviction habeas proceeding, in his briefs to this court Evans
focuses directly on perceived errors at his trial and asserts ineffective assistance of counsel in
a pro forma, perfunctory way. Although these assertions are sometimes barely adequate to
state a claim of ineffective assistance, we have dealt with the above claims as such. His
opening brief also contains a section that asserts that trial counsel were ineffective for the
reasons set forth in the issues raised in the rest of the brief. This court will not accept such
conclusory, catchall attempts to assert ineffective assistance of counsel. If first-time
applicants for post-conviction habeas relief fail to argue specifically that their trial or
appellate counsel were ineffective in regard to an issue or to show good cause for failing to
raise the issue before, that issue will not be considered, pursuant to NRS 34.810.
[Headnote 80]
Evans claims that jury instruction number 24, on the possible guilt of other persons,
erroneously endorsed a conviction based on guilt by association. However, he alleges neither
ineffective assistance in this regard nor cause for failing to raise this claim at trial or on direct
appeal; therefore, it is procedurally barred. We conclude that it is also patently meritless.
Cumulative error
[Headnote 81]
The cumulative effect of multiple errors may violate a defendant's constitutional right
to a fair trial even though errors are harmless individually.
95
Evans argues that such an effect
exists here.
[Headnote 82]
Several of Evans's claims have some merit: the admission of the hearsay statement
which did not fall within the co-conspirator exception; evidence of some witnesses' fear;
evidence of prior consistent statements; mischaracterization of the reasonable doubt
standard; failure to impeach Joseph Salley with his criminal history; inadequate notice of
aiding and abetting.
__________

92
NRS 34.810.

93
Daniels, 100 Nev. at 580, 688 P.2d at 316.

94
See Kirksey, 112 Nev. at 998 n.10, 923 P.2d at 1114 n.10.

95
Byford, 116 Nev. at 241-42, 994 P.2d at 717.
117 Nev. 609, 648 (2001) Evans v. State
exception; evidence of some witnesses' fear; evidence of prior consistent statements;
mischaracterization of the reasonable doubt standard; failure to impeach Joseph Salley with
his criminal history; inadequate notice of aiding and abetting.
The question is: if counsel had effectively responded to these errors, was there a
reasonable probability that Evans would not have been convicted of first-degree murder? We
conclude that there is no such reasonable probability. Three witnessesShirannah Rice, Tina
Jackson, and Salleytestified that Evans made incriminating admissions about the murders.
Adriana saw the murderers and knew one of them as Little Ray or Uncle Ray, and
Ventura explained that Adriana referred to Evans this way. Finally, Evans's own letter to
Rice, asking her to change her testimony, provided objective evidence consistent with Evans's
guilt. Therefore, we conclude that the incriminating evidence was strong enough that the
errors do not undermine confidence in the trial's result.
CONCLUSION
We affirm the district court's order denying habeas relief insofar as it upholds Evans's
conviction. The failure of Evans's trial and appellate counsel to object to the prosecutor's
misstatement to jurors of how to employ evidence in the penalty phase constituted ineffective
assistance of counsel. We therefore reverse the district court's order in part and vacate Evans's
death sentence. We remand this case for a new penalty hearing consistent with this opinion.
Young, Shearing, Agosti and Rose, JJ., concur.
Maupin, C. J., with whom Leavitt, J., agrees, concurring in part and dissenting in part:
I would affirm the denial of Evans's petition for post-conviction relief in its entirety.
Claims of prosecutorial misconduct
A jury may consider three categories of evidence in determining whether the death
penalty is warranted: evidence relating to aggravating circumstances, mitigating
circumstances, and any other matter which the court deems relevant to sentence.'
1
The
jury may not consider the third or other category of evidence in support of the imposition of
the death penalty until it has determined death eligibility, i.e., after it has, at a minimum,
unanimously found the existence of at least one statutorily enumerated "aggravator."
__________

1
Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000) (quoting NRS 175.552(3)).
117 Nev. 609, 649 (2001) Evans v. State
aggravator. As the majority notes, the other evidence may always be considered in a
determination of the three non-death penalty sentencing options. The other available penalties
include life imprisonment without the possibility of parole, life imprisonment with the
possibility of parole, and a fixed term of fifty years imprisonment with parole eligibility after
twenty years.
The defense attempted to address the other evidence against Evans, including
evidence that he had been involved in cocaine trafficking and had been convicted of leaving
the scene of a car accident:
It [the other evidence] is evidence of other bad conduct on Vernell's part, and it
cannot be considered by you at all, discussed, or even thought about at all until you
decide whether the State has proven beyond a reasonable doubt that an aggravating
circumstance exists as to each of the personsas to each of the victims. You can't even
talk about the fact that he pled guilty to this. But if you find that there's an aggravating
circumstance, then and only then can this conduct be any influence on your sentencing
determination.
In apparent response, the prosecutor made the following statement during his penalty phase
closing argument:
[Defense counsel] argues that you can't consider or discuss that evidence unless you
find that aggravating circumstances had been proven beyond a reasonable doubt. And it
may be a semantical thing again, but regardless of the punishment you select, it doesn't
seem inappropriate to have all the information you can get about the character of a
defendant. I just take issue with the remark that you have to wait until a certain point in
the deliberation to consider that someone has two prior felony convictions, and that he
made his living by selling poison. It seems to me regardless of the punishment that
ought to be a factor, as reasonable men and women, that you can consider.
(Emphasis added.) The majority concludes that this argument erroneously distorts the nature
of a death penalty jury's obligations regarding the consideration of other evidence.
According to the State, its argument was not made with regard to the jury's obligation to
resolve the existence of statutory aggravating circumstances, i.e., death eligibility, before
moving on to other evidence supporting the death penalty. Rather, the State contends the
argument was designed to correct an implication in the above-quoted argument by the defense
that the jury could never consider such evidence, even on the question of the other available
sentences, unless the jury unanimously found the existence of an aggravating circumstance.
117 Nev. 609, 650 (2001) Evans v. State
It is evident that the defense argument was intended to re-assert the principle that the
jury could not consider this other information in support of the death penalty until death
eligibility had been determined. However, the defense argument did improperly imply that
matters beyond the statutory aggravators could not be relied upon by the jury in determining
the other potential sentencing alternatives in the absence of an aggravating circumstance.
Thus, it was appropriate for the prosecution to correct the misstatement. This
notwithstanding, the argument of which Evans complains does, by its terms, seemingly relate
to the obligation of the jury to first determine death eligibility before considering other
matters with regard to that particular sentence.
It is evident that the above-quoted arguments made on behalf of both sides contained
erroneous general statements about mutually exclusive concepts in the sentencing process.
However, prior to the prosecutor's statement, the trial judge, the prosecutor himself and
defense counsel correctly and repeatedly admonished the jury as to its role and the structure
for its determination of penalty.
First, the prospective jurors were oriented during voir dire examination to the rules
governing its deliberations over the death penalty. Second, the jury was correctly instructed
on the issue:
The jury may impose a sentence of death only if it finds at least one aggravating
circumstance has been established beyond a reasonable doubt and further finds that
there are no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.
. . . .
You must first determine unanimously whether or not the state has proved beyond a
reasonable doubt that an aggravating circumstance or circumstances exist in this case. .
. .
If you find that an aggravating circumstance or circumstances exist, you must then
weigh any mitigating factor or factors, which any juror believes has been shown against
the aggravating circumstance or circumstances. If you find that the mitigating
circumstances outweigh the aggravating circumstances, you are not permitted to
consider imposing the death penalty and you must then determine whether the
defendant should be sentenced to life imprisonment . . . .
If you find that the mitigating factors do not outweigh the aggravating circumstances,
then and only then may you consider imposing the death penalty.
Third, defense counsel, during her penalty phase final argument, stressed and read the
above-quoted language. Fourth, prior to the arguably improper argument, counsel for the
State also quoted and stressed the same instruction.
The prosecutor's statement was made in passing, related to a separate defense
argument regarding other penalties, and did not unequivocally address the requirements
for imposition of the death penalty.
117 Nev. 609, 651 (2001) Evans v. State
separate defense argument regarding other penalties, and did not unequivocally address the
requirements for imposition of the death penalty. Thus, in my view, the statement did not
change the outcome. It should be remembered that, in addition to a very carefully conducted
trial, Evans confessed to the murder and his motivations, and a young but competent
eyewitness described the literal execution of the victims. Thus, I would not remand this
matter for a new penalty hearing.
2

___________
117 Nev. 651, 651 (2001) State v. Weddell
THE STATE OF NEVADA, Appellant, v. ROLLAND P. WEDDELL, Respondent.
No. 34832
July 25, 2001 27 P.3d 450
Appeal from a district court order granting the respondent's pre-trial 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 pre-trial motion to dismiss the criminal
information. State appealed. The supreme court, Agosti, J., held that, as a matter of first
impression, in securing or attempting a citizen's arrest, a private person may only use the
amount of force that is reasonable and necessary under the circumstances.
Rehearing denied; en banc reconsideration granted; reversed and remanded. 118
Nev.
----
, 43 P.3d 987 (2002).
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, for Respondent.
1. Arrest.
At common law, the fleeing felon rule permitted a private person to use deadly force to apprehend a felon. The use of deadly
force was permitted to prevent the commission of a felony or to arrest someone who had committed one.
2. Statutes.
When a statute is repealed, the court presumes that the legislature intended a substantial change in the law.
__________

2
I agree that the majority's suggested instruction on the use of other evidence should serve as a guide in
future death penalty litigation.
3. Statutes.
The court presumes that the legislature was aware of existing statutes when it enacted a new statute.
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; NRS 200.160(3) (repealed).
5. Arrest.
In securing or attempting a citizen's arrest, a private person may only use the amount of force that is reasonable and necessary
under the circumstances. NRS 171.126.
6. Arrest.
The use of deadly force is, as a matter of law, unreasonable when a private arrestor makes a citizen's arrest, unless the arrestee
poses a threat of serious bodily injury to the private arrestor or others. NRS 171.126.
7. Arrest.
The State bears the burden to prove that the use of deadly force by a private arrestor making a citizen's arrest was not reasonable
and necessary. NRS 171.126.
OPINION
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.
1
Respondent Rolland P. 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.
2

__________

1
NRS 171.126 sets out the circumstances under which private persons may arrest individuals.

2
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;
NRS 171.1455 limits the use of deadly force by police officers when making or attempting a
felony arrest.
3
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.
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.
__________
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.

3
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.
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. After a disputed verbal exchange, Bustamonte
turned and ran and Weddell shot at him several times.
4

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.
5

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.
__________

4
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.

5
A district court's order dismissing a criminal information is appealable to this court. NRS 177.015(1)(b).
mined 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, 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.
[Headnote 1]
At common law, the fleeing felon rule permitted a private person to use deadly force
to apprehend a felon.
6
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.
7
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.'
8

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.
9
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.
10
A person who steals $255 worth of bedding from a hotel is guilty of a felony.
11
A person who buys $250 worth of food stamps from someone when not authorized to do so
is guilty of a felony.
__________

6
Tennessee v. Garner, 471 U.S. 1, 12 (1985).

7
Id. at 13.

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

9
Id. at 14.

10
NRS 293.5045.

11
See NRS 205.220; NRS 205.222; NRS 193.130.
someone when not authorized to do so is guilty of a felony.
12
These felons, like many others,
will not receive the death penalty.
13
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,
was to prevent the escape of a felon by inflicting the punishment that was inevitably to come.
14

In 1931, Nevada codified the common law fleeing felon rule by amending the
justifiable homicide statute, which is currently codified as NRS 200.160.
15
In 1993, the
legislature repealed Nevada's codification of the fleeing felon rule when it passed A.B. 209.
16
In that same bill, the legislature enacted NRS 171.1455, which limits an officer's use of
deadly force upon a fleeing suspect.
17
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.
18

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.
19

__________

12
NRS 207.340.

13
NRS 193.130.

14
Garner, 471 U.S. at 14.

15
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.

16
1993 Nev. Stat., ch. 329, 4, at 932.

17
Id. 1, at 931.

18
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).

19
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,
[Headnotes 24]
We resolve this dispute by addressing the effect of the legislature's repeal of its earlier
codification of the fleeing felon rule.
20
When a statute is repealed, we presume that the
legislature intended a substantial change in the law.
21
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.
22
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.
23
While we recognize that
some jurisdictions allow the use of deadly force when necessary to prevent the escape of a
fleeing felon,
24
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).
__________
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.

20
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).

21
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)).

22
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)).

23
See, e.g., Ga. Code. Ann. 17-4-60 (1997); Mich. Comp. Laws 764.16 (2000).

24
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
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,
25
the Georgia Court of Appeals determined 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,
26
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.
27

[Headnotes 57]
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.
28

CONCLUSION
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.
__________
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).

25
456 S.E.2d 664 (Ga. Ct. App. 1995).

26
954 P.2d 79 (N.M. Ct. App. 1997).

27
Id. at 86 (quoting NMSA 1978, 30-2-7(C) (1963)).

28
See Barone v. State, 109 Nev. 778, 858 P.2d 27 (1993).
tory 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.
Shearing and Rose, JJ., concur.
____________
117 Nev. 659, 659 (2001) Moore v. State
RYAN OSHUN MOORE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34939
July 25, 2001 27 P.3d 447
Appeal from a judgment of conviction, following a jury trial, of first-degree murder
with the use of a deadly weapon, robbery with the use of a firearm, and conspiracy to commit
robbery with the use of a firearm. 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
with use of deadly weapon, robbery with use of firearm, and conspiracy to commit robbery
with use of firearm. Defendant appealed. The supreme court held that the deadly weapon
sentencing enhancement cannot apply to a conviction for conspiracy.
Reversed in part and remanded.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.
Attorney, and Terrence P. McCarthy and Gary H. Hatlestad, Deputy District Attorneys,
Washoe County, for Respondent.
1. Criminal Law.
Statutory construction is a question of law that the appellate court reviews independently.
2. Statutes.
In construing a statute, the court's primary goal is to ascertain the legislature's intent in enacting it.
3. Statutes.
The court presumes that the statute's language reflects the legislature's intent.
117 Nev. 659, 660 (2001) Moore v. State
4. Statutes.
The court first looks to the plain language of the statute to decipher the statute's meaning.
5. Statutes.
Where the language of the statute cannot directly resolve the statutory interpretation issue standing alone, the court considers the
context and spirit of the statute in question, together with the subject matter and policy involved.
6. Statutes.
Ambiguities in criminal liability statutes must be liberally construed in favor of the accused.
7. Criminal Law.
Conspiracy is a continuing offense.
8. Conspiracy.
Conspiracy does not require an overt act; thus, the crime of conspiracy is completed when the unlawful agreement is reached.
NRS 199.490.
Because an unlawful agreement is the essence of the crime of conspiracy, and because conspiracy is committed upon reaching
the unlawful agreement, a defendant cannot use a deadly weapon to commit the crime of conspiracy, for purposes of the deadly
weapon sentencing enhancement for any person who uses a firearm or other deadly weapon . . . in the commission of a crime. NRS
193.165(1).
OPINION
Per Curiam:
To resolve this appeal, we must decide whether a sentence for the crime of conspiracy
may be enhanced under NRS 193.165(1), the deadly weapon enhancement. We conclude that
the district court erred by enhancing Moore's sentence because Moore did not use a deadly
weapon to commit the crime of conspiracy as NRS 193.165(1) contemplates.
FACTS
In February of 1998, Ryan Oshun Moore conspired with three others to rob the
occupants of an apartment at gunpoint. While carrying out the armed robbery, one of the
conspirators shot and killed a man who the conspirators believed was delivering drugs to the
apartment. Tragically, the visitor was simply delivering food.
A jury found Moore guilty of (1) first-degree murder with the use of a deadly weapon,
(2) robbery with the use of a firearm, and (3) conspiracy to commit robbery with the use of a
firearm. The court sentenced Moore to life in prison with the possibility of parole after twenty
years for murder, 72 to 180 months for robbery, and 2S to 72 months for conspiracy, with
the sentences for each charge to be served concurrently.
117 Nev. 659, 661 (2001) Moore v. State
bery, and 28 to 72 months for conspiracy, with the sentences for each charge to be served
concurrently. For using a deadly weapon to commit the crimes charged, the district court
enhanced Moore's sentence to equal, consecutive terms for each of the three crimes, including
conspiracy. Thus Moore, who was a juvenile at the time these crimes were committed, will
spend at least forty years in prison.
Moore now appeals.
DISCUSSION
On appeal Moore contends, among other things, that the district court erred by
applying the deadly weapon enhancement provided for in NRS 193.165(1) to his conspiracy
conviction.
NRS 193.165(1) permits the sentencing judge to impose an equal, consecutive
sentence if the defendant used a deadly weapon to commit the primary offense:
[A]ny person who uses a firearm or other deadly weapon . . . in the commission of a
crime shall 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.
1

The operative word for this appeal is uses. Moore specifically contends that the
sentence enhancement was improper because he could not have used a weapon to commit
the crime of conspiracy as the legislature intended us to read the term. The State concedes
that it is quite unusual for a conspiracy charge to be enhanced, but offers a broad construction
of uses to contend that the enhancement was proper.
[Headnotes 16]
The parties call upon this court to construe the language of NRS 193.165(1). Statutory
construction is a question of law that we review independently.
2
In construing a statute, our
primary goal is to ascertain the legislature's intent in enacting it, and we presume that the
statute's language reflects the legislature's intent.
3
Thus, we first look to the plain language
of the statute to decipher the statute's meaning.
4
But where the language of the statute cannot
directly resolve the issue standing alone, we consider "the context and spirit of the statute
in question, together with the subject matter and policy involved.
__________

1
NRS 193.165(1) (emphasis added).

2
See Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997).

3
See id.

4
See id.
117 Nev. 659, 662 (2001) Moore v. State
sider the context and spirit of the statute in question, together with the subject matter and
policy involved.
5
In addition, ambiguities in criminal liability statutes must be liberally
construed in favor of the accused.
6

[Headnote 7]
The verb use connotes to put into action or service and to carry out a purpose or
action by means of.
7
In this sense, whether a criminal can put a deadly weapon into
action to commit the crime of conspiracy depends on how we view conspiracy. The State
argues that because conspiracy is a continuing offense under Nevada law,
8
a conspiracy
sentence can be enhanced when a deadly weapon is used at any time during the continuation
of the conspiracy.
The California Court of Appeal's decision in People v. Becker supports the State's
view.
9
The Becker court concluded that California's arming enhancement applied to the
crime of conspiracy, reasoning that [s]o long as the defendant has a weapon available for use
at any point during the course of a continuing offense, his sentence may be enhanced for
being armed.
10

But Becker does not persuade us. First, the language of California's arming
enhancement is different; it applies to any person who is armed with a firearm in the
commission . . . of a felony.
11
Second and more importantly, California requires an overt
act to complete the crime of conspiracy.
12
Thus in California, the firearm can be used during
the overt act, the vital part of the conspiracy under California law.
[Headnote 8]
In contrast to California, Nevada does not require an overt act.
13
Thus, the crime of
conspiracy is completed when the unlawful agreement is reached.
[Headnote 9]
The law in New Mexico is the same as in Nevada, and on this basis the New Mexico
Court of Appeals concluded in State v. Padilla that an "agreement is the gist of the crime
of conspiracy," and therefore the "crime of conspiracy is not susceptible to a firearm
enhancement.
__________

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

6
See Sessions v. State, 106 Nev. 186, 189, 789 P.2d 1242, 1243 (1990).

7
Merriam Webster Online Collegiate Dictionary at http://www.m-w.com/cgi-bin/dictionary?use (last visited
May 29, 2001).

8
See State v. Wilcox, 105 Nev. 434, 435, 776 P.2d 549 (1989).

9
83 Cal. App. 4th 294, 298 (2000).

10
See id. at 298.

11
California Penal Code 12022(a)(1) (emphasis added).

12
See Becker, 83 Cal. App. 4th at 297.

13
See NRS 199.490 (In any such proceeding for violation of NRS 199.480, it shall not be necessary to
prove that any overt act was done in pursuance of such unlawful conspiracy or combination.).
117 Nev. 659, 663 (2001) Moore v. State
basis the New Mexico Court of Appeals concluded in State v. Padilla that an agreement is
the gist of the crime of conspiracy, and therefore the crime of conspiracy is not susceptible
to a firearm enhancement.
14
The Padilla court's reasoning persuades us. Because an
unlawful agreement is the essence of the crime of conspiracy and because in Nevada
conspiracy is committed upon reaching the unlawful agreement, we conclude that Moore
could not use a deadly weapon to commit the crime of conspiracy for purposes of the
deadly weapon enhancement.
The State next urges us to recognize that there may be unusual circumstances in which
deadly weapons may be used to conspire. For instance, in this case, the State speculates that
the presence of the guns facilitated the reaching of an agreement to commit the crime because
Moore and Morris amassed sufficient firepower to induce the other two men to enter the
conspiracy. In other words, the State argues that the deadly weapon enhancement is proper if
the conspirators would not have joined the conspiracy but for the availability of the weapons.
We reject this strained argument and again agree with the Padilla court's reasoning on this
pointconspiracy is an initiatory crime which involves no physical act other than
communication, [and thus] it is not conceivable to us how a firearm could be used in the
commission of that offense.
15

Following the plain import of the term uses in NRS 193.165(1), we conclude that it
is improper to enhance a sentence for conspiracy using the deadly weapon enhancement.
Accordingly, we reverse Moore's sentence in part and remand this case to the district court
with instructions to vacate the second, consecutive term of Moore's sentence for conspiracy.
We affirm Moore's conviction and sentence in all other respects.
16

__________

14
State v. Padilla, 879 P.2d 1208, 1212 (N.M. Ct. App. 1994).

15
See id.

16
Moore's other contentions lack merit. First, we have reviewed the record and, in light of the totality of
circumstances, conclude that Moore's confession was voluntary and admissible. See Elvik v. State, 114 Nev. 883,
891-92, 965 P.2d 281, 286-87 (1998) (setting forth the considerations relevant to review of the district court's
conclusions regarding the voluntariness of a juvenile's confession). Second, the district court did not commit
reversible error in giving a Kazalyn instruction. See Garner v. State, 116 Nev. 770, 788-89, 6 P.3d 1013, 1025
(2000) (concluding that our holding in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), does not apply
retroactively).
____________
117 Nev. 664, 664 (2001) Villanueva v. State
MAYNOR DAVID VILLANUEVA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36348
July 25, 2001 27 P.3d 443
Appeal from a judgment of conviction, pursuant to a guilty plea, of attempted murder
with the use of a deadly weapon on school property. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
Defendant pleaded guilty in the district court to attempted murder with the use of a
deadly weapon on school property. Defendant appealed. The supreme court held that: (1)
on-school-property alternative, allowing a court to sentence a defendant to longer than
usual terms of imprisonment if the crimes occurred on school property, is not void for
vagueness; (2) the sentencing alternative is not an unconstitutional delegation of legislative
power; and (3) the sentencing alternative does not conflict with statute generally setting
punishments for attempted crimes.
Affirmed.
Robert M. Draskovich, Chtd., Las Vegas, for Appellant.
Respondent.
On-school-property alternative, allowing a court to sentence a defendant to longer than usual terms of imprisonment if the
crimes occurred on school property, is not void for vagueness and therefore does not violate due process, though the statute provides
the court may impose an alternative sentence and does not specify whether the fact finder or the judge should apply the sentence. The
consequences for committing a felony on school property, although various alternatives are given, are clearly stated. U.S. Const.
amend. 14; NRS 193.161(2).
In order to survive a void-for-vagueness due process challenge, sentencing provisions need only state with sufficient clarity the
consequences of violating a given criminal statute. U.S. Const. amend. 14.
The on-school-property alternative, allowing a court to sentence a defendant to longer than usual terms of imprisonment if the
crimes occurred on school property, is not a constitutionally impermissible delegation, to the judiciary, of the legislature's authority to
define crimes and affix penalties. NRS 193.161(2).
It is the legislature's function to set penalties, a function the supreme court will not invade absent constitutional problems.
5. Criminal Law.
The supreme court generally defers to the sentence imposed by the district court.
Statutory on-school-property alternative, allowing a court to sentence a defendant to longer than usual terms of imprisonment
if the crimes occurred on school property, does not conflict, with respect to inchoate crimes, with the statute setting forth the
mandatory punishment for attempted crimes unless a different penalty is prescribed by statute, though alternative sentences under the
on-school-property alternative are discretionary. NRS 193.161(2), 193.330.
7. Statutes.
When construing statutes, the court generally presumes that the plain meaning of the words reflects the legislature's intent,
unless that reading violates the spirit of the act or leads to an absurd result.
Prescribed, within meaning of statute setting forth mandatory punishment for attempted crimes unless a different penalty is
prescribed by statute, is not limited to mandatory or mandated penalties. It also includes penalties that are directed, defined, or marked
out by statute. NRS 193.330.
9. Statutes.
The rule of lenity, which requires that any ambiguity concerning the ambit of criminal statutes be resolved in favor of the
defendant, does not apply where statutory language is unequivocal and there is no ambiguity to resolve.
OPINION
Per Curiam:
Maynor David Villanueva, a gang member, shot and injured two high school students,
members of a rival gang, on the grounds of Clark High School. In consequence, the district
judge sentenced Villanueva to life imprisonment with the possibility of parole after twenty
years under NRS 193.161(2), the on-school-property alternative.
Villanueva challenges his sentence on three grounds, contending that NRS 193.161(2)
is (1) void for vagueness; (2) an unconstitutional delegation of the legislature's duty to define
crimes and affix punishments; or (3) inconsistent with NRS 193.330. We reject these
contentions and affirm Villanueva's conviction.
FACTS
Villanueva is a member of a street gang. On October 11, 1999, while visiting an
apartment across the street from Clark High School, he noticed Cesar Berber and Antonio
Arroyo, students on the high school grounds who were members of a rival gang.
Villanueva entered the school property and approached Berber and Arroyo. After an
exchange of tough words, Villanueva brandished a .357 revolver and fired six rounds at the
two boys. One bullet struck Berber in his upper right arm, shattering the bone. Another bullet
struck Arroyo in his left arm and passed completely through the flesh.
At the time of the shooting, there were approximately twenty to forty other students in
the vicinity.
After shooting the victims, Villanueva ran back to the apartment. From there, he and a
co-offender attempted to escape in a stolen car, but they abandoned the car upon colliding
with another vehicle. Villanueva then fled to a nearby apartment complex. There he robbed a
ten-year-old child of his bicycle at knife-point. He then continued his flight on bicycle.
Officers of the Las Vegas Metropolitan Police Department arrested Villanueva shortly
thereafter.
Following a preliminary hearing held on November 15, 1999, Villanueva was charged
with various enhanced counts, including attempted murder, battery, robbery, and possession
of a stolen vehicle. Some of the counts were brought under NRS 193.161(2), the
on-school-property alternative, which allowed the court to sentence Villanueva to longer
than usual terms of imprisonment because the crimes occurred on school property. Villanueva
pleaded not guilty.
Villanueva petitioned the court for a writ of habeas corpus and filed a motion to
strike. He sought to strike the charges against him arguing that NRS 193.161(2) is
unconstitutionally vague. The district court denied the petition and motion.
On March 13, 2000, the date set for trial, Villanueva negotiated a plea bargain,
wherein he agreed to plead guilty to attempted murder with use of a deadly weapon on school
property. But he retained the right to appeal solely from the district court's denial of his
motion to strike the alternative sentence provided by NRS 193.161(2).
DISCUSSION
I. NRS 193.161(2), the on-school-property alternative, is constitutional
In essence, NRS 193.161(2), the statute Villanueva challenges, allows the district
court to impose an alternative sentence for felonies committed on school property that cause
death or substantial bodily harm:
2. Unless a greater penalty is provided by specific statute . . . in lieu of an additional
term of imprisonment as provided pursuant to subsection 1, if a felony that resulted in
death or substantial bodily harm to the victim was committed on the property of a
public or private school when pupils or employees of the school were present or
may have been present, . . . and the person who committed the felony intended to
create a great risk of death or substantial bodily harm to more than one person by
means of a weapon, device or course of action that would normally be hazardous to
the lives of more than one person, the felony may be deemed a category A felony
and the person who committed the felony may be punished by imprisonment in the
state prison:
death or substantial bodily harm to the victim was committed on the property of a
public or private school when pupils or employees of the school were present or may
have been present, . . . and the person who committed the felony intended to create a
great risk of death or substantial bodily harm to more than one person by means of a
weapon, device or course of action that would normally be hazardous to the lives of
more than one person, the felony may be deemed a category A felony and the person
who committed the felony may be punished by imprisonment in the state prison:
(a) For life without the possibility of parole;
(b) For life with the possibility of parole, with eligibility for parole beginning when a
minimum of 20 years has been served; or
(c) For a definite term of 50 years, with eligibility for parole beginning when a
minimum of 20 years has been served.
(Emphasis added.)
It should first be noted that NRS 193.161(2) is a sentencing alternative, not a
sentencing enhancement. When an enhancement is applied, it increases the penalty for the
underlying offense. In contrast, the on-school-property alternative does not augment the
penalty for the underlying offense, but replaces it.
1

[Headnote 1]
In his void-for-vagueness argument, Villanueva challenges the sentencing provisions
of NRS 193.161(2), arguing that the statutory language may is unconstitutionally vague and
ambiguous because in using the word may, the legislature failed to give any direction to the
fact finder or the court as to how to interpret and apply the sentencing provisions.
Addressing Villanueva's concern, we first note that there is nothing inherently
ambiguous about the word may. The permissive term simply gives the sentencing court
discretion in applying NRS 193.161(2) and in choosing from the various sentences stated
therein.
[Headnote 2]
In order to survive a void-for-vagueness challenge, sentencing provisions need only
state with sufficient clarity the consequences of violating a given criminal statute.
2
The
consequences for committing a felony on school property, although various alternatives are
given, are clearly stated in NRS 193.161(2)(a)-{c).
__________

1
See NRS 193.161(3) (noting that [s]ubsection 2 does not create a separate offense but provides an
alternative penalty for the primary offense).

2
United States v. Batchelder, 442 U.S. 114, 123 (1979) (citing United States v. Evans, 333 U.S. 483 (1948)).
(c). Thus, we conclude that NRS 193.161(2) is not unconstitutionally vague.
3

[Headnote 3]
In his constitutional challenge, Villanueva also contends that the legislature has
impermissibly delegated its authority to define crimes and affix penalties to the judiciary by
allowing the sentencing court broad discretion without providing guidelines for choosing
from the various sentencing alternatives.
Primarily in two contexts, we have stated the principle that the legislature holds the
power to define crimes and affix penalties and that it may not delegate its power: (1)
challenges to sentences as cruel and unusual punishments; and (2) challenges to the authority
delegated to administrative agencies.
[Headnote 4]
Regarding the first, we have generally upheld sentences against constitutional
challenges so long as the sentence imposed is within the limits of a valid statute.
4
In so
doing, we have reminded appellants that it is the legislature's function to set penalties, a
function we will not invade absent constitutional problems.
5

In other cases, we have cited the principle as a limit on the authority of administrative
agencies.
6
We have held that the legislature may delegate the power to determine the facts
or state of things upon which the law makes its own operations depend, but the legislature
may not delegate its power to legislate.
7
At no time, however, have we construed this
principle as limiting the quantum of discretionary authority that the legislature can delegate to
the judiciary for sentencing.
[Headnote 5]
Here, Villanueva does not contend that his sentence is cruel and unusual, nor does he
challenge the decision of an administrative agency. Quite to the contrary, he challenges the
legislature's grant of discretionary authority to the courts. We reject this challenge. First, the
judiciary has long enjoyed discretion in sentencing within a wide range of possible
sentences fixed by the legislature.
__________

3
Villanueva also argues that NRS 193.161(2) is unconstitutionally vague because it fails to provide whether
the fact finder or the judge should apply the sentence. Villanueva offers no authority to support this particular
contention. See State, Dept. of Transp. v. Barsy, 113 Nev. 712, 719, 941 P.2d 971, 976 (1997) (This court need
not consider assignments of error that are not supported by relevant legal authority.). In any event, the
contention is groundless.

4
See, e.g., Glegola v. State, 110 Nev. 344, 349, 871 P.2d 950, 953 (1994).

5
See id. at 348, 871 P.2d at 953.

6
See, e.g., Sheriff v. Luqman, 101 Nev. 149, 153, 697 P.2d 107, 110 (1985).

7
Id.
within a wide range of possible sentences fixed by the legislature.
8
This is because a court is
well suited to administer justice in sentencing by virtue of its role as an interpreter of laws
and as a fact finder intimately familiar with the particular nuances of the case before it.
9
Furthermore, constitutional checks such as the guarantees of due process and equal
protection, and the prohibition against cruel and unusual punishment provide adequate
parameters to the district courts' exercise of discretion. For these reasons, this court generally
defers to the sentence imposed by the district court.
10
Finally, we note that the United States
Supreme Court has acknowledged the validity of legislatures creating a single statute
authorizing various alternative punishments.
11

II. NRS 193.161(2) is not inconsistent with NRS 193.330
[Headnote 6]
Villanueva alternatively contends that NRS 193.161(2) does not apply to inchoate
crimes, such as attempted offenses, because another sentencing statute, NRS 193.330,
governs the sentencing of attempted offenses.
[Headnote 7]
In so arguing, Villanueva calls upon this court to construe the meaning of NRS
193.330. When construing statutes, we generally presume that the plain meaning of the words
reflects the legislature's intent, unless that reading violates the spirit of the act or leads to an
absurd result.
12

NRS 193.330 sets forth the mandatory punishment for attempted crimes, such as the
attempted murder in this case, but it only operates in the absence of some other statute
prescribing a different penalty:
__________

8
See Mistretta v. United States, 488 U.S. 361, 364 (1989) (citing United States v. Grayson, 438 U.S. 41,
45-46 (1978)).

9
See Randell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993) ( [J]udges spend much of their
professional lives separating the wheat from the chaff and have extensive experience in sentencing, along with
the legal training necessary to determine an appropriate sentence.' (quoting People v. Mockel, 276 Cal. Rptr.
559, 563 (1990))).

10
See Glegola, 110 Nev. at 349, 871 P.2d at 953.

11
See Batchelder, 442 U.S. at 123.
The cases Villanueva relies on do not support his contention. In United States v. Evans, 333 U.S. at 483, the
legislature failed to specify a penalty to a particular crime, likely by inadvertence, and the Court refused to use
statutory construction tools to fill in the gaps. In Giaccio v. Pennsylvania, 382 U.S. 399 (1966), the Court
addressed a vaguely defined crime. Neither case addresses the issue of whether the legislature violates the
separation of powers doctrine when it provides a range of possible sentences without guidelines for applying the
sentence.

12
See Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997); Hunt v. Warden, 111
Nev. 1284, 1285, 903 P.2d 826, 827 (1995).
it only operates in the absence of some other statute prescribing a different penalty:
1. An act done with the intent to commit a crime, and tending but failing to
accomplish it, is an attempt to commit that crime. A person who attempts to commit a
crime, unless a different penalty is prescribed by statute, shall be punished as follows:
(Emphasis added.)
[Headnote 8]
Villanueva concedes that NRS 193.330 defers to other sentencing statutes, but he
argues that another sentencing statute should only be applied when the alternate sentence is
prescribed. Villanueva argues that prescribed is synonymous with mandated. The crux
of his argument is that because the legislature used the term may in drafting NRS
193.161(2), the sentences therein are not mandatory, and therefore NRS 193.161(2) cannot
be used as an alternative to NRS 193.330 because NRS 193.161(2) does not prescribe
another sentence. Accordingly, Villanueva contends that he should have been given a lesser
sentence under NRS 193.330.
[Headnote 9]
The word prescribed as used in NRS 193.330 is not as narrow as Villanueva
contends. The scope of the definition is not limited to mandated. Black's Law Dictionary
1183 (6th ed. 1990) defines prescribe: To direct; define; mark out. Applying this
definition to the situation at hand, we conclude that NRS 193.161(2) clearly directs, defines,
or marks out a different penalty. Thus, the district court properly applied the
on-school-property alternative in place of NRS 193.330.
13

CONCLUSION
In conclusion, the sentencing provisions of NRS 193.161(2), the on-school-property
alternative, are not unconstitutionally vague because they clearly set forth the consequences
of the crimes defined. Furthermore, the sentencing scheme is not an unconstitutional
delegation of legislative authority because the legislature may grant the courts discretion
to sentence according to a range of sentences.
__________

13
Villanueva also argues that the rule of lenity, which requires that any ambiguity concerning the ambit of
criminal statutes be resolved in favor of the defendant, compels his interpretation of NRS 193.330. See Shrader
v. State, 101 Nev. 499, 505-06, 706 P.2d 834, 838 (1985). But the rule of lenity does not apply where statutory
language is unequivocal and there is no ambiguity to resolve. See Batchelder, 442 U.S. at 121-22. We also reject
Villanueva's argument that the maxim expressio unios est exclusion alterius, the expression of one thing
excludes others, turns the outcome in his favor.
unconstitutional delegation of legislative authority because the legislature may grant the
courts discretion to sentence according to a range of sentences. Finally, the district court was
not required to sentence Villanueva under NRS 193.330 because the on-school-property
alternative prescribed a different penalty. Accordingly, we affirm the judgment of the
district court.
____________
117 Nev. 671, 671 (2001) Diamond v. Swick
RENEE DIAMOND, Administrator of the Nevada Manufactured Housing Division,
Appellant, v. ROBERT L. SWICK, STELLA L. SWICK, MARVIN J. WEISBERG,
and SILVER STATE MOBILE HOMES, INC., Respondents.
No. 35150
August 17, 2001 28 P.3d 1087
Appeal from a district court order denying judicial review and affirming an
administrative determination that respondents did not violate NRS 489.401(7) by submitting
financing documents listing dealer rebates as cash down payments to lenders who knew and
approved of the practice. Eighth Judicial District Court, Clark County; Michael A. Cherry,
Judge.
Manufactured Housing Division filed complaint against manufactured home dealers
seeking to revoke their licenses. After hearing officer found for dealers, Division appealed.
The district court affirmed hearing officer, and Division appealed. The supreme court held
that: (1) statute prohibiting falsification of credit application did not require proof of either
fraudulent intent or detrimental reliance, and (2) statute also applied to lenders who were
aware of applications' falsity.
Affirmed in part, reversed in part and remanded with instructions.
Frankie Sue Del Papa, Attorney General, and Brian T. Kunzi, Deputy Attorney
General, Carson City, for Appellant.
Roger P. Croteau & Associates, Ltd., Las Vegas, for Respondents.
1. Licenses.
Statute prohibiting falsification of credit application did not require proof of either fraudulent intent or detrimental reliance, and
thus manufactured home dealers who represented dealer rebates as actual cash down payments on credit applications were subject to
disciplinary action, even though lenders know that applications contained false information. NRS 489.401(7).
Independent appellate review of an agency decision, rather than a more deferential standard of review, is appropriate when the
agency's decision rests on questions of law, such as statutory construction.
The construction of a statute is a question of law subject to review de novo.
4. Statutes.
In construing a statute, the supreme court gives effect to the literal meaning of its words.
5. Statutes.
Other words or phrases used in the statute or separate subsections of the statute can be reviewed to determine the meaning and
purpose of the statute.
6. Licenses.
Statute prohibiting manufactured home dealers from falsifying information on credit applications applied to lenders who were
aware of applications' falsity, and thus manufactured home dealers who represented dealer rebates as actual cash down payments on
credit applications were subject to disciplinary action, as purpose of statute was to protect integrity of entire mobile and manufactured
home lending system by facilitating trustworthiness, full disclosure of accurate information, and fair dealing between dealers and all
financing entities. NRS 489.401(7).
OPINION
Per Curiam:
This appeal involves whether false information was provided by a manufactured home
dealer to a lender, thereby violating NRS 489.401(7). State law prohibits particular mobile
and manufactured home dealer conduct and grants regulatory authority to appellant Renee
Diamond, Administrator of the Nevada Manufactured Housing Division (Division). NRS
489.381 authorizes administrative disciplinary action against licensed mobile and
manufactured home dealers. The Division filed a complaint against respondents Robert L.
Swick, Stella L. Swick, and Marvin J. Weisberg, employees of respondent Silver State
Mobile Homes, Inc. (collectively Silver State), seeking to revoke their dealer licenses for
allegedly submitting false information to lending institutions by representing dealer rebates as
actual cash down payments on credit applications.
The hearing officer concluded that knowledge of the information's falsity precluded a
lender from receiving false information under NRS 489.401(7). In addition, the hearing
officer concluded that under the statute, the financing statements must contain fraudulent
information that would lead a lender to finance a home sale that it would not otherwise have
financed. The district court affirmed the administrative determination, holding that proof
of fraud must be established, and denied the Division's petition for judicial review.
trict court affirmed the administrative determination, holding that proof of fraud must be
established, and denied the Division's petition for judicial review. The Division now appeals,
contending that the hearing officer's decision was affected by an error of law.
The two novel issues presented are (1) whether a manufactured home dealer's
submission to a lender of a contract representing a dealer rebate as a cash down payment will
be deemed false for the purposes of NRS 489.401(7), even if the lender knew the falsity of
the information; and (2) whether the Division must also establish an intent to defraud or
detrimental reliance by a lender, to prove a manufactured home dealer violated NRS
489.401(7). We conclude that the statute requires neither fraudulent intent nor detrimental
reliance.
FACTS
On November 20, 1997, the Division filed a complaint alleging that Silver State, on
seventy-three occasions, prepared and submitted to lenders credit applications misstating the
cash down payment amount actually tendered by a manufactured or mobile home purchaser.
Specifically, the complaint alleged that Silver State would represent on a prospective
purchaser's credit application a dealer rebate, or a combination of a rebate and cash down
payment, exclusively as an actual cash down payment.
1
The applications were submitted to
three different lending institutions, CIT Financial (CIT), Deutsche Financial Corporation
(Deutsche), and Galaxy Financial (Galaxy). Of the three institutions, only CIT was
unaware that Silver State was employing this practice. Silver State orally informed Deutsche
of this system while Galaxy knew of this particular method because it is an alter-ego of Silver
State.
Robert Swick, General Manager of Silver State, testified before a hearing officer that
the alleged cash down payments were actually dealer rebates, part of an established rebate
program. He stated that funding for dealer rebates was derived from Silver State's own
profits. Swick, however, also testified that in transactions where the rebate did not represent a
sufficient cash down payment amount, the selling price of the manufactured or mobile home
was increased.
On December 24, 1998, at the conclusion of the testimony, the hearing officer issued
a decision and order finding (1) substantial evidence that Silver State's credit applications
filed with CIT contained false information with respect to four purchasers; (2) Silver State
violated NRS 489.401(7)(a)-(c) in submitting the four incorrect credit applications to CIT; (3)
Galaxy was operated by the same persons operating Silver State;
__________

1
The credit application contains separate and distinct blanks where the dealer rebate and cash down payment
amounts are to be recorded.
same persons operating Silver State; therefore, any credit applications submitted to Galaxy
could not contain fraudulent information that would lead Galaxy to finance a manufactured or
mobile home sale that it would not otherwise finance; (4) the Division failed to establish by a
preponderance of the evidence that Silver State violated any section of NRS Chapter 489 by
submitting false documents to Galaxy; and (5) the Division failed to establish by substantial,
reliable, and probative evidence that Silver State violated any section of NRS Chapter 489
with regard to credit applications it submitted to Deutsche.
The Division subsequently filed a petition for judicial review with the district court. In
its amended order denying the petition the district court determined that NRS 489.401(7)(b)
required proof of fraud, the elements of which the Division had not established with respect
to Galaxy and Deutsche.
DISCUSSION
Standard of review
NRS 233B.135(3), governing judicial review, states in relevant part:
The court may remand or affirm the final decision or set it aside in whole or in part if
substantial rights of the petitioner have been prejudiced because the final decision of
the agency is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure; [or]
(d) Affected by other error of law[.]
(Emphasis added.) The burden of proof is on the party attacking or resisting an administrative
agency's decision.
2

Statutory construction
[Headnotes 13]
Independent appellate review of an agency decision, rather than a more deferential
standard of review, is appropriate when the agency's decision rests on questions of law, such
as statutory construction.
3
The construction of a statute is a question of law subject to review
de novo.
4

__________

2
See NRS 233B.135(2).

3
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 634-35, 877 P.2d 1032, 1034 (1994).

4
NRS 233B.135(3); State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994).
NRS 489.381 authorizes administrative disciplinary action against licensees,
including fines and/or license denial, suspension or revocation. NRS 489.401(7) prohibits
[r]epresenting to any lender, guaranteeing agency or other interested party, orally or
through the preparation of false documents:
(a) An amount in excess of the actual sales price;
(b) A false amount as the down payment, earnest money deposit or other valuable
consideration;
(c) Terms differing from those actually agreed upon; or
(d) False information on a credit application.
(Emphasis added.)
[Headnote 4]
This court has consistently held that when there is no ambiguity in a statute, there is
no opportunity for judicial construction, and the law must be followed unless it yields an
absurd result.
5
In construing a statute, this court must give effect to the literal meaning of its
words.
6

The Division does not contend that a particular statutory word or phrase is either
vague or ambiguous. Rather, it asserts that fraudulent intent and actual reliance need not be
proven under NRS 489.401(7) and, moreover, that the district court failed to specify the
particular elements of fraud embodied within the statute. Silver State responds that a plain
reading of the statute requires a showing that a misrepresentation occurred and that the
innocent party relied upon the false information to its detriment.
We conclude that a plain reading reveals that NRS 489.401(7) does not require proof
of either fraudulent intent or detrimental reliance.
First, the word represent is defined as a presentation of facteither by words or by
conductmade to induce someone to act, esp[ecially] to enter into a contract.
7
Silver State
contends that the dictionary definition requires that the representation be calculated to
mislead, and that because Deutsche and Galaxy knew about the rebate program, the statute
was not violated. However, neither the dictionary definition of the word representation
8
nor any legal authority supports such a claim.
__________

5
SIIS v. Engel, 114 Nev. 1372, 1376, 971 P.2d 793, 796 (1998) (citing Randono v. CUNA Mutual Ins.
Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990)).

6
State v. Webster, 88 Nev. 690, 696, 504 P.2d 1316, 1320 (1972).

7
Black's Law Dictionary 1045 (abridged 7th ed. 2000).

8
The word misrepresentation, as opposed to representation, is defined as the act of making a false or
misleading statement about something, usu. with the intent to deceive. Id. at 813.
The term representing is plain and unambiguous. Whether or not the lending
institution was cognizant that the alleged cash down payment was in reality merely a dealer
rebate, Silver State made a presentation of certain written words on the credit applications
that facilitated loan application approval. Knowledge of the exact or fictitious nature of the
actual presentation fails to alter the definition of the word representing. The statute does not
require either an intentionally false representation or misrepresentation; it simply calls for a
false representation.
Second, the word false is defined as [u]ntrue, [d]eceitful; lying, and [n]ot
genuine; inauthentic, and is qualified with the statement that [w]hat is false can be so by
intent, by accident, or by mistake.
9
This word is plain and unambiguous.
The Division argues that the Legislature did not intend that actionable fraud must be
proven to support a disciplinary action, under NRS 489.401(7), based on the preparation of
false credit applications. Specifically, the Division points to explicit references from NRS
489.401(3) addressing material representations likely to induce reliance and NRS 489.421(9)
concerning fraudulent dealing.
[Headnote 5]
It is a well-recognized tenet of statutory construction that multiple legislative
provisions be construed as a whole, and where possible, a statute should be read to give plain
meaning to all its parts.
10
Other words or phrases used in the statute or separate subsections
of the statute can be reviewed to determine the meaning and purpose of the statute.
11

NRS 489.401(3), a separate subsection of the statute in question, provides for
disciplinary action upon the [m]aking [of] any substantial misrepresentation or false promise
which is likely to influence, persuade or induce, or continually failing to fulfill promises to
sell, breaching agreements or contracts or making false promises by any means.
Additionally, NRS 489.421(9), a separate section of a statute that provides additional grounds
for disciplinary action, prohibits [a]ny other conduct that constitutes deceitful, fraudulent or
dishonest dealing.
The Legislature's omission of the terms misrepresentation and fraud from the text
of NRS 489.401(7) creates the presumption that the Legislature did not intend to require
proof of fraudulent intent or detrimental reliance as a prerequisite to disciplinary action
against mobile and manufactured home dealers.
__________

9
Id. at 489.

10
Gaines v. State, 116 Nev. 359, 365, 998 P.2d 166, 169-70 (2000) (citing Building & Constr. Trades v.
Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992)).

11
See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).
ciplinary action against mobile and manufactured home dealers. This court has declared that
its business does not include fill[ing] in alleged legislative omissions based on conjecture as
to what the legislature would or should have done.
12
Because both are explicitly referred to
in separate sections of the same statutory chapter, the notions of misrepresentation and fraud
were apparently within the Legislature's ready contemplation when NRS 489.401(7) was
authored, discussed and enacted. The omission of the terms misrepresentation and fraud
was intentional on the part of the legislators, and we will not substitute our judgment for
theirs.
Therefore, we conclude that NRS 489.401(7) does not require a finding of either a
fraudulent intent or actual reliance on the false representation to a lender's detriment. Silver
State violated NRS 489.401(7) by presenting credit applications to Deutsche and Galaxy that
falsely represented dealer rebates as cash down payments. These violations are not nullified
by the direct lender's knowledge that the applications contained false information.
Scope of the provision
[Headnote 6]
The statute does not unequivocally indicate that it was designed to protect lenders
other than those whom the dealer contacts directly. We conclude, however, that the
Legislature intended to protect all lenders involved with the mobile and manufactured home
market, including those aware of a document's falsity. The Division points to language in
NRS 489.401(7) prohibiting certain representations to any lender as evincing the
Legislature's intent to protect the entire mobile and manufactured housing and lending
industry. At the hearing, the Division introduced expert testimony illustrating that the
misstatement of a dealer rebate as an actual cash down payment renders the entire transaction
suspect because most contracts are ultimately sold to third parties on the secondary market.
According to Spencer Judd, Regional Manager for BankAmerica Housing Services,
interest rate and credit standards differ based on the tendered down payment amount. Judd
testified that when a customer has actual equity in a home, the customer's potential for
repayment is improved. In his opinion, loans based on inaccurate information, and loans
made in connection with nominal cash down payments, are subject to higher than average
default rates. When misrepresented down payments create increased lender losses, that lender
raises the interest rate on future loans in anticipation of additional losses and collection costs.
__________

12
McKay v. Board of Cty. Comm'r, 103 Nev. 490, 492, 746 P.2d 124, 125 (1987).
costs. Judd further testified that loan contracts are sold or assigned into the secondary market
based, in part, on the actual amount the home purchaser paid toward the total cost.
The purpose of NRS 489.401(7) is to protect the integrity of the entire mobile and
manufactured home lending system by facilitating trustworthiness, full disclosure of accurate
information, and fair dealing between dealers and all financing entities. NRS 489.401(7) is
designed to protect lenders, guarantors, and any other interested party or intermediary
involved in the mobile and manufactured home industry. Thus, the statute's scope includes
those entities directly involved in a transaction, as well as entities that may be affected
indirectly.
CONCLUSION
The administrative determination regarding Deutsche and Galaxy was affected by an
error of law. NRS 489.401(7)'s terms are plain and unambiguous and, therefore, fraudulent
intent and actual reliance are not required to trigger the statute's protections.
13
We, therefore,
affirm that portion of the district court's order pertaining to CIT, reverse that portion of the
order denying judicial review as to Deutsche and Galaxy, and remand for proceedings
consistent with this opinion.
14

____________
117 Nev. 678, 678 (2001) Hays Home Delivery, Inc. v. EICON
HAYS HOME DELIVERY, INC., Appellant, v. EMPLOYERS INSURANCE COMPANY
OF NEVADA, and EVERETT GREEN, an Individual, Respondents.
No. 35602
September 12, 2001 31 P.3d 367
Appeal from a district court order denying judicial review and affirming an appeals
officer's determination that respondent Everett Green was appellant's employee as defined by
NRS 616A.210 and was eligible for workers' compensation benefits at appellant's expense.
First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Home delivery corporation brought appeal of award of workers' compensation
benefits to owner-operator, claiming owneroperator was not an employee of corporation
but an independent contractor.
__________

13
Importantly, our ruling today should not be read or interpreted as prohibiting, discouraging or discrediting
the utilization of dealer rebate programs. We find nothing illegal with a transaction that makes a rebate a down
payment so long as the terms of the credit applications accurately state the dealer rebate figure as distinguished
from the actual cash down payment figure when applicable.

14
The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.
compensation benefits to owner-operator, claiming owner-operator was not an employee of
corporation but an independent contractor. The district court affirmed the award. Corporation
appealed. The supreme court held that: (1) owner-operator was an independent enterprise,
separate and distinct from corporation; but (2) owner-operator and corporation were in the
same trade of delivering merchandise from retailers to end customers, and thus an
employment relationship existed between them.
Affirmed.
Laxalt & Nomura, Ltd., and Ellen Jean Winograd, Reno, for Appellant.
Creighton G. Oler and Shirley D. Lindsey, Associate Counsel, Employers Insurance
Company of Nevada, Reno, for Respondent.
Everett Green, Las Vegas, in Proper Person.
Matters of statutory construction are reviewed de novo.
In non-construction cases, the normal work test determines whether independent contractors are employees under the
Nevada Industrial Insurance Act (NIIA). NRS 616B.603.
Owner-operator was an independent enterprise separate and distinct from home delivery corporation for workers' compensation
purposes, although the businesses were closely related, where owner-operator held himself out as operating a separate business, held a
business license in his own name, and owned, rented or leased property used in furtherance of his business. NRS 616B.603(2).
Owner-operator and home delivery corporation were in the same trade of delivering merchandise from retailers to end
customers, and thus an employment relationship existed between them for workers' compensation purposes, although corporation only
administered the deliveries while owner-operator actually delivered the merchandise, where corporation contracted with owner-operator
to deliver the merchandise, and that work would normally be carried on through employees and not independent contractors. NRS
616B.603.
The test to determine whether an employment relationship exists between a contractor and a subcontractor, for workers'
compensation purposes, is not whether the subcontractor's activity is useful, necessary, or even absolutely indispensable to the statutory
employer's business, but rather whether that indispensable activity is, in that business, normally carried on through employees rather
than independent contractors. NRS 616B.603.
OPINION
Per Curiam:
At issue in this appeal is whether respondent Everett Green, an owner-operator of a
local trucking company, is a statutory employee of appellant Hays Home Delivery, Inc., under
Nevada's Industrial Insurance Act (NIIA). If we determine that Green is a statutory employee,
then Green is entitled to workers' compensation benefits. We conclude that Green is a
statutory employee of Hays because Green and Hays are not independent enterprises, but,
instead, Green and Hays are in the same trade of delivering merchandise, and Green's
trucking service would normally be carried on through an employee rather than an
independent contractor. Therefore, Green is entitled to workers' compensation benefits, as are
other owner-operators like him.
Appellant Hays Home Delivery, Inc., is a national logistics management company
incorporated in Delaware and qualified to do business in Nevada. Hays provides appliance,
electronics and furniture delivery services nationwide for retailers like Montgomery Wards,
Sears and Circuit City. Retailers contract with Hays to deliver merchandise from their retail
stores and warehouses to customers. Hays then enters into agreements with
owner-operators, instead of hiring drivers of its own, to deliver the merchandise. After a
sale to a customer is completed by a retailer, merchandise is shipped to the retailer's
warehouse where Hays's owner-operators receive the merchandise. After inspecting the
merchandise for damage, the owner-operators take possession of the merchandise, load it
onto their trucks and deliver the merchandise to customers.
Respondent Everett Green entered into an agreement with Hays in 1993, whereby
Green, operating under the name E & L Movers, became an owner-operator for Hays. The
agreement set forth the terms and conditions of the relationship between Green and Hays. In
part, this agreement stated that Green was not Hays's employee, but rather, Green was merely
an independent contractor. Furthermore, under the agreement, Green was required to carry, at
his own expense, liability, property and occupational accident insurance. The occupational
accident insurance was issued by a private, third-party insurance carrier, but was administered
by Hays. Moreover, the agreement allowed Green to hire additional employees to assist in
delivering merchandise. Accordingly, Green hired as many as fifteen employees to deliver
merchandise. As required by the agreement between Hays and Green, Green purchased
insurance from respondent Employers Insurance Company of Nevada (EICON) for the
workers he employed.
Green was also required under the terms of the agreement to obtain a vehicle to
facilitate the delivery of merchandise, and was required to bear the maintenance costs of the
vehicle. Accordingly, Green leased a vehicle from the same lessor that other owner-operators
utilized, which was the same length, size and type that Hays's other owner-operators used.
Hays, not Green, had accounts set up at various repair shops where Green and other
owner-operators would take their vehicles for repair. Under the agreement, Green was also
responsible for the purchase of uniforms and equipment such as dollies and blankets to
facilitate the deliveries.
In December 1996, Green claimed that his knee and lower back had been injured
while making a delivery. Accordingly, Green submitted a claim to his private insurance
carrier. Pursuant to the policy, Green was paid for both medical expenses and lost earnings.
In January 1997, only a month after Green was injured, Hays terminated its
relationship with Green. Apparently because Green's relationship with Hays was terminated,
or because Green failed to pay his monthly premiums, Green's private insurance carrier
terminated his policy. In May 1997, five months after he was injured, Green submitted a
claim to EICON.
EICON initially rejected Green's claim because EICON was unable to substantiate an
employee/employer relationship existed or exists between Green and Hays. After
investigating Green's claim, however, EICON reversed its initial determination, and accepted
Green's claim in September 1997. Hays appealed. Upon reviewing Green's claim, a hearing
officer concluded that Green was not a statutory employee of Hays, and, therefore, the
hearing officer reversed EICON's acceptance of his claim.
EICON and Green then appealed the hearing officer's determination that Green was
not a statutory employee of Hays. The appeals officer reversed the previous finding that
Green was not a statutory employee, and determined that Green was, in fact, an employee
entitled to workers' compensation benefits. Hays then petitioned the district court for judicial
review.
The district court denied Hays's petition because it found that the appeals officer's
determination that Green was an employee entitled to workers' compensation benefits was
supported by substantial evidence and was not clearly erroneous. Hays now appeals to this
court.
[Headnote 1]
In this appeal, we must decide whether respondent Green, and other owner-operators
like him, are statutory employees under the NIIA and therefore entitled to workers'
compensation benefits.
This question is a matter of statutory construction; accordingly, our review is de novo.
1

For purposes of the NIIA, an employee is defined as every person in the service of
an employer under any appointment or contract of hire.
2
Reference to this definition alone,
however, does not answer the question whether Green and owner-operators like him are
considered employees under the NIIA.
[Headnote 2]
The parties to this dispute vigorously contest whether Green is an independent
contractor under the NIIA. However, we note that the NIIA is uniquely different from
industrial insurance acts of other states because pursuant to the explicit provisions of NRS
616A.210(1) independent contractors may be deemed employees.
3
In Nevada,
non-construction cases are differentiated from construction cases, and in non-construction
cases like this one, the normal work test, articulated in our decision in Meers v. Haughton
Elevator
4
and codified in NRS 616B.603, determines whether independent contractors are
employees under the NIIA.
5
We must analyze the relationship between Green and Hays
under Meers and NRS 616B.603 to determine whether Green is a statutory employee and
therefore entitled to workers' compensation benefits.
NRS 616B.603 provides that an entity is not considered an employer under the NIIA
if the entity enters into a contract with an independent enterprise, and the contracting entity
is not in the same trade, business, profession or occupation as the independent
enterprise.6 Therefore, in order for Hays to show that Green is not an employee, Hays
must demonstrate that Green is an "independent enterprise," and that Green and Hays
are not involved in the "same trade, business, profession or occupation."
__________

1
State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994) (Construction of a
statute is a question of law subject to de novo review.).

2
NRS 616A.105.

3
NRS 616A.210(1) reads: Except as otherwise provided in NRS 616B.603, subcontractors, independent
contractors and the employees of either shall be deemed to be employees of the principal contractor for the
purposes of chapters 616A to 616D, inclusive, of NRS. (Emphasis added.) See SIIS v. E G & G Special
Projects, 103 Nev. 289, 290, 738 P.2d 1311, 1312 (1987) (Workmen's compensation statutes in Nevada are
uniquely different' from those in other states in that they provide coverage for independent contractors and
subcontractors. (quoting Noland v. Westinghouse Elec. Corp., 97 Nev. 268, 270, 628 P.2d 1123, 1125
(1981))); Aragonez v. Taylor Steel Co., 85 Nev. 718, 720, 462 P.2d 754, 755-56 (1969) (Nevada's Industrial
Insurance Act is uniquely different from the industrial insurance acts of other states in that independent
contractors and subcontractors by [statute] are accorded the status of employees.); see also Meers v. Haughton
Elevator, 101 Nev. 283, 285, 701 P.2d 1006, 1007 (1985).

4
101 Nev. 283, 286, 701 P.2d 1006, 1007-08; see also Farish v. Courion Indus. Inc., 722 F.2d 74, 80 (4th
Cir. 1983) (quoting 1C Arthur Larson, Law of Workmen's Compensation, 49.12, 9-37 (1980)).

5
See Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1349, 1356, 951 P.2d 1027, 1031 (1997).
pendent enterprise.
6
Therefore, in order for Hays to show that Green is not an employee,
Hays must demonstrate that Green is an independent enterprise, and that Green and Hays
are not involved in the same trade, business, profession or occupation.
NRS 616B.603(2) defines an independent enterprise as a person who holds himself
out as being engaged in a separate business and: (a) [h]olds a business . . . license in his own
name; or (b) [o]wns, rents or leases property used in furtherance of his business. It is clear
that Green was an independent enterprise as defined in NRS 616B.603(2) because Green
satisfies the statutory test.
[Headnote 3]
The record reveals that Green held himself out as being engaged in a separate
business. Green maintained that he was in the delivery business, while Hays claimed that it
was in the contracts logistics management business. Green held a business license under the
name E & L Moving.
7
Finally, Green leased a truck he utilized to deliver furniture and
appliances, and owned hand trucks and other equipment to facilitate deliveries. Therefore,
although Green and Hays's businesses were closely related, Green held himself out as being
engaged in a separate business, held a business license in his own name and owned, rented or
leased property used in furtherance of his business. Accordingly, Green was an independent
enterprise separate and distinct from Hays.
[Headnote 4]
However, in order to determine that an employment relationship did not exist between
Green and Hays, we must conclude that Green was an independent enterprise, and that Green
and Hays were not in the same trade as codified in NRS 616B.603(1)(b) and defined in
Meers.
8
We conclude that although Green was an independent enterprise, Green and Hays
were, in fact, in the "same trade."
__________

6
NRS 616B.603(1) reads:
A person is not an employer for the purposes of chapters 616A to 616D, inclusive, of NRS if:
(a) He enters into a contract with another person or business which is an independent enterprise; and
(b) He is not in the same trade, business, profession or occupation as the independent enterprise.

7
We note that we need not proceed further to determine whether Green is an independent enterprise. NRS
616B.603 states that an independent enterprise is a person who holds himself out as being engaged in a
separate business and holds a business license in his own name, or owns, rents or leases property used in the
furtherance of his business. Therefore, Green need only hold the license, or lease property, but he need not do
both to be considered an independent enterprise. However, in this case Green did both.

8
This court has concluded that the Meers test only applies to nonconstruction cases or those construction
cases that involve a contractor that
independent enterprise, Green and Hays were, in fact, in the same trade. Therefore, an
employment relationship existed between Green and Hays, and Green is entitled to workers'
compensation benefits.
[Headnote 5]
In Meers, we stated that the type of work performed by the independent contractor
will determine whether an employment relationship exists.
9
Therefore,
the test is not whether the subcontractor's activity is useful, necessary, or even
absolutely indispensable to the statutory employer's business, since, after all, this could
be said of practically any repair, construction or transportation service. The test (except
in cases where the work is obviously a subcontracted fraction of a main contract) is
whether that indispensable activity is, in that business, normally carried on through
employees rather than independent contractors.
10

This test was later codified in NRS 616B.603, which states that an employment relationship
only exists if the parties are in the same trade, business, profession or occupation.
11

We conclude that Green and Hays are in the same trade, and that Green performed
work that would normally be carried on through employees of Hays and not independent
contractors. Both Green and Hays were in the trade of delivering merchandise from
retailers to end-customers. Although Hays attempts to distinguish its business from Green's
by characterizing Hays's business as administrating the deliveries, and Green's business as
delivering the merchandise, this distinction is unpersuasive. Even though Green arguably
delivered the merchandise, while Hays arguably only acted as an administrator and oversaw
the deliveries, both Green and Hays are in the same trade of delivering merchandise from
retailers to end-customers. Therefore, notwithstanding any minimal distinction between
Green's and Hays's functions, both are in the same trade of delivering merchandise.
__________
is not licensed pursuant to NRS Chapter 624. As the instant dispute clearly does not involve contractors, the
Meers test applies. See Tucker, 113 Nev. at 1356, 951 P.2d at 1031.

9
Meers, 101 Nev. at 286, 701 P.2d at 1007.

10
Id.

11
See NRS 616B.603; see also Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168,
174-75 (1995).
A review of the cases cited by Hays reveals that courts of other jurisdictions that have
determined that owner-operators such as Green are not statutory employees base such
conclusions upon specific legislation that has been enacted in those states which excludes
these owner-operators from the definition of employees.
12
Although the Nevada Legislature
is free to enact equivalent legislation, it has chosen not to do so. We must resolve this dispute
under Nevada's current statutory scheme, not by interpreting extra-jurisdictional mandates.
Reference to Nevada's statutory scheme makes clear that an employment relationship existed
between Green and Hays, and therefore Green is entitled to workers' compensation benefits.
Our review of the record reveals that Green and Hays are in the same trade, namely,
the delivery of merchandise from retailers to customers. Therefore, under NRS
616B.603(1)(b) and Meers, an employment relationship existed between Green and Hays,
and, because an employment relationship existed, Green is entitled to workers' compensation
benefits under the NIIA.
Accordingly, we affirm the district court's order, which denied Hays's petition for
judicial review and affirmed the appeals officer's determination that Green was an
employee of Hays as defined under Nevada's Industrial Insurance Act.
__________

12
Hays argues that twenty-nine states and the District of Columbia exclude owner-operators like Green
through case law or statutes from the definition of employees in the workers' compensation context. Hays
contends that some states, such as Iowa, Oklahoma and Georgia, have enacted statutes which specifically exempt
owner-operators from workers' compensation coverage. See, e.g., Okla. Stat. Ann. tit. 85, 3(6) (West 1992) (
Employee' shall not include a person, commonly referred to as an owner-operator, who owns or leases a
truck-tractor or truck for hire, if the owner-operator actually operates the truck-tractor or truck and if the person
contracting with the owner-operator is not the lessor of the truck-tractor or truck.); State Compensation Ins.
Fund v. Brown, 38 Cal. Rptr. 2d 98 (Ct. App. 1995) (determining that owner-operators like Green were
independent contractors under California's workers' compensation system, and therefore were not employees
under that state's statutory system).
____________
117 Nev. 686, 686 (2001) Barton v. State
ROSS ERIC BARTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33143
September 12, 2001 30 P.3d 1103
Appeal from a district court order denying a post-conviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
After direct appeal from conviction of second-degree murder was dismissed,
petitioner sought writ of habeas corpus. The district court denied petition. Petitioner appealed.
The supreme court, Shearing, J., held that: (1) petitioner was not entitled to lesser included
offense instruction on reckless driving causing death, overruling Owens v. State, 100 Nev.
286, 680 P.2d 593 (1984); and (2) statute setting forth offense of involuntary manslaughter is
not unconstitutionally vague or ambiguous.
Affirmed.
Maupin, C. J., with whom Rose, J., agreed, dissented.
Christopher R. Oram, Las Vegas, for Appellant.
Respondent.
1. Criminal Law.
The question of whether a defendant has received ineffective assistance of counsel in violation of the Sixth Amendment is a
mixed question of fact and law that is subject to independent review. U.S. Const. amend. 6.
2. Criminal Law.
In order to show the inadequacy of his counsel's representation, defendant must show: (1) that counsel's performance was
deficient, and (2) that he was prejudiced by this deficiency. U.S. Const. amend. 6.
3. Criminal Law.
An offense is not a lesser included offense unless the elements of the lesser offense are an entirely included subset of the
elements of the charged offense; overruling Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984). NRS 175.501.
4. Criminal Law.
Murder defendant was not entitled to lesser included offense instruction on reckless driving causing death. Charged offense of
murder could have been committed without committing reckless driving. NRS 175.501, 200.010, 484.377.
Statute setting forth offense of involuntary manslaughter is not unconstitutionally vague or ambiguous. NRS 200.070.
OPINION
In 1995, Ross Eric Barton was convicted of second-degree murder pursuant to a jury
verdict and sentenced to life imprisonment. In 1996, this court dismissed his direct appeal.
1
Barton then filed a post-conviction petition for a writ of habeas corpus alleging: (1)
ineffective assistance of trial counsel for failing to request a jury instruction on the lesser
charge of reckless driving causing substantial bodily harm; and (2) ineffective assistance of
appellate counsel for failing to argue effectively that NRS 200.070, which defines
involuntary manslaughter, upon which the jury was instructed, is unconstitutionally vague
and ambiguous. We conclude that under the traditional elements analysis, reckless driving is
not a lesser included offense of murder; accordingly, the trial counsel was not ineffective for
failing to request the instruction. Likewise, appellate counsel was not ineffective in arguing
that NRS 200.070 is not unconstitutionally vague and ambiguous. Therefore, we affirm the
judgment of the district court.
FACTS
On September 20, 1994, Juan Sanchez and Ever Yurado were drinking beer in
Yurado's car in front of Sanchez's apartment in Las Vegas for about four hours. When
Sanchez was called inside the apartment, Yurado drove away. Shortly thereafter, Yurado's car
collided with a car driven by Ross Barton. Yurado sped away. Barton pursued Yurado in his
car, traveling at a high rate of speed. Eventually, Barton rammed Yurado's car, causing it to
spin around and stop. Yurado told another driver that there was no need to call the police, but
Barton asked a bystander to call them anyway. Yurado again drove away and Barton started
chasing him. Yurado then made a U-turn around a median and resumed driving northbound
on the street. According to eyewitnesses, Barton crossed the median ahead of Yurado and
drove southbound in the northbound lanes in the direction of Yurado's oncoming car. Yurado
made another U-turn, at which point Barton drove down the median. As Yurado emerged
from the U-turn, Barton turned off the median, drove directly at Yurado's car and struck the
driver's side of the car. Testimony at trial indicated that Barton was traveling at a speed of
approximately forty-four miles per hour and was accelerating at the time of impact. As a
result of the collision, Yurado suffered a skull fracture which eventually resulted in his death.
__________

1
Barton v. State, Docket No. 27076 (Order Dismissing Appeal, December 20, 1996).
Barton was charged with open murder, tried before a jury, and found guilty of
second-degree murder and sentenced to life imprisonment. This court dismissed his direct
appeal. Barton filed a timely post-conviction petition for writ of habeas corpus in the district
court, alleging ineffective assistance of trial and appellate counsel. The district court denied
the petition and Barton now appeals.
DISCUSSION
[Headnotes 1, 2]
This court reviews claims of ineffective assistance of counsel by the standard
articulated in Strickland v. Washington.
2
The question of whether a defendant has received
ineffective assistance of counsel in violation of the Sixth Amendment is a mixed question of
fact and law that is subject to independent review.
3
Under the Strickland test, in order to
show the inadequacy of his counsel's representation, Barton must show: (1) that counsel's
performance was deficient, and (2) that he was prejudiced by this deficiency.
4

Lesser included offense instruction
The first assignment of error concerning ineffective assistance of counsel is whether
Barton's trial counsel was deficient for failing to request an instruction on the lesser charge of
reckless driving causing death or substantial bodily harm under NRS 484.377. Barton argues
that in this case reckless driving is a lesser included offense on which the district court was
required to instruct the jury at the defendant's request. Thus, because the evidence supported
the jury's consideration of reckless driving as an alternative to murder, trial counsel was
deficient in failing to pursue this instruction.
NRS 175.501 provides that [t]he defendant may be found guilty of an offense
necessarily included in the offense charged . . . . Whether the judge would have been
required to give the reckless driving instruction at Barton's request depends upon the meaning
of the phrase an offense necessarily included in the offense charged. The determination of
what constitutes a lesser included offense is not clear under Nevada case law. In fact, at times
lesser included and lesser related have not been distinguished, and two divergent tests
have been applied to determine what constitutes a lesser included offense.
5
This has resulted
in confusion as to how a judge should determine whether lesser included instructions are
required when requested.
__________

2
466 U.S. 668 (1984).

3
Id. at 698; State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322, 323 (1993); see also U.S. Const. amend. VI.

4
Strickland, 466 U.S. at 694.

5
See Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989).
in confusion as to how a judge should determine whether lesser included instructions are
required when requested. In light of United States Supreme Court opinions regarding lesser
included offenses and this court's decision in Peck v. State,
6
we take this opportunity to
review and clarify the law of lesser included offenses in order to provide a clearer view as to
what test should be applied.
The three basic approaches that have been used by this court and throughout the
country
7
to determine what constitutes a lesser included offense are: (1) considering only the
elements of the crime to determine if the elements of one are entirely included in the other;
8
(2) considering the factual allegations of the pleadings to determine if the allegations include
all of the elements of the lesser offense;
9
and (3) considering the actual evidence presented at
trial to determine if some or all of the evidence which establishes the greater offense also
establishes a lesser offense.
10

These three approaches have been alternatively used in the various procedural
contexts in which a lesser included offense is being considered. Several examples of such
contexts include: (1) whether the conviction of a defendant for two offenses violates double
jeopardy;
11
(2) whether the defendant had sufficient notice of the lesser charge in order to
comply with due process;
12
(3) whether an information or indictment may be amended to
include a lesser included offense;
13
(4) whether a lesser included instruction should have
been given;
14
(5) whether such an instruction was erroneously given;
__________

6
116 Nev. 840, 7 P.3d 470 (2000).

7
See 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure 24.8(e) (2d ed. 1999).

8
Lisby v. State, 82 Nev. 183, 186-87, 414 P.2d 592, 594 (1966).

9
Slobodian v. State, 98 Nev. 52, 54, 639 P.2d 561, 563 (1982).

10
See, e.g., Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984); Litteral v. State, 97 Nev. 503, 634 P.2d
1226 (1981); Dicus v. District Court, 97 Nev. 273, 625 P.2d 1175 (1981); Graves v. Young, 82 Nev. 433, 420
P.2d 618 (1966).

11
See, e.g., McIntosh v. State, 113 Nev. 224, 932 P.2d 1072 (1997); Meador v. State, 101 Nev. 765, 711
P.2d 852 (1985); Moore v. State, 100 Nev. 698, 692 P.2d 1278 (1984); Givens v. State, 99 Nev. 50, 657 P.2d 97
(1983); Sheriff v. Blasko, 98 Nev. 327, 647 P.2d 371 (1982); McKenna v. State, 98 Nev. 323, 647 P.2d 865
(1982); Lovell v. State, 92 Nev. 128, 546 P.2d 1301 (1976); In re DuBois, 84 Nev. 562, 445 P.2d 354 (1968).

12
See, e.g., Slobodian, 98 Nev. 52, 639 P.2d 561; Thedford v. Sheriff, 86 Nev. 741, 476 P.2d 25 (1970).

13
See, e.g., State v. Dist. Ct., 116 Nev. 374, 997 P.2d 126 (2000); Benitez v. State, 111 Nev. 1363, 904 P.2d
1036 (1995).

14
See, e.g., Peck v. State, 116 Nev. 840, 7 P.3d 470 (2000); Robinson v. State, 110 Nev. 1137, 881 P.2d 667
(1994); Davis v. State, 110 Nev. 1107,
erroneously given;
15
(6) whether a prior offense is so similar to a charged offense that it may
enhance the penalty;
16
(7) whether the district court had jurisdiction over an offense;
17
(8)
whether a jury finding of guilt on two offenses was proper;
18
and (9) whether two offenses
merged.
19
Despite the legal and factual differences in these contexts, this court has often
relied on conclusions, and which test to use, from one type of case as authority for another.
The predominant test used for lesser included offenses was set forth in Lisby v. State.
In Lisby, this court interpreted language similar to NRS 175.501 to be the codification of the
common law practice of allowing a defendant in a criminal trial to be found guilty of any
offense which is necessarily included in that with which he is charged.
20
This court stated:
[w]e adhere to the rule that to determine whether an offense is necessarily included in the
offense charged, the test is whether the offense charged cannot be committed without
committing the lesser offense.
21
The test is met when all of the elements of the lesser
offense are included in the elements of the greater offense.
22
This court cited to statutes
regarding the sale of a controlled substance and possession of a controlled substance,
kidnapping and false imprisonment, and felonious assault and simple assault as examples of
instances where lesser included offenses may be instructed, because the elements of one were
entirely included in the other.
23

On the other hand, in Owens v. State,
24
this court addressed the issue of a lesser
included offense in the double jeopardy context and applied a different test. In Owens, this
court broadened the Lisby test, holding that the defendant was placed in double jeopardy
when he was convicted of both attempted robbery with the use of a deadly weapon upon a
person sixty-five years of age or older and battery with the use of a deadly weapon upon a
person sixty-five years of age or older.
__________
881 P.2d 657 (1994); Walker v. State, 110 Nev. 571, 876 P.2d 646 (1994); Hillis v. State, 103 Nev. 531, 746
P.2d 1092 (1987); Kiper v. State, 98 Nev. 593, 655 P.2d 526 (1982).

15
See Bailey v. State, 100 Nev. 562, 688 P.2d 320 (1984).

16
See Marciniak v. State, 112 Nev. 242, 911 P.2d 1197 (1996).

17
See, e.g., Kimball v. State, 100 Nev. 190, 678 P.2d 675 (1984); Dicus, 97 Nev. 273, 625 P.2d 1175.

18
See, e.g., McKinnon v. State, 96 Nev. 821, 618 P.2d 1222 (1980); State v. Carter, 79 Nev. 146, 379 P.2d
945 (1963).

19
See Hewitt v. State, 113 Nev. 387, 936 P.2d 330 (1997).

20
82 Nev. at 186-87, 414 P.2d at 594.

21
Id. at 187, 414 P.2d at 594.

22
Id.

23
Id. at 188, 414 P.2d at 595.

24
100 Nev. 286, 680 P.2d 593.
sixty-five years of age or older.
25
This court said it not only would look to the elements of
the charged offenses, but also would consider the particular facts of the case to determine
whether one offense is a lesser included offense of the other.
26
Thus, since Owens
committed the robbery by battering the victim, the battery was held to be a lesser included
offense of the robbery, even though battery is not a required element of the crime of robbery.
27
Owen's conviction for battery with the use of a deadly weapon upon a person sixty-five
years of age or older was thus reversed on double jeopardy grounds.
28

In the context of determining whether a lesser included instruction is required, this
court has often looked to more than merely the elements of the offenses and has adopted an
approach similar to that contained in Owens, looking to the charging document and the proof
at trial. For example, in Graves v. Young,
29
this court held that, even though attempted
murder can be committed with or without an assault, the trial court should look to the
evidence submitted at trial and the charge contained in the indictment to determine whether
assault is a lesser included offense of attempted murder. Likewise, in Kiper v. State,
30
this
court held that there was an evidentiary basis for an instruction on criminal trespass, and
therefore the instruction should have been given as a lesser included offense of burglary.
The information in Barton's case alleged that Barton killed the victim by
intentionally driving that certain 1976 Chevrolet El Camino . . . into that certain 1981 Pontiac
. . . being driven by [the victim]. Under the Lisby test, reckless driving causing death would
not be a lesser included offense of murder since the charged offense of murder can certainly
be committed without committing reckless driving.
31
Under this test, therefore, Barton
would not be entitled to the instruction.
__________

25
Id. at 289, 680 P.2d at 595.

26
Id.

27
Id.

28
Id. at 289-90, 680 P.2d at 595.

29
82 Nev. at 438, 420 P.2d at 620-21.

30
98 Nev. at 595, 655 P.2d at 527.

31
In relevant part, NRS 484.377 states:
1. It is unlawful for a person to:
(a) Drive a vehicle in willful or wanton disregard of the safety of persons or property.
. . . .
2. A person who does any act or neglects any duty imposed by law while driving or in actual physical
control of any vehicle in willful or wanton disregard of the safety of persons or property, if the act or
neglect of duty proximately causes the death of or substantial bodily harm to a person other than himself,
is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum
term.
would not be entitled to the instruction. However, under the Owens test, because the method
of killing was by automobile, reckless driving might be inferred from either the charge or the
evidence, particularly if the State is unable to prove the requisite state of mind. Thus, Barton
would be entitled to the instruction under this analysis.
Although the Lisby test has quite consistently been used in cases where NRS 175.501
has been specifically referenced, the approach has not been uniform, particularly when the
statute is not referenced. As a result, there is some confusion, especially in the context of
whether lesser included instructions should be given, as in the instant case.
The United States Supreme Court has provided guidance with respect to how to
determine what constitutes a lesser included offense in the context of whether the Double
Jeopardy Clause of the United States Constitution has been implicated in order to determine
whether a defendant may be convicted of multiple offenses. In Blockburger v. United States,
32
the Court determined that the elements test, which this court subsequently adopted in
Lisby, is adequate to meet the requirements of the United States Constitution. In determining
whether a defendant has been subjected to double jeopardy, the United States Supreme Court
stated:
The applicable rule is that where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact which the
other does not.
33

Thus, under Blockburger, 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.
34

The United States Supreme Court departed from the elements test in Grady v. Corbin,
and instead adopted a test similar to that in Owens, whereby an offense was considered a
lesser included offense if both offenses required proof of the same conduct regardless of the
specific elements.
__________
of not less than 1 year and a maximum term of not more than 6 years, or by a fine of not more than
$5,000, or by both fine and imprisonment.
In relevant part, NRS 200.010 states:
Murder is the unlawful killing of a human being, with malice aforethought, either express or implied .
. . . The unlawful killing may be effected by any of the various means by which death may be occasioned.

32
284 U.S. 299 (1932).

33
Id. at 304.

34
Id.
regardless of the specific elements.
35
However, three years later, the Court overruled Grady
and returned to the Blockburger elements test in United States v. Dixon.
36
Crucial in this
decision to return to the Blockburger test was that the same conduct test was unworkable
and resulted in a disparity of results and difficulty in application.
37

Despite a now clear articulation on lesser included offenses in the context of double
jeopardy, no such clear guidance has been given on the constitutional requirement of lesser
included offense instructions. In Beck v. Alabama, the United States Supreme Court
suggested that the Due Process Clause of the United States Constitution was violated when
no lesser included offense instructions were allowed in a death penalty case.
38
In Beck, the
State had refused to allow lesser included offense instructions only in capital murder cases
when lesser included offenses to murder actually existed under state law. Furthermore, such
instructions would have been given in a non-capital murder case.
39
The Court suggested that
not having a lesser included offense might undermine the reasonable doubt standard, reducing
the reliability of the fact-finding process and risk fundamental unfairness.
40
Moreover, the
Court concluded that having a different rule regarding lesser included offenses in capital and
non-capital cases is unconstitutional.
41

In Hopkins v. Reeves,
42
the United States Supreme Court clarified that Beck did not
require lesser included offense instructions in all cases. In that case, Nebraska did not
recognize any lesser included offenses for felony murder. The Court reasoned that requiring
lesser included offense instructions would not enhance the reliability of the conviction and
would impose an unauthorized limit on the State's prerogative to structure its criminal law.
43
The Court indicated that whether an offense is a lesser included, and hence whether it should
be instructed on, is a matter of state law.
44

__________

35
495 U.S. 508, 516 (1990).

36
509 U.S. 688, 704, 714 (1993).

37
Id. at 711-12.

38
447 U.S. 625, 638 (1980).

39
Id. at 637.

40
Id.

41
Id. at 638.

42
524 U.S. 88 (1998).

43
Id. at 96-97.

44
United States Supreme Court cases after Beck that have discussed the issue of lesser included offense
instructions as they relate to due process requirements have generally been in the death penalty context. There is
some indication in the language of the cases that the Court is focusing on the special importance of reliability in
capital cases. See, e.g., Gilmore v. Taylor, 508 U.S. 333 (1993); Schad v. Arizona, 501 U.S. 624 (1991).
[Headnote 3]
Looking, therefore, to Nevada law to determine how to define a lesser included
offense, we again encounter the disparity in tests that have been appliedthe elements test of
Blockburger/Lisby or the same conduct test of Owens. The federal courts encountered a
similar divergence in how to define a lesser included offense, and determined in Schmuck v.
United States that the Blockburger elements test should prevail.
45
Accordingly, under
Federal Rule of Criminal Procedure 31(c), which contains language identical to NRS
175.501, an offense is not a lesser included offense unless the elements of the lesser offense
are an entirely included subset of the elements of the charged offense.
46
This approach is
grounded in the language and history of the Rule and provides for greater certainty in its
application.
47

In light of the similarity in the language of Federal Rule of Criminal Procedure 31(c)
and NRS 175.501, we conclude that adherence to the view adopted in Schmuck v. United
States, whereby lesser included offenses are determined by the Blockburger elements test, is
sound. Moreover, this court has often traditionally applied the same standard the United
States Supreme Court has articulated under the United States Constitution in the context of
double jeopardy to our interpretation of the minimum requirements of the Nevada
Constitution. We see no reason to depart from this approach. Hence, we conclude that we will
follow the guidance of the United States Supreme Court and adopt the elements test of
Blockburger/Lisby for the determination of whether lesser included offense instructions are
required.
48
This is consistent with our recent decision in Peck v. State
49
to extinguish the
use of lesser related offense instructions as an attempt to rectify what has become an abyss of
confusion for district courts in determining what instructions they are required to give.
To the extent that our prior case law conflicts with the adoption of the elements test,
we overrule Owens v. State and expressly reject the same conduct approach that has been
used in various contexts.
__________

45
489 U.S. 705 (1989). Schmuck resolved the conflict that had arisen by several federal courts adopting the
approach of the Circuit Court of Appeals for the District of Columbia in United States v. Whitaker, whereby a
lesser included offense was measured by whether the offenses related to the protection of the same interests. 447
F.2d 314, 321 (D.C. Cir. 1971).

46
Schmuck, 489 U.S. at 716.

47
Id.

48
We also note that a lesser included offense instruction will still only be appropriate in certain
circumstances and is not required if there is no evidence supporting the lesser offense or if the defendant's
evidence is in conflict with guilt of the lesser offense. See Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).

49
116 Nev. 840, 7 P.3d 470.
reject the same conduct approach that has been used in various contexts. Just as the United
States Supreme Court found the same conduct test to be unworkable in Grady v. Corbin, we
too conclude that eliminating the use of this test will promote mutual fairness. Both the
prosecution and the defense will know in advance what elements must be proven at trial and
what jury instructions will be available, and may prepare accordingly. There will be less
confusion and greater consistency and predictability in determinations of what constitute
lesser included offenses.
[Headnote 4]
Accordingly, in Barton's case, clearly the elements of reckless driving are not an
entirely included subset of murder under the elements test.
50
Therefore, we conclude that a
lesser included offense instruction on reckless driving was not required and trial counsel was
not deficient in failing to request the instruction. Accordingly, we affirm the district court
order denying Barton's petition on this claim.
Second-degree felony instruction
[Headnote 5]
Barton alleges that his appellate counsel was ineffective for failing to argue effectively
that NRS 200.070 is unconstitutional. Barton argues that the language of the statute is vague
and ambiguous in that it purports to define involuntary manslaughter, but then goes on to
define murder in the same paragraph. This, he argues, suggests the existence of a
misdemeanor-murder rule. He argues that under that statute, any minor traffic violation which
results in the death of a human being would be murder. We disagree.
NRS 200.070 provides:
[I]nvoluntary manslaughter is the killing of a human being, without any intent to do so,
in the commission of an unlawful act, or a lawful act which probably might produce
such a consequence in an unlawful manner, but where the involuntary killing occurs in
the commission of an unlawful act, which, in its consequences, naturally tends to
destroy the life of a human being, or is committed in the prosecution of a felonious
intent, the offense is murder.
The jury instruction at trial quoted this statutory language.
After defining manslaughter, NRS 200.070 simply distinguishes manslaughter from
murder by referring to the factors which indicate malice, a required element of murder. The
statute refers to the two types of maliceexpress malice and implied malice, the latter being
unlawful acts which naturally tend to destroy the life of a human being.
__________

50
See supra note 31.
latter being unlawful acts which naturally tend to destroy the life of a human being. None of
the minor traffic violations cited by Barton, like jaywalking or speeding, would naturally
tend[ ] to destroy the life of a human being. Thus, the commission of those minor offenses
would not automatically render a killing murder (absent proof of malice). Accordingly,
appellate counsel was not deficient in failing to argue this issue effectively. NRS 200.070
does not create a misdemeanor-murder offense nor is it unconstitutionally vague and
ambiguous.
CONCLUSION
We conclude that the district court was correct in concluding that Barton's trial and
appellate counsel were not ineffective. We conclude that the Blockburger/Lisby elements test
is the appropriate test by which to consider whether an offense is necessarily an included
offense for purposes of instructions. Therefore, we affirm the order of the district court
denying Barton's post-conviction petition for a writ of habeas corpus.
Young, Agosti, Leavitt and Becker, JJ., concur.
Maupin, C. J., with whom Rose, J., agrees, dissenting:
I would not overturn Owens v. State
1
and thus would reverse the trial court in this
instance. I believe that the facts of a particular case should be analyzed along with the
elements of primary and proposed lesser included offenses to determine whether a lesser
included jury instruction should be given. Although this would enlarge the scope of state due
process rights beyond those afforded under the Federal Constitution, we are free to do so at
the state level.
__________

1
100 Nev. 286, 288, 680 P.2d 593, 595 (1984).
____________
117 Nev. 697, 697 (2001) Garcia v. Dist. Ct.
BRANDEE GARCIA, MISTY NOEL HERRERA, PAM MUNK, DONALD STEPHENS,
and DARRELL R. CARDEN, Petitioners, v. THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF PERSHING,
and THE HONORABLE JERRY V. SULLIVAN, DISTRICT JUDGE, Respondents,
and THE STATE OF NEVADA, Real Party in Interest.
No. 37472
September 12, 2001 30 P.3d 1110
Petition for a writ of certiorari challenging the district court's affirmance of a
judgment of conviction for violation of NRS 202.055, sale of alcohol to a person under
twenty-one years of age.
Defendant was convicted in the township justice court of knowingly selling alcohol to
person under twenty-one. The other defendants were convicted in the municipal court of the
same offense. All of the defendants appealed. The district court affirmed, and defendants
petitioned for writ of certiorari. The supreme court held that actual or constructive knowledge
of purchaser's age is required element of the statute prohibiting person from knowingly
selling alcohol to purchaser under the age of twenty-one.
Petition granted.
Steve E. Evenson, Lovelock, for Petitioners.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda B. Quilici, District
Attorney, and Jim C. Shirley, Deputy District Attorney, Pershing County, for Real Party in
Interest.
1. Intoxicating Liquors.
Actual or constructive knowledge of purchaser's age is required element of the statute prohibiting person from knowingly selling
alcohol to purchaser under the age of twenty-one. NRS 202.055.
2. Criminal Law.
Writ of certiorari is extraordinary remedy that lies entirely within discretion of supreme court.
3. Criminal Law.
Certiorari is appropriate only when inferior tribunal has exceeded its jurisdiction and there is no plain, speedy, and adequate
remedy at law.
4. Courts.
Because violation of statute prohibiting sale of alcohol to person under twenty-one was a misdemeanor, judgments of conviction
of the justice and municipal courts were only appealable to district court and the district court's decision in these matters was final, and
accordingly, the only manner by which supreme court could review challenges to constitutionality of, or clarify the elements of, statute
was by a writ of certiorari petition, and because mental state required under statute was of sufficient statewide interest, supreme
court would elect to exercise its extraordinary writ powers.
interest, supreme court would elect to exercise its extraordinary writ powers. NRS 202.055.
5. Criminal Law.
When the intent requirement is supplied in statute, in order to sustain conviction, that intent must be proven as to each element
of the crime.
Unlike other age-specific statutes, such as those proscribing sale of tobacco to persons under eighteen, defendant's state of mind
(knowingly) was expressly included in statute prohibiting person from knowingly selling alcohol to purchaser under twenty-one, thus
requiring defendant's knowledge of each element to be proven, and as a result, State must prove that defendant had actual or
constructive knowledge of all elements of the statute, including purchaser's age, in order to sustain conviction. NRS 193.017, 202.055.
Statute prohibiting person from knowingly selling alcohol to purchaser under twenty-one is not strict liability offense. NRS
202.055.
Circumstances did not support conclusion that defendants either knew or had reason to know that purchaser was under
twenty-one years old, and thus, evidence was not sufficient to support defendants' convictions for knowingly selling alcohol to person
under twenty-one. Purchaser looked substantially older than twenty-one years of age, had full beard, wore hat, and perhaps even
sunglasses when he bought alcohol, purchaser was expressly selected for sting operation because he appeared older than twenty-one,
and all of the defendants testified that purchaser looked twenty-four to twenty-seven years old. NRS 202.055.
OPINION
Per Curiam:
[Headnote 1]
We are asked today to interpret NRS 202.055, which proscribes the sale of alcohol to
those who are under twenty-one years of age, to determine whether the phrase knowingly . . .
[s]ells . . . an alcoholic beverage to any person under 21 years of age requires proof of either
actual or constructive knowledge of the purchaser's age. We conclude that actual or
constructive knowledge of the purchaser's age is a required element of the statute; hence,
because there is insufficient evidence of petitioners' knowledge of the purchaser's age, we
grant the petition for a writ of certiorari and order the district court to vacate petitioners'
convictions.
FACTS
In May 2000, the Pershing County Sheriff's Department conducted a sting operation at
various establishments in the Lovelock area in order to crack down on the sale of alcohol to
persons under the age of twenty-one and to ensure establishments were checking for
identification before selling alcohol.
area in order to crack down on the sale of alcohol to persons under the age of twenty-one and
to ensure establishments were checking for identification before selling alcohol. John Casey
Christensen, who was twenty years and six months old at the time, contacted the Sheriff's
Department to act as the decoy in the sting operation and went into various establishments
and bought alcohol from petitioners. In all cases, petitioners did not ask Christensen for
identification, and each stated that Christensen appeared to be between twenty-four and
twenty-seven years old. Petitioners were each charged with violation of NRS 202.055.
Petitioners Brandee Garcia, Misty Noel Herrera, Pam Munk and Donald Stephens were tried
in the Lovelock Municipal Court, while petitioner Darrell R. Carden was tried in the Lake
Township Justice Court.
Christensen testified at each of the proceedings that he was wearing a hat and had a
goatee, resembling a full beard, when he purchased the alcohol,
1
and that many people told
him he looked older than twenty-one years with his goatee. He also testified that on previous
occasions he had spoken with members of the Sheriff's Department about the fact that he
looked older than twenty-one years old, which indicated to them that it was unlikely persons
selling alcohol would ask for his identification. At the trial, however, Christensen was
clean-shaven.
Officer Kelsey testified at each of the proceedings that he had assumed that under
NRS 202.055 checking identification was required before a person sold alcohol to another.
Kelsey further stated that under the facts, there was no evidence that any of the petitioners
knew Christensen was under twenty-one, only that, in his opinion, they may have been
negligent in failing to check for identification.
The Lake Township Justice Court, in Carden's trial, concluded that because Carden
failed to check Christensen's identification, he had violated NRS 202.055. That court further
concluded:
[There is n]o excuse for the licensee, employee, dealer or other person to plead that he
believed the person to be twenty-one years or over and I think I'm gonna tell you
particularly in this particular instance . . . it's incumbent upon the proprietor . . . to make
sure that the people that are in the establishment are at least twenty-one years old.
The Lovelock Municipal Court, at the other petitioners' trial, also concluded that
petitioners had violated NRS 202.055 by failing to check identification and suggested that
selling alcohol to a person under twenty-one years was a strict liability offense. The court
concluded:
__________

1
There was also testimony that Christensen may have been wearing sunglasses when he bought alcohol from
some of the petitioners.
You do not have to know the individual you are selling to, [the statute] doesn't say
anything about that, you don't have to know what their age is, if there is any question in
your mind, you have to check them. It just doesn't sound realistic to me, like I said
before, that you have to know the individual and that you have to know the age and
then if you sell to them, you are guilty. It doesn't make sense to me . . . . You got
careless, as many of us do, and you didn't check an individual.
(Emphasis added.)
Petitioners then appealed to the district court, alleging that because the State failed to
produce sufficient evidence that they knowingly sold alcohol to a person under twenty-one
years, their convictions should be reversed. The district court issued an order affirming the
judgment of the justice and municipal courts, concluding that the word knowingly' is an
indication that this is not a strict liability statute. The district court also concluded that
[w]hat a Defendant does or fails to do may indicate knowledge/intent or lack thereof to
commit the offense charged. Despite this, the district court affirmed the judgments of
conviction, stating that the triers of fact . . . are the judges of whether there was
knowledge/intent. It would be wrong for this Court to substitute its decision regarding
knowledge and/or intent in this case. Petitioners filed a petition for a writ of certiorari in this
court, challenging their convictions.
DISCUSSION
[Headnotes 24]
A writ of certiorari is an extraordinary remedy that lies entirely within the discretion
of this court.
2
Certiorari is appropriate only when an inferior tribunal has exceeded its
jurisdiction and there is no plain, speedy and adequate remedy at law.
3
Because violation of
NRS 202.055 is a misdemeanor, the judgments of conviction of the justice and municipal
courts are only appealable to the district court, and the district court's decision in that matter
is final.
4
Accordingly, the only manner by which this court could review challenges to the
constitutionality of or clarify the elements of NRS 202.055 is by a writ petition.
5
Because the
determination of the elements of NRS 202.055 and the mental state required is of sufficient
statewide interest, we elect to exercise our extraordinary writ powers in this case.
__________

2
NRS 34.020; see Zamarripa v. District Court, 103 Nev. 638, 640, 747 P.2d 1386, 1387 (1987).

3
NRS 34.020(2).

4
Nev. Const. art. 6, 6; see also Braham v. District Court, 103 Nev. 644, 645-46, 747 P.2d 1390, 1391
(1987).

5
See Zamarripa, 103 Nev. at 640, 747 P.2d at 1387.
of sufficient statewide interest, we elect to exercise our extraordinary writ powers in this case.
6

[Headnote 5]
NRS 202.055 criminalizes the sale of alcohol to a person under the age of twenty-one
years, stating:
Every person who knowingly:
(a) Sells, gives or otherwise furnishes an alcoholic beverage to any person under 21
years of age;
(b) Leaves or deposits any alcoholic beverage in any place with the intent that it will
be procured by any person under 21 years of age; or
(c) Furnishes, gives, or causes to be given any money or thing of value to any person
under 21 years of age with the knowledge that the money or thing of value is to be used
by the person under 21 years of age to purchase or procure any alcoholic beverage,
is guilty of a misdemeanor.
When an intent requirement is supplied in the statute, in order to sustain a conviction, that
intent must be proven as to each element of the crime.
7

NRS 193.017 defines knowingly as knowledge that the facts exist which constitute
the act or omission of a crime, and does not require knowledge of its unlawfulness. NRS
193.017 also states that this knowledge may be inferred from the knowledge of such other
facts as should put an ordinarily prudent person upon inquiryotherwise known as
constructive knowledge. Moreover, in State v. Rhodig, we stated that constructive knowledge
fulfills a statutory requirement that an act be done knowingly, stating that [s]tate of mind
need not be proved by positive or direct evidence, but may be inferred from conduct and the
facts and circumstances disclosed by the evidence.
8

[Headnotes 6, 7]
Unlike other age-specific statutes, such as those proscribing the sale of tobacco to
persons under eighteen years of age,
9
a defendant's state of mind (knowingly) has
expressly been included in NRS 202.055, thus requiring a defendant's knowledge of each
element to be proven.
__________

6
See State of Nevada v. Dist. Ct., 116 Nev. 127, 134, 994 P.2d 692, 697 (2000).

7
See State of Nevada v. District Court, 108 Nev. 1030, 1032-33, 842 P.2d 733, 735 (1992); see also Harris
v. State, 83 Nev. 404, 407, 432 P.2d 929, 931 (1967); see State v. Valdez, 933 P.2d 400, 401-02 (Utah Ct. App.
1997).

8
101 Nev. 608, 611, 707 P.2d 549, 551 (1985).

9
NRS 202.2493(2) (sale of tobacco to persons under eighteen); NRS 200.366-.368 (statutory sexual
seduction); NRS 463.350 (presence of persons under twenty-one years in gaming institutions).
element to be proven. As a result, under the definition of knowingly in NRS 193.017, the
State must prove that the defendant had actual or constructive knowledge of all elements of
the statuteincluding the purchaser's age in order to sustain a conviction.
10
NRS 202.055 is
not a strict liability offense, and the municipal and justice courts applied an incorrect standard
in so concluding.
Other state statutes with similar language as that in NRS 202.055 have been
interpreted to mean that the age of the purchaser is an element of the offense; thus, because
knowingly was included in the statute, the defendant must have actual or constructive
knowledge of the purchaser's age in order to sustain a conviction.
11
In State v. Lelchook, the
Iowa Supreme Court stated that because the statute contained the word knowingly, the
State must prove the defendant knew or had reason to believe the purchaser was under
twenty-one years of age.
12
Thus, the issue becomes a jury question of the sufficiency of the
evidence where [t]he jury is then free to consider its own perception as to the minor's
appearance or to believe the defendant's testimony as to why defendant thought the purchaser
was not a minor.
13

Having determined that NRS 202.055 requires proof that petitioners knew or had
reason to know the purchaser was under twenty-one years of age, we must then look to
whether sufficient evidence was adduced at trial to indicate such knowledge.
14
In light of the
municipal and justice courts' express statements that they based petitioners' convictions on
their belief that NRS 202.055 did not require knowledge of age and that checking
identification was required, we conclude that the incorrect standard was used and sufficient
evidence does not support the convictions.
__________

10
See Valdez, 933 P.2d at 401-02. But see Com. v. Montalvo, 735 N.E.2d 391, 393-94 (Mass. App. Ct.
2000).

11
Ark. Code Ann. 3-3-202(a) (Michie 1996); Ga. Code Ann. 3-3- 23(a)(1) (Harrison 1998); Iowa Code
Ann. 123.47 (West 1997 & Supp. 2001); Me. Rev. Stat. Ann. tit. 28-A, 2081 (West 1988 & Supp. 2000);
Mich. Comp. Laws Ann. 436.1701(1) (West Supp. 2001); N.M. Stat. Ann. 60-7B-1 (Michie 1998); N.D.
Cent. Code 5-01-09 (1999); Okla. Stat. Ann. tit. 37, 537(A) (West 1999); 18 Pa. Cons. Stat. Ann.
6310.1(a) (West 2000); Tenn. Code Ann. 57-3-406(d), 57-3-301(a)(1) (1989 & Supp. 2000); Utah Code
Ann. 32A-12-203 (1999); Va. Code Ann. 4.1- 304 (Michie 1999).

12
186 N.W.2d 655, 656-57 (Iowa 1971).

13
Id. at 657 (citing State v. Straw, 185 N.W.2d 812 (Iowa 1971)); see, e.g., State v. Jarvis, 427 S.W.2d 531
(Ark. 1968); State v. De Villiers, 633 P.2d 756 (Okla. Crim. App. 1981); Commonwealth v. Sheibley, 13 Pa. D.
& C.4th 309 (Pa. D. & C.4th 1992); Dinh v. State, 695 S.W.2d 797 (Tex. Crim. App. 1985).

14
Slobodian v. State, 107 Nev. 145, 147-48, 808 P.2d 2, 3-4 (1991) (citing Jackson v. Virginia, 443 U.S. 307
(1979)); Azbill v. State, 88 Nev. 240, 252, 495 P.2d 1064, 1072 (1972).
[Headnote 8]
The record reveals that Christensen looked substantially older than twenty-one years
of age, had a full beard, wore a hat and perhaps even sunglasses when he bought the alcohol.
In fact, testimony indicates that he was expressly selected because he appeared older than
twenty-one, and all of the petitioners testified that he looked twenty-four to twenty-seven
years old. Thus, because NRS 202.055 does not require asking for identification before
selling alcohol,
15
we conclude that the surrounding circumstances do not support the
conclusion that petitioners either knew or had reason to know Christensen was under
twenty-one years of age. We therefore grant the petition for a writ of certiorari and order the
district court to vacate its orders affirming petitioners' convictions and to enter orders
reversing those convictions.
CONCLUSION
In light of the inclusion of the word knowingly in the statute, we conclude that the
State must prove that the defendant had actual or constructive knowledge of a purchaser's age
in order to sustain a conviction under NRS 202.055 for selling alcohol to a person under
twenty-one. Accordingly, we grant the petition for a writ of certiorari. The clerk of this court
shall issue the writ, directing the district court to vacate its orders affirming petitioners'
convictions and to enter orders reversing the convictions.
16

____________
117 Nev. 703, 703 (2001) Schwartz v. Wasserburger
RENEE R. SCHWARTZ, Appellant, v. JOHN T. WASSERBURGER, Individually and as
Trustee of the John T. Wasserburger Family Trust; the JOHN T. WASSERBURGER
FAMILY TRUST; DESERT LEASING; DESERT SALES AND LEASING, INC., a
Revoked Nevada Corporation; JOHN T. WASSERBURGER and JOHN W.
ARNESON, as Trustees of Desert Leasing, Inc., a Revoked Nevada Corporation,
Respondents.
No. 35916
September 17, 2001 30 P.3d 1114
Appeal from a district court order dismissing a complaint in a breach of contract
action. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
__________

15
Cf. NRS 202.2493.

16
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
matter.
Personal representative for decedent's estate brought breach of contract action against
buyer of partnership interest in automobile-leasing business. The district court dismissed
action. Personal representative appealed. The supreme court, Maupin, C. J., held that cause of
action accrued, and six-year statute of limitations began to run, when decedent first brought
action.
Patrick C. Clary, Las Vegas, for Appellant.
Gordon & Silver, Ltd., and Bradley J. Richardson, Las Vegas, for Respondents.
1. Limitation of Actions.
A cause of action in contract cases involving a wholly anticipatory repudiation accrues either on the date that performance under
the contract is due or, if the plaintiff so elects, on the date that the plaintiff sues upon the anticipatory breach. NRS 11.190(1)(b).
Cause of action for breach of contract accrued, and six-year statute of limitations began to run, when seller of partnership
interest in automobile-leasing business filed suit against buyer for anticipatory breach. NRS 11.190(1)(b).
Before Maupin, C. J., Agosti and Rose, JJ.
OPINION
This appeal raises an issue of first impression for Nevada: on what date a cause of
action arises, for statute of limitation purposes, when an obligation under a written agreement
is repudiated before the date set for performance.
Appellant Renee Schwartz, suing in her capacity as personal representative of her late
husband's estate, claims that the respondents breached a purchase agreement entered into by
her husband before his death. The district court dismissed Ms. Schwartz's complaint,
ultimately concluding that NRS 11.190(1)(b), the six-year statute of limitation governing
actions brought upon written contracts, barred the action. In doing so, the district court
determined that the limitation period commenced on the date respondents repudiated the
purchase agreement.
On appeal, Ms. Schwartz assigns error to the decision below, contending that the
limitation period began to run, as a matter of law, on a later datethe due date for
performance under the contract. We conclude that, in cases of anticipatory breach, the
prescriptive period commences either on the date stipulated for actual performance or, if
the aggrieved party chooses to bring suit before performance is due, on the date that the
action is initiated.
scriptive period commences either on the date stipulated for actual performance or, if the
aggrieved party chooses to bring suit before performance is due, on the date that the action is
initiated.
FACTUAL BACKGROUND
Leslie C. Schwartz, a Las Vegas businessman, was a partner in an auto-leasing
business known generally as Desert Leasing. On June 19, 1992, Mr. Schwartz entered into
an agreement to sell his partnership interest in Desert Leasing to the John T. Wasserburger
Family Trust of Nevada, acting through its agent, John T. Wasserburger.
1
The Trust agreed
to pay the purchase price in regular six-month installments.
The Trust thereafter assumed control of Desert Leasing. On March 24, 1993, attorneys
for the Trust advised Mr. Schwartz in writing that payment of any further installments would
be suspended because of alleged false inducements in connection with the original formation
of the sales agreement.
On May 13, 1993, Mr. Schwartz filed a complaint alleging that the written
notification of March 24, 1993, constituted an anticipatory breach of the purchase agreement.
As threatened, the Trust failed to make the next installment payment, due June 19, 1993.
Mr. Schwartz died on August 25, 1996, before the matter could proceed to trial. Ms.
Schwartz did not learn of her late husband's pending contract claim until approximately three
years after his demise. Because the five-year mandatory dismissal period under NRCP 41(e)
had expired, Ms. Schwartz, in her individual capacity, filed a motion to dismiss the complaint
without prejudice.
2
The district court granted the motion on April 12, 1999. On April 13,
1999, Ms. Schwartz filed a new complaint, which was nearly identical to the original. The
district court dismissed the second complaint without prejudice on September 23, 1999,
essentially on the ground that Ms. Schwartz could not maintain the suit in her individual
capacity, because it [was] brought in the name of a deceased person. This language,
apparently drafted on behalf of the Trust, reflected the Trust's erroneous contention that Ms.
Schwartz was jurisdictionally required to bring the estate's action within one year of Mr.
Schwartz's death under NRS 11.310(1),
3
regardless of the underlying limitation period.
__________

1
Collectively referred to hereafter as the Trust.

2
Lighthouse v. Great W. Land & Cattle, 88 Nev. 55, 57, 493 P.2d 296, 296-97 (1972).

3
NRS 11.310(1) states: If the person entitled to bring an action dies before the expiration of the time limited
for the commencement thereof, and the cause of action survives, an action may be commenced by his
representatives, after the expiration of that time, and within 1 year from his death.
In a subsequent series of motions, Ms. Schwartz sought to persuade the district court
to reconsider its dismissal of the action. She attempted to cure her lack of capacity by
securing appointment as special administrator of Mr. Schwartz's estate and moving for
substitution as a party in the recently-dismissed action.
The district court ultimately determined that the six-year limitation period began to
run March 24, 1993, the date of the anticipatory breach. Accordingly, because Ms. Schwartz
did not file her separate complaint until April 13, 1999, the district court concluded that the
action was time barred, regardless of the capacity in which she sought relief. Thus, it denied
Ms. Schwartz's applications to amend the order of dismissal. Ms. Schwartz timely appealed
the dismissal of the second complaint, claiming that the limitation period did not expire until
June 19, 1999, six years following the due date for performance by the Trust.
DISCUSSION
We must resolve this matter within the framework of the following chronology:
Date of agreement: June 19, 1992.
Date of alleged anticipatory breach: March 24, 1993.
Date of decedent's suit for anticipatory breach: May 13, 1993.
Date performance was actually due: June 19, 1993.
Date of decedent's demise: August 25, 1996.
Sixth anniversary of alleged anticipatory breach: March 24, 1999.
Date second suit commenced: April 13, 1999.
Sixth anniversary following commencement of suit by Mr. Schwartz: May 13, 1999.
Sixth anniversary from date of performance: June 19, 1999.
The question to be decided is whether the repudiation of the agreement, the date of the first
lawsuit, or the date of performance governs the accrual of causes of action for anticipatory
breach of an agreement.
NRS 11.190(1)(b) provides a six-year limitation period for contract actions, but is
silent as to when such a cause of action accrues.
4
We have never considered whether an
anticipatory repudiation constitutes an accrual of a contract action for statute of limitation
purposes.
5

__________

4
Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) (applying existing precedent that
a discovery rule exists with regard to the accrual of contract actions).

5
This court has not specified when a cause of action accrues for these purposes, but has held that when one
party engages in anticipatory breach, the
Other courts have concluded that the statutory prescriptive period governing actions in
contract begins to run on the date of performance specified in the contract, but that the
obligee may elect to commence formal legal action upon any act of anticipatory breach.
6
In
the event a plaintiff elects to sue upon the anticipatory breach and not the promisor's actual
nonperformance, the accrual date of the cause of action is accelerated from time of
performance to the date of such election.'
7

[Headnote 1]
This rule is based upon public policy considerations. If, as urged by the Trust, the
limitation period were to begin on the date of the anticipatory breach itself, an obligee would
be forced to immediately sue on the breach without providing the obligor an opportunity to
reconsider and perform.
8
Such a result would unnecessarily encourage litigation or punish a
non-breaching party for giving the obligor an opportunity to cure the breach. We therefore
hold that under NRS 11.190(1)(b), a cause of action in contract cases involving a wholly
anticipatory repudiation accrues either on the date that performance under the contract is due
or, if the plaintiff so elects, on the date that the plaintiff sues upon the anticipatory breach.
[Headnote 2]
Applying the rule to the instant case, we conclude that the district court erroneously
determined that Ms. Schwartz's breach of contract claim is barred under the six-year
limitation period set forth in NRS 11.190(1)(b). Mr. Schwartz filed his complaint in this
matter before performance on the contract was due. He therefore elected to sue upon the
anticipatory breach and did not wait until the Trust failed to perform. Consequently, the
statute of limitations in this case accelerated and began to run on May 13, 1993. Because Ms.
Schwartz filed her survival action on April 13, 1999, the six-year statute of limitation had not
expired and did not bar this suit.
Ms. Schwartz initially sought to bring suit in her individual capacity, and the district
court subsequently appointed her the administrator of Mr. Schwartz's estate.
__________
other party may treat the contract as ended and sue immediately. See Finnell v. Bromberg, 79 Nev. 211, 381
P.2d 221 (1963).

6
See Kinsey v. United States, 852 F.2d 556, 558 (Fed. Cir. 1988) (citing Penn-Ohio Steel Corp. v. United
States, 354 F.2d 254, 272-73 n.35 (Ct. Fed. Cl. 1965)); Romano v. Rockwell International, Inc., 926 P.2d 1114,
1119 (Cal. 1996) (quoting Taylor v. Johnston, 539 P.2d 425, 430 (Cal. 1975)); see also 4 Corbin on Contracts
989, at 967 (1951).

7
Franconia Associates v. United States, 43 Fed. Cl. 702, 709 (1999) (quoting Calvin W. Corman, Limitation
of Actions 7.2.1 (1991)); see also Union Sugar Co. v. Hollister Estate Co., 47 P.2d 273, 276 (Cal. 1935).

8
See Clayton v. Gardner, 107 Nev. 468, 471 n.3, 813 P.2d 997, 999 n.3 (1991).
capacity, and the district court subsequently appointed her the administrator of Mr. Schwartz's
estate. Accordingly, Ms. Schwartz now asserts her contract claim as the estate's personal
representative. NRS 143.060 allows her to do this: [A]ll actions founded upon contracts . . .
may be maintained by and against a personal representative in all cases in which the actions
might have been maintained by or against the decedent.
The Trust suggested below, and the district court apparently agreed, that NRS
11.310(1) bars this action. Under this provision, if the applicable limitation period governing
a decedent's cause of action has not expired on the date of his demise, the personal
representative may bring the action after the limitation period has expired if it is brought
within one year following the demise. NRS 11.310(1) simply provides a mechanism for
preserving decedents' claims for which prescriptive periods are nearing expiration. This
statute does not pre-empt the right of the personal representative to bring the action any time
after death of the decedent so long as it is brought prior to the expiration of the underlying
prescriptive period.
9
Here, although Mr. Schwartz died some three years before Ms.
Schwartz filed her separate action, the six-year period of limitation on his contract claim had
not expired. Thus, NRS 11.310(1) has no application to this matter.
10

The statutory construct in place for the prosecution of survival actions provides that
the estate administrator stands in the shoes of the decedent and is subject to all defenses that
might have been asserted against the decedent. Accordingly, under this framework, a personal
representative inherits the benefits and burdens connected with the running of any applicable
statute of limitations, measured from when the cause of action first accrued in favor of the
decedent.
11

As Ms. Schwartz's action was not barred by the six-year statute of limitation, we
reverse the district court's dismissal order and remand the case to the district court with
instructions to reinstate her action against the Trust.
Agosti and Rose, JJ., concur.
__________

9
Because the district court concluded that the six-year statute of limitations had run, it never formally ruled
on Ms. Schwartz's motion to substitute. However, the order below unequivocally states: The Court also finds
that if this matter is appealed, and the Nevada Supreme Court disagrees with this Court's conclusion, then the
substitution of [Ms.] Schwartz as Executrix of the Estate of Les Schwartz would relate back under NRCP 15(c)
so that she would be the proper party plaintiff.

10
See Rickards v. Hutchinson, 18 Nev. 215, 223-24, 4 P. 702, 702-03 (1884).

11
See Schwartz v. Stock, 26 Nev. 155, 156-57, 65 P. 357, 357-58 (1901).
____________
117 Nev. 709, 709 (2001) State v. Quinn
THE STATE OF NEVADA, Appellant, v. GREGORY LYNN QUINN, Respondent.
No. 35795
September 17, 2001 30 P.3d 1117
Appeal from an order of the district court granting in part respondent's motion to
dismiss criminal charges. Second Judicial District Court, Washoe County; Steven R. Kosach,
Judge.
Defendant was charged with two counts of lewdness with a child under the age of
fourteen years and four counts of indecent exposure. The district court dismissed indecent
exposure counts. State appealed. The supreme court held that crime may not have been
discovered for statute of limitations purposes if child's mother failed to report out of fear
induced by defendant.
Reversed and remanded with instructions.
Attorney, and Terrence P. McCarthy and Daniel J. Greco, Deputy District Attorneys,
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Vaun B. Hall, Deputy Public Defender, Washoe County, for Respondent.
1. Criminal Law.
Extended tolling periods for sexual abuse of a child did not apply to indecent exposure case involving child-victim, as indecent
exposure was not included among those offenses defined as sexual abuse of a child. NRS 171.095, 432B.100.
2. Criminal Law.
Construction of a statute is a question of law that appellate court reviews independently.
3. Statutes.
If the words of the statute have a definite and ordinary meaning, court will not look beyond the plain language of the statute,
unless it is clear that this meaning was not intended.
4. Statutes.
If a statute is ambiguous, court focuses on the intent of the legislature, which is discernible through an examination of the
context and spirit of the statute in question, together with the subject matter and policy involved.
5. Statutes.
Court's interpretation of a statute should be in line with what reason and public policy would indicate the legislature intended,
and should avoid absurd results.
6. Criminal Law.
Court's interpretation of a statute is guided by the applicable interpretive canon which requires that exemptions to criminal
statutes of limitations be narrowly construed and read in the light most favorable to the accused and by prior
case law.
117 Nev. 709, 710 (2001) State v. Quinn
itations be narrowly construed and read in the light most favorable to the accused and by prior case law.
7. Criminal Law.
For purposes of tolling the statute of limitations under the secret manner provision of statute of limitations, discovery occurs
when any person, including the victim, but other than the wrongdoer or someone acting in pari delicto with the wrongdoer, has
knowledge of the act and its criminal nature, unless the person with knowledge: (1) fails to report out of fear induced by threats made
by the wrongdoer or by anyone acting in pari delicto with the wrongdoer, or (2) is a child-victim under eighteen years of age and fails
to report because of threats or coercive tactics of perpetrator or from child's personal fear of not being believed. NRS 171.095(1)(a).
8. Criminal Law.
A crime can remain undiscovered such that statute of limitation, under its secret manner provision, does not begin to run even
if multiple persons know about it so long as the silence is induced by the wrongdoer's threats. NRS 171.095(1)(a).
9. Criminal Law.
Under secret manner provision, indecent exposure to child-victim may not have been discovered for purposes of statute of
limitations, although child had told her mother of incidents, if mother was induced into silence out of fear induced by defendant and
had not told her pastor of child's allegations. NRS 171.095(1)(a).
OPINION
Per Curiam:
SUMMARY
This case presents the issue of what constitutes discovery of a sexual crime against
a child committed in a secret manner for purposes of triggering the criminal statute of
limitations contained at NRS 171.095(1)(a). We conclude that discovery of a crime occurs
when any person other than the wrongdoer (or someone acting in pari delicto with the
wrongdoer) has knowledge of the act and its criminal nature, unless the person with
knowledge: (1) fails to report out of fear induced by threats made by the wrongdoer or by
anyone acting in pari delicto with the wrongdoer; or (2) is a child-victim under eighteen years
of age who fails to report for the reasons discussed in Walstrom v. State.
1

FACTS
On December 17, 1998, the State filed a criminal complaint against Gregory Lynn
Quinn (Gregory) for committing acts of lewdness and exposing himself to his
stepdaughter on numerous occasions between January 1, 1993, and December 12, 1996.
__________

1
104 Nev. 51, 752 P.2d 225 (1988), overruled on other grounds by Hubbard v. State, 110 Nev. 671, 877
P.2d 519 (1994).
117 Nev. 709, 711 (2001) State v. Quinn
lewdness and exposing himself to his stepdaughter on numerous occasions between January
1, 1993, and December 12, 1996. The information that was ultimately filed against Gregory
charged him with two counts of lewdness with a child under the age of fourteen years, a
felony, and four counts of indecent exposure, a gross misdemeanor.
Shortly before trial, Gregory filed a motion to dismiss all of the indecent exposure
charges because they were filed after the two-year limitation period for prosecuting gross
misdemeanors had run. The district court then conducted a hearing on the matter.
At the hearing, the district court heard Gregory's offer of proof that the child told her
mother, Christine Quinn (Christine), of Gregory's activities on December 12, 1996
2
just
over two years prior to the filing of the complaint. The district court also heard evidence that
on this same day, Christine informed her pastor about her child's allegations. In its written
order, however, the district court accepted only the offer of proof that Christine was informed
at this time and made no mention of the pastor. Therefore, there has been no factual finding
regarding the pastor and whether he knew of the crime on December 12, 1996. Accordingly,
Gregory argued that NRS 171.095(1)(a), which provides that the two-year limitation period
for prosecuting gross misdemeanors committed in secrecy begins to run at the time of a
crime's discovery, barred prosecution of the indecent exposure claims.
The State, on the other hand, presented evidence that the child first reported the
crimes to law enforcement authorities on November 2, 1998just two months before the
criminal complaint was filed. In contrast to Gregory's position, the State argued that the
crimes were not discovered for purposes of NRS 171.095(1)(a) purposes until the child
reported the incidents to law enforcement authorities. Accordingly, the State argued that
Gregory's prosecution was not barred by the limitation period and urged the district court to
deny his motion.
The court ultimately ruled in favor of Gregory and found that although the alleged
instances of indecent exposure were committed in secrecy, they were discover[ed]' within
the meaning of NRS 171.095(1)(a) when the child reported the allegations to her mother.
The State now appeals the order.
__________

2
Defense counsel made it clear that it was likely that the child made earlier reports to Christine about
Gregory's indecent exposure, but accepted this date as the latest possible date such disclosure was made.
Because an earlier reporting date would not change the analysis, we will use December 12, 1996, as the date on
which the child told Christine of Gregory's activities.
117 Nev. 709, 712 (2001) State v. Quinn
DISCUSSION
I. The underlying statutes
This court has consistently held that with respect to limitation periods and tolling
statutes, the statutes in effect at the time of the offense control.
3
Therefore, the relevant
statutes in this matter are those that were in effect from January 1, 1993, to December 12,
1996. During this time, NRS 201.220(1) provided that indecent exposure was a gross
misdemeanor for the first offense, and a felony for subsequent offenses.
4
For gross
misdemeanors, the relevant period of limitations in which the State could file a charging
document was two years.
5

Although NRS 171.095 was amended on October 31, 1993, that portion of the statute
which is relevant to this matter was not materially altered. Specifically, NRS 171.095(1)(a)
provided:
If a felony, gross misdemeanor or misdemeanor is committed in a secret manner, an
indictment for the offense must be found, or an information or complaint filed, within
the periods of limitation prescribed in NRS 171.085 and 171.090 after the discovery of
the offense unless a longer period is allowed by paragraph (b).
6

[Headnote 1]
Paragraph (b) of NRS 171.095(1) then provided for longer tolling periods if the
offense constituted sexual abuse of a child, as defined in NRS 432B.100.
7
Importantly,
these extended tolling periods do not apply to the facts of this case because indecent exposure
was not included among those offenses constituting sexual abuse under NRS 432B.100.
II. Principles of statutory construction
[Headnote 2]
The parties ask us to construe the meaning of discovery as the term is used in NRS
171.095(1). The construction of a statute is a question of law that we review independently.
8

__________

3
See, e.g., Houtz v. State, 111 Nev. 457, 461, 893 P.2d 355, 357 (1995); Walstrom, 104 Nev. at 53, 752 P.2d
at 227.

4
See NRS 201.220(1) (1991).

5
See NRS 171.090(1) (1991).

6
(Emphasis added.) In the pre-amendment version of the statute, the emphasized language was identical but
appeared in a different subsection. See NRS 171.095(1) (1991) (amended 1993).

7
See NRS 432B.100 (1991) (amended 1997) (listing only incest, lewdness, annoyance or molestation,
sado-masochistic abuse, sexual assault, statutory sexual seduction, and open or gross lewdness as crimes
constituting sexual abuse of a child).

8
Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997).
117 Nev. 709, 713 (2001) State v. Quinn
[Headnote 3]
When construing a statute, we first inquire whether an ambiguity exists in the
language of the statute. If the words of the statute have a definite and ordinary meaning, this
court will not look beyond the plain language of the statute, unless it is clear that this meaning
was not intended.
9
In this case, an ambiguity clearly exists because the statute does not
specify by whom the crime must be discovered, and is thus open to several interpretations.
[Headnotes 4, 5]
If a statute is ambiguous, we then focus on the intent of the legislature, which is
discernible through an examination of the context and spirit of the statute in question,
together with the subject matter and policy involved.
10
Our interpretation should be in line
with what reason and public policy would indicate the legislature intended, and should avoid
absurd results.
11

[Headnote 6]
Our interpretation is also guided by the applicable interpretive canon which requires
that exemptions to criminal statutes of limitations be narrowly construed and read in the light
most favorable to the accused and by our prior case law.
12

III. The meaning of discovery as used in NRS 171.095(1)
Although the precise issue we are considering here is one of first impression, our prior
case law interpreting other aspects of NRS 171.095 is highly instructive.
13
Beginning in
1988 with Walstrom v. State,
14
this court addressed the secret manner
__________

9
See State v. State, Employees Assoc., 102 Nev. 287, 289, 720 P.2d 697, 698 (1986) (When a statute uses
words which have a definite and plain meaning, the words will retain that meaning unless it clearly appears that
such meaning was not so intended.).

10
Gallagher v. City of Las Vegas, 114 Nev. 595, 599-600, 959 P.2d 519, 521 (1998). While legislative
histories are often helpful in this regard, no history was available regarding the discovery language of NRS
171.095(1)(a) because it was originally added to Nevada's statutes as part of the Criminal Procedure Act of 1911
and has remained materially unchanged ever since.

11
Id.

12
See State v. Merolla, 100 Nev. 461, 464, 686 P.2d 244, 246 (1984) (holding that criminal statutes of
limitation should be construed in favor of the accused); Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417
(1999) (Rose, J., dissenting) (reviewing principles of stare decisis).

13
In Hubbard v. State, 110 Nev. 671, 877 P.2d 519 (1994), we noted that the sexual crimes involved were
discovered for purposes of NRS 171.095 by someone who had a duty to report them. In Hubbard, however,
we did not squarely address the question of what constitutes discovery. Therefore, any inference that may be
drawn from that case is nonbinding dicta.

14
104 Nev. 51, 752 P.2d 225 (1988), overruled on other grounds by Hubbard, 110 Nev. 671, 877 P.2d 519.
117 Nev. 709, 714 (2001) State v. Quinn
tolling provision of NRS 171.095 for crimes involving the sexual abuse or assault of children.
In Walstrom, the defendant had committed child sexual abuse crimes that went undiscovered
for eight years.
Walstrom argued that prosecution for the crimes was barred by the limitation period
because the crimes were not committed in a secret manner. Specifically, Walstrom
contended that a crime against a person could not be secret because the crime, by its very
nature, involved a victim who remained alive and had knowledge of the criminal act.
15
This
court, however, rejected Walstrom's argument and instead focused on the vulnerability of the
child-victim and the child's likely reluctance to report the abuse. This reluctance, we noted,
often resulted from either the threats or coercive tactics of the perpetrator or from the child's
personal fear of not being believed.
16
This court noted that because sexual abuse crimes are
inherently repugnant in nature, they are almost always intended to be kept secret.
17
Accordingly, the court concluded that crimes against children, such as lewdness, could be
committed in a secret manner for purposes of NRS 171.095(1):
[A] crime is done in a secret manner, under NRS 171.095, when it is committed in a
deliberately surreptitious manner that is intended to and does keep all but those
committing the crime unaware that an offense has been committed. Therefore normally,
if a crime of physical abuse, or a related crime, is committed against a victim who
remains alive, it would not be committed in a secret manner under the statute. The
victim is aware of the crime and has a responsibility to report it. However, given the
inherently vulnerable nature of a child, we conclude that the crime of lewdness with a
minor can be committed in a secret manner, even though a victim is involved.
18

In reaching this conclusion, however, the court recognized that exceptions to criminal
statutes of limitations are to be narrowly construed and read in a light most favorable to the
accused.
19
Accordingly, it placed the burden of proving that a crime was committed in a
secret manner upon the State.
20

In 1995, the theoretical limitations of the Walstrom decision were tested in Houtz v.
State.
__________

15
See id. at 52-53, 55-56, 752 P.2d at 226, 228.

16
See id.

17
Id. at 57, 752 P.2d at 229.

18
Id. at 56, 752 P.2d at 228.

19
Id. at 53-55, 752 P.2d at 227-28.

20
Id.
117 Nev. 709, 715 (2001) State v. Quinn
were tested in Houtz v. State.
21
The victim in Houtz was molested as a teenager by his band
teacher, but repressed his memories of the events for years. At age twenty-five, a broken
relationship triggered recollections of the molestations and the State filed charges against the
teacher ten years after the events occurred.
22

The State argued that because the crime was committed in a secret manner as in
Walstrom, the limitation period was tolled until the victim revealed the crimes over a decade
later. This court, however, rejected this limitless interpretation of Walstrom and held that the
secret manner provisions of NRS 171.095(1) did not toll the limitation period for crimes
involving children beyond the victim's eighteenth birthday, the age of majority.
23

In reaching this decision, the court relied on two principal arguments. First, the court
noted that the legislative intent in enacting a statute of limitations is to protect defendants
from the unfairness of prosecution when evidence is stale and witnesses are unavailable.
24
Second, the court noted that the legislature had never included child sexual abuse among
those offenses that are not subject to a statute of limitations.
25
Thus, an interpretation that
would nullify the statute and theoretically allow for limitless prosecutions would be
unreasonable and absurd.
26

[Headnotes 7, 8]
As in Walstrom and Houtz, our interpretation of the term discovery in NRS 171.095
must balance the realities of child sexual abuse crimes against the important fairness interests
which underlie criminal statutes of limitation. Accordingly, for purposes of tolling the statute
of limitations under the secret manner provision of NRS 171.095, discovery occurs when
any personincluding the victimother than the wrongdoer (or someone acting in pari
delicto with the wrongdoer) has knowledge of the act and its criminal nature, unless the
person with knowledge: (1) fails to report out of fear induced by threats made by the
wrongdoer or by anyone acting in pari delicto with the wrongdoer; or (2) is a child-victim
under eighteen years of age and fails to report for the reasons discussed in Walstrom.
27
Under this rule, then, a crime can remain undiscovered even if multiple persons know
about it so long as the silence is induced by the wrongdoer's threats.
__________

21
111 Nev. 457, 893 P.2d 355 (1995).

22
Id. at 457-58, 893 P.2d at 355-56.

23
Id. at 461-62, 893 P.2d at 357-58. Houtz also noted that the extended tolling periods provided for in NRS
171.095(2) did not apply because it was not in effect at the time of the crime. See id. at 460 n.5, 893 P.2d at 357
n.5.

24
Id. at 461, 893 P.2d at 357-58.

25
Id. at 461-62, 893 P.2d at 358.

26
See id. at 461, 893 P.2d at 358.

27
This rule is substantially similar to the one announced in State v. Day, 882 P.2d 1096 (Okla. Crim. App.
1994).
117 Nev. 709, 716 (2001) State v. Quinn
crime can remain undiscovered even if multiple persons know about it so long as the silence
is induced by the wrongdoer's threats.
This approach is highly consistent with our decisions in Walstrom and Houtz. By
applying the secret manner exception to crimes involving children, Walstrom recognized the
realities of child abuse crimes and the silence that may be induced. Similarly, our approach
here realistically recognizes that a wrongdoer can perpetrate a secret crime by threatening
anyone with knowledge to remain silent about a crime and prevents the wrongdoer from
unfairly manipulating the statute of limitations to his advantage. Further, by broadly defining
discovery to include all those with knowledge of the act and its criminal nature, our
approach is consistent with the fairness principles advanced in Houtz, which recognizes the
legislature's intent in enacting criminal statutes of limitations, and our interpretative canon
requiring criminal statutes of limitation to be construed narrowly.
CONCLUSION
We conclude that for purposes of the secret manner provisions of NRS 171.095,
discovery occurs when any person other than the wrongdoer (or someone acting in pari
delicto with the wrongdoer) has knowledge of the act and its criminal nature, unless the
person with knowledge: (1) fails to report out of fear induced by threats made by the
wrongdoer or by anyone acting in pari delicto with the wrongdoer; or (2) is a child-victim
under eighteen years of age and fails to report for the reasons discussed in Walstrom.
[Headnote 9]
In this case, it remains unsettled as to whether Christine was induced into silence out
of fear induced by Gregory and whether Christine's pastor had knowledge of the events at a
time that would bar prosecution. Accordingly, we reverse and remand this matter to the
district court for further proceedings consistent with this opinion.
Shearing, J., concurring:
I agree that this case should be remanded for certain factual determinations, but I
disagree with the majority's analysis and conclusion as to when a crime committed against a
child in a secret manner is discovered for purposes of the statute of limitations.
I agree with the majority that NRS 171.095(1)(a) is ambiguous as to when a crime
committed in a secret manner is discovered, and that we must, therefore, focus on the intent
of the Legislature, which is discernible through an examination of the the context and spirit
of the statute in question, together with the subject matter and policy involved."
117 Nev. 709, 717 (2001) State v. Quinn
and spirit of the statute in question, together with the subject matter and policy involved.
1

I also agree with the majority that our interpretation of the term discovery must
balance the reality of the circumstances surrounding crimes against children against the
important fairness interests of the defendant/accused which underlie criminal statutes of
limitations. It is not fair to subject a person to criminal liability indefinitely with virtually no
time limit. On the other hand, neither is it fair to impose upon an already traumatized and
susceptible child the burden of reporting to authorities an embarrassing and traumatic event.
This court recognized these principles in Walstrom v. State
2
and Houtz v. State.
3
But these
cases did not resolve the question of when a crime committed against a child in a secret
manner is deemed to be discovered.
The majority concludes that discovery of the crime occurred in this case when the
child told her mother, unless her mother failed to report out of fear induced by the
wrongdoer. I believe that this standard reflects neither the reality of the circumstances
surrounding crimes against children, especially crimes of a sexual nature, nor the policies
established by the Legislature.
One of the realities of crimes against children is that parents very often do not believe
their children when they report crimes of a sexual nature committed against them. The parent
often either chooses to believe the perpetrator or condones the perpetrator's actions for a
variety of reasons other than fear induced by the wrongdoer, such as economic, social or
psychological dependence. This is particularly the case in situations such as this, where the
alleged perpetrator is the spouse of the parent to whom the child reports.
In NRS 432B.220, the Legislature established the policy that certain responsible
adults, not including parents, are required to report known or suspected child abuse or neglect
to either a law enforcement agency or child protective services.
4
I would hold that a secret
crime against children is discovered when a person who is required under NRS 432B.220
to report the abuse to the authorities knows or has reasonable cause to believe that abuse has
been committed, not when persons who have no legal duty to report the abuse have
knowledge.
5

__________

1

2
104 Nev. 51, 752 P.2d 225 (1988).

3
111 Nev. 457, 893 P.2d 355 (1995).

4
Under NRS 432B.220, people who are required to report include, among others, medical professionals,
hospital personnel, social workers, teachers, counselors and law enforcement personnel.

5
This is also the rule adopted by the Ohio Supreme Court in State v. Hensley, 571 N.E.2d 711 (Ohio 1991).
117 Nev. 709, 718 (2001) State v. Quinn
The evidence in this case indicates that the child-victim reported the abuse to her
mother on December 12, 1996, and on the same day the mother told her pastor. NRS
432B.220(3)(d) provides that a clergyman, practitioner of Christian Science or religious
healer, unless he has acquired the knowledge of the abuse or neglect from the offender during
a confession is required to report the abuse or neglect to law enforcement or child protective
services. Thus, it appears that the pastor was a required reporter and the disclosure to him
occurred more than two years before the criminal complaint was filed. However, since there
was no finding by the trial court on the issue of when the pastor was told and whether the
pastor actually falls within the statute as a required reporter, I would remand the case for this
factual determination.
____________
117 Nev. 718, 718 (2001) Crawford v. State
DAVID CRAWFORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35810
September 17, 2001 30 P.3d 1123
Appeal from a judgment of conviction, pursuant to a guilty plea, of first-degree
murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Jeffrey
D. Sobel, Judge.
Defendant entered a plea of guilty in the district court to first-degree murder with the
use of a deadly weapon, and the court denied defendant's motion to withdraw his plea.
Defendant appealed. The supreme court, Agosti, J., held that defendant's guilty plea was not
knowing, voluntary and intelligent, and defendant was entitled to withdraw his plea, which
was conditioned upon trial court's promise to allow him to remain out of custody until after
Christmas, when court revoked his bail.
Scott L. Bindrup, Las Vegas, for Appellant.
Respondent.
1. Criminal Law.
When reviewing a district court's denial of a motion to withdraw a guilty plea, supreme court presumes that the district court
properly assessed the plea's validity, and supreme court will not reverse the lower court's determination absent abuse of discretion.
2. Criminal Law.
District courts may grant a motion to withdraw a guilty plea prior to sentencing for any substantial, fair, and just reason, and to
determine whether the defendant advanced a substantial, fair, and just reason to withdraw a plea, the district court must consider the
totality of the circumstances to determine whether the defendant entered the plea voluntarily, knowingly, and intelligently.
3. Criminal Law.
Thorough plea canvass coupled with a detailed, consistent, written plea agreement supports a finding that the defendant entered
the plea voluntarily, knowingly, and intelligently.
4. Criminal Law.
Guilty plea is presumptively valid, especially when it is entered into on the advice of counsel.
5. Criminal Law.
Guidelines for voluntariness of guilty pleas require only that the record affirmatively show that the defendant entered his plea
understandingly and voluntarily.
6. Criminal Law.
Under the totality of the circumstances, defendant's guilty plea was not knowing, voluntary and intelligent, and defendant was
entitled to withdraw his plea, which was conditioned upon trial court's promise to allow him to remain out of custody until after
Christmas, when court revoked his bail. Court's canvass of defendant was insufficient, the written plea agreement did not cure the
insufficiency, continued bail was a condition of his plea and yet the court failed to canvass him on that, and canvass conducted orally
by the court was inadequate to demonstrate that defendant's plea was voluntary and not the product of the court's promise.
OPINION
The body of Gloria Joann Dugan, a woman with whom David Crawford was
personally involved in a relationship, was discovered on March 25, 1997. She had been shot
multiple times. After the police investigated her homicide, the district attorney charged David
Crawford, on March 28, 1997, with murder with the use of a deadly weapon and burglary.
At a hearing on April 10, 1997, the justice of the peace lowered Crawford's bail to
$360,000.00. Crawford's parents posted the bail and he was released that day. Crawford
waived his right to have the preliminary hearing which was scheduled for August 6, 1997,
based upon a plea bargain he had made with the State. Crawford had agreed to enter a plea of
guilty to first-degree murder with the use of a deadly weapon. He also agreed to accept a
sentence of two terms of life imprisonment without the possibility of parole.
ity of parole. Crawford and the State also agreed that sentencing would take place after
Christmas 1997.
Crawford was expected to plead guilty according to the terms of the plea bargain on
August 21, 1997. However, that hearing was continued after the court granted Crawford's
request that he be allowed to enter his plea after his September birthday had passed.
At a hearing on November 17, 1997, Crawford, instead of pleading guilty according to
the plea bargain, pleaded not guilty. The court set the matter for trial, but that trial date was
continued. Crawford remained on bail and in the community for more than two years with the
first-degree murder charge pending. He married and fathered a child during his time at liberty
in the community.
On August 26, 1999, four days prior to his scheduled trial date, Crawford withdrew
his plea of not guilty and thereafter entered a plea of guilty to first-degree murder with the use
of a deadly weapon. He had executed a written plea agreement that morning, prior to the
hearing on his change of plea. Crawford wanted to remain on bail until he was sentenced, and
he wanted to be sentenced after Christmas 1999. After accepting Crawford's guilty plea, the
court set his sentencing date for January 6, 2000. Crawford was permitted to remain at liberty
on his previously posted bail. However, the court, acting on its own initiative, held a hearing
one week after Crawford had pleaded guilty. The hearing concerned Crawford's bail status.
Ultimately, on September 9, 1999, the court revoked Crawford's bail, and Crawford was
jailed.
Crawford objected, claiming that a condition for his guilty plea was that he be allowed
to remain at liberty until after Christmas. His motions for reconsideration, for a remand to
justice court or, in the alternative, to withdraw his guilty plea were denied by the court.
Crawford was sentenced in February 2000 to two consecutive terms of life imprisonment
without the possibility of parole for Dugan's murder and for the use of a deadly weapon.
Crawford raises several issues on appeal including allegations that his due process
rights under the Fourteenth Amendment were violated by the court when it displayed personal
bias against Crawford by revoking his bail. We determine that this assignment of error is
without merit. In our review of the record we detect no evidence of bias.
Crawford next claims that the judge engaged in an ex parte communication with
Crawford's attorney. The day before Crawford pleaded guilty, a member of the judge's staff
contacted Crawford's counsel and directed him to phone the judge at his home. Counsel
called the deputy district attorney assigned to prosecute Crawford and told him he would be
calling the court as directed.
directed. Counsel then phoned the judge, and an ex parte conversation took place.
Whenever a judge communicates with a party concerning a pending proceeding
without notice to the adverse party, an ex parte communication has occurred.
1
Canon
3(B)(7)(a) of the Nevada Code of Judicial Conduct prohibits a judge from engaging in ex
parte communications except where circumstances require such contact for scheduling and no
substantive matters or issues on the merits are discussed. The record reveals that the judge
acknowledged that he engaged in ex parte communications with Crawford's attorney and
claimed that these communications were restricted to scheduling matters. However, according
to Crawford's counsel, the judge asked if Crawford would be pleading guilty. Counsel related
Crawford's concern that if he pleaded guilty he would be jailed pending his sentencing
hearing. Counsel informed the judge of his client's desire to remain on bail until he was
sentenced and to be sentenced after Christmas 1999. The judge told counsel he would agree
to those conditions.
It is not possible for this court to resolve this factual conflict in the context of this
appeal. As a result, it is difficult to know whether this communication between the court and
Crawford's counsel violated Canon 3(B)(7). Fortunately, we need not resolve this issue to
decide Crawford's appeal because other error exists which requires reversal of the district
court's denial of Crawford's motion to withdraw his plea of guilty. Nevertheless, we take this
opportunity to indicate our disapproval of the judge's decision to communicate ex parte with
counsel. Current technology, including conference calling and three-way calling, makes the
dangerous practice engaged in by this judge unnecessary. By including a representative of the
State in a conversation limited to questions of scheduling, the court might have avoided this
embarrassing accusation of conduct which, if true, is at best unethical and at worst possible
reversible error.
[Headnotes 15]
Error exists in this case which requires this court to reverse the judgment of
conviction and remand the matter to the district court with instructions to the district court to
allow Crawford to withdraw his guilty plea. When reviewing a district court's denial of a
motion to withdraw a guilty plea, this court presumes that the district court properly assessed
the plea's validity, and we will not reverse the lower court's determination absent abuse of
discretion.
2
District courts may grant a motion to withdraw a guilty plea prior to sentencing
for any substantial, fair, and just reason.
3
To determine whether the defendant advanced a
substantial, fair, and just reason to withdraw a plea, the district court must consider the
totality of the circumstances to determine whether the defendant entered the plea
voluntarily, knowingly, and intelligently.
__________

1
See Nevada Code of Judicial Conduct Canon 3(B)(7).

2
Riker v. State, 111 Nev. 1316, 1322, 905 P.2d 706, 710 (1995).

3
Woods v. State, 114 Nev. 468, 475, 958 P.2d 91, 95 (1998).
determine whether the defendant advanced a substantial, fair, and just reason to withdraw a
plea, the district court must consider the totality of the circumstances to determine whether
the defendant entered the plea voluntarily, knowingly, and intelligently.
4
A thorough plea
canvass coupled with a detailed, consistent, written plea agreement supports a finding that the
defendant entered the plea voluntarily, knowingly, and intelligently.
5
Moreover, a guilty plea
is presumptively valid, especially when it is entered into on the advice of counsel.
6
The
guidelines for voluntariness of guilty pleas require only that the record affirmatively show
that the defendant entered his plea understandingly and voluntarily.
7

The record lends compelling credence to Crawford's assertion that his plea of guilty
was conditioned upon the court's oral promise to allow him to remain out of custody until
after Christmas. That condition is not reflected in and is inconsistent with the written plea
agreement which Crawford signed before his hearing and before his oral guilty plea canvass.
The signed, written plea agreement contains the following language: I am signing this
agreement voluntarily, after consultation with my attorney, and I am not acting under duress
or coercion or by virtue of any promises of leniency, except for those set forth in this
agreement. The agreement is silent as to Crawford's custody status prior to sentencing. In
contrast to the terms of the written agreement, Crawford, his counsel and the deputy district
attorney engaged in a colloquy with the judge at the hearing on Crawford's change of plea but
prior to entry of his guilty plea. The result of that conversation, parts of which were
unreported, is that Crawford entered his guilty plea with the understanding that he would
remain on bail pending a sentencing that would take place after Christmas 1999.
The hearing commenced with a bench conference initiated at the request of
Crawford's attorney. The conference was not reported. At the conclusion of the conference,
the judge directly addressed Crawford and acknowledged his understanding that Crawford
wanted to remain on bail and to be sentenced after the Christmas holiday. The judge told
Crawford that he would not decide whether to allow him to remain on bail or when to
sentence him until after Crawford pleaded guilty. The judge emphasized to Crawford that his
guilty plea would be unrelated to the judge's decision regarding bail.
__________

4
Id. at 475, 958 P.2d at 95-96; see also State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000).

5
Woods, 114 Nev. at 476, 958 P.2d at 96; see also Freese, 116 Nev. at 1105-06, 13 P.3d at 448.

6
Jezierski v. State, 107 Nev. 395, 397, 812 P.2d 355, 356 (1991) (Young & Steffen, JJ., dissenting).

7
See Heffley v. Warden, 89 Nev. 573, 574, 516 P.2d 1403, 1404 (1973).
sized to Crawford that his guilty plea would be unrelated to the judge's decision regarding
bail. The judge, in effect, disavowed that Crawford would be allowed to remain on bail as an
inducement for Crawford to plead guilty. However, that is not the circumstance under which
Crawford ultimately pleaded guilty.
Immediately after the judge made his remarks, Crawford's attorney again stopped the
proceedings and asked for another bench conference. Once again, the conference was
unreported. After this second, off-the-record conversation, the judge deviated from his
previously stated intention to take Crawford's plea before addressing his bail status and
sentencing date. Instead, the judge agreed to determine Crawford's bail status and his
sentencing date before asking for his plea and before canvassing him. The judge then
explicitly agreed to allow Crawford to be sentenced after Christmas and strongly implied he
would allow Crawford to remain on bail until he was sentenced. By making such a
representation and such a calculated implication to Crawford, we conclude that the judge
effectively promised to give to Crawford what Crawford wanted as an inducement to plead
guilty.
8

The judge did not elicit Crawford's plea to the murder charge until after the discussion
regarding his bail and sentencing date was complete. Crawford then pleaded guilty. In
response to the judge's canvass, Crawford told the judge his plea of guilty was made freely
and voluntarily, and that he had read the plea agreement and signed it. The judge advised
Crawford of the penalties that could be imposed. During the canvass the judge acknowledged
that Crawford's desire to remain on bail was a component in his decision to plead guilty. He
remarked to Crawford as follows: Now, I know you want to stay out of custody and that is
important to this plea, what you're going to do, but you're not pleading guilty just to get some
more time, you're pleading guilty because you are guilty of First Degree Murder. Am I
correct? Crawford responded by saying, Yes, sir.
Upon the court's acceptance of Crawford's guilty plea, a sentencing date of January 6,
2000, was set. The State did not move to revoke Crawford's bail in light of his guilty plea.
The judge clarified that Crawford was on bail, that his parents' house and property were
pledged as collateral for the bond that had been posted and that Crawford was not on
house arrest.
__________

8
Prior to asking Crawford for his plea, the judge, during the course of discussion with both counsel, stated
the following:
All right. Let's argue it in reverse order then. . . . [W]hat we've discussed now twice at the bench is where
Mr. Crawford would be after [pleading guilty]. Now, normally, if somebody pleads guilty I leave them
out of custodyas I take it everyone doesuntil sentencing.
. . . .
[I]f he leaves, he bankrupts unless they're millionaires, he bankrupts his parents. . . .
. . . .
Yeah, I'll continue the sentencing until just after the first of the year.
clarified that Crawford was on bail, that his parents' house and property were pledged as
collateral for the bond that had been posted and that Crawford was not on house arrest. No
further mention of Crawford's bail status was made, and the hearing was adjourned, further
confirming that the court had in actuality decided the matter of bail favorably to Crawford
prior to taking Crawford's guilty plea.
Days later, when the court revoked Crawford's bail, it did so without the presentation
of any additional evidence or argument by the State that bail had been improperly continued.
The judge essentially expressed a change of heart, indicating that he, the judge, would sleep
better at night if Crawford was behind bars. By revoking Crawford's bail, the judge either (1)
violated the terms of the plea bargain that he had made himself a part of and bound himself to
when he promised to allow Crawford to remain on bail for a lengthy time prior to sentencing
as an inducement to get Crawford to plead guilty, or (2) whether he made such a promise or
not, insufficiently canvassed Crawford so that his expectations regarding his bail and the
conditions under which he was entering his plea would be clear and apparent from the record.
It is significant to our decision that the judge, during the oral plea canvass, failed to
ask Crawford if he had been promised anything to induce him to plead guilty. The judge
knew Crawford's liberty until his sentencing after Christmas 1999 was crucial to his
willingness to plead guilty. The judge should have canvassed Crawford to clarify that he had
not been promised or guaranteed continued bail and a delayed sentencing date as a condition
to his plea of guilty, if in fact continued bail and a sentencing hearing delayed until after
Christmas were not promised to him.
[Headnote 6]
Our review of the record convinces us that under the totality of the circumstances,
Crawford's plea was not knowing, voluntary and intelligent. The court's canvass of Crawford
was insufficient, and the written plea agreement does not cure the insufficiency. Continued
bail was a condition of his plea of guilty, yet the court failed to canvass him on that. The court
failed to inquire of Crawford if any promises or guarantees were made to him upon which he
relied as an inducement to plead guilty. Since the court's promise regarding bail and the
sentencing date was articulated in court after Crawford signed the written plea agreement, the
State may not rely upon that written agreement as evidence that Crawford's plea was
knowing, voluntary and intelligent. The canvass conducted orally by the court was inadequate
to demonstrate that Crawford's plea was voluntary and not the product of the court's promise.
court's promise. Therefore, the district court abused its discretion when it denied Crawford's
motion to withdraw his plea of guilty made after the district court revoked his bail.
Based upon the above, the decision of the district court is reversed, and the case is
remanded to the district court with instructions to allow Crawford to withdraw his plea of
guilty.
Shearing and Rose, JJ., concur.
____________
117 Nev. 725, 725 (2001) Tavares v. State
LONNIE RAY TAVARES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35909
September 17, 2001 30 P.3d 1128
Appeal from a judgment of conviction, pursuant to a jury trial, of first-degree murder.
The district court sentenced appellant to life in prison with the possibility of parole after
twenty years. Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Defendant was convicted in the district court of first-degree murder. Defendant
appealed. The supreme court held that: (1) prosecutor has the duty to request that the jury be
instructed on the limited use of prior bad act evidence, (2) prosecutor's failure to request that
instruction prejudiced defendant, and (3) evidence was insufficient to warrant modified jury
instruction on flight.
Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
The supreme court has the discretion to address an error if it was plain and affected the defendant's substantial rights, even if the
defendant failed to preserve the error for appeal.
2. Criminal Law.
Normally, a defendant must show that an error was prejudicial in order to establish that it affected his substantial rights.
3. Criminal Law.
Evidence of uncharged bad acts may be admitted for limited purposes other than showing a defendant's bad character so long as
certain procedural requirements are satisfied and certain substantive criteria met; however, there is a general presumption
that uncharged bad acts are inadmissible.
however, there is a general presumption that uncharged bad acts are inadmissible. NRS 48.045(2).
4. Criminal Law.
In order to overcome the presumption of inadmissibility of evidence of prior bad acts, the prosecutor has the burden of
requesting admission of the evidence and establishing at a hearing outside the jury's presence that: (1) the incident is relevant to the
crime charged, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice. NRS 48.045(2).
5. Criminal Law.
A prosecutor seeking admission of evidence of prior bad acts must do so in the pursuit of justice and as a servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. Thus, it is as much a prosecutor's duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
6. Criminal Law.
The prosecutor has the duty to request that the jury be instructed on the limited use of prior bad act evidence. The prosecutor is
the one who must seek admission of uncharged bad act evidence, and the prosecutor does so in his capacity as a servant to the law.
7. Criminal Law.
When the prosecutor fails to request the instruction limiting the effect of prior bad acts evidence, the district court should raise
the issue sua sponte.
8. Criminal Law.
In unusual circumstances when for strategic reasons the defense does not wish a limiting instruction to be given regarding
evidence of prior bad acts, the desire of the defendant should be recognized as he is the intended beneficiary of the instruction and is in
the best position to evaluate its consequence.
9. Criminal Law.
Cases involving the absence of a limiting instruction on the use of uncharged bad act evidence are reviewed under the standard
that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. NRS 178.598.
10. Criminal Law.
Because the failure to give a limiting instruction on the use of uncharged bad act evidence is a nonconstitutional error, the test
the court uses upon review is whether the error had substantial and injurious effect or influence in determining the jury's verdict.
Unless the court is convinced that the accused suffered no prejudice, the conviction must be reversed. NRS 178.598.
11. Criminal Law.
On account of the potentially highly prejudicial nature of uncharged bad act evidence, it is likely that cases involving the
absence of a limiting instruction on the use of uncharged bad act evidence will not constitute harmless error. NRS 178.598.
12. Criminal Law.
A limiting instruction on the use of uncharged bad act evidence should be given both at the time evidence of the uncharged bad
act is admitted and in the trial court's final charge to the jury. An instruction given at the time of admission can be directed specifically
at the evidence in question and can take effect before the jury has been accustomed to thinking of it in terms of the
inadmissible purpose, while instructions given at the end of the case will be more abstract, may apply to a
number of items of evidence, and are buried in a mass of other instructions.
thinking of it in terms of the inadmissible purpose, while instructions given at the end of the case will be more abstract, may apply to a
number of items of evidence, and are buried in a mass of other instructions.
13. Criminal Law.
The trial court should give the jury a specific instruction on the use of uncharged bad act evidence, explaining the purposes for
which the evidence is admitted, immediately prior to its admission, and should give a general instruction at the end of trial reminding
the jurors that certain evidence may be used only for limited purposes.
14. Criminal Law.
Absence of instruction on the limited use of the evidence of prior bad acts prejudiced first-degree murder defendant who
allegedly killed baby, who died from severe brain damage caused by broken ribs and asphyxiation, where prior bad acts evidence was
introduced concerning defendant's previous rough handling and occlusion of other baby, and there was no clear direct evidence
showing defendant's actions, but only inconsistencies in defendant's story and perceived callousness in his statements made after the
incident.
15. Criminal Law.
Evidence was insufficient at first-degree murder trial to warrant modified jury instruction on flight. There was testimony of
defendant's unrealized mental plan to flee the jurisdiction and his desire to flee, but no evidence that defendant actually took steps to
flee.
16. Criminal Law.
Evidence of a defendant's desire to flee offers no insight into his consciousness of guilt.
17. Criminal Law.
A defendant's plan to flee is conceivably relevant so long as the evidence shows the existence of an actual plan and that this
plan is undertaken with a consciousness of guilt.
18. Criminal Law.
If an accused plans to flee the jurisdiction after committing a crime and takes overt steps toward completing this goal without
actually fleeing, an instruction regarding the defendant's actions might be appropriate.
OPINION
Per Curiam:
SUMMARY
In this case, we consider whether the failure to instruct the jury on the limited
purposes for which uncharged bad act evidence is admitted constitutes plain error. Under the
circumstances presented here, we conclude that it does. Moreover, we conclude that, subject
to the defendant's objection, the prosecutor shall henceforth have the burden of requesting
that a limiting instruction be given both at the time the prosecutor introduces the evidence and
in the final charge to the jury. As a result, we will review future cases involving the failure
to request a limiting instruction for harmless error.
review future cases involving the failure to request a limiting instruction for harmless error.
We also review whether the district court gave an erroneous flight instruction to the
jury which stated that a plan or desire to flee could be considered as evidence of
consciousness of guilt. Under the circumstances of this case, we conclude that the district
court abused its discretion in giving the instruction.
On account of these errors, we reverse for a new trial.
STATEMENT OF FACTS
Lonnie Ray Tavares was the father of C.T., a three-month-old infant whom he cared
for with Amy Cuevas, Tavares's girlfriend and C.T.'s mother. Tavares was alone with C.T. on
the night of January 31, 1998. At about 10:00 p.m. that night, Tavares called 911 to report
that C.T. had stopped breathing. C.T. was brought breathless and pulseless to the hospital.
Although C.T. was revived, she died a few days later. Doctors determined that she had
suffered from multiple broken ribs and asphyxiation, which had caused the severe brain
damage that eventually led to her death.
The State's theory was that Tavares, who had a history of mishandling C.T. and
covering her nose and mouth to make her stop crying and hiccuping, was the one who had
broken C.T.'s ribs and asphyxiated her. The State charged Tavares with first-degree murder
under alternative theories of either willful, premeditated, and deliberate murder, or death
resulting from child abuse. Because there was no direct physical evidence or eyewitness
testimony, the State relied greatly on Tavares's prior bad acts and the inconsistencies and
perceived callousness in statements he made after the incident.
To establish Tavares's prior bad acts, the State's first witness was his ex-girlfriend,
April Striggles, with whom he had earlier fathered a child. Over Tavares's objection, Striggles
testified to events six years earlier involving Tavares's alleged mishandling of their son. In
particular, Striggles testified about an incident when she believed Tavares had bruised their
son's ribs by squeezing him and about an incident when she found Tavares covering their
son's mouth and nose with his hand, causing him to turn blue and stop breathing. The State
also introduced Cuevas's testimony that both she and Tavares had on occasion similarly
covered C.T.'s mouth and nose to cure her of the hiccups, but never so much as to stop C.T.'s
breathing.
The district court admitted Striggles's testimony as being relevant to showing a lack of
accident, Tavares's intent in committing the act, and Tavares's identity as the perpetrator.
Through an oversight by counsel and the district court, the jury was never instructed on the
limited purposes for which the evidence was admitted.
instructed on the limited purposes for which the evidence was admitted.
The State also introduced Cuevas's testimony that after police began focusing their
investigation on Tavares, he told her that he was going to take a plane and get out of the
country. Tavares, however, never made any preparations to leave the jurisdiction.
Over Tavares's objection, the district court gave the jury a modified flight instruction,
which informed the jury that a plan or desire to flee immediately after the commission of a
crime is a fact that it could consider in deciding Tavares's guilt because it tended to show a
consciousness of guilt.
Tavares's defense was that on the night C.T. was injured, he had brought her to bed
with him and accidentally rolled over onto her, thus smothering her and causing her to stop
breathing. Tavares also suggested that C.T.'s rib injuries were caused by an earlier incident
when Cuevas squeezed her as hard as she could.
The jury ultimately convicted Tavares of first-degree murder, and he was sentenced to
life with parole after twenty years. Tavares now appeals claiming, among other things, that
the district court erred by: (1) failing to give a limiting instruction regarding the limited use of
prior bad act testimony; and (2) giving an improper flight instruction.
DISCUSSION
The failure to give a limiting instruction
[Headnotes 1, 2]
Tavares contends that the district court's failure to give a limiting instruction
regarding the use of the prior bad act testimony was reversible error. Tavares, however, failed
to request the instruction, an omission which generally precludes appellate review.
1
Despite
such failure, this court has the discretion to address an error if it was plain and affected the
defendant's substantial rights.
2
Normally, a defendant must show that an error was
prejudicial in order to establish that it affected his substantial rights.
3

__________

1
See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (holding that failure to object to
jury instruction at trial bars appellate review); see also McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739,
745 (1998) (Failure to object to or request a jury instruction precludes appellate review, unless the error is
patently prejudicial and requires the court to act sua sponte to protect the defendant's right to a fair trial.).

2

3
See United States v. Olano, 507 U.S. 725, 734-35 (1993) (discussing Fed. R. Crim. P. 52(b), which is
identical to NRS 178.602); see also Libby v.
Before today, we have only briefly addressed the importance of limiting instructions
and the impact of their absence in criminal trials. In Meek v. State,
4
we noted that in some
cases a district court has a duty to give limiting instructions sua sponte.
5
There, we held
without further explanation that it was plain error for the district court to not give a limiting
instruction regarding testimony that recited one of the defendant's prior bad acts. Because
Meek did not fully address the standard by which limiting instructions should be given, we
now take this opportunity to do so.
We have often held that the use of uncharged bad act evidence to convict a defendant
is heavily disfavored in our criminal justice system because bad acts are often irrelevant and
prejudicial and force the accused to defend against vague and unsubstantiated charges.
6
The
principal concern with admitting such acts is that the jury will be unduly influenced by the
evidence, and thus convict the accused because it believes the accused is a bad person.
7

[Headnote 3]
It is also well established that evidence of uncharged bad acts may be admitted for
limited purposes other than showing a defendant's bad character so long as certain procedural
requirements are satisfied and certain substantive criteria met.
8
NRS 48.045(2) lists several
of the purposes for which uncharged bad act evidence is admissible, including motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
__________
State, 109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993) (holding that plain 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), overruled on other grounds by Libby v. Nevada, 516 U.S. 1037
(1996).

4
112 Nev. 1288, 1295, 930 P.2d 1104, 1108-09 (1996).

5
Typically, the district court only has a duty to give a limiting instruction upon request of the parties. NRS
47.110 (When evidence which is admissible as to one party or for one purpose but inadmissible as to another
party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.). But Meek implicitly recognized that the introduction of uncharged bad acts
sometimes poses such a significant danger of unfair prejudice that the district court should give a limiting
instruction sua sponte.

6
Walker v. State, 116 Nev. 442, 445, 997 P.2d 805, 806 (2000) (citing Berner v. State, 104 Nev. 695,
696-97, 765 P.2d 1144, 1145-46 (1988)).

7
Id.

8
See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507-08 (1985) (holding that a trial court deciding
whether to admit such acts must conduct a hearing on the matter outside the presence of the jury); Armstrong v.
State, 110 Nev. 1322, 1323-24, 885 P.2d 600, 601 (1994) (requiring that the trial court finding be made on the
record so as to facilitate appellate review of trial court's decision); Tinch v. State, 113 Nev. 1170, 1176, 946
P.2d 1061, 1064-65 (1997) (outlining the substantive criteria for admitting prior bad act evidence).
We emphasize, however, that NRS 48.045(2) is merely an exception to the general
presumption that uncharged bad acts are inadmissible.
[Headnote 4]
In order to overcome the presumption of inadmissibility, the prosecutor has the
burden of requesting admission of the evidence and establishing at a hearing outside the jury's
presence that: (1) the incident is relevant to the crime charged; (2) the act is proven by clear
and convincing evidence; and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.
9

[Headnote 5]
A prosecutor seeking admission of this volatile evidence must do so in the pursuit of
justice and as a servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer.
10
Thus, [i]t is as much [a prosecutor's] duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.
11

[Headnotes 6-8]
Because the prosecutor is the one who must seek admission of uncharged bad act
evidence and because the prosecutor must do so in his capacity as a servant to the law, we
conclude that the prosecutor shall henceforth have the duty to request that the jury be
instructed on the limited use of prior bad act evidence. Moreover, when the prosecutor fails to
request the instruction, the district court should raise the issue sua sponte. We recognize that
in unusual circumstances, the defense may not wish a limiting instruction to be given for
strategic reasons.
12
In those circumstances, the desire of the defendant should be recognized
as he is the intended beneficiary of the instruction and is in the best position to evaluate its
consequence.
[Headnotes 9-11]
Because the defendant no longer has the burden of requesting a limiting instruction on
the use of uncharged bad act evidence, we will no longer review cases involving the absence
of the limiting instruction for plain error. Instead, we will review future cases for error under
NRS 17S.59S, which provides that "[a]ny error, defect, irregularity or variance which does
not affect substantial rights shall be disregarded."
__________

9
Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65.

10
Berger v. United States, 295 U.S. 78, 88 (1935).

11
Id.

12
See, e.g., United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (recognizing defendant's argument
that inclusion of a limiting instruction may only aggravate the prejudicial effect of prior bad acts).
error under NRS 178.598, which provides that [a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded. Further, because the failure to
give a limiting instruction on the use of uncharged bad act evidence is a nonconstitutional
error,
13
we will not apply the stricter Chapman v. California
14
standard we use to evaluate
the harmlessness of constitutional error. Instead, we will use the Kotteakos v. United States
15
standard utilized by federal courts reviewing nonconstitutional error under the federal
harmless-error statute, which is identical to NRS 178.598.
16
The test under Kotteakos is
whether the error had substantial and injurious effect or influence in determining the jury's
verdict.
17
Thus, unless we are convinced that the accused suffered no prejudice as
determined by the Kotteakos test, the conviction must be reversed.
18
On account of the
potentially highly prejudicial nature of uncharged bad act evidence, however, it is likely that
cases involving the absence of a limiting instruction on the use of uncharged bad act
evidence will not constitute harmless error.
__________

13
See People v. Mitchell, 586 N.W.2d 119, 122 (Mich. Ct. App. 1998) (reviewing the trial court's failure to
provide an instruction limiting the purposes for which prior bad act evidence was introduced as
nonconstitutional error); Herrera v. Lacy, No. CV-94-0125, 1995 WL 669675, at *8 (E.D.N.Y. Nov. 5, 1995)
(holding that the failure to provide a limiting instruction with respect to prior bad act evidence was not
constitutional error); see also Brown v. State, 953 P.2d 1170, 1177 (Wyo. 1998) (noting that the improper
admission of similar act evidence is nonconstitutional error).

14
386 U.S. 18 (1967). Under the Chapman standard, we ask whether it is clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the error. Neder v. United States, 527 U.S. 1,
18 (1999) (discussing Chapman and the United States Supreme Court cases decided under Chapman).

15
328 U.S. 750 (1946).

16
See Fed. R. Crim. P. 52(a) (Any error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded.).

17
328 U.S. at 776; see also Brecht v. Abrahamson, 507 U.S. 619, 631-32 (1993) (noting the Kotteakos
standard is used to review nonconstitutional error in federal criminal appeals). The Kotteakos Court further
explained the test as follows:
If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or
had but very slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights
were not affected. The inquiry cannot be merely whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even so, whether the error itself had substantial
influence. If so, or if one is left in grave doubt, the conviction cannot stand.
328 U.S. at 764-65.

18
See United States v. Olano, 507 U.S. 725, 741 (1993) (noting that under Federal Rule of Criminal
Procedure 52(a), the Government has the burden of
limiting instruction on the use of uncharged bad act evidence will not constitute harmless
error.
[Headnotes 12, 13]
We are also convinced that a limiting instruction should be given both at the time
evidence of the uncharged bad act is admitted and in the trial court's final charge to the jury.
As one leading commentator has stated:
[An instruction given at the time of admission] can be directed specifically at the
evidence in question and can take effect before the jury has been accustomed to
thinking of it in terms of the inadmissible purpose. Instructions given at the end of the
case will be more abstract, may apply to a number of items of evidence, and are buried
in a mass of other instructions.
19

Therefore, to maximize the effectiveness of the instructions, we hold that the trial court
should give the jury a specific instruction explaining the purposes for which the evidence is
admitted immediately prior to its admission and should give a general instruction at the end
of trial reminding the jurors that certain evidence may be used only for limited purposes.
20

[Headnote 14]
Turning to the facts of this case, we note that Tavares's conviction rested primarily on
circumstantial evidence as there was no clear direct evidence showing Tavares's actions.
Instead, the State relied greatly on Tavares's prior bad acts, inconsistencies in Tavares's story,
and the perceived callousness in his statements made after the incident. We have little doubt
that in the absence of an instruction on the limited use of the evidence, Striggles's testimony
regarding Tavares's previous rough handling and occlusion of their baby had a prejudicial
impact on Tavares's trial rights and impermissibly tainted the jury's verdict. Accordingly, we
conclude that Tavares's substantial rights were affected by the failure to give a limiting
instruction and that the conviction must be reversed for plain error.
__________
showing the absence of prejudice). But see O'Neal v. McAninch, 513 U.S. 432, 436-37 (1995) (criticizing the
conceptualization of harmless-error analysis as one involving burdens and instead concluding that it is the
responsibility of the court to determine whether the error affected the judgment without benefit of such aids as
presumptions or allocated burdens of proof); Kotteakos, 328 U.S. at 765 (warning against attempting to
generalize broadly, by presumption or otherwise).

19
21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure 5066 (1977 &
Supp. 2001).

20
See id. (suggesting that giving a specific instruction at time of admission and a general final instruction is
the ideal method).
The modification of the flight instruction
[Headnote 15]
Tavares also argues that the district court abused its discretion by including a
modified flight instruction in the jury instructions when there was, in fact, no actual flight or
plan of flight.
21
The flight instruction given was modified slightly from the typical
instruction
22
and stated:
A plan or desire to flee immediately after the commission of a crime is not sufficient in
itself to establish guilt, but is a fact which tends to show a consciousness of guilt, if
proved, and may be considered by you in light of all other proved facts in deciding the
question of his guilt or innocence. The weight to which such circumstance is entitled is
a matter for the jury to determine.
In the present matter, the only testimony regarding flight was the following exchange
between Cuevas and the prosecutor:
[State:] At any time prior to [Mr. Tavares telling you that the detectives thought he was
guilty] or after that did Mr. Tavares tell you he had plans to flee?
[Cuevas:] Yes.
. . . .
[State:] And what was it that Mr. Tavares told you that he was planning to do?
[Cuevas:] He was going to take a plane and get out of the country.
Importantly, there was no other evidence that Tavares actually took steps to flee the
jurisdiction.
[Headnote 16]
We first conclude that evidence of a defendant's desire to flee offers no insight into
his consciousness of guilt. Indeed, any person being investigated for the commission of a
serious crime likely has the desire to leave the jurisdiction. Accordingly, insofar as the
modified instruction allows the jury to consider the desire to flee as evidence of guilt, it is in
error.
[Headnotes 17, 18]
A defendant's plan to flee, however, is conceivably relevant so long as the evidence
shows the existence of an actual plan and that this plan is undertaken with a consciousness of
guilt.
__________

21
See Castillo v. State, 114 Nev. 271, 282, 956 P.2d 103, 110 (1998) (holding that this court reviews a
district court's decision to give or refuse to give a nonstatutory jury instruction for an abuse of discretion).

22
The typical instruction, in contrast, begins: The flight of a person immediately after the commission of a
crime . . . .
Specifically, where an accused plans to flee the jurisdiction after committing a crime and
takes overt steps toward completing this goal without actually fleeing, an instruction
regarding the defendant's actions might be appropriate.
In this case, Cuevas's testimony of Tavares's unrealized mental plan does not evidence
the existence of an actual plan and is merely evidence of Tavares's desire to flee.
Accordingly, we conclude that the district court erred in including the modified flight
instruction allowing the jury to consider Tavares's statements.
23

CONCLUSION
We conclude that Tavares's substantial rights were prejudiced by the absence of a
limiting instruction regarding the limited purpose for which evidence of Tavares's prior bad
acts was admitted. Moreover, we conclude that the prosecutor henceforth has the burden of
requesting that a limiting instruction be given both at the time of the evidence's introduction
and in the final charge to the jury, subject to the defendant's objection. Although this error is
plain and would alone require reversal of Tavares's conviction, we conclude that the district
court also erred in giving a modified flight instruction.
24

Accordingly, we reverse and remand Tavares's conviction for a new trial.
____________
117 Nev. 735, 735 (2001) Washington v. State
CHARLES EDWARD WASHINGTON, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 36589
September 17, 2001 30 P.3d 1134
Appeal from a judgment of conviction, pursuant to a guilty plea, of the felony of sale
of an imitation controlled substance, representing it to be a controlled substance. Second
Judicial District Court, Jerome M. Polaha and James W. Hardesty, Judges.
1

__________

23
See also United States v. Barnhart, 889 F.2d 1374, 1378-79 (5th Cir. 1989) (concluding that it was error to
give a flight instruction where the only evidence of flight was the defendant's statements that Bogota looked
real good this time of year and that he had tried to get invisible and to run).

24
Tavares also argues that the district court abused its discretion by allowing Striggles to testify at all about
Tavares's prior bad acts and that the jury was given a reasonable doubt instruction that impermissibly reduced
the State's burden of proof. We have carefully reviewed these contentions and conclude that they lack merit.

1
This case was initially assigned to District Judge Jerome M. Polaha who
Defendant pleaded guilty in the district court to felony sale of an imitation controlled
substance. Defendant appealed. The supreme court held that statute that rendered the sale of
an imitation controlled substance a misdemeanor repealed by implication the statute that
rendered the sale of an imitation controlled substance a felony.
Reversed and remanded with instructions.
Attorney, and Gary H. Hatlestad and Terrence P. McCarthy, Deputy District Attorneys,
Washoe County, for Respondent.
1. Statutes.
Generally, court interprets statutes based on their plain meaning, which is intended to reflect legislative intent.
2. Statutes.
Statutes within a scheme and provisions within a statute must be interpreted harmoniously with one another in accordance with
the general purpose of those statutes and should not be read to produce unreasonable or absurd results.
3. Statutes.
Under the doctrine of lenity, court interprets criminal statutes liberally and construes inconsistencies or ambiguities in the
defendant's favor.
4. Statutes.
When a subsequent statute entirely revises the subject matter contained in a prior statute, and the legislature intended the prior
statute to be repealed, the prior statute is considered to be repealed by implication.
5. Statutes.
Practice of repealing statutes by implication is heavily disfavored, and court will not consider a statute to be repealed by
implication unless there is no other reasonable construction of the two statutes.
6. Statutes.
In determining whether statute was repealed by implication, court looks to the text of the statutes, legislative history, the
substance of what is covered by both statutes, and when the statutes were amended.
7. Statutes.
The fact that a statute is enacted after another statute, but is subsequently amended without mention of the first statute, may
weigh against a finding of legislative intent to repeal by implication.
8. Statutes.
A finding that the statutes entirely cover the same conduct could weigh in favor of finding a repeal by implication.
__________
heard and denied appellant's motions to strike and to dismiss based on a conflict between NRS 353.323 and NRS 353.332. The case was
subsequently re-assigned to Judge James W. Hardesty, on a calendar overflow basis, who accepted appellant's change of plea to guilty
pursuant to negotiations under which appellant reserved the right to appeal Judge Polaha's ruling on the conflict between NRS 453.323 and
NRS 453.332.
9. Statutes.
If a subsequent statute expresses a comprehensive plan to regulate a particular subject matter, this may repeal prior statutes that
deal with smaller aspects of that plan.
10. Drugs and Narcotics.
Statute that rendered the sale of an imitation controlled substance a misdemeanor repealed by implication the statute that
rendered the sale of an imitation controlled substance a felony, as statutes were substantially similar and covered identical conduct,
legislative history revealed no variance in policies each statute was designed to promote, and the misdemeanor statute was enacted after
the felony statute. NRS 453.323, 453.332.
11. Criminal Law.
In prosecution for sale of an imitation controlled substance, conviction and sentence based on felony statute had to be vacated,
and remand was required for appropriate proceedings under misdemeanor statute, since misdemeanor statute repealed felony statute by
implication. NRS 453.323, 453.332.
CORRECTED OPINION
Per Curiam:
This case is one primarily of statutory interpretationwhether NRS 453.332, which
renders the sale of an imitation controlled substance a misdemeanor, repeals by implication
NRS 453.323, which renders the sale of an imitation controlled substance a felony. We
conclude that these two statutes proscribe the same conduct, and because NRS 453.332 was
enacted after NRS 453.323, NRS 453.323 is repealed by implication. Thus, we reverse the
sentence imposed by the district court and remand for resentencing under NRS 453.332, the
misdemeanor statute.
FACTS
On March 29, 2000, the State filed a complaint charging appellant, Charles Edward
Washington, with one count of selling an imitation substance, representing it to be a
controlled substance. According to the charging documents, Washington offered to sell
cocaine to an undercover police officer but actually sold a substance that was not cocaine.
The statute under which Washington was charged, NRS 453.323, made his actions a
felony. However, another statute, NRS 453.332, prohibited the same conduct but made it a
misdemeanor. In light of NRS 453.332, Washington filed a motion to strike the felony
penalty, which the district court denied. Washington also filed a motion to dismiss, arguing
that NRS 453.323 was repealed by implication and NRS 453.323 and 453.332
unconstitutionally overlapped.
453.323 was repealed by implication and NRS 453.323 and 453.332 unconstitutionally
overlapped.
After a hearing, the district court concluded that because both statutes were amended
in 1995, even though merely technically, with no mention of repeal, there was no repeal by
implication. In doing so, the district court further concluded that the legislative history of
NRS 453.332 indicated that it was meant to fight the sale of imitation prescription drugs,
while NRS 453.323 was meant to reduce the sale of imitation street drugs. However, the
district court did not reference any particular legislative hearings or statutory language to
support that proposition.
The State conceded that it was not sure how NRS 453.332 differed from NRS 453.323
and that it seemed that both statutes covered the same conduct. The district court even
concluded that a reasonable person would not know from these two statutes which crime he
was actually committinga felony or a misdemeanor. Despite this conclusion, the district
court denied the motion to dismiss.
Washington then submitted two jury instructions for consideration should the case go
to trial that would have allowed the jury to consider NRS 453.332 as a lesser included
offense.
2
The district court concluded that under the California Court of Appeals case of
People v. Hill,
3
which dealt with identical statutes under California law, the lesser included
instructions on the misdemeanor were impermissible because the conduct covered was the
same. Hence, the district court rejected the proposed instructions.
Washington entered a conditional plea of guilty to the felony of selling a substance
but representing it to be a controlled substance, reserving the right to appeal his arguments
regarding the conflict between NRS 453.323 and NRS 453.332 and the denial of his request
for a lesser included instruction on NRS 453.332. He was sentenced to twelve to thirty
months in prison, but the district court suspended the sentence and placed him on probation.
This timely appeal follows.
DISCUSSION
[Headnotes 1-3]
In determining whether the imposition of Washington's sentence based on the felony
statute, NRS 453.323, instead of the misdemeanor statute, NRS 453.332, was improper, we
must engage in traditional mechanisms of statutory interpretation to determine whether these
statutes impermissibly overlap. Generally, we interpret statutes based on their plain meaning,
which is intended to reflect legislative intent.
__________

2
The requested instructions stated verbatim subsections one and five of NRS 453.332.

3
8 Cal. Rptr. 2d 123 (Ct. App. 1992).
which is intended to reflect legislative intent.
4
Statutes within a scheme and provisions
within a statute must be interpreted harmoniously with one another in accordance with the
general purpose of those statutes and should not be read to produce unreasonable or absurd
results.
5
We also follow the doctrine of lenity, whereby we interpret criminal statutes
liberally and construe inconsistencies or ambiguities in the defendant's favor.
6

[Headnotes 4-9]
When a subsequent statute entirely revises the subject matter contained in a prior
statute, and the legislature intended the prior statute to be repealed, the prior statute is
considered to be repealed by implication.
7
This practice is heavily disfavored, and we will
not consider a statute to be repealed by implication unless there is no other reasonable
construction of the two statutes.
8
In making this determination, we look to the text of the
statutes, legislative history, the substance of what is covered by both statutes, and when the
statutes were amended.
9
The fact that a statute is enacted after another statute, but is
subsequently amended without mention of the first statute, may weigh against a finding of
legislative intent to repeal by implication.
10
However, a finding that the statutes entirely
cover the same conduct could weigh in favor of finding repeal by implication.
11
In addition,
if a subsequent statute expresses a comprehensive plan to regulate a particular subject matter,
this may repeal prior statutes that deal with smaller aspects of that plan.
12

[Headnote 10]
The statutes in question here are NRS 453.323, the felony statute, and NRS 453.332,
the misdemeanor statute.
__________

4
Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997).

5
Ex Parte Prosole, 32 Nev. 378, 383, 108 P. 630, 633 (1910); Anthony Lee R., 113 Nev. at 1414, 952 P.2d at
6 (citing Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993)).

6
Shrader v. State, 101 Nev. 499, 505-06, 706 P.2d 834, 838 (1985), overruled on other grounds by Foster v.
State, 116 Nev. 1088, 13 P.3d 61 (2000); see also Villaneuva v. State, 117 Nev. 664, 670 n.13, 27 P.3d 443, 447
n.13 (2001); Sheriff v. Encoe, 110 Nev. 1317, 1319, 885 P.2d 596, 598 (1994).

7
See State v. Economy, 61 Nev. 394, 398, 130 P.2d 264, 266 (1942) (quoting Thorpe v. Schooling, 7 Nev.
15, 17-18 (1871)).

8
See id. at 397, 130 P.2d at 266.

9
See Jackson v. State, 93 Nev. 677, 681, 572 P.2d 927, 930 (1977).

10
See id

11
See id.

12
Young v. Sheriff, 92 Nev. 408, 409, 551 P.2d 425, 426 (1976) (quoting So. Nev. Tel. Co. v. Christoffersen,
77 Nev. 322, 326, 363 P.2d 96, 98 (1961)).
statute, and NRS 453.332, the misdemeanor statute. NRS 453.323, enacted in 1977, provides
in pertinent part:
1. A person who offers, agrees or arranges unlawfully to sell, supply, transport,
deliver, give or administer any controlled substance classified in schedule I or II and
then sells, supplies, transports, delivers, gives or administers any other substance in
place of the controlled substance is guilty of a category C felony and shall be punished
as provided in NRS 193.130.
. . . .
3. A person who offers, agrees or arranges unlawfully to sell, supply, transport,
deliver, give or administer any controlled substance classified in schedule III, IV or V
and then sells, supplies, transports, delivers, gives or administers any other substance in
place of the controlled substance is guilty of a category D felony and shall be punished
as provided in NRS 193.130.
NRS 453.332, enacted in 1983, provides in pertinent part:
1. Except as otherwise provided in subsection 6, it is unlawful for a person to
manufacture, distribute, sell or possess with the intent to distribute or sell an imitation
controlled substance.
2. Except as otherwise provided in subsection 3, a person who violates subsection 1
is guilty of a misdemeanor.
. . . .
4. A person who:
(a) Uses or possesses with the intent to use an imitation controlled substance; or
(b) Advertises or solicits in any manner with reasonable knowledge that the
advertisement or solicitation is to promote the distribution of an imitation controlled
substance,
is guilty of a gross misdemeanor upon his first and second convictions, and upon a third
or any further conviction, is guilty of a category C felony and shall be punished as
provided in NRS 193.130.
5. For the purposes of this section:
(a) Distribute means the actual, constructive or attempted transfer, delivery or
dispensing to another of an imitation controlled substance.
(b) Imitation controlled substance means a substance, not a controlled substance,
which:
(1) In the form distributed is shaped, marked or colored so as to lead a
reasonable person to believe it is a controlled substance; or
(2) Is represented to be a controlled substance. In determining whether such a
representation was made, the court shall consider, in addition to all other logically
relevant factors:
shall consider, in addition to all other logically relevant factors:
(I) Statements made by the defendant regarding the nature of the
substance, its use or effect.
(II) Statements made by the defendant regarding the recipient's ability
to resell the substance at a substantially higher price than is customary for the
substance.
(III) Whether the substance is packaged in a manner normally used for
illicit controlled substances.
6. This section does not apply to the manufacture, distribution, sale or possession of
an imitation controlled substance for use as a placebo by a practitioner in the course of
his professional practice or research.
Looking at the actual language of and conduct covered by these two statutes, we
conclude that they substantially overlap both in form and application and cover identical
conductpunishing a person who sells imitation controlled substances, having represented
them to be actual controlled substances. Under NRS 453.323(1), a person must represent a
substance to be a controlled substance under schedules one or two,
13
and actually sell an
imitation substance in its place. The seller must also know that he has represented the
substance to be controlled, and there is an implied requirement of knowledge that the
substance sold was different from what it was represented to be.
14

NRS 453.332(1) also prohibits a person from selling an imitation controlled
substance, which is defined as an item that a person represents to be controlled by virtue of its
shape, size, coloring or packaging.
15
Moreover, the person must specifically intend to sell an
imitation substance.
16
The only cognizable differences between these two statutes are that
NRS 453.332 punishes manufacture, distribution or possession in addition to sale,
17
excludes placebos in medical research from its coverage,
18
and does not refer to schedules to
classify the controlled substances.
19

Although the words may differ, the ultimate conduct that is punished by each statute
is the same. In essence, the only true difference between NRS 453.323 and 453.332 is the
penalty.
__________

13
The different schedules are set out in NRS 453.166.219 and categorize controlled substances according to
their potential for abuse and medical viability.

14
NRS 453.323(1); see also Hearing on S.B. 268 Before the Senate Judiciary Comm., 59th Leg. (Nev.,
March 16, 1977).

15
NRS 453.332(5).

16
NRS 453.332(1).

17
Id.

18
NRS 453.332(6).

19
See generally NRS 453.332.
ference between NRS 453.323 and 453.332 is the penalty. Thus, this indicates to us a
legislative intent that the earlier statute, NRS 453.323, would be repealed by implication
since its entire substance is covered by NRS 453.332.
This conclusion is in accordance with our view in Sheriff v. Williams that the purpose
of NRS 453.323 was to condemn any activity which encourages the sale or appearance of
sale of a controlled substance.
20
NRS 453.332 does exactly that and its legislative history
reveals the same underlying purpose.
21
Despite the dicta in Paige v. State that these two
statutes along with NRS 453.321 are part of an overall statutory scheme that is designed to
supplement, not supplant, the intended coverage of one another,
22
we conclude that the only
logical and reasonable construction of NRS 453.323 and 453.332 is that they are identical and
NRS 453.332 does supplant NRS 453.323.
The timing of the enactment of these statutes further supports our conclusion. NRS
453.332 was enacted in 1983, after NRS 453.323. When enacted, however, there was no
mention as to its effect on NRS 453.323.
23
Additionally, both statutes were amended in 1995
in accordance with an overarching revision of all criminal statutes to classify all felonies in
categories; no substantive changes were made.
24
NRS 453.332 was again amended in 1999,
without mention of NRS 453.323, to provide for restitution for drug treatment when the
victim was a minor.
25
Despite these amendments without mention of NRS 453.323, this
does not alter our interpretation of the legislative intent to repeal NRS 453.323 by 453.332;
all of the subsequent amendments were merely clerical and did not represent any
substantive comment on the scope of NRS 453.332's applicability.
__________

20
96 Nev. 22, 25, 604 P.2d 800, 801 (1980).

21
See Hearing on A.B. 388 Before the Assembly Commerce Comm., 62d Leg. (Nev., April 13, 1983); see
also Hearing on A.B. 388 Before the Senate Human Resources and Facilities Comm., 62d Leg. (Nev., May 11,
1983).
This is also consistent with the California Court of Appeals' interpretation of the California statutes
criminalizing the sale of imitation controlled substances, which are identical to Nevada's statutes. See People v.
Hill, 8 Cal. Rptr. 2d 123, 128-29 (Ct. App. 1992); see also In re Terry H., 47 Cal. Rptr. 2d 791, 794 (Ct. App.
1995).

22
116 Nev. 206, 209, 995 P.2d 1020, 1022 (2000). Moreover, Paige dealt with a comparison of NRS
453.321 (proscribing the sale of controlled substances) and NRS 453.323 (proscribing the sale of imitation
controlled substances) and did not deal with the similarity in coverage between NRS 453.323 and NRS 453.332.
Thus, it does not bind our more in-depth interpretation of the interplay between NRS 453.323 and 453.332 in
this case.

23
See Hearing on A.B. 388 Before the Assembly Commerce Comm., 62d Leg. (Nev., April 13, 1983); see
also Hearing on A.B. 388 Before the Senate Human Resources and Facilities Comm., 62d Leg. (Nev., May 11,
1983).

24
1995 Nev. Stat., ch. 443, 287, 290, at 1283-84.

25
1999 Nev. Stat., ch. 124, 1, at 748.
merely clerical and did not represent any substantive comment on the scope of NRS 453.332's
applicability.
The legislative history of NRS 453.323 and 453.332 does not alter this conclusion.
Although the legislative hearings on both statutes do not expressly mention each other, they
do lend credence to the conclusion that the statutes were meant to cover the same conduct
because they both discuss the purpose of the statutes as being to prevent the activity of selling
or appearing to sell (through a fraudulent misrepresentation) any controlled substance.
26

The only possible indicator that the statutes were meant to cover different acts lies in
an exhibit present at the April 13, 1983, Assembly hearing on NRS 453.332. In that exhibit,
the Mayor of Las Vegas expressed his support, in a letter, for a statute that penalized the sale
of look-alike drugs that purported to give children a legal way to get high.
27
This
suggests that NRS 453.332 may have been intended to focus more on the sale of prescription
or over-the-counter drugs (such as Tylenol, hormone pills, or caffeine pills) as controlled
substances. However, this is never raised again in any of the legislative hearings nor
expressed implicitly or explicitly in the language of the statute eventually passed.
[Headnote 11]
Because we interpret the intent of the legislature in favor of the defendant when a
criminal statute is ambiguous, we conclude that the statutes in this case are substantially
similar and cover identical conduct, and NRS 453.332 entirely subsumes the coverage of
NRS 453.323. Hence, because NRS 453.332 entirely covers the conduct contained in NRS
453.323, and the legislative history reveals no variance in the policies each were designed to
promote, we conclude that NRS 453.323, the felony statute, was repealed by implication with
the enactment of NRS 453.332. Accordingly, we vacate Washington's conviction and
sentence based on the felony statute and remand this matter to the district court for
appropriate proceedings under NRS 453.332 as a misdemeanor.
Because we conclude that NRS 453.323 was repealed by implication, we need not
address Washington's argument that the disparity in the two statutes creates an
unconstitutional delegation of power to the prosecutor to select a defendant's sentence under
Lapinski v. State.
__________

26
See, e.g., Hearing on S.B. 268 Before the Senate Judiciary Comm., 59th Leg. (Nev., March 16, 17, 24,
1977); Hearing on S.B. 268 Before the Assembly Judiciary Comm., 59th Leg. (Nev., April 17, 1977); Hearing
on A.B. 388 Before the Assembly Commerce Comm., 62d Leg. (Nev., April 13, 1983); Hearing on A.B. 388
Before the Senate Human Resources and Facilities Comm., 62d Leg. (Nev., May 11, 1983).

27
Hearing on A.B. 388 Before the Assembly Commerce Comm., 62d Leg., Exhibit A (Nev., April 13, 1983).
Lapinski v. State.
28
Moreover, we also need not address whether a lesser included offense
instruction is required on the misdemeanor charge when the defendant is charged with the
felony since the felony statute in this case was repealed.
29

CONCLUSION
In light of the substantial similarity in the plain language of NRS 453.323 and NRS
453.332, the similar legislative history and the fact that the identical conduct is proscribed by
each statute, we conclude that NRS 453.323 was repealed by implication due to the
subsequent enactment of NRS 453.332. We therefore reverse Washington's judgment of
conviction and sentence and remand the case to the district court for proceedings consistent
with this opinion.
____________
117 Nev. 744, 744 (2001) Theis v. State
NICHOLAS THEIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36616
September 17, 2001 30 P.3d 1140
Appeal from a judgment of conviction, pursuant to a guilty plea, of grand larceny.
Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
Defendant pleaded guilty in the district court to grand larceny, but reserved right to
appeal denial of motion to dismiss based on county's alleged failure to timely bring charges
against him because of detainer. Defendant appealed. The supreme court held that: (1) a
detainer must be a written request filed by a criminal justice agency with the institution in
which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the
agency be advised when the prisoner's release is imminent; (2) National Crime Information
Center (NCIC) database entry of the existence of a complaint against defendant was not a
detainer; and (3) county's telephone call requesting addition to existing detainer was not a
detainer.
Affirmed.
__________

28
84 Nev. 611, 446 P.2d 645 (1968).

29
The United States Supreme Court addressed this issue in Berra v. United States and concluded that if two
statutes cover identical conduct and differ only in penalty, a lesser included offense instruction is not permitted
because it invites the jury to pick sentences, which is a duty traditionally left to the judge. 351 U.S. 131, 134-35
(1956), superseded by statute on other grounds as stated in Sansone v. United States, 380 U.S. 343, 350 n.6
(1965).
117 Nev. 744, 745 (2001) Theis v. State
Respondent.
1. Extradition and Detainers.
A warden having custody of a prisoner must promptly inform him of the contents of any detainer lodged against him and his
right to request a final disposition of that detainer. NRS 178.620, Article III(c).
A request for final disposition of outstanding charges against a prisoner extends to all untried charges in the state on the basis of
which detainers have been lodged, and requires dismissal of charges with prejudice if the Interstate Agreement on Detainers is violated.
NRS 178.620, Article III(d).
A detainer must be a written request filed by a criminal justice agency with the institution in which a prisoner is incarcerated,
asking that the prisoner be held for the agency, or that the agency be advised when the prisoner's release is imminent. NRS 178.620,
Article III(c).
Record in the National Crime Information Center (NCIC) database of the existence of a complaint against defendant was not a
detainer under the meaning of the Interstate Agreement on Detainers. The entry was not specifically filed with the institution in
which defendant was incarcerated and did not substantively request that defendant be held for the county, or that the county be advised
when the defendant's release was imminent. NRS 178.620, Article III(d).
5. Statutes.
When construing a statute, the supreme court first inquires whether an ambiguity exists in the language of the statute.
6. Statutes.
If the words of a statute have a definite and ordinary meaning, the supreme court will not look beyond the plain language of the
statute, unless it is clear that this meaning was not intended.
7. Statutes.
If a statute is ambiguous, the supreme court focuses on the intent of the legislative body enacting it.
8. Statutes.
The intent of the legislative body in enacting a statute is discernible through an examination of the context and spirit of the
statute in question, together with the subject matter and policy involved.
9. Statutes.
The supreme court's interpretation of a statute should be in line with what reason and public policy would indicate the legislative
body intended, and should avoid absurd results.
County's phone call to state prison requesting that it be added to existing detainer for defendant was not a detainer within the
meaning of the Interstate Agreement on Detainers. A detainer must be in writing, not oral. NRS 178.620, Article III(d).
117 Nev. 744, 746 (2001) Theis v. State
OPINION
Per Curiam:
SUMMARY
In this case, we must determine what constitutes a valid detainer for purposes of the
Interstate Agreement on Detainers (the Agreement), which Nevada has codified at NRS
178.620. As it pertains to Nicholas Theis's case, we must determine whether a detainer was
lodged when either: (1) Washoe County recorded the existence of a complaint against Theis
in the National Crime Information Center (NCIC) database; or (2) Washoe County
telephoned the state in which Theis was incarcerated to ask if it could be added to an existing
detainer filed by another Nevada county. The district court below found that neither event
constituted a detainer.
We conclude that in order to best effectuate the purposes of the Agreement, a detainer
must be a written request filed by a criminal justice agency with the particular institution in
which a prisoner is incarcerated, specifically asking that the prisoner be held for the agency or
that the agency be advised when the prisoner's release is imminent. Accordingly, we affirm
the district court's conclusion that neither the NCIC entry nor the phone call was sufficient to
constitute a detainer for purposes of the Agreement.
FACTS
In early 1998, Nicholas Theis committed armed robberies in the Nevada counties of
Elko and Washoe and in the State of Idaho. Idaho eventually caught and convicted Theis and
imprisoned him in the Idaho State Correctional Institution.
When Washoe County filed a complaint against Theis in February of 1998, it entered
this fact into the NCIC database. Elko County then learned of Theis's incarceration in Idaho
and lodged a formal written detainer for him with the Idaho prison.
On February 25, 1999, Theis sent Elko County a request for final disposition of
detainer requesting final disposition of the detainer lodged against [him] pursuant to the
provisions of the Agreement and which affected all outstanding Nevada complaints on the
basis of which a detainer has been lodged.
The extradition officer for Washoe County testified that in March 1999 she became
aware of the Elko County detainer and had been asked by the Washoe County district attorney
to have Washoe County added to the Elko County detainer. The extradition officer contacted
the Idaho prison by telephone to inform officials there that Washoe County also intended
to try Theis.
117 Nev. 744, 747 (2001) Theis v. State
tion officer contacted the Idaho prison by telephone to inform officials there that Washoe
County also intended to try Theis. She also inquired as to whether a formal written detainer
would be necessary. The Idaho officials apparently informed the Washoe County officer that
no written detainer would be necessary and that Washoe County would simply be added to
the Elko County detainer. The Idaho officials, however, never made the addition, but did
inform Theis of Washoe County's request in a written notice. Thus, it appears that the extent
of Washoe County's involvement at that time was the NCIC entry and the extradition officer's
phone call sometime in March 1999.
In August of 1999, Theis was extradited to Elko County and convicted for armed
robbery. He was then returned to Idaho without ever being tried in Washoe County.
Theis was eventually transferred to Washoe County in early 2000. It is unknown
whether Theis was transferred pursuant to a valid detainer filed later or as a courtesy from
Idaho. Washoe County then charged Theis for his armed robbery in Reno and moved forward
with its prosecution.
Theis moved to have the Washoe County charges dismissed for failing to have been
brought within 180 days of his February 25, 1999, request for final dispositionan available
remedy under the Agreement. Theis argued that Washoe County had filed a detainer for
purposes of the Agreement on either: (1) the day it entered information about its complaint
against Theis in the NCIC database; or (2) the day it called Idaho by telephone requesting that
Washoe County be added to Elko County's detainer.
The district court conducted a hearing on the matter and denied the motion to dismiss,
concluding that no evidence was presented to conclusively establish that Washoe County had
in fact ever lodged a detainer against Theis. Theis eventually entered a guilty plea for the
Washoe County charges, but reserved the right to appeal the district court's denial of his
motion to dismiss. Theis now appeals.
DISCUSSION
The Agreement is codified at NRS 178.620 and contains no express definition of a
detainer. Article I of NRS 178.620 outlines the basic policy of the Agreement, which is to
encourage the efficient disposition of outstanding charges against prisoners, thereby
facilitating more effective rehabilitation:
[D]etainers based on untried indictments, informations or complaints, and difficulties in
securing speedy trial of persons already incarcerated in other jurisdictions, produce
uncertainties which obstruct programs of prisoner treatment and rehabilitation.
117 Nev. 744, 748 (2001) Theis v. State
and rehabilitation. Accordingly, . . . the purpose of this agreement [is] to encourage the
expeditious and orderly disposition of such charges and determination of the proper
status of any and all detainers based on untried indictments, information or complaints.
Also relevant to this appeal are the following provisions of Article III. First, NRS
178.620, Article III(a) requires prosecutors to bring all pending charges to trial within 180
days from the prisoner's request for final disposition:
Whenever a person has entered upon a term of imprisonment in a penal or correctional
institution of a party state, and whenever during the continuance of the term of
imprisonment there is pending in any other party state any untried indictment,
information or complaint on the basis of which a detainer has been lodged against the
prisoner, he shall be brought to trial within one hundred eighty days after he 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 . .
. .
1

[Headnote 1]
NRS 178.620, Article III(c) further provides that the warden having custody of the
prisoner must promptly inform him of the contents of any detainer lodged against him and
his right to request a final disposition of that detainer.
[Headnote 2]
Finally, NRS 178.620, Article III(d) provides that the request for final disposition
extends to all untried charges in the state on the basis of which detainers have been lodged
and requires dismissal of charges with prejudice if the Agreement is violated:
Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof
shall operate as a request for final disposition of all untried indictments, informations or
complaints on the basis of which detainers have been lodged against the prisoner from
the state to whose prosecuting official the request for final disposition is specifically
directed. . . . If trial is not had on any indictment, information or complaint
contemplated hereby prior to the return of the prisoner to the original place of
imprisonment, such indictment, information or complaint shall not be of any further
force or effect, and the court shall enter an order dismissing the same with
prejudice.
__________

1
Emphasis added.
117 Nev. 744, 749 (2001) Theis v. State
ther force or effect, and the court shall enter an order dismissing the same with
prejudice.
2

[Headnote 3]
Theis contends that the district court erred in concluding that there was no proof that a
detainer had ever been lodged. Instead, Theis argues that either the input of his name into the
NCIC database or the phone call by Washoe County to have him included on the Elko County
detainer were sufficient to prove the existence of a detainer for purposes of the Agreement.
The State, on the other hand, contends that a detainer must be a written notice,
generated by a criminal justice agency, directed to and received by the foreign prison,
requesting that the prisoner be held for the agency or that the agency be advised of the
prisoner's imminent release. To resolve the issue, we must determine what minimal requisites
amount to a detainer for purposes of the Agreement.
Our previous case law has only briefly discussed the definition of a detainer under
the Agreement. In our 1983 decision in Housewright v. Lefrak,
3
we stated:
A detainer is simply an informal notice of charges pending in another jurisdiction,
and is not a request that the state in which the prisoner is incarcerated do any act or
effect any transfer of the prisoner. As such, a detainer may be filed by a prosecuting or
law enforcement officer, without involvement or approval of the executive authority of
the state seeking custody.
4

Housewright, however, does not answer the issue presently before us. Although Theis
cites Housewright and the reference to informality as support for his argument, Housewright
addressed the particular issue of whether gubernatorial approval was necessary before the
State could file a detainer for purposes of the Agreement.
5
Because we were not concerned
with the level of formality necessary to constitute a valid detainer in Housewright, it is not
dispositive of Theis's case. Moreover, our statement that a detainer is informal does not
answer the question of whether entry into the NCIC computer or a phone call to the sending
state's prison is sufficient to trigger the provisions of the Agreement. Indeed, the
informality referred to addressed the content of the request, not the package containing
it.6 Accordingly, we must turn to more traditional methods of statutory interpretation to
resolve the matter before us.
__________

2
Emphasis added.

3
99 Nev. 684, 687-88, 669 P.2d 711, 713 (1983).

4
Emphasis added.

5
99 Nev. at 687, 669 P.2d at 713.
117 Nev. 744, 750 (2001) Theis v. State
content of the request, not the package containing it.
6
Accordingly, we must turn to more
traditional methods of statutory interpretation to resolve the matter before us.
The Agreement is a congressionally sanctioned interstate compact falling within the
scope of the Compact Clause of the United States Constitution.
7
Accordingly, the
Agreement is federal law subject to federal construction. Therefore, we will defer to the
United States Supreme Court's interpretation of the Agreement before ourselves construing its
language.
8

In the 1993 decision of Fex v. Michigan,
9
the United States Supreme Court offered
its most recent definition of a detainer under the Agreement: a request filed by a criminal
justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner
be held for the agency, or that the agency be advised when the prisoner's release is imminent.
[Headnote 4]
The Fex definition is determinative of Theis's argument with respect to the NCIC
database entry. Because the NCIC entry merely informed other agencies of the existence of a
warrant against Theis in a nationwide database, it does not meet the Fex requirements for a
detainer. The entry was not specifically filed with the institution in which a prisoner is
incarcerated and did not substantively request that the prisoner be held for the agency, or
that the agency be advised when the prisoner's release is imminent.
10
But it appears that
neither the United States Supreme Court, nor any other federal court, has addressed whether
an oral communication can constitute a detainer.
11
Accordingly, we must ourselves construe
the Agreement to determine whether a detainer may be orally communicated or whether it
requires a written request.
[Headnotes 5, 6]
When construing a statute, we first inquire whether an ambiguity exists in the
language of the statute.
__________

6
For this reason, we also reject Theis's reliance on the footnote in United States v. Mauro, 436 U.S. 340, 358
n.25 (1978), which refers to detainers as informal aids in interstate and intrastate criminal administration.

7
U.S. Const. art. I, 10, cl. 3; see also Cuyler v. Adams, 449 U.S. 433, 438-42 (1981) (holding that the
Agreement is an interstate compact under the Compact Clause).

8
Cuyler, 449 U.S. at 438-40 (holding that the Agreement is federal law subject to federal construction).

9
507 U.S. 43, 44 (1993).

10
Id.; see also People v. Shue, 377 N.W.2d 839, 843 (Mich. Ct. App. 1985) (holding that entry of a warrant
into the Law Enforcement Information Network was not a detainer within the scope of the Agreement).

11
We note, however, that the Fex definition refers to a detainer being filed, a term which also suggests a
writing, but is not clearly dispositive of a writing requirement.
117 Nev. 744, 751 (2001) Theis v. State
guity exists in the language of the statute. If the words of the statute have a definite and
ordinary meaning, this court will not look beyond the plain language of the statute, unless it is
clear that this meaning was not intended.
12

[Headnotes 7-9]
If a statute is ambiguous, we then focus on the intent of the legislative body enacting
it, which is discernible through an examination of the context and spirit of the statute in
question, together with the subject matter and policy involved.
13
Our interpretation should
be in line with what reason and public policy would indicate the [legislative body] intended,
and should avoid absurd results.
14

[Headnote 10]
As noted above, the Agreement itself contains no definition of the word detainer.
The State notes, however, that Article III(a) of the Agreement applies to complaints on the
basis of which a detainer has been lodged. In light of the use of the term lodged, the State
contends that the plain language of the Agreement indicates that a detainer must be in writing.
But the State's reasoning is unconvincing because the relevant definition of lodge is: to lay
(as a complaint) before a proper authority,
15
an action that does not by definition require a
writing. For instance, to lodge an objection at trial does not require one to submit a writing
to the court.
The State also contends that the definition of detainer contained in the version of
Black's Law Dictionary at the time of the Agreement's passage is indicative of its plain
meaning. That edition defined a detainer as a writ or instrument, which the State argues
indicates that a detainer must be in writing.
16
But because the Agreement is subject to a
federal construction, we are not persuaded that Black's Law Dictionary's definition is
controlling. Indeed, the latest edition of Black's Law Dictionary has adopted the more recent
United States Supreme Court definition of detainer.
17

Because the language in the Agreement and the federal cases construing it are
ambiguous as to whether a writing is required, we must consider the intent surrounding
the Agreement.
__________

12
State v. State, Employees Assoc., 102 Nev. 287, 289, 720 P.2d 697, 698 (1986).

13

14
Id. at 599-600, 959 P.2d at 521.

15
Webster's Ninth New Collegiate Dictionary 702 (1985).

16
Black's Law Dictionary 535 (4th ed. 1951).

17
Black's Law Dictionary 449 (6th ed. 1990) (a [r]equest filed by criminal justice agency with institution in
which prisoner is incarcerated, asking institution either to hold prisoner for agency or to notify agency when
release of prisoner is imminent).
117 Nev. 744, 752 (2001) Theis v. State
construing it are ambiguous as to whether a writing is required, we must consider the intent
surrounding the Agreement. As expressly provided for in Article I of the Agreement, the
purpose of this agreement [is] to encourage the expeditious and orderly disposition of such
charges and determination of the proper status of any and all detainers based on untried
indictments, information or complaints.
In State v. Bronkema,
18
the Idaho Court of Appeals relied on this express purpose in
determining that a telephone call from the state with custody of a prisoner to a state with a
warrant for the prisoner did not constitute a detainer. In holding that a detainer had to be in
writing, the court convincingly addressed some of the concerns attached to orally
communicating a detainer:
Orderly disposition of untried charges against a prisoner is rendered more difficult if
an oral communication is permitted to constitute a detainer. In the first instance, such a
communication would not permit, in most cases, the official having custody of the
prisoner to promptly inform [the prisoner] of the source and contents of any detainer
lodged against him, as required by the Agreement. It would be very difficult, absent
reduction of the oral communication to writing, to accurately convey the contents of the
detainer to the prisoner, i.e., the charges or indictments upon which it is based.
And in the final instance, an oral communication does not provide certainty or permit
objective verification of a detainer and its bases by the sending state. . . . The sending
state should not be placed in the position of having to infer intent on the part of the
receiving state to file the detainer from uncertain oral communications. To hold
otherwise could result in denial of important rehabilitative benefits to the prisoner[, one
of the activities the Agreement was designed to avoid,] based on the mere inference that
another state had a prosecutorial interest in the prisoner.
19

The Idaho court therefore concluded that for purposes of the Agreement, a detainer entails
some form of written communication initiated by the receiving state . . . which is filed or
lodged with the custodial or sending state . . . requesting the sending state to notify the
receiving state of the prisoner's imminent release from custody, or to hold the prisoner after
his release for the receiving state.
20

__________

18
706 P.2d 100 (Idaho Ct. App. 1985).

19
Id. at 103-04 (citations omitted).

20
Id. at 103 (emphases omitted).
117 Nev. 744, 753 (2001) Theis v. State
Although Theis argues that Bronkema is distinguishable because the communication
in his case was initiated by Nevada, the state seeking to detain him, and involved a clear
request to be added to the Elko County detainer, we conclude that the rationale announced in
Bronkema for requiring detainers to be written is convincing. Therefore, despite Washoe
County initiating and orally communicating a clear desire to Idaho in this case, the general
concern that oral communications will not be expeditiously and accurately received and
processed is too great to not require a writing.
Accordingly, we conclude that the phone call from Washoe County to Idaho in March
of 1999 did not constitute a detainer within the meaning of the Agreement.
21

CONCLUSION
We conclude that in order to best effectuate the purpose of the Agreement, a detainer
must be a written request filed by a criminal justice agency with the institution in which a
prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be
advised when the prisoner's release is imminent.
Accordingly, because there was no proof of a written detainer specifically directed to
the Idaho State Correctional Institution, we affirm the district court's denial of Theis's motion
to dismiss.
__________

21
Although not necessary to our decision, we note that even if the phone call from Washoe County did
constitute a valid detainer, Theis's February 25, 1999, request for final disposition would still not have triggered
the 180-day disposition period of Article III(a) or the dismissal requirement of Article III(d), which only apply
to complaints on the basis of which detainers have been lodged. Specifically, Theis's request predated the
phone call. Therefore, at the time Theis's request for final disposition was received, Washoe County's complaint
was not one on the basis of which a detainer had been lodged, and thus it was not affected by Theis's request.
____________
117 Nev. 754, 754 (2001) Harvey v. Dist. Ct.
THE STATE OF NEVADA, Ex Rel. AMY HARVEY, the DulyElected County Clerk of
Washoe County and Ex Officio Court Clerk of the Second Judicial District Court, and
AMY HARVEY in Her Official Capacity as Clerk of the Second Judicial District
Court, Plaintiff/Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE CHARLES M. McGEE, Chief Judge, Second Judicial District Court;
THE HONORABLE BRENT T. ADAMS, District Judge, Second Judicial District
Court; THE HONORABLE JANET J. BERRY, District Judge, Second Judicial
District Court; THE HONORABLE PETER I. BREEN, District Judge, Second
Judicial District Court; THE HONORABLE STEVEN P. ELLIOTT, District Judge,
Second Judicial District Court; THE HONORABLE JAMES W. HARDESTY,
District Judge, Second Judicial District Court; THE HONORABLE SCOTT
JORDAN, District Judge, Second Judicial District Court; THE HONORABLE
STEVEN R. KOSACH, District Judge, Second Judicial District Court; THE
HONORABLE JEROME M. POLAHA, District Judge, Second Judicial District
Court; THE HONORABLE DEBORAH SCHUMACHER, District Judge, Second
Judicial District Court; and THE HONORABLE CONNIE J. STEINHEIMER,
District Judge, Second Judicial District Court, Defendants/Respondents and Real
Parties in Interest.
No. 35144
October 10, 2001 32 P.3d 1263
Original complaint in the nature of quo warranto.
County clerk brought quo warranto action in name of state against county district
court, challenging court's assumption of supervision and control of court clerk's position. The
supreme court, Becker, J., held that: (1) district court clerk is not a constitutional office that
can only be changed by legislature pursuant to state constitution or by constitutional
amendment, despite constitutional provision making county clerk the ex officio court clerk for
his or her district; (2) a reference in state constitution to a particular position does not
automatically render that position a constitutional office; overruling State v. Douglass, 33
Nev. 82, 110 P. 177 (1910); and (3) district court clerk is a judicial office, and therefore a
district court's assumption of the operation of court clerk's office does not violate separation
of powers doctrine of state constitution.
clerk's office does not violate separation of powers doctrine of state constitution.
Complaint dismissed.
Leavitt, J., with whom Young, J., agreed, dissented.
Michael E. Langton, Reno, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Thomas M. Patton, First Assistant
Attorney General, Carson City, for Respondents.
Stewart L. Bell, District Attorney, and Janson F. Stewart, Chief Deputy District
Attorney, Clark County, for Amicus Curiae Shirley Parraguirre.
Scott W. Doyle, District Attorney, Douglas County, for Amicus Curiae Nevada
Association of County Clerks.
1. Quo Warranto.
Original proceeding in quo warranto was appropriate vehicle for county clerk's challenge to district court's alleged usurpation of
county clerk's supervision and control of court clerk's position. Const. art. 3, 1(1); Art. 4, 32; Art. 6, 4; NRS 35.050.
2. Statutes.
When a statute is derived from a sister state, it is presumably adopted with the construction given it by the highest court of the
sister state.
3. Clerks of Courts.
County clerk has no constitutional right to perform duties of district court clerk, though state constitution designates county
clerk as ex officio court clerk of his or her district, and therefore district court clerk is not a constitutional office that can only be
changed by legislature pursuant to state constitution or by constitutional amendment. Const. art. 4, 32.
Legislatures may only change the nature of a constitutional office if they are empowered with such authority by the constitution
itself.
5. Officers and Public Employees.
A reference in state constitution to a particular position does not automatically render that position a constitutional office that
can only be changed by legislature pursuant to the constitution or by constitutional amendment; overruling State v. Douglass, 33 Nev.
82, 110 P. 177 (1910).
Placement in legislative section of state constitution of language designating county clerk as ex officio court clerk of his or her
district does not preclude the court clerk from being a part of the judicial branch of government. Const. art. 3, 1(1); art. 4, 32.
7. Clerks of Courts; Constitutional Law.
District court clerk was a judicial office, and therefore a district court's assumption of the operation of court clerk's office did
not violate separation of powers doctrine of state constitution, regardless of constitutional provision making county clerk the ex officio
clerk of district court in his or her district. Const. art. 3, 1(1); art. 4, 32.
8. Clerks of Courts; Constitutional Law.
Duties of district court clerk are not inherent to or a part of the office of the county clerk, which is designated by state
constitution as ex officio court clerk of his or her district, so as to preclude district court from assuming supervision and control over
court clerk. Const. art. 4, 32.
9. Statutes.
Where a phrase is ambiguous, the plain meaning rule of statutory construction has no application.
10. Statutes.
When a statute is ambiguous, the intent of the drafters becomes the controlling factor in statutory interpretation.
11. Statutes.
When interpreting an ambiguous statute, state supreme court construes it in line with what reason and public policy would
indicate the legislature intended.
12. Counties.
Constitutional language giving the legislature authority over certain county offices was created solely as a mechanism for
permitting the counties to perform certain executive functions, such as the prosecution of criminal actions, through a county office,
rather than a state officer. Const. art. 4, 32.
In cases where there is insufficient work to support both a full-time court clerk and a full-time county clerk, a district court
asserting direct control over court clerk's office must consider whether it can require county to expend additional funds necessary to
accomplish separation of court clerk from county clerk, who is designated in state constitution as ex officio court clerk of his or her
district. Const. art. 4, 32.
14. Clerks of Courts; Courts.
County district court, though entitled under state constitution to assume control and supervision of court clerk from county
clerk, should designate by rule what position in judicial branch represents court clerk, or, if district court has assumed control over only
a part of court clerk's operations, was required to clarify by rule which court clerk functions were under county clerk's direct control
and which were under district court's direct control. Const. art. 4, 32.
District courts have the authority to supervise county clerks when they are acting in the capacity of court clerk. When acting as
court clerk, the county clerk is performing duties for the judicial system and is an arm of the court. Const. art. 4, 32.
A district court may exercise control over the court clerk's office either directly, by assuming all or part of the court clerk's
functions, or indirectly, by supervising the county clerk in the performance of his or her duties as the ex officio court clerk. Const. art.
4, 32.
OPINION
This is an original proceeding by complaint and information in the nature of quo
warranto. The complaint arises from a disagreement between the Washoe County Clerk,
Amy Harvey, and the Second Judicial District Court over the District Court's assumption of
the supervision and control of the court clerk's position.
1

Harvey asserts that the county clerk is the sole person designated in the Nevada
Constitution as responsible for performing the duties associated with the court clerk.
According to Harvey, the District Court has usurped her position as ex officio court clerk of
the District Court in violation of NRS 35.120. Harvey urges this court to oust the District
Court from the court clerk position or, in the alternative, to prohibit the District Court from
usurping her position.
The District Court contends that the office of the court clerk is a ministerial function
of the judicial branch of government. According to its view, the Nevada Constitution's
provisions relating to the county clerk's office do not prohibit a district court from
supervising, controlling or operating the office of the district court clerk. Therefore, the
District Court maintains that the duties of the court clerk can be assumed in whole or in part
by a district court.
For the reasons stated below, we conclude that the District Court has not usurped the
office of county clerk by assuming direct control over the functions of the court clerk. The
office of the clerk of the district court is not a constitutional office. Rather, it is a ministerial
office inherent to the judicial branch of government. Its sole purpose is to perform clerical
and record-keeping functions necessary to the district court's operation. Its duties may be
performed, in whole or in part, either by the county clerk pursuant to legislative enactment, or
by the district court pursuant to court rule. Therefore, we conclude that the District Court has
not usurped Harvey's authority, and we dismiss the complaint in quo warranto.
FACTUAL BACKGROUND
The county clerk is an elected official who, under the Nevada Constitution, is also
designated as the ex officio court clerk of his or her district.
__________

1
The Nevada Association of County Clerks and County Election Officials and Shirley Parraguirre, Clark
County Clerk, filed amicus curiae briefs in this action.
or her district. Article 4, section 32 of the Nevada Constitution provides:
The Legislature shall have power to increase, diminish, consolidate or abolish the
following county officers: County Clerks, County Recorders, Auditors, Sheriffs,
District Attorneys and Public Administrators. The Legislature shall provide for their
election by the people, and fix by law their duties and compensation. County Clerks
shall be ex-officio Clerks of the Courts of Record and of the Boards of County
Commissioners in and for their respective counties.
Pursuant to its general authority to enact laws for the orderly administration of
government and the public welfare, the legislature has assigned several record-keeping duties
to the court clerk.
2
As well, district court clerks have numerous receipting and accounting
duties assigned by the legislature, such as providing receipts for payments or processing bail
funds.
3
These duties are illustrative, not exhaustive, of the court clerk's record-keeping and
financial duties. In addition to the duties set forth in statutes, court clerks have duties assigned
to them by the judiciary through court rules.
4

Prior to 1974, the county clerk controlled and supervised the court clerk's functions in
the Second Judicial District Court. In June of 1974, at the request of the District Court, the
Washoe County Board of Commissioners adopted Washoe County Ordinance number 230
which established a Court Administrator position for the District Court. The Ordinance
resulted from discussions between the Commissioners and the District Court regarding
management of the court system, including the court clerk's functions. The Ordinance
provided, in pertinent part:
Section 2. The District Judges by majority action shall appoint upon the effective date
of this amendatory ordinance a Court Administrator. (Amended by Bill 407, Item
75-89)
Section 3. The Court Administrator shall, under the supervision and direction of the
District Judges:
__________

2
See, e.g., NRS 1.150 (duty to procure district court's seal); NRS 3.275 (court clerk's duty to obtain and keep
information regarding the nature of civil actions); NRS 3.280 (court clerk to keep register of civil actions); NRS
3.290 and 3.295 (clerk to prepare a list of all district court matters standing submitted); NRS 3.305 and 3.307
(clerk to keep exhibits submitted to the district court).

3
See, e.g., NRS 3.270 (giving a receipt for and paying over to the county treasurer all payments made to the
district court); NRS 31.670 and 31.690 (accepting and refunding bail deposits).

4
See, e.g., NRAP 3(a)(1); NRAP 10(a)(1); and NRCP 77.
A. Prepare and submit budgets to the County Manager and the Board of County
Commissioners necessary for the maintenance and operation of the judicial system
and make recommendations in respect thereto.
B. Attend to such other matters as may be assigned by the District Judges.
The Ordinance also stated that employees performing duties of the office of the district court
clerk were under the complete jurisdiction and control of the district judges. The Ordinance
then provided for the transfer of thirty-two employees of the Washoe County Clerk's Office to
the District Court as exempt employees of the District Judges.
The Ordinance provided the mechanism for approving funds for a new court position
as well as the change in the personnel classifications of persons working in the court clerk's
office. The District Court, through its own internal actions, clarified its position regarding
direct supervision and control of the court clerk's office.
Since 1974, District Court employees have performed virtually all of the court clerk
responsibilities. The county clerk is still listed as the clerk of the District Court on official
documents and reports, but apparently has no control over the operation of the court clerk's
office or the individuals (designated as deputy court clerks) who handle the court clerk's
duties. The county clerk has no say in the hiring, firing or disciplinary actions involving
District Court employees assigned to the court clerk's functions.
5

DISCUSSION
[Headnote 1]
Preliminarily, this court must decide whether an original proceeding in quo warranto
or a petition for a writ of prohibition is the appropriate vehicle by which to challenge the
District Court's alleged usurpation of Harvey's office. The Nevada Constitution grants this
court the power to issue writs of mandamus, certiorari, prohibition, quo warranto, and
habeas corpus.
6
NRS Chapter 35, entitled Quo Warranto, includes a provision that
specifically relates to alleged usurpation of public offices:
A person claiming to be entitled to a public office . . . unlawfully held and exercised by
another may, by himself or by an attorney and counselor at law, bring an action
therefor in the name of the state, as provided in this chapter.
__________

5
As this is an original action in quo warranto, the parties were permitted to present evidence in the form of
various documents to this court.

6
action therefor in the name of the state, as provided in this chapter.
7

Harvey argues that her position is a public office and she is therefore entitled to bring this
action in quo warranto in the name of the state. We agree that she is entitled to bring this
action under NRS 35.050 and we have chosen to treat this matter as an original complaint in
quo warranto, not as a petition for a writ of prohibition. We now turn to the merits of
Harvey's complaint.
Harvey and amici curiae argue that the judicial branch is not permitted to interfere
with the office of the county clerk, a part of the executive branch of government. Only the
legislature may alter the office of the county clerk, because the Nevada Constitution provides
the legislature with that authority. Harvey and the amici basically assert that the court clerk is
a constitutional office. Therefore, the only way it can be changed is by the legislature
pursuant to the constitution or by an amendment of the constitution itself. They assert that the
court clerk is either a separate constitutional office that is held concurrently by the person
elected to the office of county clerk, or that it is a part of the county clerk's office whose
parameters are constitutionally set by the legislature.
The District Court argues that the office of court clerk is not a constitutional office.
Rather, the District Court asserts the court clerk is a ministerial office of the judicial branch,
subject to control and supervision by the court. Further, the District Court contends that
designation of the county clerk, as ex officio court clerk in the constitution, was a matter of
convenience when state government was formed and that the court clerk has always been a
judicial office. According to the District Court, since the court clerk is not a constitutional
office, a district court is not prohibited from assuming control over the operation of the
district court clerk's office. The District Court notes that a district court has the inherent
authority to supervise its own operations and maintains that the court clerk's functions are an
essential part of the district court. Therefore, under the District Court's reasoning, whenever a
district court determines it would be in the best interests of the court to assume direct
supervision and control over the employees and operation of the court clerk's office, it has the
authority to make such a change through court action.
We conclude that the constitutional provision that establishes the county clerk as the
ex officio court clerk does not make the court clerk a constitutional office. The county clerk or
the district court, at the district court's discretion, may perform the duties of the court clerk.
Moreover, when the county clerk is acting as the ex officio court clerk, the county clerk is a
part of the judicial branch of government and subject to the ultimate supervision and
direction of the judicial branch.
__________

7
NRS 35.050.
ex officio court clerk, the county clerk is a part of the judicial branch of government and
subject to the ultimate supervision and direction of the judicial branch.
We begin our analysis by reviewing the history of the inclusion of the ex officio court
clerk language in the constitution. Prior to statehood, the Nevada territory had three types of
county courts: district courts, probate courts, and justice courts.
8
The county clerk, an elected
office, served as the clerk of the probate courts.
9
However, the judge or judges of the district
courts appointed the clerk of the district court.
10
We are unable to determine how the clerks
of the justice courts were selected.
When the citizens of the territory attempted to draft a constitution in 1863, they did
not use the territorial statutes as a basis for developing the constitution. Rather, they used the
California Constitution as the starting point.
11
Consequently, Nevada's first constitutional
draft, written in 1863, was significantly based on the 1849 California Constitution, as
amended in 1862.
12

The 1849 California Constitution created the office of county clerk in article VI,
entitled Judicial Department. Article VI, section 7 provided:
The Legislature shall provide for the election, by the people, of a Clerk of the Supreme
Court, and County Clerks, District Attorneys, Sheriffs, Coroners, and other necessary
officers; and shall fix by law their duties and compensation. County Clerks shall be, ex
officio, clerks of the District Court in and for their respective counties.
13

Similarly, Nevada's 1863 constitutional draft provided in pertinent part:
The Legislature shall provide for the election by the people, of a Clerk of the Supreme
Court, County Clerks, County Recorders, District Attorneys, Sheriffs, Public
Administrators, and other necessary officers; and fix, by law, their
__________

8
John P. O'Brien, History of the Bench and Bar of Nevada 13 (1913).

9
An Act Creating Offices in the Territory of Nevada, 1861 Nev. Terr. Laws, ch. 89, 1, at 212.

10
An Act to Organize the Territory of Nevada, 36th Congress, 12 Stat. 209, ch. 83, 9 (1861).

11
Andrew J. Marsh, Official Report of the Debates and Proceedings in the Constitutional Convention of the
State of Nevada, Assembled at Carson City, July 4, 1864, to Form a Constitution and State Government 16-24
(1866).

12
Id.

13
See generally 10 Cal. Jur. 2d Clerks of Court 2 (1953).
duties and compensation . . . . County Clerks shall be ex officio Clerks of the Courts of
Record in their respective counties.
14

As illustrated above, Nevada's draft mirrored California's language. Like California, Nevada
initially placed its provision in the judicial article of its constitution.
15
However, on the 31st
day of the constitutional convention, the county clerk provision was transferred, without
comment, to the legislative article of the Nevada Constitution.
16

At the constitutional convention, delegates debated various amendments to the county
clerk position, but spent little time discussing or debating the office of the court clerk. The
delegates' primary reason for permitting the court clerk duties to be performed by the office of
the county clerk involved a desire to save money. The delegates recognized that someone
needed to perform the ministerial functions inherent in the operation of a court, but they
wanted to avoid the unwarranted expense of establishing a separate office.
17
By default, the
county clerk was assigned to perform the duties of the court clerk since the district courts
rarely had any kind of paid staff, permanent facilities or structure for performing the clerical
functions of the court.
Although the proposed constitution of 1863 was never ratified, the 1864 draft had the
same county clerk language as the draft from 1863. Records from the debates from 1864 are
scarce and provide no further insight on the rationale of assigning the court clerk duties to the
county clerks.
Pursuant to the constitution of 1864, in the second state legislative session (1866), the
legislature enacted laws establishing certain offices. The county clerk's office statute
mimicked the constitution's language: For each county, one County Clerk, who shall be ex
officio Clerk of the Board of County Commissioners, and also Clerk of the District Court of
his county.
18
This statute, now NRS 246.060, has changed very little since its inception.
From the time that Nevada became a state, with the exception of the actions of the
District Court in 1974, the county clerks have performed the district court clerk's duties.
Although, from time to time, periods of tension have existed between a given county clerk
and a district court over the operation of the court clerk's office, for the most part, the
relationship between the county clerks and the district courts has been one of
cooperation and collaboration.
__________

14
See Andrew J. Marsh & Samuel L. Clemens, Reports of the 1863 Constitutional Convention of the
Territory of Nevada 217 (1971) [hereinafter Reports of the 1863 Constitutional Convention].

15
See Report of the Debates, supra note 11, at 16.

16
Id. at 16.

17
See, e.g., Reports of the 1863 Constitutional Convention, supra note 14, at 239, 242.

18
An Act Relating to Officers, 1866 Nev. Stat. 231, ch. 108, 1.
to time, periods of tension have existed between a given county clerk and a district court over
the operation of the court clerk's office, for the most part, the relationship between the county
clerks and the district courts has been one of cooperation and collaboration. Thus, the issue of
who has the ultimate authority over the court clerk has never been decided.
II. Is the district court clerk a constitutional office?
The constitutional debates do not definitely answer our questions about the framers'
intent in making the county clerk the ex officio court clerk. While they suggest that the
framers did not intend that the court clerk position be a separate constitutional office and that
the ex officio language was a product of convenience and economics, the debates reflect no
express statement to this effect. Thus, we must turn to the rules of constitutional construction
to determine whether the district court clerk is a constitutional office.
[Headnote 2]
We recently recognized that the rules of statutory construction apply when we
interpret constitutional provisions.
19
[W]hen a statute is derived from a sister state, it is
presumably adopted with the construction given it by the highest court of the sister state.
20
Thus, since Nevada relied upon the California Constitution as a basis for developing the
Nevada Constitution, it is appropriate for us to look to the California Supreme Court's
interpretation of the ex officio language in the California Constitution.
The California Constitution has been amended several times since it was used in the
drafting of the Nevada Constitution. While the provision dealing with the county clerk as an
ex officio court clerk remains, the language allowing the legislature to increase, diminish,
consolidate or abolish the county clerk's office has been deleted. In 1989, the California
Supreme Court reviewed its constitutional provisions regarding the role of the court clerk in
Zumwalt v. Superior Court (Pierce).
21
At the time that Zumwalt was decided, article VI,
section 4 of the California Constitution, only provided that: The county clerk is ex officio
clerk of the superior court in the county.
In Zumwalt, the county clerk of San Diego challenged a county rule that transferred
certain court-related duties, and the civil service employees who perform them, from the
county clerk's control to that of a superior court executive officer.
__________

19
Rogers v. Heller, 117 Nev. 169, 176 n.17, 18 P.3d 1034, 1038 n.17 (2001).

20
Clark v. Lubritz, 113 Nev. 1089, 1096-97 n.6, 944 P.2d 861, 865 n.6 (1997) (citing Craigo v.
Circus-Circus Enterprises, 106 Nev. 1, 3, 786 P.2d 22, 23 (1990)).

21
776 P.2d 247 (Cal. 1989).
sevice employees who perform them, from the county clerk's control to that of a superior
court executive officer. The California high court concluded that the powers and duties of the
county clerk were solely statutory and that the rule was valid because the statutes authorized
such action.
22
The court further concluded that the authorizing statutes were not
unconstitutional. In essence, the California court held that the ex officio language was
included in the California Constitution to authorize the legislature to assign judicial branch
duties to a member of the executive branch, but that the language did not require the
legislature to take such action.
Moreover, the court concluded that, the office [of county clerk] had no inherent,
constitutionally vested or conferred powers or duties.
23
The court then held that the
legislature was not prohibited from assigning court-related duties to officers and employees
of the court rather than the county clerk.
24
In addition, the court concluded that the
constitution did not identify, or create a right in [the county clerk] to perform any
court-related function by virtue of his office alone.
25

Thus the Zumwalt court concluded that the purpose of the ex officio language was to
establish the legislature's ability to require the county clerk to act as the court clerk, but it did
not confer any constitutional right in the county clerk to perform the duties of the court clerk.
Although the Zumwalt court declined to address whether the county clerk or court clerk is a
constitutional office, we find its interpretation of the ex officio language to be helpful in
resolving this issue in Nevada.
[Headnotes 3, 4]
We agree with Zumwalt that the county clerk has no constitutional right to perform
the duties of the court clerk. From this conclusion, the logical inference is that the court clerk
is not a constitutional office. Otherwise, the legislature could not authorize the courts to
assume the court clerk functions through local rules. It is a well-established principle of
constitutional law that legislatures may only change the nature of a constitutional office if
they are empowered with such authority by the constitution itself.
26

Harvey and the amici curiae argue that this court should not rely upon Zumwalt in
determining whether or not the district court clerk is a constitutional office.
__________

22
Id. at 249.

23
Id. at 250.

24
Id. at 255.

25
Id. at 255.

26
See Love v. Baehr, 47 Cal. 364 (1874); People v. Bollam, 54 N.E. 1032 (Ill. 1899); Koch v. Mayor, 46
N.E. 170 (N.Y. 1897).
court clerk is a constitutional office. Instead they argue that the Nevada case of State v.
Douglass
27
is controlling. We disagree.
[Headnote 5]
Douglass involved the status of the supreme court clerk in light of a constitutional
change and legislative action taken pursuant to that change. The Nevada Constitution was
amended in 1889 to abolish the language establishing the clerk of the supreme court as a
separate elected position. Subsequently, the legislature enacted statutes that assigned the
duties of the clerk of the supreme court to the secretary of state's office. An individual
claimed that the amendment did not affect the constitutional status of the supreme court
clerk's office, merely the manner in which that office would be filled. This court agreed and
reiterated the general rule that:
Every constitutional officer derives his power and authority from the constitution, the
same as the legislature does, and the legislature, in the absence of express constitutional
authority, is as powerless to add to a constitutional office duties foreign to that office,
as it is to take away duties that naturally belong to it . . . .
It is well settled by the courts that the legislature, in the absence of special authorization
in the constitution, is without power to abolish a constitutional office or to change,
alter, or modify its constitutional powers and functions.
28

However, as later case law points out, the decision in Douglass actually involved our court
concluding that the supreme court clerk was still a constitutional office because it was
referenced in other provisions of the constitution:
[A]lthough a constitutional amendment deleted that portion of the section which
required the election of a clerk of the supreme court, it did not deprive the office of its
constitutional status because the constitution still was left with provisions having to do
with important functions of that office, including the provision (Art. XV, Sec. 8)
requiring the opinions of this court to be filed with the clerk.
29

While we question the validity of this conclusion, it is still distinguishable from the current
dispute. The Douglass court based its conclusion upon the existence of other constitutional
provisions dealing with the supreme court clerk. No such provisions exist with respect to the
clerk of the district courts.
__________

27
33 Nev. 82, 110 P. 177 (1910).

28
Id. at 92-93, 110 P. at 180.

29
Shamberger v. Ferrari, 73 Nev. 201, 206, 314 P.2d 384, 386 (1957).
with respect to the clerk of the district courts. We conclude, therefore, that the mere mention
of the office of court clerk in article 4, section 32 of the Nevada Constitution does not render
it a constitutional office. Further, we overrule any implication in Douglass that suggests that
the constitution's reference to a position automatically renders that position a constitutional
office. We find Zumwalt's analysis of the ex officio language to be persuasive and conclude
that the ex officio phrase permits, but does not require, the county clerk to perform the duties
of the district court clerk. Moreover, based upon our review of the constitutional debates, and
the analysis of the California Constitution contained in Zumwalt, we further conclude that the
court clerk is not a constitutional office under Nevada law.
III. Court clerk and the judicial branch
Since we conclude that the office of district court clerk is not a constitutional office,
we must next determine whether the duties of the court clerk are a function of the executive,
legislative or judicial branch of government. As with most states, under the constitution, the
government of the State of Nevada is divided into three separate branches:
1. The powers of the Government of the State of Nevada shall be divided into three
separate departments,the Legislative,the Executive and the Judicial; and no persons
charged with the exercise of powers properly belonging to one of these departments
shall exercise any functions, appertaining to either of the others, except in the cases
expressly directed or permitted in this constitution.
30

Harvey argues that the court clerk's duties are a part of the legislative department
because article 4, section 32 is contained in the portion of the Nevada Constitution dealing
with the legislative branch. Alternatively, Harvey asserts that the county clerk is a member of
the executive branch, so the court clerk is also a member of the executive branch because the
county clerk is the ex officio court clerk.
Harvey also argues that regardless of whether the court clerk is part of the legislative
or executive departments, the constitution authorizes the legislature to exercise control over
the office of the county clerk and therefore over the court clerk personally. Harvey points out
that changes in the county clerk's office cannot be accomplished through court rule or local
ordinance because there is no express constitutional provision granting the judicial
department the right to exercise any of the functions of the executive or legislative branches.
Therefore, according to Harvey, the judiciary has no direct authority over the county clerk
and the court clerk, and the assertion of such authority violates the separation of powers
doctrine.
__________

30
has no direct authority over the county clerk and the court clerk, and the assertion of such
authority violates the separation of powers doctrine.
[Headnote 6]
We are not persuaded by Harvey's argument that the placement of the ex officio court
clerk language in the legislative section of the Nevada Constitution precludes the court clerk
from being a part of the judicial branch of government. Historically, the position of court
clerk has always been recognized as a ministerial function of a judicial system.
31

Further, our common law has consistently referred to a court clerk as one whose
duties are ministerial in nature.
32
Indeed this court has repeatedly referred to court clerks as
ministerial officers.
33
We have recognized that a clerk of court has a ministerial duty to
accept and file documents that are in proper form and must not exercise any judicial
discretion.
34
A court clerk also acts in a ministerial capacity in entering a default.
35
Finally,
the power the court exercises is not subject to defeat by any ministerial act or omission of
the clerk.
36

We have always implicitly recognized that the court clerk is part of the judicial branch
of government.
As we have already noted, the assignment of the court clerk's duties to the county
clerk was a matter of chance. There is nothing in the history of the constitutional convention
to indicate that the court clerk was considered to be anything but a function of the judicial
branch.
Our sister states agree with this conclusion. Many other states have constitutional
provisions that assign the duties of a local court clerk to an officer of a local political
subdivision, such as a county clerk. Although some have agreed with the dissent that the clerk
functions could not be transferred from the local officer to the local court, all of the courts
have concluded that the clerk of a court is a judicial office.
37
Moreover, because the clerk of
the court is a judicial office, courts have further held that even when the court clerk
functions reside in a separate local official, that official is subject to the direction and
control of the judges and the courts that he or she serves.
__________

31
5 R.L.C., Clerks of Courts 1, 620 (1929).

32
See Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995); Bowman v. District Court, 102 Nev.
474, 728 P.2d 433 (1986).

33
See State v. Glass, 44 Nev. 235, 242, 192 P. 472, 473 (1920); Bowman, 102 Nev. at 478, 728 P.2d at 435.

34
See Bowman, 102 Nev. at 478, 728 P.2d at 435.

35
See Iveson v. District Court, 66 Nev. 145, 152, 206 P.2d 755, 759 (1949) (citing Price v. Brimacombe, 58
Nev. 156, 72 P.2d 1107, 75 P.2d 734 (1937)).

36
Id.

37
See Petuskey v. Cannon, 742 P.2d 1117, 1121 (Okla. 1987) (clerk is ultimately connected to the
existence, dignity and function of the judiciary); Estep v. Commissioners of Boundary County, 834 P.2d 862,
864
court is a judicial office, courts have further held that even when the court clerk functions
reside in a separate local official, that official is subject to the direction and control of the
judges and the courts that he or she serves.
38

For instance, in Rutledge v. Workman,
39
the West Virginia Supreme Court held that
the circuit clerk, although elected by the voters, was subject to the control and direction of the
chief circuit judge of the circuit court. The court further held that decision[s] to hire, fire,
promote, demote, or transfer any and all personnel in the office of the circuit clerk that have
any responsibility whatsoever within the judicial system must be made with that obligation
firmly in mind.
40
Therefore, Rutledge concluded that the judges retained control over their
clerks and the clerks are fully answerable to the judicial system.
41

[Headnote 7]
The court clerk's office is not a part of the executive or legislative branches of
government. Universally, these kinds of constitutional provisions have not changed the nature
of the court clerk's office. The court clerk is a judicial office, and the court has inherent and
constitutional authority to administer the judicial system. Thus, the assumption by a district
court of the operation of the court clerk's office does not violate the separation of powers
doctrine of the Nevada Constitution.
__________
(Idaho 1992) (the clerk of the district court is a judicial official); Olmsted v. Meahl, 114 N.E. 393, 395 (N.Y.
1916) ([A] county clerk, when actually engaged as a clerk of the courts, and his special deputies acting in his
behalf as such court clerks are part of the judicial system of the state).

38
See Rutledge v. Workman, 332 S.E.2d 831 (W. Va. 1985) (circuit judges retain control over their clerks
and such clerks are fully answerable to the judicial system); Smith v. Perkins, 102 N.W. 971, 971 (Mich. 1905)
(County Clerk, as circuit court clerk of such county, is subject to all the legitimate orders of the court of which
he is clerk); State v. Le Fevre, 41 N.W. 184, 184 (Neb. 1888) (The clerks of the various courts are under the
control and direction of the courts of which they are such clerks . . . .); see also Bergerman v. Byrnes, 114
N.Y.S. 2d 416, 420 (N.Y. Spec. Term 1952) ([A]t common law in England and since the creation of earliest
colonial courts, the clerk of a court was an integral part of the court itself and was an invaluable aid to the
discharge of judicial duties.); Nation v. Nation, 404 So. 2d 394, 375 (Fla. Dist. Ct. App. 1981) ([I]n all matters
in which the court clerk acts as such clerk, he acts on behalf of the court and the court has the inherent power
and duty to review and oversee its clerk's administrative and ministerial acts. . . .); Crooks v. Maynard, 732
P.2d 281, 284 (Idaho 1987) (office of district court clerk, created in article of constitution that created judicial
branch, is in fact part of the judicial branch).

39
332 S.E.2d 831, 836.

40
Id. at 836-37.

41
Id. at 835.
IV. Assignment of court clerk duties
The amici take a slightly different approach to this issue. They generally concede that
the clerk of the district court is a ministerial function of the judicial branch subject to general
supervision by the courts. However, they assert that, under the language of article 4, section
32, of the Nevada Constitution only the legislature can designate who shall perform the court
clerk's responsibilities.
Specifically, the amici argue that since the constitution gives the legislature authority
to increase, diminish, consolidate or abolish the office of county clerk, it prohibits changes
to the county clerk's office by any entity other than the legislature. According to the amici,
since the county clerk is the ex officio court clerk, the court clerk duties are a part of the office
of the county clerk. Therefore, amici contend that the legislature is the only body authorized
to determine who can perform the duties of the court clerk. This is also the position of the
dissent.
In support of their position, the amici cite to language in Zumwalt holding that the
California Legislature had the power to reassign the duties of the court clerk from the county
clerk to the county court under the California Constitution. Because the legislature had the
power to change the county clerk's office, it also had the authority to permit the courts to
accomplish such a change through court rule.
The amici maintain that the District Court and Washoe County could not shift the
court clerk responsibilities from the county clerk because the Nevada Legislature has not
delegated such authority to the courts as did the California Legislature in Zumwalt. The
actions of the District Court are, according to them, an impermissible interference with the
county clerk's office. We disagree. While it is true that the California Supreme Court relied
upon the California statute in resolving Zumwalt, the court never addressed the issue before
us. Zumwalt dealt only with the validity of the California statute, not whether a court is
prohibited by constitutional language from assuming direct supervision and control of the
court clerk's office.
[Headnote 8]
We have already determined that the court clerk is not a constitutional office. Further,
we have also concluded that the mere fact that the Nevada Constitution does not divide the
county clerk and court clerk language into separate legislative and judicial articles does not
indicate an intent to prohibit the courts from assuming direct control over the performance of
the duties of the court clerk. Finally, we have concluded, as did the court in Zumwalt, that the
court clerk's duties are not inherent to or a part of the office of the county clerk.
The Nevada Constitution was designed to promote and preserve the fundamental
concept of three independent branches of government. It specifically provides for an
independent judiciary. These provisions would be seriously undermined if the judiciary were
prohibited, under any circumstance, from exercising direct control over the personnel who
were performing vital and essential court functions. Indeed, the amici concede that the county
clerk, acting as court clerk, must take direction from the court and, if there is a dispute
between the two, the court has the ultimate word.
If the language of the constitution is read to prohibit the courts from operating their
clerk's offices, then the legislature would be free to abolish the court clerk's functions by
abolishing the county clerk's office. Such an action, if permitted, would seriously impair the
operations of the judicial department. Under the theory espoused by Harvey, the amici, and to
some extent, the dissent, the courts might have to seek a constitutional amendment to assume
control over the court clerk's functions.
[Headnotes 9-11]
If the constitutional convention intended that only the county clerk would have the
authority to perform the duties of the court clerk, the drafters could simply have said the
county clerk is the district court clerk. Instead, they used the language ex officio. It is the
use of this phrase that creates ambiguity in the constitution. Where a phrase is ambiguous, the
plain meaning rule of statutory construction has no application.
42
Moreover, when a statute
is ambiguous, the intent of the drafters becomes the controlling factor in statutory
interpretation.
43
Finally, when we interpret an ambiguous statute, we construe it in line
with what reason and public policy would indicate the legislature intended.'
44

[Headnote 12]
There is no indication that the authors of the Nevada Constitution ever intended to
prohibit district courts from exercising direct control over the court clerk's office. Instead, we
conclude that the language giving the legislature authority over certain county offices was
created solely as a mechanism for permitting the counties to perform certain executive
functions, such as the prosecution of criminal actions, through a county office, rather than a
state officer. In addition, the language made it clear that the local offices were entirely a
creature of the legislature and could be altered or abolished at any time by legislative act.
__________

42
Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984).

43
Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).

44
McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986) (quoting Robert E. v. Justice
Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983)).
the local offices were entirely a creature of the legislature and could be altered or abolished at
any time by legislative act.
[Headnote 13]
We note, however, that there may be limitations on a district court's assumption, in its
entirety, of the operation of the court clerk's office. While a district court may generally have
the ability to assert direct control over the court clerk's office, it is prohibited from expending
funds if doing so unduly impinges upon the legislative and executive branches. In some
counties, there may be insufficient work to support both a full-time court clerk and a full-time
county clerk. Under such circumstances, a district court must consider whether it can require
the county to expend the additional funds necessary to accomplish the separation of the court
clerk from the county clerk.
45
The court may also need to consider management and
employee relations.
46
Separating all or a part of the court clerk's office from the office of the
county clerk is an enormous undertaking with serious consequences. It should not be taken
unless a court deems it essential to the operation of the court.
V. Assignment of responsibilities
We cannot determine from the evidence presented to us the current division of
responsibility for the performance of the court clerk's duties between Harvey and the District
Court. It appears that Harvey has no authority over any court clerk functions and has been
allocated to a figurehead position. If the District Court has assumed all of the responsibilities
for the operation of the clerk's office, then Harvey is no longer the court clerk and she should
not be executing documents or reports in that capacity.
[Headnote 14]
In this circumstance, the District Court must designate by rule what position is now
the administrative head of the clerk's office. As noted in Zumwalt, the person who occupies
that position would then be the clerk of the court for the purpose of carrying out statutory
duties and executing documents.
47

If the District Court has assumed control over only a part of the operations of the
clerk's office, then Harvey remains the official court clerk and the District Court needs to
clarify by rule, as do the statutes and rules in California,4S exactly what court clerk
functions and personnel are under Harvey's direct control and which are under the
District Court's direct control.
__________

45
Angell v. District Court, 108 Nev. 923, 926, 839 P.2d 1329, 1331 (1992) (citing Sun Realty v. District
Court, 91 Nev. 774, 776, 542 P.2d 1072, 1073 (1975)) (stating that a court should exercise its inherent power to
require the expenditure of funds to perform its functions with discernment and circumspection); State v. Davis,
26 Nev. 373, 68 P. 689 (1902).

46
Service Employees Internat. Union v. Superior Court, 208 Cal. Rptr. 48 (Ct. App. 1984).

47
Zumwalt, 776 P.2d at 253-54.
cial court clerk and the District Court needs to clarify by rule, as do the statutes and rules in
California,
48
exactly what court clerk functions and personnel are under Harvey's direct
control and which are under the District Court's direct control.
VI. Conclusion
[Headnote 15]
We conclude that the designation of the county clerk as ex officio clerk of the district
court reflects nothing more than an effort by the constitution's drafters to increase efficiency
by allowing the county clerk to perform court-related duties. Therefore, we find no inherent,
inalienable, or unbridled right of the county clerks to perform the office of court clerk without
direction from the courts in their districts. Rather, we conclude that the district courts have
the authority to supervise the county clerks when they are acting in the capacity of court clerk.
When acting as court clerk, the county clerk is performing duties for the judicial system and
is an arm of the court. It is entirely contrary to the centralized, hierarchial, and well
organized structure of the state judiciary for the court clerk to be a loose cannon sliding
around on the county's judicial deck.'
49

[Headnote 16]
A district court may exercise control over the court clerk's office either directly, by
assuming all or part of the court clerk's functions, or indirectly, by supervising the county
clerk in the performance of his or her duties as the ex officio court clerk. Therefore, the
District Court has not usurped the office of the County Clerk in Washoe County.
Accordingly, this action for quo warranto is dismissed.
Shearing, Agosti and Rose, JJ., concur.
I agree with the result reached by the majority. I would only underscore the fact that
the state constitution designates the county clerks of this state as ex officio clerks of their
respective district courts. This provision in no way vests county clerks with authority to
preempt any regulatory measures taken by any district court with regard to the operation of
the court system, including those touching upon the duties of the court clerk. In the absence
of a separate constitutional mandate giving the county clerks preemptive powers over various
district courts, attempts by a county clerk to co-opt the explicit and implicit power of the
judiciary would improperly infringe upon the prerogatives of a separate branch of the
state government.
__________

48
Id. at 248.

49
Petuskey, 742 P.2d at 1121 (quoting Rutledge, 332 S.E.2d at 834).
a county clerk to co-opt the explicit and implicit power of the judiciary would improperly
infringe upon the prerogatives of a separate branch of the state government.
Leavitt, J., with whom Young, J., agrees, dissenting:
I respectfully dissent because only the Nevada Legislature can change the duties of the
office of County Clerk.
The Nevada Constitution provides:
The Legislature shall have power to increase, diminish, consolidate or abolish the
following county officers: County Clerks, County Recorders, Auditors, Sheriffs,
District Attorneys and Public Administrators. The Legislature shall provide for their
election by the people, and fix by law their duties and compensation. County Clerks
shall be ex-officio Clerks of the Courts of Record and of the Boards of County
Commissioners in and for their respective counties.
1

In response to the constitutional mandate, the legislature has specifically named the
county clerk as the clerk of the district court.
2
Additionally, the legislature has set forth the
duties of the county clerk as that position pertains to the district court.
3

Counties are legislative subdivisions of the state and obtain their authority from the
legislature.
4
Therefore:
Whenever a legislature sees fit to adopt a general scheme for the regulation of a
particular subject, local control over the same subject, through legislation, ceases. In
determining whether the legislature intended to occupy a particular field to the
exclusion of all local regulation, the Court may look to the whole purpose and scope of
the legislative scheme.
5

In this instance, preemption of this subject by the legislature is evidenced by the
passage of legislation outlining the duties of county clerks throughout the state. The Nevada
Constitution requires that all county government "shall be uniform throughout the State.
__________

1

2
NRS 3.250 states that [t]he county clerk shall be clerk of the district court of his county. See also NRS
246.060(1) (stating that [t]he county clerk shall be ex officio clerk of the board of county commissioners, and
also clerk of the district court of his county).

3
NRS 3.250 to 3.307, inclusive.

4
Nevada Constitution article 4, section 25 reads: The Legislature shall establish a system of County and
Township Government which shall be uniform throughout the State. See also Falcke v. Douglas County, 116
Nev. 583, 3 P.3d 661 (2000).

5
Lamb v. Mirin, 90 Nev. 329, 332, 526 P.2d 80, 82 (1974) (citation omitted); accord Crowley v. Duffrin, 109
Nev. 597, 605, 855 P.2d 536, 541 (1993).
requires that all county government shall be uniform throughout the State.
6
Likewise, the
constitution requires that all laws in the state must be general and of uniform operation
throughout the State.
7
Therefore, I disagree that one county in the state should be able to
change the duties of the county clerk in a manner that not only has ramifications throughout
the state, but is also in clear violation of our constitution.
The majority recognizes certain ramifications in that some counties may not have
sufficient work for both a county clerk and a court clerk and additional funds would be
necessary to accomplish the separation of the county clerk from the court clerk. Additionally,
some district courts have multi-county jurisdiction, which would require court clerks for each
county within the district. The majority concedes that separating all or part of the court clerk's
office from the office of the county clerk is an enormous undertaking with serious
consequences and should not be taken unless a court deems it essential to the operation of
the court. This decision should be left to the legislative branch as stated by our state
constitution, to be made only after public hearings and debate where additional consequences
can be explored.
This court should exercise judicial restraint and recognize that it is the legislative
branch of government that has been given the power under our state constitution to fix by law
the duties of the county clerk.
Further, the majority's reliance on Zumwalt v. Superior Court
8
to justify its decision
is misplaced. In Zumwalt, the County of San Diego transferred certain court-related duties,
and the civil service employees who performed them, from the county clerk to an executive
officer of the superior court.
9
This action was taken pursuant to a court rule that had been
adopted as a result of enabling legislation passed by the California Legislature.
10
The
California Supreme Court ruled that the duties of the county clerk were entrusted to the
legislature under the California Constitution, and the statute authorizing the transfer and the
court rule were valid.
11

Unlike California, however, there is no enabling legislation in Nevadaonly a county
ordinanceto justify the intrusion on the duties of the office of the duly elected County Clerk
of Washoe County. This ordinance is insufficient to support such an intrusion.
__________

6

7
Id. 21.

8
776 P.2d 247 (Cal. 1989).

9
See id. at 251-52.

10
See id.

11
See id. at 249.
Accordingly, I would grant the petition and order this court's clerk to issue the writ.
____________
117 Nev. 775, 775 (2001) Servin v. State
ROBERT PAUL SERVIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35884
October 17, 2001 32 P.3d 1277
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first
degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon,
and from a sentence of death. Second Judicial District Court, Washoe County; Brent T.
Adams, Judge.
Defendant was convicted in the district court of first degree murder and robbery with
the use of a deadly weapon, and was sentenced to death. Defendant appealed. The supreme
court, Shearing, J., held that: (1) witness's use of anti-psychotic medication during trial did
not result in or amount to improper manipulation of evidence, (2) imposition of death
sentence upon defendant who was 16 years old at time of murder did not violate international
covenant prohibiting execution of juveniles, (3) aggravating circumstances of burglary and
home invasion were duplicative, (4) evidence was sufficient to support finding of torture as
an aggravating circumstance, and (5) imposition of death penalty was excessive.
Affirmed in part, vacated in part, and remanded.
Maupin, C. J., dissented in part. Leavitt, J., with whom Young, J., agreed, dissented in
part.
Respondent.
1. Criminal Law.
Witness's use of anti-psychotic medication during murder trial did not result in or amount to improper manipulation of evidence,
despite defendant's contention that effect of medication was to make witness, an accomplice in the charged murder, appear calmer and
more peaceful than normal, thus misleading the jury. Witness was not a co-defendant and was not forcibly medicated, and defendant
was not precluded from investigating effects of witness's medication and presenting evidence with respect thereto.
Mandatory statutory instruction on reasonable doubt did not impermissibly reduce State's burden of proof in violation of murder
defendant's due process rights, where jury received additional instruction on State's burden of proof and presumption of innocence.
U.S. Const. amends. 5, 14; NRS 175.211.
Statutory death penalty scheme adequately narrowed class of first degree murder defendants eligible for death penalty, where
jurors were permitted to consider other matter evidence only after finding defendant death-eligible or ineligible, and could not take
such evidence under consideration in making eligibility determination. NRS 175.552, 200.033.
In order to determine that a defendant is eligible for the death penalty, the jury must unanimously find, beyond a reasonable
doubt, at least one enumerated aggravating circumstance, and each juror must then individually determine that mitigating
circumstances, if any exist, do not outweigh the aggravating circumstances. At this point, a defendant is death-eligible, and the jury
must consider all of the relevant evidence and unanimously decide on the sentence. NRS 175.554(3), 200.030(4)(a).
Imposition of death sentence upon murder defendant who was 16 years old at time of murder did not violate International
Covenant on Civil and Political Rights (ICCPR) as ratified by United States, where United States Senate ratified ICCPR with express
reservation of right to impose capital punishment on persons below 18 years of age. NRS 176.025.
6. Infants; Treaties.
Executing juvenile offenders pursuant to the state death penalty statutory scheme does not violate the International Covenant on
Civil and Political Rights (ICCPR). NRS 176.025.
Aggravating circumstances of burglary and home invasion, as presented and proved in capital murder prosecution, were
duplicative, and aggravating circumstance of home invasion was therefore invalid, despite fact that each circumstance required proof
of a fact the other did not, where actual conduct underlying both aggravators was identical. NRS 205.060(1), 205.067(1).
8. Burglary.
Offense of burglary requires proof that the defendant entered a building, vehicle, or other enumerated location with the intent to
commit grand or petit larceny, assault or battery on any person or any felony. NRS 205.060(1).
9. Trespass.
Offense of home invasion does not necessitate the showing of entry with a specific intent to commit a crime; rather, a defendant
is guilty of home invasion if the defendant commits a forcible entry of an inhabited dwelling without permission of the owner, resident,
or lawful occupant. NRS 205.067(1).
Strict double jeopardy analysis does not necessarily determine whether multiple aggravating circumstances in support of a death
sentence are improperly duplicative. U.S. Const. amend. 5.
It is improper to find the capital aggravating circumstance of burglary and the aggravating circumstance of home invasion when
both are based on the same facts. NRS 200.033(4).
Evidence in capital sentencing proceeding was sufficient to support finding of torture as an aggravating circumstance. Victim, a
paraplegic in a wheelchair, appeared uninjured on morning of murder, defendant admitted to hitting victim over the head, wounds were
unlikely to have been incidental to a struggle, there was little reason other than sadism for beating inflicted upon victim and for two
non-lethal shots fired at her, and defendant bragged about murder and was present when discussion centered on how bullets had been
dipped in either acid or mercury to make victim's death slow and painful. NRS 200.033(8).
Statutory definition of capital aggravating circumstance of torture does not expressly require that each defendant individually
torture the victim. NRS 200.033(8).
14. Criminal Law.
Information in possession of one witness that an admitted accomplice in murder, who also testified at defendant's trial, had
confessed to the murder, was not newly discovered evidence entitling defendant to new trial, despite defendant's contention that
accomplice's testimony was so crucial that his impeachment would have necessitated different verdict, and that he had been precluded
from subpoenaing witness to testify, where State disclosed accomplice's admission to witness nearly nine months prior to trial. NRS
176.515.
Evidence in capital murder prosecution was sufficient to support sentencing jury's finding of four aggravating factors, namely,
murder committed in commission of crime of robbery, murder committed in commission of crime of burglary, murder committed to
avoid or prevent lawful arrest, and murder involving torture of the victim. Defendant and accomplices, one of whom was previously
acquainted with victim, broke into victim's home, beat victim, a wheelchair-bound paraplegic, and shot her multiple times with bullets
they claimed were dipped in either acid or mercury to increase victim's suffering.
Jury's rejection of any mitigating factors in capital murder prosecution, without more, did not demonstrate that sentence of death
was imposed under influence of passion or prejudice.
States may structure a capital sentencer's consideration of mitigating circumstances so long as the consideration of relevant
mitigating circumstances is not precluded.
Capital sentencer is not constitutionally or statutorily required to make specific findings with respect to mitigating
circumstances. NRS 175.554(4).
Imposition of death penalty on capital murder defendant was excessive. Accomplice, who confessed to a friend that he himself
had been the shooter, and who was sole witness to testify that defendant had been armed, pleaded guilty and received life sentence,
defendant had been 16 years old at time of murder and was the youngest of three participants, another
participant had been instigator, and defendant had no significant criminal history, expressed remorse for
his actions, and had been under influence of methamphetamine throughout robbery and murder.
years old at time of murder and was the youngest of three participants, another participant had been instigator, and defendant had no
significant criminal history, expressed remorse for his actions, and had been under influence of methamphetamine throughout robbery
and murder. NRS 176.025, 200.035(6).
Proportionality review is not required as part of the excessiveness analysis of a death sentence. NRS 177.055(2)(d).
OPINION
Appellant Robert Paul Servin and co-defendants Pedro Rodriguez and Brian Lee
Allen murdered and robbed Kimberly Fondy on April 5, 1998. Servin and Rodriguez were
tried together, convicted, and sentenced to death. Allen pleaded guilty to the murder and
robbery charges, and a three-judge panel sentenced him to serve two consecutive prison terms
of life without the possibility of parole.
Servin contends that a number of errors occurred in the district court, none of which,
we conclude, warrant relief; therefore, we affirm the judgment of conviction. After a
mandatory review of the death sentence pursuant to NRS 177.055(2), however, we conclude
that the imposition of the death penalty is excessive, and vacate the sentence and impose two
consecutive terms of life in prison without the possibility of parole.
1

FACTS
I. Guilt phase
The following evidence was adduced at trial: on April 5, 1998, Servin, Rodriguez, and
Allen set out to rob Kimberly Fondy of $35,000 reportedly kept in a safe in her house. Due to
an accident which occurred when she was sixteen years old, Fondy was paralyzed below the
mid-back and ambulated with the use of a wheelchair.
Sixteen years old at the time of the crime, Servin was the youngest of the
threeAllen was seventeen years old, and Rodriguez was nineteen years old. According to
Allen and several witnesses, Rodriguez provided the information regarding the location of
Fondy's house and the supposed existence of the money; he was the only one of the three
who knew Fondy and had, at one time, lived with her at her Sparks residence.
__________

1
The supreme court, when reviewing a death sentence, may: . . . [s]et aside the sentence of death and impose
the sentence of imprisonment for life without possibility of parole. NRS 177.055(3)(c). The equal and
consecutive sentence is mandated by NRS 193.165(1) based on the use of a deadly weapon.
witnesses, Rodriguez provided the information regarding the location of Fondy's house and
the supposed existence of the money; he was the only one of the three who knew Fondy and
had, at one time, lived with her at her Sparks residence. While living with Fondy, Rodriguez
had a key to a safe that he believed contained a large amount of money. After ingesting the
methamphetamine crank for a number of hours, and with Rodriguez behind the wheel, the
three young men drove to Fondy's home armed with a shotgun provided by Servin and a .22
caliber revolver owned by Allen.
Allen testified to the following facts: during the drive to Fondy's home, Servin stated
that he was going to shoot her if he had to. Upon arrival, Rodriguez shut off the engine and
waited in the car while Servin and Allen approached the front door, which Servin proceeded
to kick open. The two men entered the homeServin armed with the revolver owned by
Allen, and Allen with the shotgun provided by Servinand eventually found Fondy in her
wheelchair in the master bedroom with a portable telephone in her hand. Servin told Joana
Diaz later that night that they didn't know who she was talking to.
Fondy was in the process of reporting the two intruders via a 9-1-1 emergency call
when she was apparently confronted by Servin. Although her call was terminated before it
was answered, the electronic taping system automatically started recording immediately after
the initial dialing. Therefore, upon review of the tape of the 9-1-1 call and hang-up, the
dispatcher was able to recognize a female voice whispering what sounded like, There are
two of them.
According to Allen, upon seeing Fondy with the phone in her hand, Servin pointed the
revolver at her head, yelled at her to shut up, grabbed the phone out of her hand, tossed it
on the bed, and ordered her to get into the bathroom; Fondy repeatedly stated, I'll give you
the money. Servin also hit Fondy in the head so she would stop screaming. Meanwhile
Rodriguez, wearing a black and white bandana covering his face except for his eyes, entered
the home and found Fondy, Servin, and Allen in the master bedroom. Servin tried to block
Fondy's view of Rodriguez so she would not be able to see and identify himthe only one of
the three she knew.
Allen testified that Rodriguez immediately located Fondy's safe on a vanity shelf in
the bedroom, even though it was hidden and disguised as furniture. Rodriguez tossed the safe
into the hallway and ordered Allen to take it outside. According to Allen, he then returned to
the car with the safe, leaving Servin and Rodriguez alone in the house with Fondy.
Approximately two to three minutes later, Rodriguez returned to the car. Allen testified that
soon after that he heard four gunshotstwo shots followed by two more shots after a
couple of minutes.
after that he heard four gunshotstwo shots followed by two more shots after a couple of
minutes. A neighbor of Fondy's testified that she heard a loud pop, and a few minutes later,
the same loud sound again. Within minutes after the shooting, Servin returned to the car, and
with Rodriguez again behind the wheel, the three young men drove away.
After stopping by the home of Servin and Allen to pick up some friends, all three
resumed ingesting crank and proceeded to the residence of friends, Carlos and Joana Diaz.
After some initial difficulty, Rodriguez managed to open the locked safe, and inside were
miscellaneous papers, documents, and a baseball, but not the expected money. According to
Joana Diaz, Rodriguez became angry and stated, This bitch lied. There is no money in here.
Allen testified that he later took the safe from the Diaz home and tossed it in a nearby
dumpster where it was eventually found.
According to Allen, Servin brought the revolver into the Diaz home; however, Emma
Hernandez, Servin's girlfriend and the mother of his child, testified that when she first saw the
revolver Allen was taking it out of his pants pocket, and that no one else handled it that night.
Joana Diaz also testified that she first saw Allen with the revolver and that he was wearing a
holster for it, but that both Servin and Rodriguez handled it during the night. Carlos Diaz
testified that at the request of Allen, he flushed the two remaining bullets in the revolver
down the toilet. Allen stated that later that evening, after leaving the Diaz home, he cleaned
the revolver and buried it in his backyard; the revolver was eventually recovered by the police
after Allen told them exactly where it was located. The shotgun was never recovered; in fact,
aside from Allen's testimony, no evidence was presented that a shotgun was brought into
Fondy's home.
At the Diaz home that night and the following morning, numerous inculpatory
statements were made by the three men. Both Carlos and Joana Diaz testified that Servin,
Rodriguez, and Allen were present when one of the three said that the bullets used in the
shooting were dipped in either acid or mercury. Servin told Carlos Diaz that this was done in
order to kill her a little slow or something, and Allen told Joana Diaz that it was done [s]o
a person could die and make them suffer. Neither Servin, Rodriguez, nor Allen contradicted
or corrected any of the statements made concerning the bullets or the commission of the
crime.
Servin and Rodriguez were bragging about the crime during the night, and according
to Allen, Servin admitted to shooting Fondy. Rodriguez told Emma Hernandez that they had
shot her three or four times, and that [w]e did it, fool. According to several witnesses,
Servin was seen in possession of Fondy's cellular phone, Gameboy device, and $S0 taken
from her purse, and Rodriguez was seen in possession of Fondy's electronic organizer.
nesses, Servin was seen in possession of Fondy's cellular phone, Gameboy device, and $80
taken from her purse, and Rodriguez was seen in possession of Fondy's electronic organizer.
Both Servin and Rodriguez at different times were in possession of a knife that Joana Diaz
believed came from the Fondy residence; the knife was never recovered by the police.
Rodriguez told Servin and Allen not to say anything, because if they did, something was
going to happen to them. Joana Diaz also testified that both Rodriguez and Servin threatened
to kill anyone present at the Diaz home who spoke about the crime; Servin, referring to Allen,
Rodriguez, Hernandez, and Carlos and Joana Diaz, reportedly stated that if anybody said
anything that he would smoke em. Rodriguez called Fondy's home at some point during
the night to see if any police were there.
According to Joana Diaz, the following morning Rodriguez stated that he had
difficulty sleeping because he saw [Fondy's] eyes everywhere. Servin's brother, Fernando
Machado, testified that after arriving at the Diaz home and hearing about the robbery and
shooting, he asked Servin, Rodriguez, and Allen, [w]hy didn't they just tie her up and then
rob her. Why did they have to shoot her, to which there was no response. Machado also
heard Rodriguez state that if the first bullet didn't do it, the other one did, because it was
mercury-tipped.
An autopsy performed the morning after the murder revealed that Fondy was shot
once in the right shoulder, once in the right leg, and twice in the head; the two shots to the
head were contact wounds indicating that the muzzle of the gun was in direct contact with the
skin when the gun was fired. Additionally, the autopsy revealed that Fondy suffered various
abrasions on her neck and chest and an incised wound on the top of her head, which indicated
that a sharp, slicing cut was made across the skin. Dr. Roger S. Ritzlin testified that Fondy
was alive when the wounds were inflicted; thus, in his opinion the evidence was consistent
with the theory that the first two shots were non-lethal shots to Fondy's shoulder and leg and
the second two shots were the lethal shots to her head. Other testimony established that Fondy
did not appear to have any noticeable injuries to her neck, chest, or head earlier on the day she
was murdered.
Servin and Rodriguez chose not to testify at their trial, and on October 18, 1999, the
jury found them guilty of first degree murder and robbery, both with the use of a deadly
weapon.
II. Penalty phase
The penalty hearing began the following day, and both Servin and Rodriguez objected
to the verdict forms, proposing instead the use of special verdict forms requiring that any
mitigating circumstances found by the jury be specified in the same manner as the
aggravating circumstances.
stances found by the jury be specified in the same manner as the aggravating circumstances.
The district court overruled the objections.
The State presented Cristi Weulfing, an intake assessment counselor with Washoe
County Juvenile Services, who testified to her involvement with Servin in January of 1998.
Weulfing testified that Servin was involved in a disturbance at a Sparks residence requiring
the use of a SWAT team after Servin refused the requests of the Sparks Police to exit the
home; he was subsequently charged with obstructing and resisting. The matter was resolved
when Servin agreed to perform community service and attend a Homicide Intervention Panel,
a one-hour class intended to educate parents and kids, who are heading toward violence or
possibly involved in violent situations, on the seriousness of homicide. Weulfing stated that
Servin failed to appear; and, after rescheduling, Servin again failed to appear.
In mitigation, Servin presented Edward Burns, a teacher in the San Bernardino
Unified School District (California), who testified to his relationship with Servin. For his
seventh and eighth grade school years, Servin was a student in an Opportunity class taught by
Burns, a program that provided a highly structured learning environment for students with
academic and/or disciplinary problems. Burns described Servin as a follower and non-violent.
Servin served as a teacher's assistant for Burns for one of their two years together, and Burns
stated that he trusted Servin, his performance was excellent, and that he was a calming
influence in the class.
On cross-examination by the State, Burns admitted that he was not aware that Servin
had ultimately been expelled from the school district. Burns further admitted that he was not
aware of the twenty-seven referrals for disciplinary action involving Servin when he was a
student at the middle school, or of the two suspensions for failing to follow school rules.
Burns testified that he did not know Servin's parents, and that the school could not get either
parent to attend school conferences.
Servin next presented Sandra Henley, an educational service coordinator with the San
Bernardino Unified School District and formerly Servin's middle school vice-principal. She
testified that Servin was a follower, very polite to staff, but received suspensions for
profanity, defiance, and not following the rules.
Servin exercised his right to allocution and stated:
I'm sorry she died, and if you guys let me live, I may have a positive future. I want to
finish my education, help young kids that tookthat are leading their life in the wrong
direction. . . . And as you guys know, I have a son out there, and so I ask you guys to
please, I mean, let me live . . . . [E]ven if I am in prison, I don't want to be, but at
least let me see my son grow up.
if I am in prison, I don't want to be, but at least let me see my son grow up. I mean, I
feel bad for, I mean, the victim's son, because he ain't going to be able to see his
mother. I mean, I feel bad because I've got a son of my own.
On October 20, 1999, the jury returned a verdict sentencing both Servin and
Rodriguez to death after finding that there were no mitigating circumstances sufficient to
outweigh the aggravating circumstances. With regard to Servin, the jury found five
aggravating circumstances: (1) the murder was committed in the commission of the crime of
robbery; (2) the murder was committed in the commission of the crime of burglary; (3) the
murder was committed in the commission of the crime of home invasion; (4) the murder was
committed to avoid or prevent a lawful arrest; and (5) the murder involved torture and/or
mutilation of the victim.
On March 29, 2000, prior to sentencing, Servin stated to the district court, I'm very
sorry about Kimberly Fondy's death and all her family. I'm sorry about what happened to both
of them. Also, I want to say that I don't think it's right for you guys to sentence me to death
for a murder I did not commit.
The district court then sentenced Servin to death by lethal injection for first degree
murder with the use of a deadly weapon (count I), and to serve two consecutive prison terms
of 72 to 180 months for robbery with the use of a deadly weapon to run consecutively to
count I. Servin was also ordered to pay restitution in the amount of $3,272.67, to be paid
jointly and severally with Rodriguez.
A unanimous three-judge panel subsequently sentenced Allen to serve two
consecutive prison terms of life without the possibility of parole for the murder charge (count
I), and two consecutive prison terms of 72 to 180 months for the robbery charge to run
consecutively to count I.
III. Post-trial motion
On December 2, 1999, counsel for Servin filed a motion for a new trial based upon
newly discovered evidence, and an evidentiary hearing was held in the district court. Servin
contended that in the early morning hours of April 6, 1998, Allen told his friend Damien
Winkelman that he had robbed and shot a woman twice in the head and once in the chest.
Servin claimed that he was not made aware of this information until after his trial, on
November 30, 1999, when his investigator was granted permission to interview Winkelman,
who was incarcerated on an unrelated matter. Winkelman's counsel previously declined to
permit an interview prior to the trial of Servin and Rodriguez.
The State opposed the motion and noted that in its formal "Notice of Defendant
Statements and Potentially Exculpatory Information," filed in the district court on January
19, 1999, nearly nine months prior to trial, the State included this information provided
by Winkelman, who quoted Allen as saying, "Don't tell anyone, that's my life.
Notice of Defendant Statements and Potentially Exculpatory Information, filed in the
district court on January 19, 1999, nearly nine months prior to trial, the State included this
information provided by Winkelman, who quoted Allen as saying, Don't tell anyone, that's
my life. I shot the bitch twice in the head and once in the chest, by that time, her eyes rolled
back in her head. At the evidentiary hearing on the motion held on January 14, 2000,
Winkelman testified and repeated what he claimed Allen had told him, that [h]e shot her
twice in the head, once in the chest. Before the second shot in her head, her eyes had already
rolled back in her head. On March 14, 2000, the district court denied Servin's motion for a
new trial.
DISCUSSION
I. Medical necessity and the manipulation of evidence
[Headnote 1]
Servin contends that Allen's use of the anti-psychotic drug, Mellaril, altered his
demeanor and made him appear calmer and more peaceful than usual thus effectively
misleading the jury during his testimony. Allen's testimony was damaging to Servin; he was
the only source naming Servin as the shooter of Fondy. The district court refused to grant
Servin's request for an evidentiary hearing to determine whether the continued administration
of antipsychotic drugs to Allen was medically necessary; Servin sought to discover the
precise dosages taken by Allen in order to present the information to the jury. Servin contends
that the district court's inaction permitted the manipulation of evidence.
Servin's reliance on Riggins v. Nevada
2
in support of his contention is misplaced. In
Riggins, the issue involved the involuntary medication of a defendantthe defendant sought
to suspend the administration of Mellaril until after his trial in order to show the jury that his
mental state was consistent with his insanity defense.
3
When examined to determine his
competence to stand trial, Riggins was taking daily doses of Mellaril; two of the three
court-appointed psychiatrists deemed Riggins competent.
4
The district court denied Riggins'
motion, and this court affirmed his judgment of conviction and sentence of death, stating that
expert testimony offered during the trial was sufficient to inform the jury of the effect of the
Mellaril on Riggins' demeanor and testimony.
5
The United States Supreme Court
subsequently reversed and remanded the case stating that there was "a strong possibility
that Riggins' defense was impaired due to the administration of Mellaril."
__________

2
504 U.S. 127 (1992).

3
Id. at 130.

4
Id. at 129-30.

5
Riggins v. State, 107 Nev. 178, 181, 808 P.2d 535, 538 (1991).
and remanded the case stating that there was a strong possibility that Riggins' defense was
impaired due to the administration of Mellaril.
6

Servin, in effect, asks this court to apply Riggins in an unprecedented manner. In a
concurrence in Riggins, Justice Kennedy stated, When the State commands medication
during the pretrial and trial phases of the case for the avowed purpose of changing the
defendant's behavior, the concerns are much the same as if it were alleged that the
prosecution had manipulated material evidence.
7
Yet in this case, Allen was not a
defendant at trial and was not forcibly medicated. As the State points out, while the district
court refused to investigate the matter for Servin, it did not preclude the defense from
conducting its own investigation and presenting that evidence at trial. Allen's counsel
confirmed that Allen was prescribed and taking Mellaril on a voluntary basis. Therefore, just
as this court stated in Chapman v. State,
8
regarding the known existence of audiotapes,
Servin could have subpoenaed the attending physician's records, assessed them, and proffered
at trial any information that he considered relevant to his defense. We conclude that Servin's
contention that the district court erred by allowing the manipulation of evidence is without
support.
II. Reasonable doubt instruction
[Headnote 2]
Servin challenges the reasonable doubt instructions based on NRS 175.211 that were
given at the guilt and penalty phases. Servin offered an alternate instruction on reasonable
doubt that was rejected by the district court. He contends that the instruction given
impermissibly reduced the State's burden of proof in violation of his due process rights.
We conclude that the district court did not err in relying on the mandatory statutory
instruction.
9
This court has upheld the constitutionality of the instruction where, as here, the
jury received additional instruction on the State's burden of proof and the presumption of
innocence.
10

III. Narrowing function and death penalty eligibility
[Headnote 3]
Servin contends that at the penalty phase, NRS 175.552 permits evidence of
aggravating circumstances beyond those outlined in NRS 200.033, and therefore nearly
all offenders convicted of first degree murder are eligible for the death penalty.
__________

6
Riggins, 504 U.S. at 137.

7
Id. at 139.

8
117 Nev. 1, 5-6, 16 P.3d 432, 435 (2001).

9
See NRS 175.211(2).

10
See Middleton v. State, 114 Nev. 1089, 1111-12, 968 P.2d 296, 311 (1998); Bollinger v. State, 111 Nev.
1110, 1115, 901 P.2d 671, 674 (1995).
mits evidence of aggravating circumstances beyond those outlined in NRS 200.033, and
therefore nearly all offenders convicted of first degree murder are eligible for the death
penalty. He argues that the statutory scheme provides little guidance and fails to
constitutionally narrow the class of persons eligible for the death penalty.
11

[Headnote 4]
This court recently addressed this issue in Hollaway v. State.
12
Three types of
evidence are relevant at a death penalty hearing: evidence relating to aggravating
circumstances, mitigating circumstances, and any other matter which the court deems
relevant to sentence.'
13
In order to determine that a defendant is eligible for the death
penalty, (1) the jury must unanimously find, beyond a reasonable doubt, at least one
enumerated aggravating circumstance; and (2) each juror must then individually determine
that mitigating circumstances, if any exist, do not outweigh the aggravating circumstances. At
this point, a defendant is death-eligible, and the jury must consider all of the relevant
evidence and unanimously decide on the sentence.
14
And it is only at this point (or if jurors
do not find the defendant death-eligible) that jurors may consider other matter evidence
under NRS 175.552 in deciding on the appropriate sentence.
15
Servin fails to demonstrate
that the jury considered other matter evidence in violation of Hollaway in determining that
he was eligible for the death penalty.
Servin also complains that NRS 200.033(9) is too broad,
16
but the jury actually
rejected the aggravator, thereby performing the narrowing function that he argues does not
occur. Because this aggravator was rejected by the jury and did not contribute to his sentence,
we need not consider it further.
17
We conclude that the death penalty statutory scheme
properly performed its narrowing function in this case, and that Servin's contention is without
merit.
IV. Juvenile death penalty
[Headnote 5]
Servin was sixteen years old when Fondy was murdered. NRS 176.025 states that
"[a] death sentence shall not be imposed or inflicted upon any person convicted of a
crime now punishable by death who at the time of the commission of such crime was
under the age of 16 years."
__________

11
Zant v. Stephens, 462 U.S. 862, 877 (1983).

12
116 Nev. 732, 6 P.3d 987 (2000).

13
Id. at 745, 6 P.3d at 996 (quoting NRS 175.552(3)).

14
See id. at 745-46, 6 P.3d at 996; see also Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001); Geary v. State,
114 Nev. 100, 105, 952 P.2d 431, 433 (1998); NRS 200.030(4)(a); NRS 175.554(3).

15
Hollaway, 116 Nev. at 746, 6 P.3d at 997.

16
A murder is aggravated under NRS 200.033(9) if it was committed upon one or more persons at random
and without apparent motive.

17
See Wesley v. State, 112 Nev. 503, 515, 916 P.2d 793, 801 (1996).
176.025 states that [a] death sentence shall not be imposed or inflicted upon any person
convicted of a crime now punishable by death who at the time of the commission of such
crime was under the age of 16 years. (Emphasis added.) Servin contends that sentencing a
juvenile to death violates the International Covenant on Civil and Political Rights (ICCPR),
a treaty ratified by the United States Senate in 1992.
18
Article 6(5) of the ICCPR states, inter
alia, that a [s]entence of death shall not be imposed for crimes committed by persons below
eighteen years of age.
19

When ratifying the treaty in 1992, the U.S. Senate, acting pursuant to its authority to
provide [a]dvice and [c]onsent,
20
adopted the following reservation:
That the United States reserves the right, subject to its Constitutional constraints, to
impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital
punishment, including such punishment for crimes committed by persons below
eighteen years of age.
21

This court was faced with the same issue in Domingues v. State.
22
Like Servin,
Domingues argued that executing juvenile offenders violated the ICCPR. This court
concluded that the Senate's express reservation of the United States' right to impose a
penalty of death on juvenile offenders negates Domingues' claim that he was illegally
sentenced.
23
In support of its conclusion, this court also noted that the United States
Supreme Court in Stanford v. Kentucky
24
upheld the constitutionality of imposing death on
juvenile offenders.
25

[Headnote 6]
The United States Supreme Court has yet to grant certiorari in a case that raises
arguments challenging the Senate's reservation and its effect on states with statutes such as
NRS 176.025.
26
In fact, the Supreme Court denied certiorari in Domingues after
requesting a brief from the Solicitor General,
__________

18
See ICCPR, opened for signature Dec. 19, 1966, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171 (1976).

19
Id. at art. 6, para. 5, 999 U.N.T.S. at 175.

20
U.S. Const. art. II, 2, cl. 2.

21
138 Cong. Rec. 8070 (1992); see also S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 21-22 (1992).

22
114 Nev. 783, 961 P.2d 1279 (1998), cert. denied, 528 U.S. 963 (1999).

23
Id. at 785, 961 P.2d at 1280.

24
492 U.S. 361 (1989).

25
Domingues, 114 Nev. at 785-86, 961 P.2d at 1280.

26
As of this year, 38 states allow for the imposition of the death penalty (including states respecting a
moratorium on its application). Of these, eighteen states set the minimum age for death penalty eligibility at 16
years:
fact, the Supreme Court denied certiorari in Domingues after requesting a brief from the
Solicitor General,
27
who, in turn, argued that Domingues' writ petition should be denied.
28
Furthermore, to date, not one state or federal court has adopted the reasoning that Domingues
and now Servin have asked this court to adopt.
29
Therefore, we conclude that executing
juvenile offenders pursuant to NRS 176.025 does not violate the ICCPR and that Servin's
contention is without merit.
V. Aggravating circumstances
Duplicative aggravators
[Headnote 7]
Servin contends that a defendant cannot be convicted of both burglary and home
invasion, and therefore, relying on Lane v. State,
30
he argues that the State should have been
precluded from presenting both as aggravators for consideration at sentencing.
31
We
conclude that the aggravating circumstances of burglary and home invasion are duplicative.
Convictions for both burglary and home invasion do not fail the test articulated by the
Supreme Court in Blockburger v. United States
32
for determining whether two separate
offenses exist for double jeopardy purposes.
33
Pursuant to Blockburger, a defendant may not
be convicted of two offenses premised on the same facts unless each offense "requires
proof of a fact which the other does not."
__________
Alabama, Arizona, Arkansas, Delaware, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nevada,
Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Wyoming. Five states set the
minimum age at 17 years: Florida, Georgia, New Hampshire, North Carolina, and Texas. Fifteen states set the
minimum age at 18 years: California, Colorado, Connecticut, Illinois, Kansas, Maryland, Montana, Nebraska,
New Jersey, New Mexico, New York, Ohio, Oregon, Tennessee, and Washington. See Victor L. Streib, The
Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1,
1973December 31, 2000 (February 2001), available at http://www.law.onu.edu/faculty/streib/juvdeath.htm.

27
Domingues v. Nevada, 526 U.S. 1156 (1999).

28
Brief for the United States as Amicus Curiae, Domingues v. Nevada (No. 98-8327).

29
In the recent case of Beazley v. Johnson, the United States Court of Appeals for the Fifth Circuit cited
Domingues and agreed with its conclusion that the Senate's reservation to Article 6(5) of the ICCPR was valid.
242 F.3d 248, 266-67 (5th Cir. 2001), petition for cert. filed, available at Supreme Court of the United States,
http://www.supremecourtus.gov/docket/00-10618.htm (U.S. June 13, 2001) (No. 00-10618).

30
114 Nev. 299, 956 P.2d 88 (1998).

31
See NRS 200.033(4).

32
284 U.S. 299 (1932); see also Barton v. State, 117 Nev. 686, 30 P.3d 1103 (2001) (adopting Blockburger
test for determining lesser-included offenses).

33
See McIntosh v. State, 113 Nev. 224, 225, 932 P.2d 1072, 1073 (1997) (stating that Nevada follows the
double jeopardy test set forth in Blockburger).
may not be convicted of two offenses premised on the same facts unless each offense
requires proof of a fact which the other does not.
34

[Headnotes 8, 9]
The offense of burglary requires proof that the defendant entered a building, vehicle,
or other enumerated location with the intent to commit grand or petit larceny, assault or
battery on any person or any felony.
35
On the other hand, the offense of home invasion does
not necessitate the showing of entry with a specific intent to commit a crime.
36
Rather, a
defendant is guilty of home invasion if the defendant commits a forcible entry of an inhabited
dwelling without permission of the owner, resident, or lawful occupant.
37
Therefore, each
offense requires proof of an element that the other does not. Here, the evidence supports the
finding of burglary in that Servin entered a building in order to commit the felony of robbery.
The evidence also supports the finding of home invasion in that Servin forcibly kicked open
the door to Fondy's residence without her permission.
[Headnotes 10, 11]
Nevertheless, we hold here that a strict Blockburger analysis does not necessarily
determine whether multiple aggravating circumstances in support of a death sentence are
improperly duplicative. In Geary v. State,
38
we concluded that an aggravator based on
Geary's parole status when he committed murder and another aggravator based on a prior
murder conviction which gave rise to his parole were not duplicative because they addressed
different state interests: one was directed at those who commit murder after receiving the
privilege of parole, the other at those who are repeat offenders. Unlike in Geary, we discern
no separate interests advanced by permitting burglary and home invasion to be considered as
separate aggravators in this case. In Geary, the prior murder conviction was distinct from,
even though it provided the opportunity for, the parole. Here, however, despite the different
elements which burglary and home invasion require in the abstract, the actual conduct
underlying both aggravators was identical. This court's reasoning in invalidating redundant
convictions is pertinent. In such a case, we consider
whether the gravamen of the charged offenses is the same
__________

34
284 U.S. at 304.

35
NRS 205.060(1).

36
See NRS 205.067(1).

37
Id.

38
112 Nev. 1434, 1448, 930 P.2d 719, 728 (1996), clarified on rehearing, 114 Nev. 100, 952 P.2d 431.
such that it can be said that the legislature did not intend multiple convictions. . . . The
question is whether the material or significant part of each charge is the same even if
the offenses are not the same. Thus, where a defendant is convicted of two offenses
that, as charged, punish the exact same illegal act, the convictions are redundant.
39

Likewise, we hold that it is improper to find the aggravating circumstance of burglary and the
aggravating circumstance of home invasion under NRS 200.033(4) when both are based on
the same facts. Accordingly, we conclude that the aggravating circumstance of home invasion
is duplicative and invalid.
Torture
[Headnote 12]
Servin contends that there was insufficient evidence to support the aggravating
circumstance of torture. He argues that neither the number of shots nor the lapse of time
between the shots that killed Fondy indicated an intent to inflict pain beyond the act of
killing.
40
Furthermore, Servin notes that the forensic examiner was unable to pinpoint the
time when the victim's abrasions were sustained other than deducing that they occurred
within 48 hours of her death.
[Headnote 13]
We conclude that the evidence is sufficient to support the finding of torture as an
aggravator under NRS 200.033(8). A finding of torture requires that the murderer must have
intended to inflict pain beyond the killing itself.
41
Further, [t]orture involves a calculated
intent to inflict pain for revenge, extortion, persuasion or for any sadistic purpose.
42
NRS
200.033(8) does not expressly require that each defendant individually torture the victim.
43

Trial testimony made it clear that Fondy appeared uninjured the morning of the
murder. Servin admitted to those present at the Diaz home after the crime that he hit Fondy
over the head, and the abrasions and incised head wound noted during the autopsy would
have been visible if they had occurred earlier. It is unlikely that the wounds were incidental to
a struggle because Fondy, from her wheelchair, was hardly able to raise much of a defense
or pose a physical threat to her attackers.
__________

39
State of Nevada v. Dist. Ct., 116 Nev. 127, 136, 994 P.2d 692, 698 (2000).

40
See Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996).

41
Id.

42
Id. at 702 n.6, 917 P.2d at 1377 n.6.

43
See Byford v. State, 116 Nev. 215, 240, 994 P.2d 700, 717, cert. denied, 531 U.S. 1016 (2000).
her wheelchair, was hardly able to raise much of a defense or pose a physical threat to her
attackers. Therefore, there was little reason, other than to persuade her to open the safe or to
indulge sadistic urges, for the beating she suffered or for the two nonlethal gun shots, one of
which struck one of her paralyzed legs. Additionally, Servin was bragging about the murder
later that evening, and he was aware of and present when the discussion centered on how the
bullets were dipped in either acid or mercury in order to make Fondy's death slow and
painful.
44
These facts highlight Servin's sadistic mental state.
VI. Servin's motion for a new trial
[Headnote 14]
As discussed in the fact section above, the district court denied Servin's motion for a
new trial based upon newly discovered evidence. Servin continues to argue on appeal that the
information that Winkelman provided after the trial relating to alleged inculpatory statements
made to him by Allen qualifies as newly discovered evidence pursuant to NRS 176.515.
45
Servin contends that Allen was so important a witness that his impeachment would
necessitate a different verdict.
46
Servin further contends that he was precluded from
adequately investigating the potential testimony of Winkelman by Supreme Court Rule 182.
47
We conclude that Servin's contention that Winkelman's information was newly discovered
evidence is belied by the record, and that Servin was not precluded from subpoenaing
Winkelman to testify at trial.
Evidence qualifies as newly discovered if it could not have been discovered and
produced for trial even with the exercise of reasonable diligence.
48
In its Notice of
Defendant Statements and Potentially Exculpatory Information, filed nearly nine months
prior to trial, the State disclosed that Winkelman quoted Allen as saying, Don't tell anyone,
that's my life. I shot the bitch twice in the head and once in the chest, by that time, her eyes
rolled back in her head.'
__________

44
No evidence was presented by the State indicating that the bullets were actually dipped in any substance.

45
NRS 176.515(1) states that [t]he court may grant a new trial to a defendant if required as a matter of law
or on the ground of newly discovered evidence.

46
See Hennie v. State, 114 Nev. 1285, 1290, 968 P.2d 761, 764 (1998) (stating that new trial should be
granted if the witness impeached is so important that impeachment would necessitate a different verdict).

47
SCR 182 states that [i]n 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, unless the lawyer
has the consent of the other lawyer or is authorized by law to do so.

48
Callier v. Warden, 111 Nev. 976, 988, 901 P.2d 619, 626 (1995).
The grant or denial of a new trial on [the ground of newly discovered evidence] is
within the trial court's discretion and will not be reversed on appeal absent its abuse.
49
As
noted above, the district court held an evidentiary hearing on the motion and ultimately held
that the evidence in question was not newly discovered. We conclude that the district court
did not err in denying Servin's motion for a new trial.
VII. Mandatory review
circumstances;
defendant.
[Headnote 15]
First, the jurors found five aggravating circumstances, four of which, we conclude, are
well founded: (1) the murder was committed in the commission of the crime of robbery; (2)
the murder was committed in the commission of the crime of burglary; (3) the murder was
committed to avoid or prevent a lawful arrest; and (4) the murder involved torture and/or
mutilation of the victim. As discussed above, we conclude that a fifth aggravator, that the
murder was committed in the commission of the crime of home invasion, is invalid.
[Headnotes 16-18]
Second, Servin contends that the jury's rejection of any mitigating circumstances
demonstrates the sentence's unreliability and that it was imposed under the influence of
passion and prejudice. This argument is without supportthe jury was not asked to detail its
findings concerning mitigating circumstances. As noted above, the district court rejected
Servin's proposed special verdict form requesting that any mitigating circumstances found by
the jury be specified in the same manner as the aggravating circumstances. We conclude that
the district court did not err. States may structure a sentencer's consideration of mitigating
circumstances so long as the consideration of relevant mitigating circumstances is not
precluded.
50
Furthermore, the sentencer is not constitutionally or statutorily required to
make specific findings.
__________

49
Sanborn v. State, 107 Nev. 399, 406, 812 P.2d 1279, 1284 (1991).

50
See Buchanan v. Angelone, 522 U.S. 269, 276 (1998).
or statutorily required to make specific findings.
51
Therefore, we conclude that Servin's
argument is without merit, and that the record on appeal does not reveal that the sentence was
imposed under the influence of passion or prejudice.
[Headnotes 19, 20]
Third, Servin contends that his death sentence is excessive and disproportionate
considering that Allen was the beneficiary of significant mercy in receiving a sentence of life
without the possibility of parole. NRS 177.055(2)(d) no longer requires proportionality
review as part of the excessiveness analysis.
52
Furthermore, this court has specifically
declined to engage in a proportionality review of death sentences.
53
Rather, the question to
be asked is: are the crime and defendant before us on appeal of the class or kind that
warrants the imposition of death?
54
With this in mind, we turn to Servin. We conclude,
upon analysis, that the imposition of the death penalty in this case is excessive.
The evidence is clear that Servin participated in a horrible crime. However, the quality
of the evidence against Servin as the shooter is problematical. Allen pleaded guilty, thereby
escaping the death penalty. Allen testified before his own sentencing and is the sole witness
to identify Servin as the shooter and the provider of a weapon. Allen's testimony on these
points is without corroboration. It is possible that Allen himself was the shooter. The murder
weapon belonged to Allen, and Damien Winkelman quoted Allen as saying, Don't tell
anyone, that's my life. I shot the bitch twice in the head and once in the chest, by that time,
her eyes rolled back in her head. There is no evidence that Servin provided the murder
weapon, and only Allen places the murder weapon in Servin's hands during the commission
of the crime.
Servin had not yet reached the age of majority and was sixteen years old at the time of
the murder; his youth has significant value as a mitigating factor pursuant to NRS 200.035(6).
55
He was the youngest of the three involved in the crime.
__________

51
See NRS 175.554(4); Rook v. Rice, 783 F.2d 401, 407 (4th Cir. 1986); see also Rogers v. State, 101 Nev.
457, 469, 705 P.2d 664, 672 (1985) (rejecting claim that district court erred by not providing jury with form or
method for setting forth findings of mitigating circumstances).

52
See 1985 Nev. Stat., ch. 527, 1, at 1597 (amending NRS 177.055(2)(d) to repeal the proportionality
review requirement).

53
See, e.g., Guy v. State, 108 Nev. 770, 784, 839 P.2d 578, 587 (1992); see also Dennis v. State, 116 Nev.
1075, 1084, 13 P.3d 434, 440 (2000) (recognizing that the penalties imposed in other capital cases are irrelevant
to the excessiveness determination).

54
Dennis, 116 Nev. at 1085, 13 P.3d at 440.

55
Although a death sentence is permissible under NRS 176.025, committing the murder at sixteen years old,
Servin was the youngest anyone could be in Nevada and receive a death sentence.
youngest of the three involved in the crime. It is undisputed that Rodriguez, nineteen years
old at the time, was the instigator. Further contributing to the excessiveness determination,
Servin's background did not include a significant criminal history, he expressed remorse for
his actions, and he was under the influence of methamphetamine throughout the robbery and
murder. Taking all these factors into account, we are persuaded that the imposition of the
death penalty against Servin is excessive. We therefore vacate the sentence of death and
impose two consecutive terms of life in prison without the possibility of parole.
CONCLUSION
For the reasons discussed above, we affirm the judgment of conviction, vacate the
sentence of death, and impose two consecutive terms of life in prison without the possibility
of parole. We remand this case for the limited purpose of entering an amended judgment of
conviction consistent with this opinion.
Agosti and Becker, JJ., concur.
Rose, J., concurring:
I concur with the majority's conclusion that the death penalty was excessive when
applied to Servin, but I believe that an additional ground for ruling out the death penalty for
this minor is that customary international law precludes the most extreme penalty for juvenile
offenders.
At first blush, the U.S. Senate's reservation to the International Covenant on Civil and
Political Rights (ICCPR) seems completely incompatible with the object and purpose of the
treaty. However, three factors convince me that the Senate's reservation has continued
viability. First, the ICCPR does not expressly prohibit reservations or make reference to the
object-and-purpose test. Second, it is reported that there is a widespread state practice in
support of reservations to human rights treaties and that approximately one-third of the
parties to the ICCPR made reservations to over a dozen substantive provisions.
1
Third,
while 11 of the 146 nations objected to the Senate's reservation because it violated the basic
purpose of the treaty, none of the objections were raised within the twelve months after the
communication of the United States' reservation, and therefore, the reservation is deemed
accepted under the Vienna Convention. This court has carefully considered the effect of the
Senate reservation as I was concerned about in Domingues v. State
2
and I am gratified that
we have fully addressed this important issue.
__________

1
Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L.
Rev. 399, 433 (2000).

2
114 Nev. 783, 961 P.2d 1279 (1998).
This is not the end of the hunt in the international law arena, however, because Servin
also argues that assessing the death penalty upon juveniles violates an international customary
law norm. His argument is that a proposition becomes so accepted among a great many
nations that it becomes an international law norm, and therefore, should be recognized as
customary international law and bind all nations. Two of the legal authorities who argue such
a position are Professor Harold Koh and Professor Louis Henkin.
Professors Koh and Henkin contend that customary international law is federal law
and supercedes state law that is inconsistent. Once customary norms have sufficiently
crystallized, courts should presumptively incorporate them into federal common law, unless
federal directives specifically oust the norm.
3
Without contrary federal directives, bona fide
rules of customary international law become federal law unless the United States
affirmatively protested the norm before the norm matured.
4

Several commentators make persuasive arguments that it is customary international
law that juveniles should not be executed.
5
[T]here is an emerging customary international
law under which capital punishment of juveniles is prohibited.
6
Indeed, there appears to be
overwhelming support among the majority of nations to ban the imposition of the death
penalty for juvenile offenders.
7
Notably, this support appears to be influencing several states
within the United States to also ban the death penalty for juveniles.
8

While there are other respected legal authorities that reach the contrary conclusion,
9
I
am persuaded that banning the execution of juveniles is a customary international norm and
this ban should be recognized as binding on the United States.
__________

3
Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1835 (1998).

4
See F. Giba-Matthews, Customary International Law Acts as Federal Common Law in U.S. Courts, 20
Fordham Int'l L.J. 1839, 1854 (1997).

5
See James F. Hartman, Unusual' Punishment: The Domestic Effects of International Norms Restricting the
Application of the Death Penalty, 52 U. Cin. L. Rev. 655, 669-82 (1983); Louis Henkin, International Law:
Politics and Values 189 (1995) (noting that a number of the rights protected by the ICCPR have become
customary international law); Ved P. Nanda, The United States Reservation of the Ban on the Death Penalty for
Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 Depaul L.
Rev. 1311, 1328-33 (1993); David Weissbrodt, Execution of Juvenile Offenders by the United States Violates
International Human Rights Law, 3 Am. U. J. Int'l & Pol'y 339, 357-69 (1988).

6
Nanda, supra note 5, at 1328.

7
See Stanford v. Kentucky, 492 U.S. 361, 390 (1989) (Brennan, J., dissenting).

8
See Pamela Brogan, Moves to ban death penalty for juveniles gain momentum, Reno Gazette-Journal, Sept.
12, 2001, at 14A.

9
See Bradley & Goldsmith, supra note 1, at 426-27 (concluding that the
of juveniles is a customary international norm and this ban should be recognized as binding
on the United States. In my view, this is an additional reason to reduce Servin's penalty to life
imprisonment without the possibility of parole.
I would not impose a lesser sentence at this point. Rather, I would remand for a new
sentencing hearing so that the jury can hear evidence from both Allen and Winkelman and
determine which of these witnesses to believe. If the jury believes Allen over Winkelman,
sentencing Servin to death is not excessive.
I recognize that this would amount to granting Servin relief on direct appeal from the
ineffective assistance of his trial counsel, with regard to the failure to take measures to at least
produce Winkelman's evidence during trial proceedings. In my view, counsel's failure to do
so would inevitably lead to post-conviction relief. Thus, rather than delay the inevitable, we
should solve this problem now.
Accordingly, I would not eliminate the option of a death sentence for Servin at this
juncture.
Leavitt, J., with whom Young, J., agrees, concurring in part and dissenting in part:
I agree with the majority that the judgment of conviction should be affirmed, but
respectfully disagree that this court should vacate the sentence of death and impose a sentence
The majority concludes the death penalty is excessive in this case because: the
testimony of an accomplice, Allen, lacks corroboration; Servin was only sixteen years old at
the time of the crime; he lacked a significant criminal history; he expressed remorse; and, he
was under the influence of methamphetamine throughout the robbery and murder.
All of these factors were considered by the jury who determined that the proper
punishment in this case is death.
Corroboration of accomplice's testimony
The evidence necessary to corroborate an accomplice need not in itself be sufficient
to establish guilt.
__________
provision of the ICCPR with respect to which the United States has attached reservations is not binding
customary international law); see also Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as
Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 849-870 (1997) (concluding
that customary international law should not be treated as federal law and binding on the states in the absence of
authorization from the federal political branches).
not in itself be sufficient to establish guilt.
1
It is sufficient if the jury is convinced the
accomplice has sworn truly and that the charge is true.
2
The evidence may be slight in
probative effect, yet its weight is for the jury, and if it tends to connect the accused with the
commission of the offense, it . . . satisf[ies] the requirement that an accomplice's testimony
must be corroborated.
3

Here, Servin's friend, Joana Diaz, testified that Servin told her that the victim was
using the phone when he found her in the master bedroom, and that he told her to shut up,
grabbed the phone out of her hand and hit her on the head so she would stop screaming. Joana
Diaz also testified that Servin threatened to kill anyone who spoke about the crime. Emma
Rosa Hernandez, the mother of Servin's son, testified Servin was in possession of the victim's
cellular phone, Gameboy device, and $80 taken from the victim's purse. She also testified that
Rodriguez told her he was outside the home when the shooting took place. This evidence was
weighed by the jury and the jury determined it was sufficient to meet the test of corroborating
Allen's testimony that Servin was the person who did the actual shooting of the victim.
The majority states, It is possible, if not likely, that Allen was the shooter, and relies
upon a statement by Damien Winkelman filed in the case by the State nearly nine months
prior to trial and disclosed to defense counsel. The district court rejected this evidence as
grounds for a new trial and I agree with the majority in affirming the district court's decision.
The statement was not before the jury that imposed the penalty and it is improper to invade
the province of the jury by speculating as to possibilities. The only evidence presented to the
jury was that Servin was the shooter.
Age of the defendant
The legislature has decided that the death penalty may not be imposed upon any
person who at the time of the commission of the crime was under the age of 16 years.
4
This
court considered the imposition of the death penalty upon a sixteen year old defendant in
Domingues v. State
__________

1
State v. Hilbish Et. Al., 59 Nev. 469, 479, 97 P.2d 435, 439 (1940); State v. Streeter, 20 Nev. 403, 405-06,
22 P. 758, 759 (1889).

2
Streeter, 20 Nev. at 406, 22 P. at 759.

3
Hilbish, 59 Nev. at 479, 97 P.2d at 439.

4
NRS 176.025 reads:
A death sentence shall not be imposed or inflicted upon any person convicted of a crime now punishable
by death who at the time of the commission of such crime was under the age of 16 years. As to such
person, the maximum punishment that may be imposed shall be life imprisonment.
the imposition of the death penalty upon a sixteen year old defendant in Domingues v. State
5
and concluded that the execution of juvenile offenders does not violate the International
Covenant on Civil and Political Rights, a treaty ratified by the United States in 1992. The
majority in affirming the judgment of conviction here points out that the United States
Supreme Court has upheld the constitutionality of inflicting the death penalty on juvenile
offenders.
6
Since our decision in Domingues the legislature has met twice and has chosen
not to increase the age of death eligibility.
This court should not use the age of a defendant as a reason to reduce the punishment
to life imprisonment without the possibility of parole when the jury rejected age as a reason
for a lesser punishment and when the legislature has declined to increase the age requirement.
The majority also mentions Servin is the youngest of the three charged in the offense.
Rodriguez was nineteen years old and Allen was seventeen years old at the time of the crime.
The jury sentenced Rodriguez to death and this court upheld the conviction and sentence
although all of the evidence in the case indicates Rodriguez was outside when the shooting
took place.
Lack of criminal history and remorse
Although Servin did not have an extensive criminal history, testimony was presented
concerning a charge of obstructing and resisting wherein a SWAT team was required to
remove him from his home. There was other evidence showing Servin received twenty-seven
referrals for disciplinary action while a middle school student and he was ultimately expelled
from the school district.
The only remorse expressed in allocution by Servin was, I'm sorry she died and that
he felt bad for the victim's son because he ain't going to be able to see his mother. I mean, I
feel bad because I've got a son of my own. The jury observed Servin when he made his
statement in allocution and apparently gave it little credence or weight.
Under the influence of methamphetamine
One of the reasons given by the majority to reduce the penalty in this case is that
Servin was under the influence of methamphetamine throughout the robbery and murder.
The ingestion of methamphetamine was a voluntary act by Servin and his drugged
condition does not lessen his criminal culpability for the brutal robbery and murder. Instead,
the fact that he was under the influence of an illegal substance aggravates the offense.
__________

5
114 Nev. 783, 786, 961 P.2d 1279, 1280 (1998).

6
Stanford v. Kentucky, 492 U.S. 361 (1989).
he was under the influence of an illegal substance aggravates the offense.
Whether the death penalty is excessive
The majority concludes the death penalty is excessive in this case. The test for
excessiveness is whether the crime and defendant are of the class or kind that warrant the
death penalty.
7

This case involves a trio of young men who set out to rob the victim of $35,000 she
supposedly kept in a safe in her home. The three men drove to the victim's home armed with
a .22 caliber revolver and a shotgun. During the drive to the victim's home Servin said that he
was going to shoot her if he had to. Servin entered the house armed with the revolver.
The victim in this case, was paralyzed from her mid back down and required the use
of a wheel chair. During the crimes, she suffered various abrasions on her neck and chest and
a wound to the top of her head, which indicated that a sharp, slicing cut was made across the
skin. She was shot once in the right shoulder, once in the right leg, and twice in the head. The
shots to the head were contact wounds indicating that the muzzle of the revolver was in direct
contact with the skin when the gun was fired. Testimony indicated that the first two shots, to
the shoulder and leg, were non-lethal and that the victim was alive when the wounds were
inflicted. There was testimony the bullets used in the shooting were dipped in either acid or
mercury in order to make the victim suffer. The fatal two shots to the head were done
execution style.
After the shooting Servin bragged about the crime and threatened to kill anyone who
spoke about it. Servin stated if anyone says anything, we'll smoke em. When asked by his
brother [w]hy didn't they just tie her up and then rob her. Why did they have to shoot her,
there was no response.
All of these facts reveal Servin's sadistic mental state and desire to torture the victim.
The case is certainly one where the defendant and the crime warrant the death penalty.
Accordingly, I would affirm both the judgment of conviction and the sentence of
death.
__________

7
Dennis v. State, 116 Nev. 1075, 1084-85, 13 P.3d 434, 440 (2000).
____________
117 Nev. 800, 800 (2001) Rodriguez v. State
PEDRO RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35300
October 17, 2001 32 P.3d 773
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first
degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon,
and from a sentence of death. Second Judicial District Court, Washoe County; Brent T.
Adams, Judge.
Capital murder defendant was convicted in the district court of first degree murder
with the use of a deadly weapon and robbery with the use of a deadly weapon, and sentenced
to death. Defendant appealed. The supreme court held that: (1) defendant was not prejudiced
by joining of trial with co-defendant; (2) presentation of co-defendant's testimony that he did
not get a sentencing deal was not prosecutorial misconduct; (3) jury instructions accurately
stated law of reasonable doubt; (4) aggravating circumstances were present at sentencing,
including torture; and (5) mandatory statutory factors for death penalty appeals were satisfied.
Affirmed.
Robert Bruce Lindsay, Reno, for Appellant.
Respondent.
1. Criminal Law.
Capital murder defendant was not prejudiced by joining of trial with co-defendant, where allegedly prejudicial statements by
co-defendant either would have been admissible in severed trial or were harmless, and there was no evidence of inconsistent or
antagonistic defenses between defendant and co-defendant. U.S. Const. amend. 6; NRS 51.035(3)(e), 174.165(1).
2. Criminal Law.
Severance of trials should only be granted when 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).
3. Criminal Law.
It is the defendant's heavy burden to show that the district court abused its discretion in failing to sever the trial. NRS
174.165(1).
4. Criminal Law.
Co-defendant's statement that he was going to shoot victim if he had to was admissible in capital murder defendant's joint trial,
where statement did not facially or expressly implicate anyone in the murder other than co-defendant, and statement would
have been admissible in a separate trial against defendant as a statement by a co-conspirator.
than co-defendant, and statement would have been admissible in a separate trial against defendant as a statement by a co-conspirator.
U.S. Const. amend. 6; NRS 51.035(3)(e), 174.165(1).
5. Criminal Law.
Right of confrontation prevents the use at a joint trial of a non-testifying defendant's admission if it incriminates another
defendant. U.S. Const. amend. 6.
6. Criminal Law.
Any error in admission of co-defendant's statement that we robbed someone was harmless in capital murder defendant's joint
trial with co-defendant. There was strong admissible evidence regarding defendant's guilt, including defendant's own statements
regarding his participation in the robbery. U.S. Const. amend. 6; NRS 51.035(3)(e), 174.165(1).
7. Criminal Law.
A defendant's own statements may be considered in assessing whether a Bruton error, if any, was harmless. U.S. Const. amend.
6; NRS 51.035(3)(e).
8. Criminal Law.
Inconsistent or antagonistic defenses do not necessarily entitle defendants to severance of trials, as inconsistent defenses must be
antagonistic to the point that they are mutually exclusive. NRS 174.165(1).
9. Criminal Law.
Presentation of co-defendant's testimony that he did not receive a sentencing deal was not prosecutorial misconduct in capital
murder defendant's trial. Defendant alleged that State did not ask for death sentence for co-defendant, but in closing argument
prosecutor asked court to impose death sentence.
10. Criminal Law.
Jury instructions properly stated law of reasonable doubt in capital murder defendant's trial, where instruction given was the
mandatory statutory instruction, and jury received additional instruction on the State's burden of proof and the presumption of
innocence. NRS 175.211.
11. Criminal Law.
Capital murder defendant failed in his brief to support his argument that denial of pretrial motions were error with legal
authority and references to relevant parts of the record, and thus failed to demonstrate any prejudicial error in those rulings. NRS
177.055(1); NRAP 28(a), (e), 28A(a)(3).
12. Criminal Law.
The fact that an appeal is automatic in a capital murder case does not obviate a defendant's responsibility to provide the supreme
court with cogent argument supported by legal authority and reference to relevant parts of the record. NRS 177.055(1); NRAP 28(a),
(e), 28A(a)(3).
The supreme court's mandatory review of capital appeals is limited to three questions regarding the correctness of the death
sentence. NRS 177.055(2).
Imposition of death penalty on capital murder defendant did not violate federal constitution, although defendant did not actually
kill anybody, where defendant had reason to know that lethal force would be used in robbery as he led two cohorts armed with guns to
victim's house, and exhibited a reckless disregard for human life as he did not express any surprise or regret at the killing,
but rather bragged about it.
any surprise or regret at the killing, but rather bragged about it. U.S. Const. amends. 5, 8; NRS 200.033(4)(b).
Provided that the proper scienter is shown, the United States Constitution does not preclude the imposition of death in a case of
felony murder. U.S. Const. amends. 5, 8.
Evidence was sufficient to support aggravating factor in capital murder defendant's trial that the murder was committed to avoid
or prevent a lawful arrest. There was evidence that defendant was shielded during robbery because victim could identify him,
defendant was the only one who attempted to conceal his identity by covering his face, and there was evidence that defendant and
victim made eye contact, enabling victim to identify him, and thus that victim's murder was to prevent the identification. NRS
200.033(4)(b).
17. Criminal Law.
A defendant can be convicted of both burglary and robbery.
Evidence was sufficient to support aggravating factor in capital murder defendant's trial of torture. There was testimony that
victim, who was paralyzed from the waist down, appeared uninjured the morning of the murder, victim had abrasions and head wounds
consistent with the use of a knife, victim had suffered non-lethal shots in her shoulder and leg, there was no evidence that her wounds
were incidental to a struggle, and there was evidence that defendant heard discussion centering on how bullets were dipped in either
acid or mercury in order to make death slow and painful. NRS 200.033(8).
It was not prosecutorial misconduct for State to argue at the penalty phase that capital murder defendant used a knife to torture
victim. Victim suffered an incised wound on the top of her head indicating the use of a knife, State argued that the wound was most
likely caused by defendant because co-defendants already were armed with guns, penalty phase evidence supported proposition that
knife was defendant's weapon of choice against women, and trial testimony revealed that defendant was seen in possession of a knife
later that night. NRS 200.033(8).
A finding of torture as an aggravating factor of a murder, for imposition of the death penalty, requires that the murderer must
have intended to inflict pain beyond the killing itself. NRS 200.033(8).
Torture involves a calculated intent to inflict pain for revenge, extortion, persuasion or for any sadistic purpose, for purposes
of death penalty aggravating circumstance. NRS 200.033(8).
Mandatory statutory considerations were satisfied in capital murder defendant's appeal. Aggravating factors were present,
including fact that the murder, which involved torture, was committed in the commission of other crimes and that defendant was
previously convicted of a felony crime of violence, there was no evidence that the jury imposed the sentence under the influence of
passion, prejudice, or any arbitrary factor, and sentence was not excessive, considering the violent nature of the crime, defendant's role
as the instigator, his utter lack of remorse, and his criminal history. NRS 177.055(2).
OPINION
Per Curiam:
Appellant Pedro Rodriguez and co-defendants Robert Paul Servin and Brian Lee
Allen murdered and robbed Kimberly Fondy on April 5, 1998. Rodriguez and Servin were
tried together, convicted, and sentenced to death. Allen pleaded guilty to the murder and
robbery charges, and a three-judge panel sentenced him to serve two consecutive prison terms
Rodriguez contends that a number of errors occurred in the district court. We
conclude that none of Rodriguez's assignments of error warrant relief, and affirm the
judgment of conviction and sentence of death.
FACTS
I. Guilt phase
The following evidence was adduced at trial: on April 5, 1998, Rodriguez, Servin, and
Allen set out to rob Kimberly Fondy of $35,000 reportedly kept in a safe in her house. Due to
an accident which occurred when she was sixteen years old, Fondy was paralyzed below the
mid-back and ambulated with the use of a wheelchair.
Nineteen years old at the time of the crime, Rodriguez was the oldest of the
threeAllen was seventeen years old, and Servin was sixteen years old. According to Allen
and several witnesses, Rodriguez provided the information regarding the location of Fondy's
house and the supposed existence of the money; he was the only one of the three who knew
Fondy and had, at one time, lived with her at her Sparks residence. While living with Fondy,
Rodriguez came into possession of a key to a safe that he believed contained a large amount
of money. After ingesting the methamphetamine crank for a number of hours, and with
Rodriguez behind the wheel, the three young men drove to Fondy's home armed with a
shotgun provided by Servin and a .22 caliber revolver owned by Allen.
Allen testified to the following facts: during the drive to Fondy's home, Servin stated
that he was going to shoot her if he had to. Upon arrival, Rodriguez shut off the engine and
waited in the car while Servin and Allen approached the front door, which Servin proceeded
to kick open. The two men entered the homeServin armed with the revolver and Allen with
the shotgunand eventually found Fondy in her wheelchair in the master bedroom with a
portable telephone in her hand.
shotgunand eventually found Fondy in her wheelchair in the master bedroom with a
portable telephone in her hand.
Fondy was in the process of reporting the two intruders via a 9-1-1 emergency call
when she was apparently confronted by Servin. Although her call was terminated before it
was answered, the electronic taping system automatically started recording immediately after
the initial dialing. Therefore, upon review of the tape of the 9-1-1 call and hang-up, the
dispatcher was able to recognize a female voice whispering what sounded like, There are
two of them.
According to Allen, upon seeing Fondy with the phone in her hand, Servin pointed the
revolver at her head, yelled at her to shut up, grabbed the phone out of her hand, tossed it
on the bed, and ordered her to get into the bathroom; Fondy repeatedly stated, I'll give you
the money. Servin also hit Fondy in the head so she would stop screaming. Meanwhile
Rodriguez, wearing a black and white bandana covering his face except for his eyes, entered
the home and found Fondy, Servin, and Allen in the master bedroom. Servin tried to block
Fondy's view of Rodriguez so she would not be able to see and identify himthe only one of
the three she knew.
Allen testified that Rodriguez immediately located Fondy's safe on a vanity shelf in
the bedroom, even though it was hidden and disguised as furniture. Rodriguez tossed the safe
into the hallway and ordered Allen to take it outside. According to Allen, he then returned to
the car with the safe, leaving Rodriguez and Servin alone in the house with Fondy.
Approximately two to three minutes later, Rodriguez returned to the car. Allen testified that
soon after that he heard four gunshotstwo shots followed by two more shots after a brief
delay. A neighbor of Fondy's testified that she heard a loud pop, and a few minutes later,
the same loud sound again.
1
Within minutes after the shooting, Servin returned to the car,
and with Rodriguez again behind the wheel, the three young men drove away.
After stopping by the home of Servin and Allen to pick up some friends, all three
resumed ingesting crank and proceeded on to the residence of friends, Carlos and Joana Diaz.
After some initial difficulty, Rodriguez managed to open the locked safe, and inside were
miscellaneous papers, documents, and a baseball, but not the expected money. According to
Joana Diaz, Rodriguez became angry and stated, This bitch lied. There is no money in here.
At the Diaz home that night and the following morning, numerous inculpatory
statements were made by the three men.
__________

1
Emma Hernandez, Servin's girlfriend and the mother of his child, testified that Rodriguez told her later that
evening that he was outside Fondy's house when the shooting took place.
ous inculpatory statements were made by the three men. Both Carlos and Joana Diaz testified
that Rodriguez, Servin, and Allen were present when one of the three said that the bullets
used in the shooting were dipped in either acid or mercury. Servin told Carlos Diaz that this
was done in order to kill her a little slow or something, and Allen told Joana Diaz that it
was done [s]o a person could die and make them suffer. Neither Rodriguez, Servin, nor
Allen contradicted or corrected any of the statements made concerning the bullets or the
commission of the crime.
Rodriguez and Servin were bragging about the crime during the night, and according
to Allen, Servin admitted to shooting Fondy. Rodriguez told Emma Hernandez that they had
shot her three or four times, and that [w]e did it, fool. According to several witnesses,
Rodriguez was seen in possession of Fondy's electronic organizer, and Servin was in
possession of Fondy's cellular phone, Gameboy device, and $80 taken from her purse. Both
Rodriguez and Servin at different times were in possession of a knife that Joana Diaz
believed came from the Fondy residence. Rodriguez told Servin and Allen not to say
anything, because if they did, something was going to happen to them. Joana Diaz also
testified that both Rodriguez and Servin threatened to kill anyone present at the Diaz home
who spoke about the crime; Servin, referring to Allen, Rodriguez, Hernandez, and Carlos and
Joana Diaz, reportedly stated that if anybody said anything that he would smoke em.
Rodriguez called Fondy's home at some point during the night to see if any police were there.
According to Joana Diaz, the following morning Rodriguez stated that he had
difficulty sleeping because he saw [Fondy's] eyes everywhere. Servin's brother, Fernando
Machado, testified that after arriving at the Diaz home and hearing about the robbery and
shooting, he asked Rodriguez, Servin, and Allen, [w]hy didn't they just tie her up and then
rob her. Why did they have to shoot her, to which there was no response. Machado also
heard Rodriguez state that if the first bullet didn't do it, the other one did, because it was
mercury-tipped.
An autopsy performed the morning after the murder revealed that Fondy was shot
once in the right shoulder, once in the right leg, and twice in the head; the two shots to the
head were contact wounds indicating that the muzzle of the gun was in direct contact with the
skin when the gun was fired. Additionally, the autopsy revealed that Fondy suffered various
abrasions on her neck and chest and an incised wound on the top of her head, which indicated
that a sharp, slicing cut was made across the skin. Dr. Roger S. Ritzlin testified that Fondy
was alive when the wounds were inflicted; thus, in his opinion the evidence was consistent
with the theory that the first two shots were non-lethal shots to Fondy's shoulder and leg and
the second two shots were the lethal shots to her head.
shots to Fondy's shoulder and leg and the second two shots were the lethal shots to her head.
Other testimony established that Fondy did not appear to have any noticeable injuries to her
neck, chest, or head earlier on the day she was murdered.
Rodriguez and Servin chose not to testify at their trial, and on October 18, 1999, the
jury found them guilty of first degree murder and robbery, both with the use of a deadly
weapon.
II. Penalty phase
The penalty hearing began the following day, and both Rodriguez and Servin objected
to the verdict forms, proposing instead the use of special verdict forms requiring that any
mitigating circumstances found by the jury be specified in the same manner as the
aggravating circumstances. The district court overruled the objections.
The State presented evidence of two separate incidents involving Rodriguez at the
Skyline Mobile Home Park in Reno. The first occurred during the evening of June 17, 1997:
gun shots were heard and the manager of the park, Penny Henry, called the Reno police.
Assistant manager, Jean Mazzo, identified unit number 77 as the location of the shots, and the
police eventually arrived and brought Rodriguez out of the house. After Henry confirmed for
the police that she knew Rodriguez and that he lived there, Rodriguez screamed at Henry,
Penny, I will fuck you and kill you. I will fucking rape your daughter. And I'll come back
and kill everyone in the park. Henry testified that Rodriguez repeated the threats numerous
times and that [h]e was totally out of control. Mazzo testified that Rodriguez repeatedly
spat at the police officers and called them fucking pigs. Reno police officer Scott Armitage
testified that Rodriguez also threatened the officers on the scene, screaming repeatedly, Fuck
you, pigs. I'll rape your kids. I'll rape your wives. My family is Mafia. We worship the devil.
666. Rodriguez was charged with harassment and disturbing the peace and eventually
pleaded guilty.
The second incident occurred in September of 1997. A fourteen-year-old girl was
visiting a friend at the same mobile home park, and when she went to the back bedroom to
use the bathroom, Rodriguez appeared and anally and vaginally raped her at knife-point. The
victim testified that Rodriguez held the knife at the back of her neck and threatened to stab
her if she screamed. Rodriguez eventually was convicted, pursuant to a guilty plea, of felony
sexual assault with the use of a deadly weapon and was sentenced to two consecutive prison
terms of life with the possibility of parole.
In mitigation, Rodriguez presented testimony regarding the circumstances of his
childhood from his uncle, Jesus Rodriguez.
Jesus stated that Rodriguez's parents separated when he was approximately one year old and
that his mother never worked, survived on welfare, was often in jail, and beat him regularly.
Further, Rodriguez's mother had relationships with many different men, one of whom was a
drug addict that initiated Rodriguez's own drug use. Jesus testified that she once brought
Rodriguez to him stating, I don't want him anymore. Keep him. Jesus told of another
incident when she left Rodriguez and her other children in a car while she stayed in her house
doing drugs. One of Rodriguez's younger brothers died at a young age, and one of his
stepfathers died from a drug overdose. According to Jesus, Rodriguez's mother was in jail at
the time of the trial.
On cross-examination by the State, Jesus admitted that he did not know about any of
the legal problems Rodriguez faced throughout the 1990s, and in fact, was surprised to hear
about them. Rodriguez chose not to exercise his right to allocution.
On October 20, 1999, the jury returned a verdict sentencing both Rodriguez and
Servin to death after finding that there were no mitigating circumstances sufficient to
outweigh the aggravating circumstances. With regard to Rodriguez, the jury found six
aggravating circumstances: (1) the murder was committed in the commission of the crime of
robbery; (2) the murder was committed in the commission of the crime of burglary; (3) the
murder was committed in the commission of the crime of home invasion; (4) the murder was
committed to avoid or prevent a lawful arrest; (5) the murder involved torture and/or
mutilation of the victim; and (6) Rodriguez had previously been convicted of a felony crime
of violence.
On December 3, 1999, prior to sentencing, Rodriguez made the following statements
to the district court:
Yeah, all I gotta say is I don't feel sorry what happened. I don't have no remorse towards
it, and I understand what I'm about to do right now is I'm about to waive all my appeals,
and that's about it. Can't kill me. I'm already dead.
. . . .
Another thing is my attorneys did advise me and they did want me to go along with my
appeals, but my final decision is I don't want no appeals. I'm waiving all my rights
towards appeals, so that's about it.
2

The district court then sentenced Rodriguez to death by lethal injection for first degree
murder with the use of a deadly weapon {count I), and to two consecutive prison terms of
72 to 1S0 months for robbery with the use of a deadly weapon to run consecutively to
count I.
__________

2
Neither the briefs nor the record provide any further information with respect to Rodriguez waiving his right
to appeal. In light of the fact that his counsel has filed briefs raising substantive issues, we must assume that
Rodriguez changed his mind about the waiver.
(count I), and to two consecutive prison terms of 72 to 180 months for robbery with the use of
a deadly weapon to run consecutively to count I. Rodriguez was also ordered to pay
restitution in the amount of $3,272.67, jointly and severally with Servin.
A unanimous three-judge panel sentenced Allen to two consecutive prison terms of
life without the possibility of parole for the murder charge (count I), and to two consecutive
prison terms of 72 to 180 months for the robbery charge to run consecutively to count I.
DISCUSSION
I. The denial of appellant's pretrial motion for severance
[Headnote 1]
Rodriguez claims that the district court erred by denying his motion to sever the trial.
He argues that various statements made by Servin and introduced at trial through Allen and
other witnesses constituted a violation of Bruton v. United States,
3
and that a separate trial
was warranted because his defense was antagonistic to Servin's defense. We disagree and
conclude that Rodriguez's contentions are without merit and that the district court did not err
in denying the severance motion.
4

[Headnotes 2, 3]
NRS 174.165(1) permits the district court to sever a joint trial [i]f it appears that a
defendant . . . is prejudiced by a joinder of . . . defendants . . . for trial together. This court
has stated that where persons have been jointly indicted they should be tried jointly, absent
compelling reasons to the contrary,
5
and that [a] court must consider not only the possible
prejudice to the defendant but also the possible prejudice to the state resulting from
expensive, duplicitous trials.
6
Further, severance should only be granted when 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.
__________

3
391 U.S. 123 (1968).

4
Citing United States v. Allen, 160 F.3d 1096, 1106 (6th Cir. 1998), and United States v. Sherwood, 98 F.3d
402, 409 (9th Cir. 1996), the State invites this court to hold that in order to preserve a claim related to the denial
of a motion for severance, the motion must be renewed at the close of the State's case-in-chief. We decline the
State's invitation and are not aware of any Nevada authority in support of it.

5
Jones v. State, 111 Nev. 848, 853, 899 P.2d 544, 547 (1995).

6
Byford v. State, 116 Nev. 215, 229, 994 P.2d 700, 710, cert. denied, 531 U.S. 1016 (2000); see also NRS
173.135.
cence.
7
It is the appellant's heavy burden to show that the district court abused its
discretion in failing to sever the trial.
8

Bruton violation
[Headnote 4]
First, Rodriguez contends that admission into evidence of Servin's statement made in
the car on the way to Fondy's residence, that he was going to shoot her if he had to,
constitutes a Bruton violation. He argues that the statement was used against him to prove
that he heard it and did not object.
[Headnote 5]
The United States Constitution's Sixth Amendment right of confrontation prevents the
use at a joint trial of a non-testifying defendant's admission if it incriminates another
defendant.
9
In this case, however, Rodriguez's reliance on Bruton is misplaced because the
statement did not facially or expressly implicate anyone in the murder other than Servin.
Further, as the State argues, the statement would have been admissible in a separate trial
against Rodriguez as a statement by a coconspirator.
10

[Headnotes 6, 7]
Second, Rodriguez contends that admission into evidence of Servin's statement made
at the Diaz home, that we robbed someone, constitutes a Bruton violation. This statement
was directed to the Diazes and Emma Hernandez and occurred while Rodriguez and Allen
were attempting to pry open the safe. Assuming this statement falls under Bruton's protective
rule, we conclude that its admission into evidence was harmless error. There was strong
admissible evidence of Rodriguez's guilt. Rodriguez's own statements regarding his
participation in the crime were properly admitted,
11
and a defendant's own statements may
be considered in assessing whether a Bruton error, if any, was harmless.
12
Therefore, we
conclude that Rodriguez's Bruton claims fail to establish reversible error.
__________

7
Zafiro v. United States, 506 U.S 534, 539 (1993).

8
Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990); see also United States v. Lane, 474 U.S.
438, 449 (1986) (reversal is required only if joinder had a substantial and injurious effect or influence in
determining the jury's verdict).

9
See Bruton, 391 U.S. 123; Ducksworth v. State, 114 Nev. 951, 966 P.2d 165 (1998); see also U.S. Const.
amend. VI.

10
See NRS 51.035(3)(e) (statement is non-hearsay and admissible if statement is offered against a party and
is . . . [made] by a coconspirator of a party during the course and in furtherance of the conspiracy).

11
See NRS 51.035(3)(a).

12
See Cruz v. New York, 481 U.S. 186, 193-94 (1987); see also United
Antagonistic defenses
[Headnote 8]
Rodriguez also contends that the existence of antagonistic defenses required the
granting of his motion for severance. Inconsistent or antagonistic defenses, however, do not
necessarily entitle defendants to severance,
13
and [i]nconsistent defenses must be
antagonistic to the point that they are mutually exclusive.
14
Rodriguez wholly fails to
articulate what competing defense theories were present at trial, and a review of the record
reveals that both Rodriguez and Servin merely claimed that someone else did the shooting.
We conclude that the district court did not err in refusing to sever the trials based on
antagonistic defenses.
II. The testimony of co-defendant Allen
[Headnote 9]
Rodriguez contends that the presentation of Allen's testimony constituted
prosecutorial misconduct and that the district court should have excluded the testimony. Allen
pleaded guilty and testified that he did not receive a sentencing deal from the State, indicating
to the jury that he, too, might face the imposition of the death penalty by a three-judge panel.
In his opening brief, Rodriguez argues that Allen lied about the existence of a deal. He claims
that the State did not ask the three-judge panel for a death sentence in Allen's case,
demonstrating that a de facto deal was in place, which should have been disclosed to the jury.
Based on this argument, Rodriguez further insists that the district court erred in not
instructing the jury regarding witness bias.
The record, however, does not support this contentionthe prosecutor did seek the
death penalty against Allen. In closing arguments at Allen's sentencing hearing, the
prosecutor made the following comments:
So when the Court considers not merely his death eligibility, but his death worthiness, I
would submit to the Court there is little evidence of any remorse.
__________
States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999) (Bruton error may be harmless where, disregarding the
co-defendant's statement, there is otherwise ample evidence against a defendant); Lisle v. State, 113 Nev. 679,
693, 941 P.2d 459, 468 (1997) (recognizing that any error in admitting codefendant's statement that he saw the
other guy shoot the victim would be harmless because four other witnesses testified to hearing defendant
confess), limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9
(1998).

13
See Jones, 111 Nev. at 854, 899 P.2d at 547 (citing Zafiro, 506 U.S. 534).

14
Amen, 106 Nev. at 756, 801 P.2d at 1359.
is little evidence of any remorse. There is a whole host of evidence of future
dangerousness.
. . . .
I'd ask the Court to impose a sentence of death on Mr. Allen for his participation in this
crime of the torture, robbery and murder of Kimberly Fondy.
(Emphasis added.) Because Rodriguez's contention is not supported by the record, we
conclude that it lacks merit.
III. Reasonable doubt jury instruction
[Headnote 10]
Rodriguez states that the district court erred by rejecting a jury instruction offered at
trial regarding reasonable doubt. We conclude that the district court did not err in giving the
mandatory statutory instruction on reasonable doubt.
15
This court has upheld the
constitutionality of the instruction where, as here, the jury received additional instruction on
the State's burden of proof and the presumption of innocence.
16

IV. Denial of pretrial motions
[Headnote 11]
Rodriguez lists sixteen pretrial motions denied by the district court that cumulatively
add up to alleged error. His argument in toto consists of citing to Anders v. California
17
and
Sanchez v. State
18
for the proposition that this Court is under an affirmative duty in an
automatic appeal in a death penalty case to scrutinize the entire record for error which would
entitle appellant to relief from his conviction and sentence.
19

[Headnotes 12, 13]
The fact that an appeal is automatic in this capital case under NRS 177.055(1) does
not obviate Rodriguez's responsibility to provide this court with cogent argument supported
by legal authority and reference to relevant parts of the record.
20
Aside from "[a]ny errors
enumerated by way of appeal," this court's mandatory review of capital appeals is limited
to three questions regarding the correctness of the death sentence.
__________

15
See NRS 175.211.

16
See Middleton, 114 Nev. at 1111-12, 968 P.2d at 311; Bollinger v. State, 111 Nev. 1110, 1115, 901 P.2d
671, 674 (1995).

17
386 U.S. 738 (1967).

18
85 Nev. 95, 450 P.2d 793 (1969).

19
Both Rodriguez and the State failed to note in their respective briefs that this court has expressly overruled
the mandate of Sanchez. See Ramos v. State, 113 Nev. 1081, 1084, 944 P.2d 856, 858 (1997) (We elect to . . .
opt out of the Anders quagmire. With respect to cases filed after this opinion, Sanchez is overruled.).

20
See Mazzan v. Warden, 116 Nev. 48, 75, 993 P.2d 25, 42 (2000); NRAP 28(a) and (e); NRAP 28A(a)(3).
from [a]ny errors enumerated by way of appeal, this court's mandatory review of capital
appeals is limited to three questions regarding the correctness of the death sentence.
21
We
conclude that Rodriguez has failed to demonstrate any prejudicial error arising out of the
district court's rulings on the motions.
V. Aggravating circumstances
Rodriguez contends that the Fifth and Eighth Amendments to the United States
Constitution are violated by the imposition of the death penalty in a case of felony murder.
22
He also argues that there is no support in the record for the aggravator found by the jury that
the murder was committed to avoid or prevent a lawful arrest, that the aggravators of robbery
and burglary are duplicative, and that there was insufficient evidence of torture. We conclude
that Rodriguez's contentions are without merit.
[Headnotes 14, 15]
First, the State concedes that a felony-murder conviction alone does not warrant the
imposition of the death penalty; however, as the jury was instructed, NRS 200.033(4)(b)
allows for a sentence of death when the non-killing co-defendant participates in an
enumerated felony and [k]new or had reason to know that life would be taken or lethal force
used. Further, the United States Supreme Court has stated:
[W]e hold that the reckless disregard for human life implicit in knowingly engaging in
criminal activities known to carry a grave risk of death represents a highly culpable
mental state, a mental state that may be taken into account in making a capital
sentencing judgment when that conduct causes its natural, though also not inevitable,
lethal result.
23

Therefore, provided that the proper scienter is shown, the United States Constitution does not
preclude the imposition of death in a case of felony murder. We conclude that, at the very
least, Rodriguez had reason to know that lethal force would be used and exhibited a reckless
disregard for human life. The record shows that he led two cohorts armed with guns to
Fondy's house to break in and rob her, and afterwards he did not express any surprise or regret
at the killing, but rather bragged about it.
[Headnote 16]
Second, evidence showed that Servin tried to shield Rodriguez from Fondy because
she knew Rodriguez and would have been able to identify him as one of her assailants.
Rodriguez was the only one of the three who attempted to conceal his identity by wearing
a bandana covering his face; nevertheless, it was reasonable for the jury to infer that
Rodriguez made eye contact with Fondy based on his statements the following morning
regarding being unable to sleep due to seeing "her eyes everywhere."
__________

21
See NRS 177.055(2).

22
See U.S. Const. amends. V, VIII.

23
Tison v. Arizona, 481 U.S. 137, 157-58 (1987).
only one of the three who attempted to conceal his identity by wearing a bandana covering his
face; nevertheless, it was reasonable for the jury to infer that Rodriguez made eye contact
with Fondy based on his statements the following morning regarding being unable to sleep
due to seeing her eyes everywhere. Thus, it was also reasonable for the jury to have inferred
from the testimony that the killing of Fondy was to prevent her from identifying Rodriguez as
one of the robbers. We conclude that there was sufficient evidence to support the aggravator
that the murder was committed to avoid or prevent a lawful arrest.
24

[Headnote 17]
Third, Rodriguez contends that a defendant cannot be convicted of both burglary and
robbery, and therefore, relying on Lane v. State,
25
he argues that it was improper to present
both to the jury for consideration as aggravators. This contention has no merit. A defendant
can be convicted of both offenses, and this court has repeatedly held that each may be used as
an aggravating circumstance.
26

[Headnote 18]
Finally, Rodriguez contends there was insufficient evidence to support the aggravator
of torture. Rodriguez argues that it is undisputed that he was unarmed during the commission
of the crime, and that it was prosecutorial misconduct for the State to argue at the penalty
phase that he used a knife to torture Fondy.
[Headnote 19]
The State counters by arguing that in the penalty phase, a prosecutor may urge the jury
to make reasonable inferences from the evidence, and therefore there was no misconduct.
27
The State points out that Fondy suffered an incised wound on the top of her head indicating
the use of a knife. The State argues that the wound was most likely caused by Rodriguez
because both Allen and Servin already were armed and the penalty phase evidence supports
the proposition that a knife was Rodriguez's weapon of choice against women. Further, trial
testimony revealed that Rodriguez was seen in possession of a knife at the Diaz home later
that night. We conclude that the State did not commit prosecutorial misconduct by
presenting this theory to the jury at the penalty phase.
__________

24
Cf. Domingues v. State, 112 Nev. 683, 701, 917 P.2d 1364, 1376-77 (1996).

25
114 Nev. 299, 303-04, 956 P.2d 88, 91-92 (1998) (holding it improper to find the aggravators of robbery
and of receiving money when both are based on the same facts).

26
See, e.g., Bennett v. State, 106 Nev. 135, 142, 787 P.2d 797, 801-02 (1990).

27
See Domingues, 112 Nev. at 696, 917 P.2d at 1373.
ecutorial misconduct by presenting this theory to the jury at the penalty phase.
[Headnotes 20, 21]
Regardless of whether Rodriguez was armed with a knife, the evidence is still
sufficient to support the finding of torture as an aggravator under NRS 200.033(8). NRS
200.033(8) does not expressly require that each defendant individually torture the victim.
28
A finding of torture requires that the murderer must have intended to inflict pain beyond the
killing itself.
29
Further, [t]orture involves a calculated intent to inflict pain for revenge,
extortion, persuasion or for any sadistic purpose.
30
Trial testimony made it clear that Fondy
appeared uninjured the morning of the murder; the abrasions and incised head wound noted
during the autopsy would have been visible if they had occurred earlier. There was no
testimony or other evidence that the wounds were incidental to a struggle or that Fondy, from
her wheelchair, raised a defense or posed a physical threat to her attackers. Therefore, there
was little reason, other than to persuade her to open the safe or to indulge sadistic urges, for
the beating she suffered or for the two non-lethal gun shots, one of which struck one of her
paralyzed legs. Additionally, Rodriguez was bragging about the murder later that evening,
and he was aware of and present when the discussion centered on how the bullets were
dipped in either acid or mercury in order to make Fondy's death slow and painful.
31
These
facts highlight Rodriguez's sadistic mental state.
VI. Mandatory review
[Headnote 22]
circumstances;
defendant.
The jurors found six aggravating circumstances, five of which, we conclude, are well
founded: (1) the murder was committed in the commission of the crime of robbery;
__________

28
See Byford, 116 Nev. at 240, 994 P.2d at 717.

29
Domingues, 112 Nev. at 702, 917 P.2d at 1377.

30
Id. at 702 n.6, 917 P.2d at 1377 n.6.

31
No evidence was presented by the State indicating that the bullets were actually dipped in any substance.
the commission of the crime of robbery; (2) the murder was committed in the commission of
the crime of burglary; (3) the murder was committed to avoid or prevent a lawful arrest; (4)
the murder involved torture and/or mutilation of the victim; and (5) Rodriguez was previously
convicted of a felony crime of violence.
The jurors also found as an aggravator that the murder was committed in the
commission of or flight after committing the crime of home invasion.
32
Home invasion
involves the forcible entry of an inhabited dwelling without the occupant's permission.
33
For
the reasons discussed in Servin v. State,
34
however, and considering the specific facts of this
case, the aggravators of home invasion and burglary are duplicative and cannot be used as
separate aggravating circumstances; accordingly, we conclude that the aggravating
circumstance of home invasion is invalid. We further conclude after reweighing the
remaining five aggravating circumstances against the mitigating evidence that invalidating
the home invasion aggravator would not have impacted the jury's decision in sentencing
Rodriguez to death, and that the remaining aggravators still outweigh the mitigators.
Finally, we conclude that there is no evidence that the jury imposed the sentence
under the influence of passion, prejudice, or any arbitrary factor; and considering the violent
nature of the crime, Rodriguez's role as the instigator and only adult participant, his utter lack
of remorse, and his significantly violent prior criminal history, we conclude that the sentence
of death is not excessive.
CONCLUSION
We conclude that Rodriguez's assignments of error do not warrant relief. We therefore
affirm his judgment of conviction and sentence of death.
__________

32
Both Rodriguez and the State mistakenly claim that the jury did not find the aggravator of home invasion.
A review of the penalty phase transcript, the verdict form, and the warrant of execution entered below on
December 3, 1999, clearly demonstrates that the aggravator was indeed found.

33
See NRS 205.067(1).

34
117 Nev. 775, 32 P.3d 1277 (2001).
____________
117 Nev. 816, 816 (2001) Las Vegas Downtown Redev. v. Crockett
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Appellant, v.
JAMES R. CROCKETT, SR., AILEEN M. CROCKETT, and ATLANTIC PENSION FUND
SERVICES, Respondents.
No. 27801
PAUL MOLDON and LAUREL MOLDON, Respondents.
No. 27941
JAMES R. CROCKETT, SR., AILEEN M. CROCKETT, and ATLANTIC PENSION FUND
SERVICES, Respondents.
No. 29550
November 15, 2001 34 P.3d 553
Consolidated appeals from district court orders granting respondents' motions to
dismiss appellant's eminent domain complaints, and denying appellant's motion for NRCP
60(b) relief. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Redevelopment agency filed eminent domain complaints against landowners. The
district court dismissed the complaints, and redevelopment agency appealed. The supreme
court held that vacation of streets and relocation of park did not constitute a material
deviation from or change to redevelopment plan such that a formal amendment of plan was
mandated.
Maupin, C. J., dissented.
Bradford R. Jerbic, City Attorney, and William P. Henry, Senior Litigation Counsel,
Las Vegas; Beckley, Singleton, Chtd., and Daniel F. Polsenberg and Rex A. Jemison, Las
Vegas, for Appellant.
Netzorg & Caschette, Las Vegas, for Respondents James and Aileen Crockett and
Atlantic Pension Fund Services.
Chuck R. Gardner, Las Vegas, for Respondents Paul and Laurel Moldon.
Redevelopment agency waived any error concerning trial court's denial of motion for relief from judgment, where
agency did not advance on appeal any arguments concerning the propriety of trial court's denial.
denial of motion for relief from judgment, where agency did not advance on appeal any arguments concerning the propriety of trial
court's denial.
2. Municipal Corporations.
Whether redevelopment must be preceded by amendment of the approved redevelopment plan is an issue to be resolved by the
district judge before trial.
Supreme court defers to the district judge's factual findings and conducts a de novo review of his or her legal conclusions.
4. Eminent Domain.
When a redevelopment plan's involvement is apparent from the government's eminent domain complaint, a landowner's failure
to raise in a responsive pleading the issue of the need for plan amendment may constitute waiver.
5. Eminent Domain.
When the eminent domain complaint involves land within an area covered by a redevelopment plan and the complaint is
accompanied or followed by a motion for occupancy, failure to raise the issue of the need for plan amendment in opposition to the
motion may constitute waiver.
6. Eminent Domain.
Landowners did not waive issue in eminent domain proceeding of whether redevelopment agency was required to amend
redevelopment plan, though landowners did not initially oppose agency's motion for occupancy, where the agency made no showing
that landowners' tardy opposition worked to agency's detriment.
7. Statutes.
Supreme court presumed Legislature intended for statute regarding modifications to redevelopment plans to have the same
construction given to analogous California statute at the time Legislature enacted and amended statute. NRS 279.608(1).
While formal amendment of approved redevelopment plan is mandated for material deviations from or changes to a
redevelopment plan, formal amendment is unnecessary for an administrative interpretation of the plan or a filling in of details. NRS
279.608(1).
Redevelopment that is consistent with the approved redevelopment plan's express language or a liberal construction of that
language does not require plan amendment as there is no deviation from or change to the plan's contours. NRS 279.608(1).
A district court's determination on whether deviations from a redevelopment plan are material such that a formal amendment of
the redevelopment plan is mandated will ordinarily be a question of law, involving a comparison of the proposed redevelopment action
to the existing redevelopment plan, though the possibility cannot be ruled out that the determination will present legal or factual
questions, warranting a pre-trial, evidentiary hearing.
In considering whether a redevelopment plan must be amended, the judiciary's role is limited.
Vacation of four streets and the relocation of park did not constitute a material deviation from or change to approved
redevelopment plan such that a formal amendment of plan was mandated, as provisions for each of the actions
were explicitly and comprehensively made in redevelopment plan, and all that remained to be filled in were
the details of the location.
that a formal amendment of plan was mandated, as provisions for each of the actions were explicitly and comprehensively made in
redevelopment plan, and all that remained to be filled in were the details of the location. NRS 279.608(1).
OPINION
Per Curiam:
At issue in these consolidated appeals is whether the Redevelopment Plan for the
Downtown Las Vegas Redevelopment Area (the Redevelopment Plan) must be amended to
include a project for redevelopment that contemplates vacating portions of four public streets
and relocating a public park. Amendment is necessary only when the contemplated
redevelopment actions materially deviate from or change the applicable redevelopment plan.
Thus, we conclude that no amendment of the Redevelopment Plan was required in this
instance because the vacation of the four streets and the relocation of the park do not
constitute a material deviation from or change to the Redevelopment Plan. Consequently, we
reverse the district court's orders of dismissal.
FACTUAL AND PROCEDURAL HISTORY
Citing the need to eliminate environmental deficiencies and blight, the Las Vegas
City Council adopted Ordinance No. 3218 on March 5, 1986, approving the Redevelopment
Plan. The redevelopment area initially comprised 2,401 acres and was bounded on the north
by Washington Avenue, on the east by Bruce Avenue, on the south by Sahara Avenue, and on
the west by Highland Drive. A description of the Redevelopment Plan's area and a statement
that proceedings for redevelopment had been instituted were filed in the Clark County
Recorder's office.
The forty-two-page Redevelopment Plan was prepared by the City of Las Vegas
Downtown Redevelopment Agency (the Agency). As an introductory note, the Agency
explained that the Redevelopment Plan would serve as a template for future redevelopment,
the specifics of which would be added on a case-by-case basis:
Because of the long-term nature of this Plan [40 years], and the need to retain in the
Agency flexibility to respond to market and economic conditions, property owners and
developer interests and opportunities from time to time presented for redevelopment,
this Plan does not present a precise plan or establish specific projects for the
redevelopment, rehabilitation and revitalization of any area within the
Redevelopment Area.
establish specific projects for the redevelopment, rehabilitation and revitalization of any
area within the Redevelopment Area. Instead, this Plan presents a process and a basic
framework within which specific plans will be presented, specific projects will be
established, and specific solutions will be proposed, and by which tools are provided to
the Agency to fashion, develop, and proceed with such specific plans, projects and
solutions.
The Redevelopment Plan's reach is substantial: All real property in the
redevelopment area is subject to its controls and requirements.
1
To eliminate and prevent the
spread of blight and deterioration, the Redevelopment Plan contemplates, among numerous
other things, the Agency's acquisition of real property by purchase or eminent domain, the
transfer of acquired real property to public or private entities for development, demolition of
buildings or other real property improvements, construction of parks, development and
construction of hotel and tourism/recreational facilities, and the widening, closure and
vacation of streets and alleys. The City of Las Vegas must assist the Agency in implementing
the Redevelopment Plan in various ways, including widening, closing and vacating streets
and alleys in the redevelopment area.
The Redevelopment Plan authorizes the Agency to finance redevelopment projects
with local, state, and federal funds, and with loans from private financial institutions. Real
property owners and tenants within the redevelopment area may participate in redevelopment
activities by entering into binding agreements with the Agency to rehabilitate or develop their
existing or acquired properties.
In August 1994, members of the Agency convened for a public hearing on a
redevelopment project proposed by the Stratosphere Corporation (Stratosphere). A
Stratosphere representative explained that construction of a hotel and base building, to be
connected to the existing Stratosphere Tower, would require the Agency's acquisition of
certain neighboring properties for delivery to Stratosphere. An Agency staff report noted that
approval of the project would require the Agency's acquisition and transfer of seventeen
parcels to Stratosphere. These parcels include respondents' properties.
Following another public hearing, the Agency approved Stratosphere's project, finding
it consistent with the Redevelopment Plan's objectives.
__________

1
See NRS 279.576(1) (stating that a redevelopment plan may provide for the agency to acquire all or part of
the real property in the redevelopment area, and any personal property acquired in connection with that real
property).
Redevelopment Plan's objectives. In December 1994, the Agency executed an Owner
Participation Agreement (OPA) with Stratosphere. The OPA's stated purpose was to
effectuate the Redevelopment Plan through Stratosphere's development of two sites adjacent
to the Stratosphere Tower and within the redevelopment area. On the first site, Stratosphere
was to construct a hotel/casino on property it already owned or controlled and on eleven acres
of property to be acquired by the Agency and conveyed to Stratosphere.
2
On the second site,
Stratosphere was to construct a public park (to replace a park already located somewhere in
the project area) on property it already owned or controlled and on property to be acquired by
and for the Agency. The new park was required to be of equal or better quality than the
existing park, and all the monuments and plaques at the existing park had to be relocated to
the new park. Stratosphere was further obligated to convey, without cost, its site-two
property to the Agency, and to convey to the Agency a community center owned by
Stratosphere and located next to the second site.
The OPA's site designations required the City of Las Vegas to vacate portions of four
streets within the redevelopment area: St. Louis Avenue, Boston Avenue, Commerce Street,
and Fairfield Avenue. The OPA also required Stratosphere to finance the costs of
construction and the costs of acquiring the necessary properties, and directed the Agency to
acquire those propertiesthrough condemnation if necessary.
The Agency did not amend the Redevelopment Plan to reflect Stratosphere's project.
Nor had the Agency amended the Redevelopment Plan to reflect eleven prior redevelopment
projects within the redevelopment area.
The Redevelopment Plan has been amended only twice since its approval. In 1988,
the redevelopment area was expanded to include property (apparently, 234 acres) northwest
of the original redevelopment area. In 1992, certain land use designations and definitions
contained in the Redevelopment Plan were changed to conform to the City of Las Vegas'
amended master plan.
In April 1995, the Agency filed an eminent domain complaint against respondents
Paul and Laurel Moldon, alleging that the Moldons' 1806 South Main Street commercial
property was needed for redevelopment purposes, and that the Agency was unable to reach
an agreement with the Moldons to purchase the property. In May 1995, the Agency filed a
similar complaint against respondents James R. Crockett, Sr., Aileen M. Crockett, and
Atlantic Pension Fund Services (APFS), seeking to condemn their 1S11 South Commerce
Street property, formerly a local car dealership's service garage.
__________

2
According to Stratosphere's executive vice-president, Stratosphere was successful in acquiring, on its own
before execution of the OPA, several of the properties which make up a part of the . . . 11 acres.
demn their 1811 South Commerce Street property, formerly a local car dealership's service
garage. Both properties are located within an area designated by the Redevelopment Plan as
Tourist Commercial, for uses which primarily derive revenue from or are oriented toward
visitors to the community. The complaints were accompanied by motions for occupancy of
the properties pending entry of a condemnation judgment.
The Crocketts and APFS opposed the motion for occupancy and moved to dismiss the
complaint. They argued, in part, that because Stratosphere's project was not contemplated in
the Redevelopment Plan, the Agency had to amend the Redevelopment Plan before
proceeding in eminent domain.
The district court granted the motion to dismiss, stating that it had only considered
whether the changes that Stratosphere's project imposed on the Redevelopment Plan, with
respect to the treatment of streets, open spaces, and public areas, require amendment of the
Redevelopment Plan. The district court formulated a materiality test to assess when
changes to a redevelopment plan trigger the formal amendment process:
[B]ecause the Nevada Legislature [has] expressly and unambiguously provided . . . that
redevelopment plans must be specific with regard to . . . the layout of streets, open
spaces, and public places[ ], and because redevelopment plans are required to be
specific at the time public hearings are initially conducted, it follows that any material
change to a previously adopted redevelopment plan with regard to the same subject
matter necessarily requires that the [statutory] amendment and public hearing
provisions . . . be satisfied.
Thus, the district court found that, insofar as Stratosphere's project required the vacation of
four public streets and a public park, amendment of the Redevelopment Plan was an
indispensable predicate to condemnation of the Crocketts and APFS' property.
The Moldons did not oppose the Agency's motion for occupancy pending judgment;
consequently, the district court granted the motion. Nearly two months later, however, after
the district court had granted the Crocketts and APFS' motion to dismiss, the Moldons moved
to dismiss the Agency's eminent domain complaint, repeating the argument that Stratosphere's
project was not part of any redevelopment plan. The Agency opposed the motion, filing
affidavits signed by the executive directors of the California Redevelopment Association and
the City of Reno's Redevelopment Agency. The directors testified that (1) redevelopment
plans are kept general both to ensure that a redevelopment agency can react to changing
development conditions and opportunities, and to avoid the need for amendment upon each
transaction for redevelopment negotiated with developers and private property owners;
avoid the need for amendment upon each transaction for redevelopment negotiated with
developers and private property owners; (2) amendment of a redevelopment plan is a lengthy
and cumbersome process, requiring months to accomplish; and (3) requiring the amendment
of a redevelopment plan for every redevelopment transaction would consume all of the
agency's resources and make it impossible to react to redevelopment opportunities with speed
and flexibility. Nevertheless, the district court granted the Moldons' motion to dismiss,
apparently for the same reason it had granted the Crocketts and APFS' motion. The district
court also rescinded its order of occupancy.
[Headnote 1]
The Agency appealed both dismissal orders. It also appealed the district court's denial
of its motion for NRCP 60(b) relief in the Crockett and APFS case. This court consolidated
all three appeals. Because the Agency has not advanced on appeal any argument concerning
the propriety of the district court's denial of NRCP 60(b) relief, any error concerning that
denial is deemed waived.
3

DISCUSSION
Standards of review
[Headnotes 2, 3]
Whether redevelopment must be preceded by amendment of the redevelopment plan
is an issue to be resolved by the district judge before trial.
4
We will defer to the district
judge's factual findings and conduct a de novo review of his or her legal conclusions.
5

[Headnotes 4, 5]
When a redevelopment plan's involvement is apparent from the government's eminent
domain complaint, a landowner's failure to raise in a responsive pleading the issue of the need
for plan amendment may constitute waiver. Likewise, when the eminent domain complaint
involves land within an area covered by a redevelopment plan and the complaint is
accompanied or followed by a motion for occupancy, failure to raise the issue of the need
for plan amendment in opposition to the motion may also constitute waiver.
__________

3
See State, Dep't of Mtr. Vehicles v. Rowland, 107 Nev. 475, 479, 814 P.2d 80, 83 (1991); SIIS v. Buckley,
100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984).

4
See 27 Am. Jur. 2d Eminent Domain 617 (1996) (stating that the court in an eminent domain case has the
duty to determine all issues other than the precise issue of the amount of compensation to be awarded); cf.
State ex rel. Dep't Hwys. v. Linnecke, 86 Nev. 257, 260, 468 P.2d 8, 10 (1970) (stating that it is a question of
law whether a landowner's access to his or her property has been substantially impaired by a governmental
taking); Goldfield Con. v. O. S. A. Co., 38 Nev. 426, 447, 150 P. 313, 319 (1915) (stating that the determination
of the right of condemnation and matters incidental to that determination are solely for the court).

5
See MTBD v. Handlery Hotel, Inc., 86 Cal. Rptr. 2d 473, 481 (Ct. App. 1999); Fowler Trust v. City of
Boulder, 17 P.3d 797, 802 (Colo. 2001).
domain complaint involves land within an area covered by a redevelopment plan and the
complaint is accompanied or followed by a motion for occupancy, failure to raise the issue of
the need for plan amendment in opposition to the motion may also constitute waiver.
[Headnote 6]
Here, we note that the Moldons did not initially oppose the motion for occupancy. But
the Agency has made no showing that the Moldons' tardy opposition worked to the Agency's
detriment.
6
Thus, we cannot conclude that the Moldons waived their argument that
amendment of the Redevelopment Plan must precede condemnation.
Standards for amendment of a redevelopment plan
Absent from Nevada's Community Redevelopment Law is a clear directive as to the
quality and quantity of redevelopment necessary to require a redevelopment plan's
amendment. As enacted in 1959, subsection (1) of NRS 279.608 merely read:
If at any time after the adoption of a tentative or redevelopment plan for a project area
by the legislative body, it becomes necessary or desirable to amend or modify such
plan, the legislative body may amend such plan upon the recommendation of the
agency.
7

This statutory provision was derived verbatim from former California Health and Safety Code
section 33747.
8

In 1983, the Nevada Legislature amended NRS 279.608(1) by changing such to
the, and by adding a second sentence: An amendment or modification may include
without limitation the addition of one or more areas to any redevelopment project which are
adjacent to the project area and which benefit from the project.
9
This added sentence was
modeled after California's amendment to its Health and Safety Code section 33450 (formerly,
section 33747).
10
Our Legislature's addition of the sentence seems to have been prompted
by the City of Reno's efforts to implement and expand its "proposed downtown and river
improvement plan."
__________

6
See Merrill v. DeMott, 113 Nev. 1390, 1400, 951 P.2d 1040, 1046 (1997) (stating that waiver involves the
intentional relinquishment of a known right); Max 327, Inc. v. City of Portland, 838 P.2d 631, 633 (Or. Ct. App.
1992) (A waiver can be retracted at any time before the other party has materially changed position in reliance
thereon.).

7
1959 Nev. Stat., ch. 418, 117, at 664.

8
Compare id., with 1955 Cal. Stat., ch. 1761, 4, at 3251. The remaining subsections of NRS 279.608,
governing the procedures for amendment, were also taken from former California Health and Safety Code
section 33747.

9
1983 Nev. Stat., ch. 211, 1, at 492.

10
Compare id., with 1967 Cal. Stat., ch. 1242, 8.5, at 3016, and 1972 Cal. Stat., ch. 511, 1, at 890.
to have been prompted by the City of Reno's efforts to implement and expand its proposed
downtown and river improvement plan.
11

In 1985, our Legislature again embraced a California amendment to its Health and
Safety Code, to help shape NRS 279.608(1) into its current form. Excised from the statute
was the tentative or language; but the Nevada Legislature went even further than its
California counterpart, and also excised the for a project area language:
If at any time after the adoption of a redevelopment plan by the legislative body, it
becomes necessary or desirable to amend or modify the plan, the legislative body may
amend the plan upon the recommendation of the agency. An amendment or
modification may include the addition of one or more areas to any redevelopment area.
12

According to documents generated during the 63rd Legislative Session, the for a project
area language was eliminated simply because the distinction [between a redevelopment
area and a project area] serves no useful purpose.
13

[Headnote 7]
Because NRS 279.608(1) does not clearly establish a standard for determining when
amendment must occur, we may look for guidance to California's judicial interpretations of
its analogous statute.
14
Further, we may presume that the Nevada Legislature intended for
NRS 279.60S{1) to have the construction given to California Health and Safety Code
section 33450 and its predecessor by the California courts at the time NRS 279.60S{1)
was enacted and amended.
__________

11
Hearing on S.B. 229 Before the Senate Comm. on Government Affairs, 62d Leg., Ex. F (Nev., March 30,
1983).

12
Compare 1985 Nev. Stat., ch. 639, 40, at 2077, with 1959 Cal. Stat., ch. 1102, 19, at 3181 (removing
tentative or). Last amended in 1977, California Health and Safety Code section 33450 currently reads, in
relevant part:
If at any time after the adoption of a redevelopment plan for a project area by the legislative body, it
becomes necessary or desirable to amend or modify such plan, the legislative body may by ordinance
amend such plan upon the recommendation of the agency. The agency recommendation to amend or
modify a redevelopment plan may include a change in the boundaries of the project area to add land to or
exclude land from the project area. . . .
1977 Cal. Stat., ch. 797, 11, at 2446.

13
Hearing on S.B. 474 Before the Senate Comm. on Government Affairs, 63d Leg., Ex. E (Nev., May 20,
1985).

14
See Moody v. Manny's Auto Repair, 110 Nev. 320, 327, 871 P.2d 935, 940 (1994), superceded on other
grounds by statute, and cited with approval in Madera v. SIIS, 114 Nev. 253, 257, 956 P.2d 117, 120 (1998)
(stating that, when statutory language is ambiguous, a court should consult other sources such as legislative
history, legislative intent, and analogous statutory provisions); 2B Norman J. Singer, Statutes and Statutory
Construction 52:02, at 282 (6th ed. 2000) (When the legislature of a state adopts a statute which
intended for NRS 279.608(1) to have the construction given to California Health and Safety
Code section 33450 and its predecessor by the California courts at the time NRS 279.608(1)
was enacted and amended.
15
Finally, given that the district court, in interpreting NRS
279.608(1), looked to the required contents for any redevelopment plan,
16
California
decisional law on that topic is also pertinent.
In In re Bunker Hill Urban Renewal Project 1B,
17
a 1964 decision, the California
Supreme Court assessed the validity of a redevelopment plan allegedly deficient in its
portrayal of proposed open spaces, limitations on buildings, and property to be devoted to
public purposes.
18
The landowners asserted that the plan contained no standards to guide the
discretion of the redevelopment agency.
19
The court, incidentally noting that any amendment
of a redevelopment plan would take over two months, upheld the plan, recognizing that
redevelopment plans must be flexible so that amendment is not required for every
redevelopment contingency:
The Legislature can be assumed to have recognized that a final plan must be enacted
before the agency can commence acquisition of land and that thereafter the land must
be resold to redevelopers for actual construction so that some appreciable interval
of time must elapse between the evolution and formulation of the final plan by the
agency, its adoption by the legislative body and its ultimate fulfillment by
redevelopers.
__________
is identical or similar to one in effect in another state or country, the courts of the adopting state usually adopt
the construction placed on the statute in the jurisdiction in which it originated.).

15
See Moody, 110 Nev. at 327, 871 P.2d at 940; United States v. State ex rel. Beko, 88 Nev. 76, 82, 493 P.2d
1324, 1327 (1972); cf. Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108, 112, 807 P.2d 728, 730
(1991) (stating that legislative amendment of other parts of a law may indicate approval of interpretations
pertaining to the unchanged and unaffected parts of the law); 2B Singer, supra note 14, 49:10, at 112
([L]egislative inaction following a contemporaneous and practical interpretation is evidence that the legislature
intends to adopt such an interpretation.).

16
Derived from former California Health and Safety Code section 33707, NRS 279.572 states that a
redevelopment plan must show:
1. The amount of open space to be provided and the layout of streets;
2. Limitations on type, size, height, number and proposed use of buildings;
3. The approximate number of dwelling units;
4. The property to be devoted to public purposes and the nature of those purposes;
5. Other covenants, conditions and restrictions which the legislative body prescribes; and
6. The proposed method of financing the redevelopment plan . . . .

17
389 P.2d 538 (Cal. 1964).

18
Id. at 557.

19
Id. at 557-58.
to redevelopers for actual construction so that some appreciable interval of time must
elapse between the evolution and formulation of the final plan by the agency, its
adoption by the legislative body and its ultimate fulfillment by redevelopers. Obviously,
some flexibility in the final plan so far as it [shows open spaces, limitations on
buildings, and property to be devoted to public purposes] is essential to avoid the
necessity of constantly seeking amendment by the legislative body each time that some
unforeseeable exigency arises. . . .
It cannot be seriously argued that a final plan must be a compilation of blueprints or
working drawings, representing final engineering studies, primarily because the agency
is not the one who does the building. The final plan is not required to be precise from
an engineering standpoint but only as reasonably precise and detailed from a planning
standpoint as may be expected in light of the complexity and diversity of the conditions
which will be encountered.
20

The theme that a redevelopment agency is to be spared the burden of constantly
amending a redevelopment plan was further fleshed out in a 1985 California Court of Appeal
decision, Paris v. Community Redevelopment Agency.
21
There, Paris sought to remodel a
portion of his building into a movie theater.
22
Because the building was located within a
redevelopment area managed by the City of Pico-Rivera's Community Redevelopment
Agency (CRA), Paris' proposal was submitted to CRA's director for review.
23
The director
found that the proposal did not conform to the 1974 redevelopment plan's definition of a
commercial use, and that the proposal conflicted with a 1983 CRA resolution specifically
prohibiting movie theaters in the area of Paris' building.
24
Consequently, Paris' proposal was
denied.
25

On appeal from a trial court's refusal to compel the issuance of a building permit for
his proposed movie theater, Paris argued that CRA's resolution was invalid because it was,
in effect, an amendment of the redevelopment plan which did not comply with formal
requirements for amending the plan.
26
The California Court of Appeal disagreed,
concluding that the resolution was not intended as an amendment of the redevelopment plan,
and that "[n]ecessarily some of the statements in a redevelopment plan will be general
and tentative, and formal amendment of the plan is not required for a subsequent
administrative interpretation and filling in of details."
__________

20
Id. at 559 (citation and quotation omitted) (emphasis added).

21
213 Cal. Rptr. 432 (Ct. App. 1985).

22
Id. at 435.

23
Id.

24
Id.

25
Id. at 436.

26
Id.
[n]ecessarily some of the statements in a redevelopment plan will be general and tentative,
and formal amendment of the plan is not required for a subsequent administrative
interpretation and filling in of details.
27

Both Bunker Hill and Paris were decided before the NRS 279.608(1) amendment
process was completed, and therefore provide insight into the statute's intended meaning. But
the district court alluded to neither case in its dismissal orders. Instead, the district court
formulated a materiality test based on the combined effect of (1) NRS 279.572's language
that a redevelopment plan must show open spaces, street layouts, building limitations, etc.;
and (2) some unidentified requirement that redevelopment plans be specific at the time public
hearings are first conducted. In regard to the first factor, the district court construed the
statutory language must show as imposing a specificity requirement on street layouts, open
spaces, etc. But neither the Moldons nor the Crocketts and APFS have provided any authority
that must show means, as the district court proposed, must be specific. NRS 279.572 is
silent regarding the degree to which open spaces and street layouts, etc., must be shown.
Thus, while we are receptive to a materiality test for determining the necessity of amendment
under NRS 279.608(1), we are not persuaded that its focus should be fixed by an unsupported
construction of NRS 279.572.
A redevelopment agency should not be saddled with the burden of amending a
redevelopment plan to include every new redevelopment project or change to a
redevelopment project, without regard to the nature of the project or the change. At the very
least, inappreciable or intangible new redevelopment projects or changes to existing projects
should not require amendment of a redevelopment plan. On the other hand, redevelopment
outside the bounds of the applicable redevelopment plan, without public input through the
amendment process, would be intolerable.
28
We conclude that the acceptable middle ground
between these two extremes lies in a materiality test, read in conjunction with the Paris
rule, that formal amendment of [a redevelopment] plan is not required for a subsequent
administrative interpretation and filling in of details.
29

[Headnote 8]
Thus, under the standard we adopt today, formal amendment of a redevelopment
plan would be mandated for material deviations from or changes to a redevelopment
plan; but formal amendment would be unnecessary for an administrative interpretation of
the plan or a filling in of details.
__________

27
Id.

28
See, e.g., Monarch Chem. Works v. City of Omaha, 277 N.W.2d 423 (Neb. 1979) (affirming issuance of an
injunction prohibiting the city from condemning a landowner's property for use as a penal complex because that
use was not contemplated by the applicable redevelopment plan).

29
Paris, 213 Cal. Rptr. at 436.
a redevelopment plan would be mandated for material deviations from or changes to a
redevelopment plan; but formal amendment would be unnecessary for an administrative
interpretation of the plan or a filling in of details. Combining a materiality test with the
Paris rule provides a comprehensive standard by which to measure the necessity of
amendment.
[Headnote 9]
We stress, however, that the filling-in of redevelopment details outside of the
amendment process is limited by the language of the redevelopment plan. Fundamentally,
redevelopment that is consistent with the redevelopment plan's express language or a liberal
construction of that language does not require plan amendment because there is no deviation
from or change to the plan's contours.
[Headnote 10]
As we earlier alluded, a district court's materiality determination will ordinarily be a
question of law, involving a comparison of the proposed redevelopment action to the existing
redevelopment plan. But we do not rule out the possibility that the determination will present
legal or factual questions, warranting a pre-trial, evidentiary hearing.
The standard we have announced should enable a redevelopment agency to retain the
flexibility and resources necessary to accomplish its legislated goal of eliminating urban
blight, and is consistent with the Legislature's statements that (1) blighted areas constitute[ ]
a serious and growing menace which is injurious and inimical to the public health, safety
and welfare of the people of the communities in which they exist and of the people of the
state;
30
(2) [t]his menace is becoming increasingly direct and substantial in its significance
and effect;
31
and (3) [t]he benefits which will result from . . . the redevelopment of
blighted areas will accrue to all the inhabitants and property owners of the communities in
which they exist.
32

Certainly not unfounded is the district court's concern that an overly general
redevelopment plan might give way to unchecked agency approval of any redevelopment
project without public input through the amendment process. But such a redevelopment plan
is subject to legislative review
33
and to public input and challenge before its adoption.
__________

30
NRS 279.418(1).

31
NRS 279.418(4).

32
NRS 279.418(5). The policy rationale underlying Nevada's Community Redevelopment Law may be used
as an interpretive aid to determine when amendments must be made. See Attorney General v. Board of Regents,
114 Nev. 388, 393, 956 P.2d 770, 774 (1998).

33
See NRS 279.586 (establishing eight criteria for a legislative body to
before its adoption.
34
Thus, arguments regarding the generality of a redevelopment plan can
be adequately addressed during the redevelopment plan approval process, and up to 90 days
after the date of adoption of the ordinance adopting or amending the plan.
35
And triggering
the amendment process for material deviations from or changes to a redevelopment plan
should ensure that a clearly identifiable link remains between the plan and a subsequently
proposed redevelopment project or a change to an existing redevelopment project.
[Headnote 11]
In creating and applying this standard, we note that the United States Supreme Court
long ago approved the use of eminent domain to accomplish redevelopment.
36
We are
particularly cognizant of the High Court's pronouncement that [o]nce the question of the
public purpose has been decided, the amount and character of land to be taken for the
[redevelopment] project and the need for a particular tract to complete the integrated plan
rests in the discretion of the legislative branch.
37
Thus, in considering whether a
redevelopment plan must be amended, the judiciary's role is limited.
Amendment of the instant Redevelopment Plan is unnecessary
As an initial matter, the district court misconstrued the OPA by stating that the OPA
contemplates the vacation of four public streets and a public park from the land which
Stratosphere . . . would acquire. Rather, the OPA requires Stratosphere to relocate the park
from one part of the project area to another, onto Stratosphere property and property to be
acquired by and for the Agency. Stratosphere was to then convey, without remuneration, its
share of that property to the Agency.
With the OPA thus understood, we are convinced that NRS 279.608(1) does not
require amendment of the Redevelopment Plan to show the vacation of portions of four
streets and the relocation of a park. Although the OPA certainly contemplates redevelopment
beyond four streets and a park,
38
the district court did not go further in ordering dismissal.
__________
assess in deciding whether to adopt a redevelopment plan); NRS 279.598 (prohibiting the approval of any plan
unless it contains adequate safeguards that the work of redevelopment will be carried out pursuant to the plan).

34
See NRS 279.580(1) (providing that [t]he legislative body shall consider the redevelopment plan
submitted by the agency and all evidence and testimony for or against the adoption of the plan at a public
hearing).

35
NRS 279.609 (providing for legal action to question the validity of a redevelopment plan).

36
See Berman v. Parker, 348 U.S. 26 (1954).

37
Id. at 35-36.

38
See supra text preceding and accompanying note 2.
not go further in ordering dismissal. We likewise limit our review of Stratosphere's project.
[Headnote 12]
Here, the vacation of the four streets and the relocation of the park do not constitute a
material deviation from or change to the plan. Provision for each of these actions was
explicitly and comprehensively made in the Redevelopment Plan. All that remained to be
filled in were the details of location.
Old Omaha Ass'n v. City of Omaha
39
provides support. Nebraska's Community
Development Law provides that [a] redevelopment plan may be modified at any time,'
but if modified after the lease or sale of real property in the redevelopment project area, a
redeveloper of that property who is affected by the proposed modification must consent to the
modification.
40
Old Omaha Association (the Association) entered into a redevelopment
agreement with the City of Omaha to construct and operate a parking facility on a parcel of
real property in the redevelopment area.
41
Twelve years later, the City of Omaha began
eminent domain proceedings to acquire the site occupied by the Association's surface parking
lot for the construction of a six-level parking garage with retail or commercial space on the
first level.
42

On appeal from the trial court's denial of injunctive relief to stop the condemnation
proceedings, the Association argued that the change from a surface parking lot to a multilevel
parking garage with retail facilities was a modification of the redevelopment plan requiring
the Association's consent.
43
The appellate court disagreed, reasoning that the redevelopment
plan generally contemplated (1) that future land uses would include commercial or office
usage on the ground floor of a typical structure, and adequate areas for automobile
storage, both within individual buildings and throughout the area; and (2) that vehicle
circulation problem[s] in the area could be remedied by the development of adequate
off-street parking facilities.
44
The fact that the redevelopment plan painted with a broad
brush did not persuade the court that the changes sought by the City of Omaha modified the
plan.
45

The Redevelopment Plan at issue here is equal in foresight to, and paints no more
broadly than, the redevelopment plan in Old Omaha Ass'n.
__________

39
513 N.W.2d 329 (Neb. Ct. App. 1994).

40
Id. at 337 (quoting Neb. Rev. Stat. 18-2117).

41
Id. at 331.

42
Id. at 332, 336, 338.

43
Id. at 332, 337.

44
Id. at 337 (emphasis omitted).

45
Id. at 337, 338.
and paints no more broadly than, the redevelopment plan in Old Omaha Ass'n. For instance,
the Redevelopment Plan provides that the Agency may establish . . . traffic circulation,
traffic access and other development and design controls necessary for proper development of
both private and public areas within the Redevelopment Area. The City of Las Vegas is
required to aid the Agency in this regard by opening, closing, vacating, widening or
changing the grades of streets, alleys and other public rights-of-way . . . in the Redevelopment
Area. Further, the Redevelopment Plan states that the Agency may install and construct or .
. . cause to be installed and constructed . . . parks, and that [a]ny public agency, with or
without consideration, may . . . [c]ause parks . . . to be furnished adjacent to or in connection
with redevelopment projects. To accomplish these tasks, [t]he Agency is authorized to
demolish or cause to be demolished buildings, structures, or other improvements from any
real property in the Redevelopment Area owned by the Agency as necessary to carry out the
objectives of th[e] Plan. The vacation of portions of the four streets and the relocation of the
park at issue here fall well within these clear parameters.
Finally, the Agency has concluded that Stratosphere's project does not require
amendment of the Redevelopment Plan. The construction placed on a statute by the agency
charged with the duty of administering it is entitled to deference.'
46
The persuasive force
of such an interpretation is strengthened when the legislature, by its failure to amend a statute,
silently acquiesces' in the administrative interpretation.
47
The Agency has been involved in
eleven redevelopment projects without invoking NRS 279.608(1), since the Redevelopment
Plan's 1986 approval. Although the record is silent as to the scope and precise dates of these
other projects, legislative acquiescence in the avoidance of NRS 279.608(1) can be inferred
from the fact that the statute has not been amended since before the Redevelopment Plan's
approval.
CONCLUSION
The district court erred in dismissing the Agency's eminent domain complaints.
Contrary to the district court's ruling, the limited redevelopment at issue here does not require
amendment of the Redevelopment Plan. We reverse the district court's orders and remand for
further condemnation proceedings.
48

__________

46
SIIS v. Miller, 112 Nev. 1112, 1118, 923 P.2d 577, 581 (1996) (quoting SIIS v. Snyder, 109 Nev. 1223,
1228, 865 P.2d 1168, 1171 (1993)).

47
State v. Schoettler, 274 P.2d 852, 855 (Wash. 1954); accord Board of Regents, 114 Nev. at 396, 956 P.2d
at 776.

48
In so doing, we make no ruling on the validity of respondents' arguments
Maupin, C. J., dissenting:
I cannot conclude that the district court erred in ruling that the vacation of streets and
the relocation of a public park required formal amendment of the Redevelopment Plan for the
Downtown Las Vegas Redevelopment Area.
The majority holds that formal amendment to a redevelopment plan is (1) mandated
only for material deviations from, or changes to, a redevelopment plan; and (2) material
changes to a plan do not include subsequent administrative interpretation and filling in of
details. While I agree that a material change in a redevelopment plan stimulates the formal
amendment process, I believe that certain aspects of the redevelopment project approved by
the City of Las Vegas Downtown Redevelopment Agency implicate the amendment process. I
am also concerned that the majority's view of the agency's discretion to effect administrative
interpretation paints its authority with too broad a brush.
DISCUSSION
NRS 279.608(1) permits cities and counties to amend or modify redevelopment plans
upon the recommendation of the redevelopment agency. As noted by the majority, this statute
does not clearly establish a standard setting forth the events that stimulate the formal
amendment process. However, NRS 279.572 requires, inter alia, that redevelopment plans
show the amount of open space to be provided, the layout of streets, the property to be
devoted to public purposes and the nature of those purposes. Facially, without a legislative
statement of the requirements that trigger the formal plan amendment process, it would seem
that vacation of streets and the relocation of a park depicted on the approved plan map would
constitute a material change in the plan.
The majority relies upon three case decisions in support of its ruling today: In re
Bunker Hill Urban Renewal Project 1B,
1
Paris v. Community Redevelopment Agency
2
and
Old Omaha Ass'n v. City of Omaha.
3
The court in Bunker Hill observed:
[S]ome flexibility in the final plan so far as it [shows open spaces, limitations on
buildings, and property to be devoted to public purposes] is essential to avoid the
necessity of constantly seeking amendment by the legislative body each time that
some unforeseeable exigency arises. . . .
__________
that were presented to, but not considered or expressly resolved by, the district court. Nor do we consider the
Moldons' argument in their June 1, 2001 motion to dismiss appeal, that their property is not being taken for a
public use. That motion is denied; the public use argument is properly raised in the district court.

1
389 P.2d 538 (Cal. 1964).

2
213 Cal. Rptr. 432 (Ct. App. 1985).

3
513 N.W.2d 329 (Neb. Ct. App. 1994).
stantly seeking amendment by the legislative body each time that some unforeseeable
exigency arises. . . .
It cannot be seriously argued that the final plan must be a compilation of blueprints or
working drawings, representing final engineering studies, primarily because the agency
is not the one who does the building. The final plan is not required to be precise from
an engineering standpoint but only as reasonably precise and detailed from a planning
standpoint as may be expected in light of the complexity and diversity of the
conditions which will be encountered.
4

The Bunker Hill court noted that the amendment process would take over two months, and
our majority now embraces a theme in the California cases that would spare
redevelopment agencies from the burden of constantly amending redevelopment plans. I
disagree with this theme approach. First, important due process rights are implicated
because effectuation of a redevelopment plan involves the power of eminent domain. Second,
two months is not an unreasonable burden on a public agency to protect important private
property rights. Third, the vacation of streets and relocation of parks are not details intrinsic
to an individual component of a redevelopment process. Fourth, the vacation of streets and
the relocation of public parks are not events that occur constantly.
In Paris, the redevelopment agency refused an application to partially convert an
existing building to include a movie theater facility. The agency determined that the proposed
use conflicted with a resolution prohibiting movie theaters within a certain area. The
California Court of Appeal rejected the landowner's contention that the resolution effectively
amended the redevelopment plan without the required formalities. In my view, the resolution
at issue in Paris was more akin to a zoning decision, not a full-blown amendment to the
redevelopment plan itself. In Old Omaha, the Nebraska Court of Appeals determined that a
change in use from a previously approved single-story, parking garage to a multi-story garage
did not implicate the formal amendment process. Both Paris and Old Omaha involve details
concerning the use of existing parcels within an improvement district. The decisions and
resolutions of the agencies in those cases would not require formal amendment to a
redevelopment plan adopted pursuant to the Nevada statutory framework.
5

__________

4
389 P.2d at 559 (citations omitted).

5
It should be noted that the Nevada redevelopment statutes require that plans of redevelopment show
limitations on type, size, height, number and proposed use of buildings. NRS 279.572(2). Under Paris, decisions
concerning changes in such uses would amount to changes that might, but would not necessarily, require
initiation of an amendment process.
Here, however, the approved plan, in addition to giving the Redevelopment Agency
authority to exercise eminent domain powers, requires the city to assist the Agency in
implementing the plan by opening, closing, vacating, widening or changing grades of streets,
alleys and other public rights-of-way. The plan further allows the Agency to establish
traffic circulation, traffic access and other development and design controls necessary for
proper development of both private and public areas within the Redevelopment Area.
Finally, the plan provides that the Agency may cause parks to be constructed within the
redevelopment district. These are very broad powers, some of which I conclude go beyond
the scope of the authority created by the Legislature.
The ability to amend under NRS 279.608 is quite specific in terms of the procedure to
be followed. However, there are no stated criteria in this statute governing when the
amendment process is required, other than the statement in subsection (3) that substantial
changes must be submitted in a written recommendation for consideration by a city or county
government to amend the plan. Thus, I believe NRS 279.608 and NRS 279.572 must be read
together to determine legislative intent. As noted, NRS 279.572 requires that redevelopment
plans show open spaces, layout of streets, size, height, number and proposed use of buildings,
number of dwelling units, property to be devoted to public purposes, other covenants,
conditions and restrictions, etc. While changes in the use of individual dwelling units and
building sizes may involve mere details not requiring resort to the formal amendment process,
vacation of streets and relocation of public parks depicted on the approved map are entirely
different matters. Certainly, vacation of streets and relocation of parks are not details falling
within the parameters of at least two of the case decisions upon which the majority relies. I
therefore cannot conclude that the Nevada Legislature, acting in the best interests of the
people of this state, intended to vest the Redevelopment Agency with such powers without
going through a publicly noticed amendment process.
As indicated by the majority, affidavits of the executive directors of the California
Redevelopment Association and the City of Reno Redevelopment Agency were made part of
the record in the proceedings before the district court. That testimony discusses the need to
keep redevelopment plans general to promote flexibility, quick response to changing
conditions, and to avoid the need to initiate formal amendment procedures in connection with
each new proposal for private development. Generality of such plans, according to these
witnesses, enables a redevelopment agency to avoid the unnecessary depletion of agency
resources that would result if every transaction required the scrutiny of a formal amendment
process.
ment process. In my view, these considerations are not at play in this case. First, the vacation
of streets and relocation of public parks are not measures that interfere with the flexibility to
quickly react to private development opportunities within a redevelopment district. Second,
as noted, the formal amendment process is not necessarily required in every instance where
the agency makes arrangements with individual developers or other persons and entities
involved in redevelopment issues.
CONCLUSION
Because redevelopment plans involve the drastic step of taking or condemning
private property for ultimate partial or full reconveyance to private enterprise, the scope of a
redevelopment agency's discretion is critical to the protection of the due process rights of
property owners that find themselves within a redevelopment district. I would hold that a
plan, which provides for vacation of streets and relocation of public parks depicted on an
approved plan map without stimulating the formal amendment process, gives the agency
discretion beyond that conferred upon it by the Nevada Legislature.
Thus, I believe the district court correctly ruled that the proposed project in this
instance materially changed the plan and, accordingly, implicated the formal amendment
process.
____________
117 Nev. 835, 835 (2001) Coast Hotels v. State, Labor Comm'n
COAST HOTELS AND CASINOS, INC., dba THE ORLEANS HOTEL AND CASINO,
Appellant/Cross-Respondent, v. NEVADA STATE LABOR COMMISSION and
GAIL MAXWELL, Acting Labor Commissioner, Respondents/Cross-Appellants, and
SANDRA MERANIAN, Respondent.
No. 34906
November 15, 2001 34 P.3d 546
Appeal and cross-appeal from a district court order denying in part and granting in
part a petition for judicial review. Eighth Judicial District Court, Clark County; Michael A.
Cherry, Judge.
Employer sought judicial review of Labor Commission's determination that claimant,
a casino cashier, was entitled to the return of wages that employer withheld for shortages in
claimant's cash drawer. The district court upheld the award to claimant, but set aside a
statutory penalty. Parties appealed. The supreme court held that: (1) claimant did not
knowingly and intelligently waive her right to receive full pay by signing a pre-employment
acknowledgment of employer's cash shortage policy, but {2) claimant voluntarily signed
shortage slips authorizing employer to withhold from her wages an amount equivalent to
the shortages.
edgment of employer's cash shortage policy, but (2) claimant voluntarily signed shortage slips
authorizing employer to withhold from her wages an amount equivalent to the shortages.
Affirmed in part and reversed in part.
Barry L. Lieberman, Las Vegas, for Appellant/Cross-Respondent.
Frankie Sue Del Papa, Attorney General, and Keith E. Kizer and Dianna Hegeduis,
Deputies Attorney General, Las Vegas, for Respondents/Cross-Appellants.
Sandra Meranian, Las Vegas, in Proper Person, for Respondent.
3. Statutes.
beyond it.
4. Statutes.
When a statute is susceptible to but one natural or honest construction, that alone is the construction that can be given.
5. Statutes.
When more than one interpretation of a statute can reasonably be drawn from its language, the statute is ambiguous and the
plain meaning rule has no application.
6. Statutes.
Courts must construe statutes to give meaning to all of their parts and language, and courts will read each sentence, phrase, and
word to render it meaningful within the context of the purpose of the legislation.
7. Statutes.
The title of a statute may be considered in determining legislative intent.
In enacting statute governing an employer's withholding of portions from an employee's wages, legislature intended to permit
withholdings authorized in writing by the employee, including withholdings for cash shortages, that were not necessarily for the
employee's benefit. NRS 608.110(1).
Casino did not violate statute governing withholdings from an employee's wages by having a policy that required employees to
reimburse, via payroll deduction, cash shortages attributable to the employee so long as the employee authorized the deduction in
writing, or by its requiring employees to acknowledge the policy in writing prior to the commencement of employment. NRS
608.110(1).
Statute governing an employer's withholding of wages, in permitting "other deductions authorized by written order
of an employee," permits an employer to withhold amounts equivalent to cash shortages from an
employee's wages if the employee authorizes the withholding in writing.
other deductions authorized by written order of an employee, permits an employer to withhold amounts equivalent to cash shortages
from an employee's wages if the employee authorizes the withholding in writing. NRS 608.110(1).
Under statute governing an employer's withholding of wages, casino cashier did not knowingly and intelligently waive her right
to receive full pay by signing a pre-employment acknowledgment of employer's policy to withhold from cashier's wages the amount
equivalent to any shortages in her cash drawer. Language describing conditions of hire and agreement to cash shortage reimbursement
policy could not authorize deductions for cash shortages that might or might not occur in the future. NRS 608.110(1).
Casino cashier voluntarily signed shortage slips authorizing employer to withhold from her wages the amount equivalent to
shortages in her cash drawer, and thus, employer's deducting such amounts was permitted by statute governing withholding of wages.
Even though cashier subjectively believed she could be fired for refusing to sign the slips, the authorization was not rendered invalid
by the mere fact that employer had a policy that required employees to repay cash shortages for which they were responsible and that it
could terminate an employee for failing to comply. NRS 608.110(1).
Employees are presumed to be employed at-will.
The at-will rule gives the employer the right to discharge an employee for any reason, subject to limited public policy
exceptions.
Requiring an employee to reimburse an employer for cash shortages attributable to the employee does not contravene any public
policy, for purposes of exception to at-will employment rule.
An employer can require an at-will employee to reimburse the employer for losses caused by the employee and terminate an
employee who refuses to agree to the reimbursement.
Statute governing an employer's withholding of wages contemplates a written authorization by an employee that is voluntary,
and where specific facts of a particular case indicate that an employee did not voluntarily sign a shortage slip authorizing the wage
deduction, such withholding would not be permissible under the statute. NRS 608.110(1).
Evidence was sufficient to establish that claimant, a casino cashier, was responsible for shortages in her cash drawer, for
purposes of determining whether claimant voluntarily signed shortage slips authorizing employer to withhold from her wages the
amount equivalent to the shortages. Claimant testified that she was placed in charge of a cash drawer containing $50,000 and that a
$500 shortage occurred during her shift, and although claimant stated a $20 shortage did not occur on her shift, she did not challenge
her supervisor's determination that she was responsible. NRS 608.110(1).
In regard to statute governing an employer's withholding of wages, employees cannot be required to insure
employers against losses.
employees cannot be required to insure employers against losses. NRS 608.110(1).
At a hearing on a claim for wages withheld by an employer, although the hearing officer may disagree with an employer's
determination regarding responsibility for a cash shortage, so long as an employer has a reasonable basis for attributing a loss to that
employee, the employer may require the employee to reimburse the employer or face disciplinary action. NRS 608.110(1).
OPINION
Per Curiam:
Respondent, Sandra Meranian, a casino cashier, filed a claim for wages with
respondents/cross-appellants, Nevada State Labor Commission, after her employer,
appellant/cross-respondent, Coast Hotels and Casinos, Inc., d/b/a The Orleans Hotel and
Casino (Orleans), deducted money from her wages for shortages in her cash drawer.
Following an investigation, the Labor Commissioner issued a determination ordering the
casino to pay Meranian the sum of $520.00. Orleans challenged the Labor Commission's
determination, and a hearing officer subsequently determined that Meranian was entitled to a
return of the money as wages from Orleans and imposed a statutory penalty on Orleans.
1
On
judicial review, the district court upheld the award to Meranian, but set aside the statutory
penalty. From that decision, Orleans appealed and the Labor Commission cross-appealed. For
the following reasons, we affirm in part and reverse in part the order of the district court
concerning the petition for judicial review.
FACTS
Orleans hired Meranian as a cage cashier in December 1996. As with all new
employees who handled cash, Orleans required that Meranian sign a form acknowledging
Orleans' policy of withholding cash drawer shortages from employees' payroll checks. In the
event of a shortage at the conclusion of any cashier's shift, Orleans would ask the employee
responsible for the drawer to acknowledge the amount of the shortage and to sign a slip
stating: My signature above expressly authorizes my employer to withhold from my pay the
shortage above in the box.
At the beginning of each shift, Meranian was placed in charge of a cash drawer
containing $50,000.00.
__________

1
See NRS 608.110; NRS 608.040.
of a cash drawer containing $50,000.00. Orleans' policy requires cage cashiers to count the
money at the beginning and end of each shift and to lock their drawer whenever they are away
from it. Meranian received a key to her drawer at the beginning of each shift.
In February 1998, Orleans charged Meranian with a $20.00 shortage. In March 1998,
Orleans charged Meranian with a $500.00 shortage. Meranian did not contest responsibility
for the shortages. She signed shortage slips in both instances, and Orleans withheld a total of
$520.00 from her payroll checks. Orleans discharged Meranian at the end of May 1998,
apparently for reasons unrelated to the shortages at issue in this case.
In June 1998, Meranian filed a claim for wages with the Labor Commission, seeking
reimbursement of the $520.00 withheld from her wages. The Labor Commission issued a
determination letter to Orleans, ordering the casino to pay Meranian the sum of $520.00.
Orleans contested the determination. A hearing was held, after which the hearing officer
ordered Orleans to pay Meranian $520.00 and then imposed a statutory penalty on Orleans
pursuant to NRS 608.040 in the amount of $2,548.00, but waived $2,000.00 of the penalty
provided Orleans paid within a specified time period. On judicial review, the district court
upheld the portion of the hearing officer's decision ordering payment of the $520.00 to
Meranian, but reversed the statutory penalty imposed on Orleans.
DISCUSSION
[Headnotes 1, 2]
The questions before this court are of statutory construction, namely, whether the
hearing officer properly interpreted the wage statutes applicable to this case. Questions of law
are reviewed de novo.
2
[A] reviewing court may undertake independent review of the
administrative construction of a statute.
3

I. Statutory construction of NRS 608.110
NRS 608.110(1) permits an employer to withhold a portion of an employee's wages if
the employee gives written authorization for the withholding:
1. This chapter does not preclude the withholding from the wages or compensation of
any employee of any dues, rates or assessments becoming due to any hospital
association or to any relief, savings or other department or association maintained
by the employer or employees for the benefit of the employees, or other deductions
authorized by written order of an employee.
__________

2

3
American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983).
tion or to any relief, savings or other department or association maintained by the
employer or employees for the benefit of the employees, or other deductions authorized
by written order of an employee.
The hearing officer concluded that Orleans could not rely upon NRS 608.110 because
requiring an employee to sign a pre-employment acknowledgement of Orleans' cash shortage
policy was a prospective waiver of an employee's rights and was not a knowing and
intelligent waiver of [the employee's] right to receive full pay. The hearing officer also
concluded that agreements which require an employee to agree to a deduction as a condition
to receiving compensation are void, and that deductions made pursuant to the statute must be
for the benefit of the employee.
The primary issue before us is whether the disjunctive phrase other deductions
authorized by written order of an employee in NRS 608.110(1) permits Orleans to withhold
amounts equivalent to cash shortages from employees' wages, regardless of whether the
withholding is for the benefit of the employee, so long as its employees sign shortage slips
authorizing the withholding.
Orleans contends that the plain language of NRS 608.110(1) permits such
withholdings. The Labor Commission, however, contends that all withholdings pursuant to
NRS 608.110 must be for the benefit of the employee, because the rules of statutory
construction require that a general phrase take its meaning from a specific phrase, and in this
case, the general phrase other deductions authorized by written order of an employee in
NRS 608.110(1) follows the specific phrase for the benefit of the employees. The Labor
Commission argues that when read together with NRS 608.016, which requires an employer
to compensate an employee for each hour of work, and NRS 608.100(2), which makes it
unlawful for employers to require employees to rebate or return any part of their wage, NRS
608.110(1) does not permit employers to withhold amounts equivalent to cash shortages from
employees' wages.
[Headnotes 3-6]
When the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it.
4
Under established principles of
statutory construction, when a statute is susceptible to but one natural or honest construction,
that alone is the construction that can be given.
5

__________

4
City Council of Reno v. Reno Newspapers, 105 Nev. 886, 891, 784 P.2d 974, 977 (1989).

5
Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990) (citations omitted).
However, when more than one interpretation of a statute can reasonably be drawn from its
language, the statute is ambiguous and the plain meaning rule has no application.
6
Additionally, courts must construe statutes to give meaning to all of their parts and language,
and this court will read each sentence, phrase, and word to render it meaningful within the
context of the purpose of the legislation.
7

We read the plain language of NRS 608.110(1) as Orleans reads it. Specifically, the
clause other deductions authorized by written order of an employee is separated from the
preceding clause by a comma and the disjunctive or.
8
The word or is typically used to
connect phrases or clauses representing alternatives.
9
The fact that the two phrases in NRS
608.110(1) describing permissible deductions are separated by a comma and the word or
indicates that the phrase other deductions authorized by written order of an employee in
NRS 608.110(1) is in the alternative to, and is not conditioned by, the preceding clause.
Further, the preceding clause in NRS 608.110(1) contains the words for the benefit of the
employees, but the clause at issue in this case does not contain that language of limitation.
10

Generally, when the legislature has employed a term or phrase in one place and
excluded it in another, it should not be implied where excluded.
11
The exclusion of the
phrase for the benefit of the employees from the clause other deductions authorized by
written order of an employee indicates that NRS 608.110(1) does not require that all
withholdings benefit the employee, as long as the employee authorizes the deduction in
writing.
[Headnotes 7, 8]
Additionally, former versions of NRS 608.110 contained the title Withholding of
portion of wages for employee's benefit whereas the current version of the statute contains
the title Withholding of portion of wages.
12
A title is typically prefixed to a statute in the
form of a descriptive heading or a brief summary of the contents of the statute.
13
The title of
a statute may be considered in determining legislative intent.
__________

6
Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987).

7
Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).

8
See NRS 608.110(1).

9
See Random House Webster's College Dictionary 917-18 (2d ed. 1997).

10
See NRS 608.110(1).

11
See Pasadena Police Officers Ass'n v. Pasadena, 797 P.2d 608, 614 (Cal. 1990).

12
See NRS 608.110 (1997); NRS 608.110 (1999).

13
See Random House Webster's College Dictionary 1350 (2d ed. 1997); Black's Law Dictionary 1032 (6th
ed. 1991).
considered in determining legislative intent.
14
The deletion of the phrase for employee's
benefit from the title of the current version of NRS 608.110 suggests that the legislature
intended to permit withholding authorized in writing by the employee, including withholding
for cash shortages, which is not necessarily for the employee's benefit.
[Headnotes 9, 10]
Accordingly, we conclude that the plain language of the phrase other deductions
authorized by written order of an employee in NRS 608.110(1) permits an employer to
withhold amounts equivalent to cash shortages from an employee's wages if the employee
authorizes the withholding in writing. Thus, the hearing officer in this case erroneously
determined that Orleans was not authorized by NRS 608.110(1) to withhold $520.00 from
Meranian's payroll check on the ground that the deduction was not made for the benefit of the
employee. Further, the hearing officer erred by concluding that such a cash shortage policy
itself, or the practice of requiring an employee to acknowledge the policy in writing, before
being hired by the employer, violates NRS 608.110(1). Nothing in NRS 608.110(1) prohibits
an employer from having a policy that requires an employee to reimburse the employer via
payroll deduction for cash shortages attributable to the employee so long as the employee
authorizes the deduction in writing, nor is there anything in the statute prohibiting an
employer from requiring an employee to acknowledge the policy in writing prior to the
commencement of employment.
II. The validity of the written authorization
In this case, Meranian testified that she signed the shortage withholding
authorizations. She also acknowledged receiving and signing the pre-employment form
outlining Orlean's cash shortage withholding policy. However, Meranian stated that she only
signed the withholding authorizations because she believed she would be terminated
immediately if she refused to sign the authorizations or contested responsibility for the
shortages. When asked why she held this belief, Meranian testified that it was not based upon
anything she was told by anyone at the Orleans, she just assumed that she would be fired if
she did not sign the slips.
[Headnote 11]
The hearing officer concluded that the pre-loss or blanket authorization was not a
knowing and intelligent waiver of Meranian's right to receive full pay.
__________

14
See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971) (title of a
statute may be considered in determining legislative intent).
Meranian's right to receive full pay. We agree. The language in the pre-employment form
describing the conditions of hire and agreement to the cash shortage reimbursement policy
cannot authorize deductions for cash shortages that may or may not occur in the future.
[Headnote 12]
However, the hearing officer further concluded that Meranian signed the shortage
slips involuntarily and that the shortage slips were not a valid written authorization pursuant
to NRS 608.110 because Meranian subjectively believed that she could not contest
responsibility for the shortages and would be terminated for refusing to sign the shortage
slips.
[Headnotes 13-16]
Employees in Nevada are presumed to be employed at-will.
15
The at-will rule
gives the employer the right to discharge an employee for any reason, subject to limited
public policy exceptions.
16
Requiring an employee to reimburse an employer for cash
shortages attributable to the employee does not contravene any public policy. As noted by the
New Jersey Court of Appeals, the policy of holding [employees] liable for their shortages
does not contravene public policy or established law because [s]hortages are almost
invariably due to the negligence or dishonesty of the employee, [and] [i]t is a fundamental
rule in the law of agency that an . . . employee is generally liable to . . . [the] employer for
loss sustained by the [employer] due to the [employee's] negligence or [misappropriation].
17
Thus an employer can require an at-will employee to reimburse the employer for losses
caused by the employee and terminate an employee who refuses to agree to the
reimbursement.
[Headnote 17]
NRS 608.110 contemplates a written authorization that is voluntary, and where
specific facts of a particular case indicate that an employee did not voluntarily sign a shortage
slip authorizing the wage deduction, such withholding would not be permissible under the
statute. However, the mere fact that an employer has a policy that requires employees to repay
cash shortages for which they are responsible and may terminate an employee for failing to
comply with that policy does not render a written authorization invalid. Accordingly, we
conclude that the hearing officer misconstrued the statute and erred in finding that the
shortage slips signed by Meranian were invalid based on Meranian's subjective beliefs
concerning termination.
__________

15
Dillard Department Stores v. Beckwith, 115 Nev. 372, 376, 989 P.2d 882, 884-85 (1999) (citation
omitted).

16
Id. (citations omitted).

17
Male v. Acme Markets, Inc., 264 A.2d 245, 246 (N.J. Super. Ct. App. Div. 1970) (citations omitted).
construed the statute and erred in finding that the shortage slips signed by Meranian were
invalid based on Meranian's subjective beliefs concerning termination.
[Headnotes 18, 19]
Finally, the hearing officer determined that Meranian's written authorization was
invalid because Orleans presented insufficient evidence demonstrating Meranian was
responsible for the shortages. By inference, the hearing officer found that Orleans was
essentially requiring Meranian to insure it against losses. While we agree that employees
cannot be required to insure employers against losses, we conclude that the hearing officer's
determination that Orleans presented insufficient evidence of Meranian's responsibility for the
cash shortages was erroneous.
[Headnote 20]
Here, the Orleans' representative indicated that an employee can dispute responsibility
for a cash shortage and that an investigation, which may include disciplinary action, occurs
following all shortages. Meranian indicated that she was placed in charge of a cash drawer
containing $50,000.00 at the beginning of each shift. Further, Orleans' policy required cage
cashiers to count the money in their drawers at the beginning of each shift and to lock their
drawer whenever they were away from it. Meranian alleged that her supervisors did not
always follow casino policy for handling cash drawers and she could not recall details from
the days in question. Additionally, although Meranian did state that the $20.00 shortage had
not occurred on her shift, she did not challenge her supervisor's determination that she was
responsible for the shortage and she signed the shortage slip. Finally, Meranian could not
account for the $500.00 shortage, and she acknowledged that it occurred during her shift.
Thus, the record reveals that Orleans had a reasonable basis for determining that Meranian
was responsible for the cash shortages and that its determination that she was responsible for
the cash shortages was not arbitrary. Accordingly, we conclude that the hearing officer used
an erroneous standard in determining the validity of Meranian's written authorization.
Although the hearing officer may disagree with an employer's determination regarding
responsibility for a shortage, so long as an employer has a reasonable basis for attributing a
loss to that employee, the employer may require the employee to reimburse the employer or
face disciplinary action.
CONCLUSION
We conclude that the plain language of the phrase other deductions authorized by
written order of an employee in NRS 608.110(1) permits an employer to withhold amounts
equivalent to cash shortages from an employee's wages if the employee voluntarily
authorizes the withholding in writing.
untarily authorizes the withholding in writing. Nothing in the record suggests that Meranian
was improperly coerced into signing the withholding authorizations. Further, we conclude
that the hearing officer therefore improperly imposed a statutory penalty against Orleans
pursuant to NRS 608.040(1). Accordingly, we reverse the order of the district court upholding
the hearing officer's decision that Meranian was entitled to $520.00 as wages and we affirm
the order of the district court setting aside the imposition of a penalty against Orleans.
I agree with the majority that NRS 608.110(1) permits employers in this state to make
deductions from wages paid to employees per prior written authorization signed by the
employee. Thus, as noted by the majority, the legal conclusions of the hearing officer were in
error.
I would add to the majority analysis by stating my view that Ms. Meranian's
agreement to the withdrawals, standing on its own, cannot as a matter of law give rise to an
inference of coercion. Our conclusion that such agreements are legal absent some collateral
evidence of coercion is simply at odds with the notion that the nature of these arrangements is
inherently coercive.
____________
117 Nev. 845, 845 (2001) Little v. Warden
CHRISTOPHER LITTLE, Petitioner, v. WARDEN, NEVADA STATE PRISON,
JACQUELINE CRAWFORD, Respondent.
No. 35433
November 15, 2001 34 P.3d 540
Certified question pursuant to NRAP 5 from the United States District Court for the
District of Nevada, David W. Hagen, Judge.
After petitioner's state post-conviction relief petitions were denied, he sought a writ of
habeas corpus in federal court. The United States District Court for the District of Nevada
certified question. The supreme court held that the district court's failure to advise a defendant
that he was ineligible for probation does not warrant reversal where the totality of the
circumstances demonstrate that the defendant was aware, at the time he pleaded guilty, that
he would be serving an actual prison term because he was ineligible for probation; overruling,
Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979); Heimrich v. State, 97 Nev. 358, 630 P.2d
1224 (1981); Aswegan v. State, 101 Nev. 760, 710 P.2d 83 (1985).
Question answered.
Franny A. Forsman, Federal Public Defender, and John C. Lambrose, Deputy Federal
Public Defender, Las Vegas, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Victor H. Schulze II, Deputy Attorney
1. Criminal Law.
When the district court accepts a defendant's guilty plea, it must act with utmost solicitude to ensure that a defendant has a full
understanding of both the nature of the charges and the direct consequences arising from a plea of guilty.
2. Criminal Law.
For the purpose of court's determining whether a defendant understands the direct consequences of his guilty plea, a
consequence is deemed direct if it has a definite, immediate and largely automatic effect on the range of the defendant's punishment.
3. Criminal Law.
The district court accepting defendant's guilty plea has no duty to advise a defendant that he is ineligible for parole because,
unlike probation, parole is a collateral consequence not within the purview of the district court's sentencing discretion.
4. Criminal Law.
The district court's failure to advise a defendant that he is ineligible for probation is error, but it is not always reversible error.
Where it appears, in examining the totality of the circumstances, that a defendant knew that probation was not available at the time of
the entry of the guilty plea, the supreme court will not vitiate an otherwise valid guilty plea.
5. Criminal Law.
The district court's failure to advise a defendant that he was ineligible for probation does not warrant reversal where the totality
of the circumstances demonstrate that the defendant was aware, at the time he pleaded guilty, that he would be serving an actual prison
term because he was ineligible for probation; overruling, Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979); Heimrich v. State, 97
Nev. 358, 630 P.2d 1224 (1981); Aswegan v. State, 101 Nev. 760, 710 P.2d 83 (1985).
6. Criminal Law.
When determining whether a defendant entered a guilty plea knowingly and voluntarily, the inquiry focuses on whether a
particular defendant actually understood the direct consequences of his guilty plea.
7. Criminal Law.
A defendant may not challenge the validity of his guilty plea, based on the allegation that defendant was unaware that probation
was unavailable when he entered his plea, on direct appeal from the judgment of conviction, but must raise a challenge to the validity
of the plea in the district court in the first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a
post-conviction habeas proceeding.
8. Criminal Law.
The district court may reject the claim that defendant's guilty plea was infirm without conducting an evidentiary hearing in two
instances. In the first instance, the district court may decline to conduct an evidentiary hearing if it finds that the defendant's claim is
belied by the record, and in the second instance, the district court may decline to conduct an evidentiary
hearing where a claim that the defendant did not know that probation was unavailable is untimely or
successive.
and in the second instance, the district court may decline to conduct an evidentiary hearing where a claim that the defendant did not
know that probation was unavailable is untimely or successive.
9. Criminal Law.
Where the record undoubtedly reveals that a defendant knew the guilty plea would result in an actual, nonprobational term of
imprisonment, an evidentiary hearing on defendant's claim that his guilty plea was infirm due to lack of understanding of the
consequences of the guilty plea is not warranted.
10. Habeas Corpus.
Where a defendant raises a claim to withdraw a guilty plea in an untimely or successive post-conviction petition for a writ of
habeas corpus, the defendant has the burden of demonstrating good cause and actual prejudice to overcome the procedural default.
NRS 34.726, 34.810.
11. Criminal Law.
If a petition to withdraw a guilty plea is: (1) filed over five years after the remittitur disposing of the direct appeal or the
judgment of conviction where no direct appeal was filed; and (2) the State pleads laches, the defendant will have the heavy burden of
proving a fundamental miscarriage of justice to overcome the presumption of prejudice to the State. NRS 34.800.
12. Criminal Law.
The district court's factual finding during a hearing on a motion to withdraw a guilty plea, adjudging the credibility of the
witnesses and the evidence, is entitled to deference on appeal and will not be overturned by this court if supported by substantial
evidence.
Because of the gravity of a defendant's decision to plead guilty, due process demands that the face of the record reveal that a
defendant knew at the time of the entry of the guilty plea that probation was not an option or that the defendant would be serving actual
time in prison, in order for the plea to be valid.
OPINION
Per Curiam:
The United States District Court for the District of Nevada certified the following
question for this court's determination: Is a conviction of sexual assault infirm when it is
based on a guilty plea in which the defendant was advised of the mandatory minimum
sentence but was not advised that the crime was nonprobational? We conclude that a
defendant must be aware that his offense is nonprobational prior to entering his guilty plea
because it is a direct consequence arising from the plea. However, in so concluding, we
emphasize that in considering whether a particular defendant was aware that he was ineligible
for probation, we need not and do not focus on talismanic phrases. Rather, we review the
entire record and consider the totality of the facts and circumstances surrounding the
plea in order to ensure that a defendant was aware that his offense was nonprobational.
review the entire record and consider the totality of the facts and circumstances surrounding
the plea in order to ensure that a defendant was aware that his offense was nonprobational.
FACTS
The relevant legal and procedural circumstances of this case are not in dispute. In
November 1990, petitioner Christopher Little pleaded guilty to two counts of sexual assault
on a minor under fourteen years of age.
1
Specifically, Little pleaded guilty to count I,
inserting his penis inside the vagina of his nine-year-old daughter, and to count IV, forcing
his eleven-year-old son to insert his son's penis inside his nine-year-old daughter's vagina. In
exchange for his guilty plea, the State moved to dismiss four other counts against Little.
After a lengthy plea canvass, the district court sentenced Little to serve two
consecutive terms of life in prison with the possibility of parole after ten years. Little did not
file a direct appeal. However, Little subsequently filed a post-conviction petition for a writ of
habeas corpus in 1991 and a second post-conviction petition in 1995. The district court
denied the petitions. This court affirmed the orders of the district court.
2
Thereafter, Little
filed a proper person petition for an extraordinary writ challenging the validity of his guilty
plea, which this court denied.
3

On July 8, 1998, Little filed a post-conviction petition for a writ of habeas corpus in
federal district court. In the petition, he argued that his right to equal protection had been
violated because this court treated him differently than other persons convicted of sexual
assault by failing to apply its existing case law to him. Specifically, Little contended that this
court disregarded its holdings in Meyer v. State
4
and Aswegan v. State.
5
These decisions
hold that a district court commits manifest error when it accepts a guilty plea to a
nonprobational offense without advising the defendant on the record that the defendant is
ineligible for probation.
__________

1
At the time of Little's offense, NRS 176.185(1) provided that persons convicted of sexual assault were
ineligible for probation. See 1989 Nev. Stat., ch. 790, 11, at 1887. The current provision precluding probation
for persons convicted of sexual assault is NRS 176A.100(1)(a).

2
Little v. State, Docket No. 22996 (Order Dismissing Appeal, March 25, 1992); Little v. State, Docket No.
25330 (Order Dismissing Appeal, December 18, 1996).

3
Little v. State, Docket No. 32002 (Order Denying Petition, May 22, 1998).

4
95 Nev. 885, 603 P.2d 1066 (1979).

5
101 Nev. 760, 710 P.2d 83 (1985).
DISCUSSION
[Headnotes 1, 2]
We begin, as we have before, by reaffirming the solemn nature of the oral plea
canvass.
6
When the district court accepts a defendant's guilty plea, it must act with utmost
solicitude to ensure that a defendant has a full understanding of both the nature of the
charges and the direct consequences arising from a plea of guilty.
7
A consequence is deemed
direct if it has a definite, immediate and largely automatic effect on the range of the
defendant's punishment.
8

[Headnote 3]
With the glaring exception of the penalty of death, there is perhaps no consequence
more direct and immediate on the defendant's range of punishment than ineligibility for
probation.
9
After all, ineligibility for probation means incarceration; it means that there is
not even a remote possibility that the district court will exercise its discretion and suspend the
execution of sentence. The loss of the possibility of probation therefore becomes an
inseparable ingredient of the punishment imposed. Its effect is so powerful that it translates
the term imposed by the sentencing judge into a mandate of actual imprisonment.
10

Because we conclude that ineligibility for probation is a direct consequence arising
from a guilty plea,
11
we reaffirm our prior case law to the extent that it holds that a
defendant must be aware that an offense is nonprobational prior to entry of his plea.
__________

6
See State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000) (acceptance of a plea of guilty is a
solemn duty); Higby v. Sheriff, 86 Nev. 774, 780, 476 P.2d 959, 963 (1970).

7
Boykin v. Alabama, 395 U.S. 238, 243-44 (1969).

8
Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988) (internal quotes and citations omitted).

9
See Berry v. United States, 412 F.2d 189, 192-93 (3d Cir. 1969). We note that our approval of Berry is not
without limitation. Indeed, we expressly disapprove of the conclusion in Berry that a defendant must be advised
of parole ineligibility because we disagree that parole ineligibility is a direct consequence of a guilty plea. Our
case law is clear that the district court has no duty to advise a defendant that he is ineligible for parole because,
unlike probation, parole is a collateral consequence not within the purview of the district court's sentencing
discretion. See Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970); Mathis v. Warden, 86 Nev. 439, 471
P.2d 233 (1970); see generally Torrey, 842 F.2d at 236 (the determination that a particular consequence is
collateral' has rested on the fact that [the decision concerning the consequence] was in the hands of another
government agency or in the hands of the defendant himself).

10
Berry, 412 F.2d at 192.

11
We recognize that there is some disagreement with our conclusion. See Tabora v. State, 14 S.W.3d 332,
334 (Tex. Ct. App. 2000) (The range of punishment' . . . does not include probation, and there is no mandatory
duty for the trial court to admonish a defendant as to his eligibility for probation.); Ex Parte Williams, 704
S.W.2d 773, 775 (Tex. Crim. App. 1986).
case law to the extent that it holds that a defendant must be aware that an offense is
nonprobational prior to entry of his plea.
12
However, we overrule our prior case law to the
extent that it holds that the district court's lack of advisement on the record about
nonprobationality is per se manifest error.
In Meyer v. State, over two decades ago, this court held that a district court's failure to
advise that probation was not available created a fatal defect and manifest injustice that
could only be corrected by setting aside the conviction.
13
Over the years and without further
analysis, this court reaffirmed the holding in Meyer. In Heimrich, although we declined to
apply Meyer retroactively, we noted that if Meyer had applied, it would warrant reversal
because the district court accepted a defendant's guilty plea without advising him of the
nonprobational nature of his offense.
14
Similarly, in Aswegan, we concluded that a guilty
plea was not voluntary and intelligent because of [t]he manifest injustice created by the
district court's failure to inform [the defendant] that probation was not a possibility in his
case.
15

In Riker v. State,
16
however, we implicitly modified the principle espoused in Meyer
and its progeny and applied the totality of the circumstances analysis that we adopted in
Bryant v. State.
17
In fact, in Riker, we held that the district court's failure to advise a
defendant about the nonprobational nature of an offense was not manifest error, a fatal defect,
or otherwise reversible.
18
In so holding, we reasoned that where the record reveals that a
defendant knew that he was ineligible for probation, the mere fact that he was not explicitly
advised of that fact by the district court did not vitiate his otherwise valid plea.
19

We reiterated this proposition a few years later in Skinner v. State.
20
In Skinner, we
held that, in considering whether the defendant was advised that probation was
unavailable, the court is not limited to the record of the plea canvass; rather, an
advisement is sufficient if it appears in the guilty plea memorandum, in a pretrial hearing
transcript, or elsewhere in the record.
__________

12
See Aswegan v. State, 101 Nev. 760, 710 P.2d 83 (1985); Heimrich v. State, 97 Nev. 358, 630 P.2d 1224
(1981); Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979).

13
95 Nev. at 887-88, 603 P.2d at 1067.

14
97 Nev. at 359-60, 630 P.2d at 1224-25.

15
101 Nev. at 761, 710 P.2d at 83.

16
111 Nev. 1316, 905 P.2d 706 (1995).

17
102 Nev. 268, 721 P.2d 364 (1986).

18
Id. at 1322-23, 905 P.2d at 710-11.

19
Id. at 1323, 905 P.2d at 710-11; see also Hart v. State, 116 Nev. 558, 565 n.5, 1 P.3d 969, 973 n.5 (2000)
(implying, in dicta, that district court's failure to advise a defendant that he was ineligible for probation did not
warrant reversal because defendant pleading guilty to murder could not reasonably expect that the offense was
probational).

20
113 Nev. 49, 930 P.2d 748 (1997).
dant was advised that probation was unavailable, the court is not limited to the record of the
plea canvass; rather, an advisement is sufficient if it appears in the guilty plea memorandum,
in a pretrial hearing transcript, or elsewhere in the record.
21

[Headnotes 4, 5]
To the extent that Meyer, Heimrich, and Aswegan support a contrary
propositionthat the district court's lack of advisement on the record about nonprobationality
is manifest error, a fatal defect, or otherwise reversible as a matter of lawthey are
hereby overruled. We modify Meyer and its progeny in this regardthe district court's failure
to advise a defendant that he is ineligible for probation is error, but it is not always reversible
error. Where it appears, in examining the totality of the circumstances, that a defendant knew
that probation was not available at the time of the entry of the guilty plea, we will not vitiate
an otherwise valid guilty plea.
22

[Headnote 6]
Our holding is grounded in our longstanding belief that, in determining whether a
defendant entered a guilty plea knowingly and voluntarily, a reviewing court should carefully
consider the totality of the circumstances.
23
[W]hile we believe trial courts should in all
circumstances conduct sufficient and thorough plea canvasses, . . . we cannot be constrained
to look only to the technical sufficiency of a plea canvass to determine whether a plea is
invalid.
24
Rather, our inquiry focuses on whether a particular defendant actually understood
the direct consequences of his guilty plea.
25
This approach does not intrude on the
defendant's due process rights because the circumstances surrounding the guilty plea are
reviewed to ensure that the defendant knew the direct consequences arising therefrom.
[Headnotes 7, 8]
Because the totality of the circumstances inquiry is essentially factual in nature, the
issue of whether a defendant was aware that probation was not available when the defendant
entered the plea should be reviewed in the first instance in the district court.
__________

21
113 Nev. at 50, 930 P.2d at 749.

22
See State v. Nero, 564 N.E.2d 474, 476 (Ohio 1990); Skinner, 113 Nev. at 50, 930 P.2d at 749, Riker, 111
Nev. at 1323, 905 P.2d at 710-11; see also People v. Jackson, 334 N.W.2d 371, 372 (Mich. 1983); People v.
Caban, 196 Cal. Rptr. 177, 180-81 (Ct. App. 1983) (applying a harmless error analysis).

23
See Bryant, 102 Nev. at 271-72, 721 P.2d at 367; see also Freese, 116 Nev. at 1104-05, 13 P.3d at 448.

24
Bryant, 102 Nev. at 271, 721 P.2d at 367.

25
Id. at 276, 721 P.2d at 370.
should be reviewed in the first instance in the district court.
26
We will not review this factual
matter on direct appeal from the judgment of conviction unless the claim was raised and
decided in the context of a pre-judgment motion to withdraw a plea. Otherwise, a defendant
must raise a claim in the district court that a guilty plea was infirm because the defendant was
not aware that probation was unavailable, either by bringing a post-conviction motion to
withdraw the guilty plea or by initiating a post-conviction habeas proceeding.
27
The district
court may reject this claim of constitutional infirmity without conducting an evidentiary
hearing in two instances.
[Headnote 9]
In the first instance, the district court may decline to conduct an evidentiary hearing if
it finds that the defendant's claim is belied by the record.
28
In determining whether a
defendant's claim is belied by the record, several considerations are relevant, although our
discussion is not exhaustive. First, a defendant may have been advised in the plea
memorandum that the offense was nonprobational.
29
Second, a defendant or his counsel may
have made statements on the record at the arraignment, sentencing hearing, or other
proceeding that demonstrate that the defendant pleaded guilty knowing that he would be
serving actual prison time.
30
Third, the defendant's awareness of the unavailability of
probation or the certainty of an actual prison term may be evident from the plea negotiations.
For example, the district court may find that a claim that the defendant did not know the
offense was nonprobational is belied by the fact that the defendant agreed to plea negotiations
requiring a prison term for a definite, specific period of years, or the defendant requested a
definite prison term at allocution.
31
Accordingly, where the record undoubtedly reveals that a
defendant knew the guilty plea would result in an actual, nonprobational term of
imprisonment, an evidentiary hearing is not warranted.
__________

26
See id. at 272, 721 P.2d at 367.

27
Id. at 272, 721 P.2d at 368.

28
See Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225 (1984).

29
Freese, 116 Nev. at 1106, 13 P.3d at 448.

30
See, e.g., Nero, 564 N.E.2d at 476-77 (finding valid plea where defense counsel made reference to fact that
defendant knew he was going to prison); Caban, 196 Cal. Rptr. at 181 (finding plea constitutionally infirm
where defendant requested probation at allocution).

31
See Nero, 564 N.E.2d at 477 (noting the benefit of defendant's guilty plea in that he avoided going to trial
on additional charges); Jackson, 334 N.W.2d at 371-72 (finding valid plea where defendant confessed guilt in
exchange for a sentencing bargain of eight to fifteen years in prison on one count and a consecutive two years
in prison for another count).
In the second instance, the district court may decline to conduct an evidentiary hearing
where a claim that the defendant did not know that probation was unavailable is untimely or
successive. In considering an untimely claim, the relevant analysis applied by the district
court will differ according to the manner in which a defendant raises the claim.
For example, where a defendant raises his claim in a post-judgment motion to
withdraw a guilty plea, the equitable doctrine of laches may preclude consideration of the
motion on the merits.
32
We recently explained the doctrine of laches in Hart:
Application of the doctrine to an individual case may require consideration of several
factors, including: (1) whether there was an inexcusable delay in seeking relief; (2)
whether an implied waiver has arisen from the defendant's knowing acquiescence in
existing conditions; and (3) whether circumstances exist that prejudice the State.
Additionally, where a defendant previously has sought relief from the judgment, the
defendant's failure to identify all grounds for relief in the first instance should weigh
against consideration of the successive motion.
33

[Headnotes 10, 11]
Where a defendant raises a claim in an untimely or successive post-conviction petition
for a writ of habeas corpus, the defendant has the burden of demonstrating good cause and
actual prejudice to overcome the procedural default.
34
Also, if a petition is: (1) filed over
five years after the remittitur disposing of the direct appeal or the judgment of conviction
where no direct appeal was filed; and (2) the State pleads laches, the defendant will have the
heavy burden of proving a fundamental miscarriage of justice to overcome the presumption of
prejudice to the State.
35

Our application of procedural and doctrinal time bars is based upon our enduring
belief in the finality of judgments. As explained by the United States Supreme Court:
Every inroad on the concept of finality undermines confidence in the integrity of our
procedures; and, by increasing the volume of judicial work, inevitably delays and
impairs the
__________

32
Hart, 116 Nev. at 563-64, 1 P.3d at 972.

33
Id. at 564, 1 P.3d at 972 (citation omitted).

34
See NRS 34.726; NRS 34.810.

35
See NRS 34.800; see also Nero, 564 N.E.2d at 477 (noting that defendant spent nine years in prison before
arguing that he would not have pleaded guilty if he had known that he was not eligible for probation); cf. Hart,
116 Nev. at 565 n.5, 1 P.3d at 973 n.5.
orderly administration of justice. . . . Moreover, the concern that unfair procedures may
have resulted in the conviction of an innocent defendant is only rarely raised by a
petition to set aside a guilty plea.
36

We cannot allow a dilatory defendant to impair the orderly administration of justice without a
sufficient justification for the delay to overcome the prejudice to the State that almost
inevitably results from the passage of time.
[Headnote 12]
In instances where a defendant's claim is neither belied by the record nor procedurally
or doctrinally barred, the district court should conduct an evidentiary hearing. At the hearing,
the district court may hear testimony from the defendant, counsel, or any other individual
with knowledge of whether the defendant knew, at entry of the plea, that the defendant was
ineligible for probation. The district court's factual finding, adjudging the credibility of the
witnesses and the evidence, is entitled to deference on appeal and will not be overturned by
this court if supported by substantial evidence.
37

[Headnote 13]
We emphasize, however, that a defendant's actual awareness of the ineligibility for
probation must appear affirmatively in the record. It would be inappropriate for the district
court to infer or impute knowledge to a particular defendant based upon a conclusion or an
inference that a defendant should have known that probation was unavailable. After all, in
pleading guilty, a defendant is foregoing a panoply of rights and providing the State with a
guarantee of a conviction without the uncertainty and costs associated with a jury trial.
Because of the gravity of a defendant's decision to plead guilty, due process demands that the
face of the record reveal that a defendant knew at the time of the entry of the guilty plea that
probation was not an option or that the defendant would be serving actual time in prison.
38

In light of the aforementioned analysis, we answer the federal court's question as
follows: the district court's failure to advise a defendant that he was ineligible for probation
does not warrant reversal where the totality of the circumstances demonstrate that the
defendant was aware, at the time he pleaded guilty, that he would be serving an actual
prison term because he was ineligible for probation.
__________

36
United States v. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521,
528-29 (7th Cir. 1971) (Stevens, J., dissenting)).

37
See Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).

38
Boykin v. Alabama, 395 U.S. 238, 243-44 (1969).
would be serving an actual prison term because he was ineligible for probation.
39

____________
117 Nev. 855, 855 (2001) Reno v. Civil Serv. Comm'n of Reno
THE CITY OF RENO, Appellant/Cross-Respondent, v. CIVIL SERVICE COMMISSION
OF THE CITY OF RENO, Respondent, and MARK MARKIEWICZ,
Respondent/Cross-Appellant.
No. 35912
November 15, 2001 34 P.3d 120
Appeal and cross-appeal from an order denying a petition for judicial review and a
writ of mandamus, and granting a declaratory judgment. Second Judicial District Court,
Washoe County; Janet J. Berry, Judge.
City filed application for writ of mandate, petition for judicial review, or, in the
alternative, complaint for declaratory judgment challenging Civil Service Commission's
refusal to approve City's decision to lay off police officer, who was prohibited by federal law
from carrying firearm. The district court issued declaratory judgment in City's favor. City
appealed and officer cross-appealed. The supreme court, Shearing, J., held that City had
inherent authority to lay off police officer, and City was not required to obtain approval for
layoff from Civil Service Commission.
Affirmed.
Maupin, C. J., with whom Agosti, J., agreed, dissented.
Patricia A. Lynch, City Attorney, and Donald L. Christensen, Deputy City Attorney,
Reno, for Appellant/Cross-Respondent.
Leslie T. Miller, Reno, for Respondent Civil Service Commission.
Michael E. Langton, Reno, for Respondent/Cross-Appellant.
1. Declaratory Judgment.
Although City that filed application for writ of mandate, petition for judicial review, or, in alternative, complaint for
declaratory judgment was not aggrieved party that was entitled to appeal, supreme court had jurisdiction
by reason of cross-appeal, where trial court granted declaratory judgment.
__________

39
We have considered all proper person documents filed or received in this matter, and we conclude that the
relief requested is not warranted. We have also considered Little's motion requesting oral argument, filed
November 13, 2000, and conclude that oral argument is not necessary for our resolution of this case.
judicial review, or, in alternative, complaint for declaratory judgment was not aggrieved party that was entitled to appeal, supreme
court had jurisdiction by reason of cross-appeal, where trial court granted declaratory judgment. NRAP 3A(a).
City had inherent authority to lay off police officer who was prohibited by federal law from carrying firearm due to his
misdemeanor conviction for domestic violence, and City was not required to obtain approval for layoff from Civil Service
Commission, where power over layoffs resulting from general reduction in force, not over layoffs necessitated by disqualification for
position, was delegated to Commission. 18 U.S.C. 922(g)(9).
Scope of administrative agency's authority is limited to matters legislative body has expressly or implicitly delegated to agency.
City's action against police officer was layoff, rather than dismissal, for purpose of determining whether Civil Service
Commission had jurisdiction over appeal. Although layoff was indefinite, there was every reason to believe that officer would be
returned to position if his disqualification from legally possessing firearm was removed. 18 U.S.C. 922(g)(9).
Even if City dismissed police officer, rather than laying him off, because he was prohibited by federal law from carrying firearm
due to his misdemeanor conviction for domestic violence, Civil Service Commission would have exceeded its authority in denying
approval of dismissal on basis that officer's position did not require possession of firearm, where Commission lacked authority to
determine qualifications for any particular job. 18 U.S.C. 922(g)(9).
OPINION
[Headnote 1]
Respondent/cross-appellant Mark Markiewicz was a police officer employed by the
City of Reno. In 1996, Congress amended the Gun Control Act of 1968
1
to add certain
provisions relating to domestic violence, and made it illegal for persons convicted of
domestic violence misdemeanors to carry firearms.
2
Markiewicz had been convicted of a
domestic violence misdemeanor, and the City informed him that, consequently, he would
be discharged.
__________

1
18 U.S.C. 921 et seq.

2
The relevant part of 18 U.S.C. 922(g)(9) (1994 & Supp. V 2000) reads as follows:
(g) It shall be unlawful for any person
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any
had been convicted of a domestic violence misdemeanor, and the City informed him that,
consequently, he would be discharged. Markiewicz filed a grievance with his union, and an
arbitration proceeding was held. The arbitrator determined that the City may lay off police
officers who are not allowed to carry firearms. Markiewicz rejected alternate employment in a
non-police officer capacity, and the City laid him off. The City of Reno Civil Service
Commission conducted hearings on the layoff and ultimately refused to approve it. The City
then filed an application for writ of mandate, petition for judicial review or, in the alternative,
complaint for declaratory judgment in the district court. The district court denied the
application for writ of mandate and the petition for judicial review, but issued a declaratory
judgment in the City's favor. Both the City and Markiewicz appealed.
3
We affirm the district
court's judgment.
[Headnote 2]
In the district court, the City requested alternative forms of relief, each of which
would have the effect of approving the City's action in laying off Markiewicz from the police
force. The district court chose to grant the declaratory judgment, holding that the City was not
required to obtain approval for the layoff from the Civil Service Commission in these
circumstances. According to the district court's reasoning, the City has the inherent authority
to lay off a police officer who is not allowed to carry a firearm under federal law. We agree.
The City of Reno Civil Service Commission is created by Article IX of the Reno City
Charter. Under section 9.050, the Commission has authority over:
1. All phases of the selection, appointment and promotion of employees in the civil
service;
2. The appeal rights of such employees in regard to dismissal, demotion, suspension
and disciplinary actions; and
3. The transfer of employees,
together with all responsibilities assigned to the commission by this article.
__________
firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

3
The City of Reno filed an appeal from the denial of the writ of mandate and the petition for judicial review.
However, the original action in district court requested alternative forms of relief. The district court granted the
declaratory judgment, which gave the City of Reno the relief requested. Therefore, the City of Reno is not an
aggrieved party. It is not entitled to appeal, and therefore its appeal is dismissed. See NRAP 3A(a) (providing
that only an aggrieved party may appeal); Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964) (dismissing
cross-appeal filed by successful party in district court action because that party was not aggrieved). Nevertheless,
this court has jurisdiction by reason of the cross-appeal.
Section 9.140, entitled Layoff, states:
Whenever in the judgment of the city council it becomes necessary to reduce the staff
of any city department such reduction of staff shall be accomplished pursuant to rules
adopted by the commission designed to encourage interdepartmental transfers and other
procedures tending to minimize the impact of layoffs.
Subsequently, the Commission established Rule XI, section 5 regarding layoffs, in which the
opening paragraph reads as follows:
Whenever it becomes necessary in any department, through lack of work or funds,
abolishment of the job, or other good cause to reduce the work force in that department
. . . personnel shall be laid off or reduced in grade according to the procedures
established in this Rule.
[Headnote 3]
Clearly, neither the city charter nor the rules established thereunder regarding layoffs
contemplated the type of layoff presented in this case. The charter and rules regarding layoffs
relate to a general reduction in force, not to the disqualification of an employee for his
position. This court has held that [a]dministrative agencies cannot enlarge their own
jurisdiction.
4
The scope of an agency's authority is limited to the matters the legislative
body has expressly or implicitly delegated to the agency.
5
Here, the Legislature has
delegated power to the Civil Service Commission over layoffs resulting from a general
reduction in force, not over layoffs necessitated by a disqualification for the position.
[Headnotes 4, 5]
Markiewicz contends that his layoff is more appropriately described as a dismissal,
and points out that under section 9.050 of the City Charter, the Commission does have
jurisdiction over appeal rights of employees subject to dismissal. It is true that Markiewicz's
layoff as a police officer is indefinite. However, there is every reason to believe, based on
the testimony of the chief of police, that if his disqualification from legally possessing a
firearm were removed, he would be returned to his police officer position. In that respect, the
City's action is a layoff rather than a dismissal. Dismissal implicates the rules regarding
disciplinary action, and all parties agree that the City's action was not disciplinary.
__________

4
Southern Nev. Mem. Hosp. v. State, 101 Nev. 387, 394, 705 P.2d 139, 144 (1985).

5
Clark Co. v. State, Equal Rights Comm'n, 107 Nev. 489, 492, 813 P.2d 1006, 1007 (1991).
disciplinary. The sole reason for the layoff was that federal law makes Markiewicz ineligible
to carry a firearm, a job qualification for a Reno police officer.
Furthermore, nowhere has the Civil Service Commission been given the authority to
determine the qualifications for any particular job. That authority still is retained by
department heads. The purpose of the Legislature in establishing the Civil Service
Commission is to provide the City of Reno with an efficient work force, with equity to all
persons concerned.
6
The Civil Service Commission may make sure that all persons
similarly situated are treated equally, but it does not have the authority to determine the
qualifications for any particular position. Thus, even if the action taken with respect to
Markiewicz were regarded as a dismissal, in denying approval on the basis that his position
did not require possessing a firearm, the Civil Service Commission would have been
exceeding its authority.
The judgment of the district court is affirmed.
Young, Rose, Leavitt and Becker, JJ., concur.
Maupin, C. J., with whom Agosti, J., agrees, dissenting:
I would reverse the declaratory judgment entered by the district court in this instance.
I agree that the action of the City taken with regard to Officer Markiewicz's
employment did not involve a layoff situation addressed in section 9.140 of the Reno City
Charter, however, section 9.050 of the City Charter gives the Commission authority over
[a]ll phases of the selection, appointment and promotion of employees in the civil service,
and the appeal rights of such employees in regard to dismissal, demotion, suspension and
disciplinary actions. The majority reasons that the action taken by the City in this instance
was a layoff rather than a dismissal because [d]ismissal implicates the rules regarding
disciplinary action, and all parties agree that the City's action was not disciplinary. In my
view, section 9.050 of the charter uses the terms dismissal and disciplinary actions as
separate concepts. Thus, I disagree with the majority and conclude that the action here was a
dismissal subject to the Commission's appeal authority. That the disability that led to this
dismissal may at some point be removed does not change the fact that the termination ends
Officer Markiewicz's employment. He was dismissed, not terminated from employment as
part of an administrative reduction in force (i.e., a layoff).
1

__________

6
Reno, Nev., City Charter 9.010 (1971) (as amended by 1973 Nev. Stat., ch. 553, 9.010, at 883).

1
Because there was substantial evidence to support the conclusions reached
Thus, as stated, I would reverse the declaratory judgment entered below. I would,
however, affirm the district court's rulings on the City's claims for extraordinary relief and the
City's petition for judicial review of the Commission findings.
____________
117 Nev. 860, 860 (2001) Pellegrini v. State
DAVID PELLEGRINI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35999
November 15, 2001 34 P.3d 519
Appeal from an order of the district court denying appellant's post-conviction petition
for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
Following affirmance, 104 Nev. 625, 764 P.2d 484 (1988), of conviction and death
sentence in capital murder case, defendant petitioned for post-conviction relief. The district
court denied petition, and the supreme court dismissed appeal. Nearly six years after that
dismissal of appeal, defendant filed habeas corpus petition. The district court denied petition.
Defendant appealed. The supreme court held that: (1) one-year limitations period on habeas
petitions applies to successive petitions; (2) ineffective assistance of counsel claims are
properly raised for the first time in timely first post-conviction petition, abrogating Pertgen v.
State, 110 Nev. 554, 875 P.2d 361 (1994); (3) special discretion does not attach in capital
habeas corpus cases when applying procedural bar based on waiver, overruling Warden v.
Lischko, 90 Nev. 221, 523 P.2d 6 (1974); (4) alleged ineffective assistance of post-conviction
counsel was not good cause for relieving petitioner from procedural bars to present claims;
and (5) determinations on appeal in previous post-conviction proceeding were not law of the
case with regard to claims that multiple personality disorder provided good cause for delay
in bringing present petition and that applying procedural bars would cause fundamental
miscarriage of justice due to actual innocence by reason of insanity; but (6)
neuropsychologist's declaration in support of habeas petition did not demonstrate necessary
good cause for delay in bringing new claims for relief.
Affirmed.
Patricia Erickson, Las Vegas, for Appellant.
__________
at the administrative level by the Commission, the district court, in my view, correctly denied the City's separate
claims for relief.
Respondent.
Franny A. Forsman, Federal Public Defender, and John C. Lambrose and Michael L.
Pescetta, Assistant Federal Public Defenders, Las Vegas, as Amicus Curiae.
1. Habeas Corpus.
A petition filed pursuant to the former post-conviction procedure is a prior petition for purposes of statutory provision requiring
dismissal of subsequent habeas corpus petition if judge finds that failure to assert new grounds for relief in a prior petition constituted
an abuse of the writ. NRS 34.810(2).
2. Habeas Corpus.
Statute that requires dismissal of a habeas petition not filed within one year after entry of judgment of conviction or issuance of
remittitur by state supreme court in cases where an appeal is taken, unless there is good cause shown for the delay, applies to
successive habeas petitions. NRS 34.726.
3. Criminal Law.
Federal Constitution provides no right to post-conviction habeas review by state courts.
4. Statutes.
Words in a statute will generally be given their plain meaning, unless such a reading violates the spirit of the act, and when a
statute is clear on its face, courts may not go beyond the statute's language to consider legislative intent.
5. Statutes.
Courts are not at liberty to go fishing in the legislative mind where a statute is clear and unambiguous.
6. Statutes.
When reviewing a legislative change in a statute, courts are bound to presume that it was done ex industria, for the purpose of
effecting the change which is effected in the law.
7. Statutes.
Courts must construe statutory language to avoid absurd or unreasonable results, and, if possible, they will avoid any
interpretation that renders nugatory part of a statute.
Legislature cannot extinguish an existing cause of action by enacting a new limitation period without first providing a
reasonable time after the effective date of the new limitation period in which to initiate the action.
9. Habeas Corpus.
Habeas corpus petitioners whose convictions were final before effective date of statute that made successive petitions subject to
the same one-year limitations period as initial petition, and who timely filed a first petition, were entitled to file a successive petition
within one year of the effective date of that provision, provided that any successive filing overcame any other procedural bars
applicable to successive petitions. NRS 34.726.
10. Habeas Corpus.
Overall spirit of legislation that contained one-year limitations period for habeas corpus petitions was one of limiting habeas
petitioners to one time through the system absent extraordinary circumstances.
to one time through the system absent extraordinary circumstances. NRS 34.726.
11. Habeas Corpus.
Application of one-year limitations period to successive habeas petitions does not render nugatory a laches provision under
which a period exceeding five years between final judgment of conviction and the filing of habeas petition creates a rebuttable
presumption of prejudice to the state, nor does it render nugatory other provisions addressing waiver of claims asserted in a successive
petition. NRS 34.726, 34.800, 34.810.
12. Habeas Corpus.
Doctrine of equitable estoppel did not preclude application of one-year limitations period to a successive habeas corpus petition.
Statute was clear on its face in making successive petitions subject to one-year period, testimony in support of legislation containing
that limitations period did not represent that successive petitions would be exempt, petitioner did not allege he relied on testimony in
question, and successive petition was not filed until over ten years after issuance of remittitur on direct appeal and well beyond the
five-year presumptive period of prejudice to the state. NRS 34.726, 34.800.
13. Estoppel.
Equitable estoppel operates to prevent the assertion of legal rights that in equity and good conscience should be unavailable
because of a party's conduct.
14. Estoppel.
Equitable estoppel requires justifiable reliance by the party invoking the doctrine.
15. Habeas Corpus.
Fact that writ of habeas corpus has been called equitable remedy does not authorize courts to ignore statutes, rules, and
precedents.
16. Habeas Corpus.
One-year limitations period, as applied to successive habeas corpus petitions, is not an unconstitutional suspension of habeas
corpus, but is a reasonable regulation of the right to pursue habeas corpus relief, especially in light of provisions for excusing time bar
in instances of good cause and actual prejudice. Const. art. 1, 5; NRS 34.726.
17. Criminal Law.
Supreme court's determinations on appeal in post-conviction proceedings are the law of the case.
18. Habeas Corpus.
Rule of federal habeas review, under which a state court's decision that a habeas claim is procedurally barred under state law is
not adequate to bar federal review unless the procedural bar is applied regularly in the vast majority of cases and its application is not
discretionary, has no legitimate application to state supreme court's review in habeas.
19. Criminal Law.
Ineffective assistance of counsel claims are properly raised for the first time in a timely first post-conviction petition; abrogating
Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (1994). U.S. Const. amend. 6.
20. Habeas Corpus.
Claims of ineffective assistance of counsel brought in a timely first post-conviction petition for a writ of habeas corpus are not
subject to dismissal on grounds of waiver, regardless of whether the claims could have been appropriately raised on direct appeal. U.S.
Const. amend. 6.
21. Criminal Law.
Trial court error may be appropriately raised in a timely first post-conviction petition in the context of claims of
ineffective assistance of counsel, but independent claims based on the same error are subject to waiver
bars because such claims could have been presented to the trial court or raised in a direct appeal.
conviction petition in the context of claims of ineffective assistance of counsel, but independent claims based on the same error are
subject to waiver bars because such claims could have been presented to the trial court or raised in a direct appeal. U.S. Const. amend.
6; NRS 34.810.
22. Habeas Corpus.
Special discretion does not attach in capital habeas corpus cases when applying procedural bar based on waiver; overruling
Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974). NRS 34.810.
23. Criminal Law; Habeas Corpus.
Plain error rule, as applied to issues not preserved at trial or raised on direct appeal, is a rule for review on direct appeal and does
not create an exception to procedural bar based on waiver in a habeas proceeding, capital or not. NRS 34.810.
24. Criminal Law.
Law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.
25. Habeas Corpus.
Rare exercise of discretion by state supreme court to revisit wisdom of legal conclusions reached on prior appeal does not render
law of the case doctrine inadequate to bar reassertion of a claim in habeas. NRS 34.810.
26. Criminal Law.
There is no requirement that state supreme court review the merits of a post-conviction claim whenever the trial court has
elected to do so. NRS 34.810.
27. Habeas Corpus.
To show good cause for delay in bringing new claims or for presenting same claims again, a habeas petitioner must
demonstrate that an impediment external to the defense prevented him from raising his claims earlier. NRS 34.726, 34.810.
28. Habeas Corpus.
Actual prejudice, as necessary to overcome statutory procedural bars to habeas corpus relief, requires a showing not merely
that the errors complained of created a possibility of prejudice, but that they worked to the petitioner's actual and substantial
disadvantage, in affecting the state proceeding with error of constitutional dimensions. NRS 34.726, 34.810.
29. Habeas Corpus.
State supreme court may excuse the failure to show good cause for relief from the procedural bars to habeas corpus claims where
the prejudice from a failure to consider the claim amounts to a fundamental miscarriage of justice. NRS 34.726, 34.810.
30. Habeas Corpus.
To avoid application of procedural bar to habeas corpus claims attacking the validity of the conviction, a petitioner claiming
actual innocence must show that it is more likely than not that no reasonable juror would have convicted him absent a constitutional
violation. NRS 34.726, 34.810.
31. Habeas Corpus.
Where habeas petitioner has argued that the procedural default should be ignored because he is actually ineligible for the death
penalty, he must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him
death eligible. NRS 34.726, 34.810.
32. Criminal Law.
Where there is no right to counsel, there can be no deprivation of effective assistance of counsel. U.S. Const. amend. 6.
33. Habeas Corpus.
Alleged ineffective assistance of counsel in first post-conviction proceeding was not good cause for relieving petitioner from
procedural bars to claims asserted in subsequent habeas corpus petition, where at time of first petition there was no constitutional or
statutory right to post-conviction counsel. U.S. Const. amend. 6; NRS 34.726, 34.810.
34. Habeas Corpus.
Under the law of the case doctrine, issues previously determined by state supreme court on appeal may not be reargued as a
basis for habeas relief.
35. Habeas Corpus.
Determination on appeal in capital defendant's first post-conviction proceeding, that ineffective assistance claim based on a
failure to investigate and present evidence to negate culpability and mens rea was properly denied, did not establish law of the case
with respect to claim, asserted in subsequent habeas petition, that multiple personality disorder provided good cause to excuse
noncompliance with procedural rules for habeas petitions and that application of procedural bars to present petition would cause
fundamental miscarriage of justice due to actual innocence by reason of insanity. U.S. Const. amend. 6; NRS 34.726, 34.810.
36. Criminal Law.
Declaration in support of capital defendant's second post-conviction petition, in which neuropsychologist expressed opinion that
defendant at time of offense suffered from dissociative disorder that could have been viewed as mitigating evidence if presented to jury
but also based that definitive diagnosis should be made by expert competent to conduct specialized evaluation, did not demonstrate
necessary good cause for defendant's delay in bringing new claims for relief or for reraising previous claims. U.S. Const. amend. 6;
NRS 34.726, 34.810.
37. Criminal Law.
Even assuming defendant suffered from multiple personality disorder at time of capital murder, he failed in second
post-conviction proceeding to show that failure to consider untimely petition on the merits would result in fundamental miscarriage of
justice because of actual innocence, where defendant set forth no facts to show he was legally insane at time of crime. NRS 34.726,
34.810.
OPINION
Per Curiam:
In this appeal, we are asked to decide whether NRS 34.726 and its one-year time bar
apply to second or successive petitions for post-conviction relief. Appellant David Pellegrini
and amicus curiae, the Federal Public Defender, contend that NRS 34.726 applies just to first
petitions and that dismissal for delayed filing of second or successive petitions is governed
only by the laches provisions of NRS 34.S00.
of second or successive petitions is governed only by the laches provisions of NRS 34.800.
We reject this contention and conclude that NRS 34.726 applies to all post-conviction
petitions. We also conclude that Pellegrini's remaining contentions lack merit, and we affirm
the district court's order denying his untimely filed and successive post-conviction petition.
FACTS
Pellegrini was convicted, pursuant to a jury verdict, of the burglary of a Las Vegas
7-Eleven store and the attempted robbery and first-degree murder, both with the use of a
deadly weapon, of store clerk Barry Hancock. For the murder, he was sentenced to death.
1
Pellegrini then appealed to this court. In rejecting Pellegrini's contentions on appeal, we
concluded that overwhelming evidence supported Pellegrini's conviction. We noted the
evidence included eyewitness testimony and a videotape showing Pellegrini's activities in the
store area before and after Hancock, who was handcuffed and helpless in a back room of the
store, was shot in the head at close-range. We also noted that Pellegrini conceded that he shot
Hancock, but testified that he fired the gun accidentally when he stumbled.
2
Ultimately, we
affirmed Pellegrini's conviction and death sentence.
3
Remittitur issued on December 13,
1988.
Pellegrini then filed a petition for a writ of habeas corpus in federal district court. The
federal court stayed its consideration of Pellegrini's petition pending exhaustion of his claims
in state courts.
In December 1989, Pellegrini filed, pursuant to former NRS 177.315-.385, a petition
for post-conviction relief in state district court. In December 1990, he filed a supplemental
petition. Pellegrini contended that he was deprived of the right to a fair trial and also raised
claims of ineffective assistance of trial counsel. The district court agreed to conduct an
evidentiary hearing limited to Pellegrini's claim that counsel was ineffective in persuading
Pellegrini to testify falsely at trial.
In lieu of testifying at the evidentiary hearing, Pellegrini submitted an affidavit,
wherein he stated that due to his intoxicated condition at the time of the crimes, he had no
independent clear recollection of what actually happened when Barry Hancock was shot and
could only partially recall what transpired inside the store. He stated that when he had
informed trial counsel of his lack of recall, counsel told him to testify that the gun was cocked
and "went off" when he stumbled.
__________

1
Pellegrini v. State, 104 Nev. 625, 626, 764 P.2d 484, 485 (1988).

2
Id. at 626-27, 629, 764 P.2d at 485-87.

3
Id. at 632, 764 P.2d at 489.
and went off when he stumbled. The district court heard testimony from trial counsel and
rejected Pellegrini's claim that counsel had convinced him to testify falsely. On November 5,
1991, the district court entered its order denying relief on all claims raised in the 1989
petition.
On appeal to this court, we rejected Pellegrini's challenges to the district court's order
denying the petition. We concluded that the district court's finding that counsel had not
persuaded Pellegrini to testify falsely was supported by substantial evidence. We also
concluded that the district court did not err in denying the remaining claims of ineffective
assistance of counsel without an evidentiary hearing because these were either naked'
claims for relief or were repelled by the record. We finally concluded that the denial without
an evidentiary hearing of Pellegrini's claims relating to deprivation of a fair trial was proper
because these claims were waived when Pellegrini failed to raise them at trial or on direct
appeal. We ordered Pellegrini's appeal dismissed on May 28, 1993.
4

Pellegrini again petitioned for a writ of habeas corpus in federal district court. On
March 23, 1999, the federal district court dismissed Pellegrini's federal petition to allow him
to exhaust his claims in state courts.
On April 12, 1999, more than ten years after issuance of remittitur on direct appeal
and nearly six years after this court dismissed the appeal from his first post-conviction
petition, Pellegrini filed a post-conviction petition for a writ of habeas corpus in state district
court. In this petition, Pellegrini raised numerous claims of trial court error and ineffective
assistance of trial, appellate and post-conviction counsel. Among these were claims that
counsel had failed to investigate and present evidence and argument that Pellegrini was not
guilty by reason of insanity and was not deserving of a death sentence because he suffered
from Multiple Personality Disorder (MPD) at the time of the crime. In support of the
MPD-related claims, he attached a declaration by psychologist Nell Riley, Ph.D. As cause for
failing to present his claims earlier, Pellegrini alleged ineffective assistance of trial, appellate
and post-conviction counsel.
The State opposed the second petition and argued that it was procedurally barred as
untimely under NRS 34.726. The State also argued that appellant's claim that his first
post-conviction counsel was ineffective did not warrant relief, and the remainder of his
claims were procedurally barred under the waiver provisions of NRS 34.810(1)(b), the
successive petition provisions of NRS 34.810(2), and/or under the law of the case doctrine.
__________

4
Pellegrini v. State, Docket No. 22874 (Order Dismissing Appeal at 2-3, May 28, 1993).
In his reply, Pellegrini argued that the time bar at NRS 34.726 did not apply to
successive petitions for post-conviction relief. He further argued that application of the
procedural bars provided in NRS 34.810 would violate his right to due process because this
court has inconsistently applied those bars in reviewing appeals from other post-conviction
petitions. Finally, he argued that his failure to comply with any procedural bars should be
excused because he suffers from MPD and was incompetent and insane at the time of the
crime, throughout trial and until the filing of the second petition. Pellegrini admitted that he
had been evaluated by three mental health experts prior to trial, but argued that the results of
these evaluations were suspect.
In its surreply, the State asserted the procedural bar for laches at NRS 34.800 and
argued that the law of the case doctrine precluded consideration of Pellegrini's claims
regarding his mental state as a basis to overcome or avoid the procedural bars.
The district court heard argument from counsel and on March 20, 2000, denied the
petition. Without addressing the laches bar, the court concluded that all of Pellegrini's claims
were or could have been brought within one year of the effective date of NRS 34.726 and/or
raised in prior proceedings, and thus Pellegrini's claims were procedurally barred pursuant to
NRS 34.726 and NRS 34.810. Pellegrini timely appealed.
DISCUSSION
Application of procedural bars to Pellegrini's claims
Pellegrini challenges the district court's determination that his claims were barred
under the provisions of NRS 34.726 and NRS 34.810.
5
He does not dispute that, absent a
demonstration of good cause and actual prejudice, his claims are barred under a plain reading
of these statutes. But, relying primarily on legislative history, Pellegrini and amicus together
argue that NRS 34.726 cannot be properly applied to successive petitions. Pellegrini also
argues that this court is barred from applying NRS 34.810 to his claims due to what he
characterizes as our prior inconsistent application of procedural bars. He additionally
argues that, even if these statutes may be applied to his successive petition, he was entitled to
an evidentiary hearing on his allegations that his noncompliance with the statutory filing
requirements should be excused because of his incompetence and insanity. These contentions
lack merit.
__________

5
Although the State raised laches under NRS 34.800 as an additional basis for dismissal below, the district
court's order did not rely on laches to bar Pellegrini's claims. Because we have determined that the claims are
procedurally barred under NRS 34.726 and NRS 34.810, we need not address whether laches may apply here.
[Headnote 1]
NRS 34.726 provides for dismissal of habeas petitions based on delay in filing. It
states, in part:
1. Unless there is good cause shown for delay, a petition that challenges the validity
of a judgment or sentence must be filed within 1 year after entry of the judgment of
conviction or, if an appeal has been taken from the judgment, within 1 year after the
supreme court issues its remittitur. For the purposes of this subsection, good cause for
delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
NRS 34.810 provides for dismissal based on waiver and abusive filing of successive
petitions. It states, in relevant part:
1. The court shall dismiss a petition if the court determines that:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the petition
could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief
from his conviction and sentence, unless the court finds both cause for the failure to
present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice
determines that it fails to allege new or different grounds for relief and that the prior
determination was on the merits or, if new and different grounds are alleged, the judge
or justice finds that the failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ.
[6]

3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and
proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the
claim again; and
(b) Actual prejudice to the petitioner.
__________

6
Pursuant to NRS 34.810(2), a petition filed pursuant to the former postconviction procedure at NRS Chapter
177 is a prior petition. Valerio v. State, 112 Nev. 383, 387-88, 915 P.2d 874, 877 (1996).
Both statutes require a petitioner to demonstrate a valid basis exists to excuse the
procedural bars.
7
Otherwise, the district court must dismiss the petition without an
evidentiary hearing.
8

NRS 34.726 applies to successive petitions
NRS 34.726 was enacted in 1991 and applies to petitions filed on or after January 1,
1993.
9
Pellegrini filed his second petition on April 12, 1999more than ten years after the
issuance of remittitur on direct appeal and more than six years after NRS 34.726 became
effective. Accordingly, without a showing of good cause for the delay and actual prejudice,
Pellegrini's successive petition is barred under the terms of NRS 34.726(1). Pellegrini and
amicus argue, however, that NRS 34.726 may not be applied to successive petitions because:
(1) the legislative history shows an intent not to deprive petitioners of the right to file
successive petitions at any time subject only to the laches bar at NRS 34.800 for delay in
filing; (2) such application leads to absurd results and renders nugatory the procedural bars at
NRS 34.800 and NRS 34.810; and (3) representatives of state government, including a former
employee of this court, testified in support of the bill leading to enactment of the statute,
assuring that such application would not occur, and therefore, in the case of a successive
petition, equitable estoppel prevents the State from asserting the bar and prevents this court
from recognizing it. Pellegrini also argues that applying NRS 34.726 to successive petitions
would constitute an unconstitutional suspension of the writ. These contentions lack merit.
[Headnote 2]
We have previously applied the time bar at NRS 34.726 to successive petitions in
published and unpublished dispositions.
10

__________

7
See NRS 34.726(1); NRS 34.810(3).

8
See NRS 34.745(4) (providing for summary dismissal of successive petitions); NRS 34.770(1)-(2)
(providing that where a judge determines upon review of the pleadings and supporting documents that the
petitioner is not entitled to relief and an evidentiary hearing is not required, he shall dismiss the petition without
a hearing); Dickerson v. State, 114 Nev. 1084, 1088, 967 P.2d 1132, 1134 (1998) (discussing dismissal for
failure to allege sufficient basis to overcome time bar at NRS 34.726); Bejarano v. Warden, 112 Nev. 1466,
1471, 929 P.2d 922, 925-26 (1996) (discussing dismissal for failure to allege sufficient basis to overcome
procedural bars at NRS 34.810).

9
1991 Nev. Stat., ch. 44, 5, 32-33, at 75-76, 92.

10
For example, in Bennett v. State, 111 Nev. 1099, 1103, 901 P.2d 676, 679 (1995), we concluded that good
cause excused the procedural bar at NRS 34.726(1) for untimely filing of a second petition where the first
petition had been timely filed, but not pursued by counsel, and any delay in filing the second petition was not the
petitioner's fault. In Moran v. State, Docket No. 28188 (Order Dismissing Appeal, March 21, 1996), we applied
NRS 34.726
We now specifically hold that NRS 34.726 applies to successive petitions.
[Headnote 3]
The right to seek the remedy of habeas corpus is protected by the Nevada
Constitution.
11
Article 1, Section 5, states: The privilege of the writ of Habeas Corpus, shall
not be suspended unless when in cases of rebellion or invasion the public safety may require
its suspension.
12
As late as 1967, however, no statutory framework existed to govern the
procedure for obtaining post-conviction relief, though the constitutional right to petition for
habeas corpus relief was recognized in Chapter 34 of the NRS.
13
That year, our Legislature
enacted the Nevada Criminal Procedure Act (1967 Act), providing for procedures to obtain
post-conviction relief,
14
which were ultimately codified at NRS Chapter 177 (Chapter 177
remedy). Because the drafters of the 1967 Act intended to offer but one remedy in
post-conviction,
15
they designated the Chapter 177 remedy as habeas corpus
16
and made
it the exclusive means of collaterally attacking the validity of a conviction or sentence.
17

Unfortunately, the drafters of the 1967 Act overlooked the limits to the constitutional
grant of jurisdiction over writs of habeas corpus. Article 6, Section 6, provided: The District
Courts, and the Judges thereof shall . . . have power to issue writs of Habeas Corpus on
petition by, or on behalf of any person held in actual custody in their respective districts.
18
The 1967 Act, however, vested jurisdiction over the Chapter 177 remedy in the district court
in which the conviction took place.
19
This oversight proved to be fatal to the intent of
offering a single post-conviction remedy.
__________
and NRS 34.800 to bar claims raised in a successive petition. Our decision in Moran was later examined by the
Ninth Circuit in Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996), wherein that court determined that
Nevada's statutory time bars are regularly applied.

11
Nev. Const. art. 1, 5; see also Nev. Const. art. 6, 6. The Federal Constitution provides no right to
post-conviction habeas review by state courts. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).

12

13
See 1967 Nev. Stat., ch. 523, 429-30, at 1469.

14
See 1967 Nev. Stat., ch. 523, 317-24, at 1447-49.

15
See Legislative Commission of the Legislative Counsel Bureau State of Nevada, 54th Sess., Revision of
Nevada's Substantive Criminal Law and Procedure in Criminal Cases, Report of the Subcommittee for Revision
of the Criminal Law to the Legislative Commission, at 3 (November 18, 1966).

16
Id.

17
See 1967 Nev. Stat., ch. 523, 317, 429, at 1447, 1469.

18
Nev. Const. art. 6, 6 (1967) (emphasis added); see also 1991 Nev. Stat., at 2494.

19
See 1967 Nev. Stat., ch. 523, 318, 322, at 1447-48, 1449.
proved to be fatal to the intent of offering a single post-conviction remedy.
In Marshall v. Warden,
20
this court addressed the constitutionality of the 1967 Act in
light of the jurisdictional limits on the power of the district courts to grant habeas relief. We
held that the Act's attempt to make the Chapter 177 remedy the exclusive means of pursuing
post-conviction habeas relief was unconstitutional.
21
Still, this language in the Act was
severable; therefore, we concluded that the Chapter 177 remedy could be given effect as a
post-conviction remedy alternative to the constitutional writ of habeas corpus.
22

In 1969, the Legislature amended NRS Chapters 34 and 177 to delete the provisions
making the Chapter 177 procedure the exclusive means of obtaining post-conviction relief.
23
Reference in Chapter 177 to its remedy as habeas corpus was deleted and replaced by
reference to post-conviction relief.
24

In subsequent sessions, the Legislature incrementally amended Chapters 34 and 177 to
curtail the ability to alternatively use the two remedies and to limit the filing of successive or
delayed applications for post-conviction or habeas relief. For instance, aside from the
exclusive remedy provision severed as a result of Marshall, the only procedural bar contained
in either chapter in 1967 was the provision eventually codified at NRS 177.375 for dismissal
based on waiver of claims not raised in a first petition or already adjudicated in or
knowingly and understandingly waived in a prior proceeding.
25
In 1973, NRS 177.375 was
amended to delete the reference to a knowing and voluntary waiver, replace the reasonable
cause standard with a good cause standard, and make more specific the grounds for
waiver.
26
Chapter 177 was further amended to provide the first statutory time bar to filing of
post-conviction petitions. A new subsection was added to state that, absent good cause
shown for delay, an application for post-conviction relief under Chapter 177 must be filed
within 1 year following entry of judgment of conviction or, if an appeal has been taken from
such judgment, within 1 year from the final decision upon or pursuant to the appeal.
27
The
1973 amendments also provided that the Chapter 177 remedy was not available "if a writ of
habeas corpus is used to attack a conviction or sentence.
__________

20
83 Nev. 442, 434 P.2d 437 (1967).

21
Id. at 445-46, 434 P.2d at 439-40.

22
Id. at 444-46, 434 P.2d at 439-40.

23
1969 Nev. Stat., ch. 87, 1, 3, at 106-07.

24
Id. 3, at 107.

25
1967 Nev. Stat., ch. 523, 323, at 1449.

26
1973 Nev. Stat., ch. 349, 7, at 438-39.

27
Id. 1, at 436.
177 remedy was not available if a writ of habeas corpus is used to attack a conviction or
sentence.
28
The grounds for relief in a Chapter 177 proceeding were narrowed to
encompass only constitutional violations.
29
In 1985, Chapter 34 was amended to include
provisions for dismissal based on laches (later codified at NRS 34.800)
30
and provisions for
dismissal based on waiver or abusive filing of successive petitions (later codified at NRS
34.810).
31
In 1987, the Legislature amended Chapter 34 to state:
A petitioner may not file a petition for a writ of habeas corpus unless he previously
filed a petition for post-conviction relief pursuant to [Chapter 177], or demonstrates
good cause for the failure to file a petition for post-conviction relief or meet the time
requirements for filing a petition for post-conviction relief and actual prejudice to the
petitioner.
32

This amendment eliminated the availability of habeas corpus as an alternative remedy, as
we had earlier recognized it in Marshall.
33
NRS 177.375 was also amended to require a
showing of actual prejudice to the petitioner in addition to good cause to excuse the
procedural bars for waiver and successive petitions.
34
In 1989, NRS 34.810 was amended to
add subsection 3, requiring petitioners to carry the burden of pleading and proving specific
facts to demonstrate good cause to overcome the waiver and successive petition bars.
35

The movement toward abolishing the dual remedy system finally culminated in the
1989 passage of Senate Joint Resolution (SJR) 13, which proposed to amend the Nevada
Constitution to extend the jurisdiction to issue writs of habeas corpus to district courts
wherein petitioners suffered their criminal convictions.
__________

28
Id. This limitation was ultimately made unnecessary by subsequent amendments to NRS Chapter 34 and
was ultimately deleted in 1987. See 1987 Nev. Stat., ch. 539, 39, at 1229.

29
See 1973 Nev. Stat., ch. 349, 1, 8, at 436, 439.

30
See 1985 Nev. Stat., ch. 435, 9, at 1231-32. Prior to this amendment, this court had already recognized
similar restrictions on the ability to file delayed habeas petitions. See Groesbeck v. Warden, 100 Nev. 259, 679
P.2d 1268 (1984).

31
See 1985 Nev. Stat., ch. 435, 10, at 1232.

32
1987 Nev. Stat., ch. 539, 3, at 1209. This amendment, which was codified at NRS 34.725, remained in
effect until the abolishment of the Chapter 177 remedy, which became effective in January 1993. See 1991 Nev.
Stat., ch. 44, 31-33, at 92.

33
Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 67, 769 P.2d 72, 74-75 (1989).

34
1987 Nev. Stat., ch. 539, 45, at 1231-32.

35
1989 Nev. Stat., ch. 204, 5, at 457.
trict courts wherein petitioners suffered their criminal convictions.
36
The proposal was
intended to set the stage for the Legislature to increase efficiency by consolidating the dual
post-conviction remedies while retaining the jurisdictional reach of Chapter 177 to courts of
conviction. The latter was necessary to ease the burden on courts in districts where most
prisoners are incarcerated and allow the courts already familiar with the case to rule on a
petitioner's claims challenging his conviction and sentence.
37

In anticipation of the approval and passage of SJR 13, this court appointed a
committee to study the impact of the constitutional amendment and to propose and draft
statutes necessary to adopt a single post-conviction remedy.
38
The committee's efforts
resulted in Assembly Bill (AB) 227, which proposed to amend Chapter 34 and repeal the
post-conviction provisions in Chapter 177. The time bar provisions at NRS 34.726 were part
of the AB 227 amendments to Chapter 34.
39
AB 227 was approved and enacted in 1991 and
became effective on January 1, 1993, after SJR 13 was passed by the 1991 Legislature
40
and
ratified by the people at the 1992 general election.
41
The provisions of AB 227 did not apply
to any post-conviction proceeding commenced before January 1, 1993.
42

Pellegrini, with support from amicus, argues that the legislative history of the
post-conviction habeas remedy reveals an intent to exempt successive petitions from the
one-year time limit of NRS 34.726. Pellegrini argues that applying the time limit to
successive petitions would create absurd results as this would effectively time bar all
successive petitions, which, he argues, cannot possibly be filed within the time limit, and this
result would render nugatory NRS 34.800 and NRS 34.810, which both contemplate the
possibility of successive petitions.
[Headnotes 4-7]
However, words in a statute will generally be given their plain meaning, unless such a
reading violates the spirit of the act, and when a statute is clear on its face, courts may not go
beyond the statute's language to consider legislative intent.
__________

36
1989 Nev. Stat., at 2269-70.

37
See Minutes of Senate Comm. on Judiciary, 65th Leg., at 6-10 (Nev., March 30, 1989); see also Minutes of
the Senate Comm. on Judiciary, 66th Leg., at 4-7 (Nev., January 29, 1991).

38
ADKT 121 (Order Appointing Study Committee, June 23, 1989).

39
See 1991 Nev. Stat., ch. 44, 5, at 75.

40
1991 Nev. Stat., at 2494.

41
1991 Nev. Stat., ch. 44, 33, at 92.

42
Id. 32, at 92.
statute's language to consider legislative intent.
43
Thus, we are not at liberty to go fishing
in . . . the legislative mind' where a statute is clear and unambiguous.
44
Further, when
reviewing a legislative change in a statute, [w]e are bound to presume that it was done ex
industria, for the purpose of effecting the change which is effected in the law.'
45
Still, we
must construe statutory language to avoid absurd or unreasonable results, and, if possible, we
will avoid any interpretation that renders nugatory part of a statute.
46

[Headnotes 8, 9]
NRS 34.726 provides no exception for successive petitions, and we conclude that the
plain language of the statute indicates that it applies to all petitions filed after its effective
date of January 1, 1993. We add one caveat, albeit unhelpful to Pellegrini's cause, based on
the rule that [t]he legislature cannot extinguish an existing cause of action by enacting a new
limitation period without first providing a reasonable time after the effective date of the new
limitation period in which to initiate the action.
47
Prior to the effective date of the statute,
the sole statutory considerations for timely filing under Chapter 34 were laches, pursuant to
NRS 34.800, and the prerequisite at former NRS 34.725 that a prior post-conviction petition
pursuant to NRS Chapter 177 had to be timely filed. If a petitioner was not barred by laches
and had met the prior petition prerequisite, his Chapter 34 petition was not subject to
dismissal on grounds of failing to meet a one-year filing rule. Because the enactment of NRS
34.726 created a new limit for filing a successive petition pursuant to Chapter 34, petitioners
whose convictions were final before the effective date of NRS 34.726 and who had filed a
timely first petition under Chapter 177 were entitled to a reasonable period of time after the
effective date of the new limitation period in which to file any successive petitions. The State
concedes, and we agree, that for purposes of determining the timeliness of these successive
petitions pursuant to NRS 34.726, assuming the laches bar does not apply, it is both
reasonable and fair to allow petitioners one year from the effective date of the amendment
to file any successive habeas petitions.
__________

43
Speer v. State, 116 Nev. 677, 679, 5 P.3d 1063, 1064 (2000); Carson City District Attorney v. Ryder, 116
Nev. 502, 505, 998 P.2d 1186, 1188 (2000).

44
Ex Parte Smith, 33 Nev. 466, 479-80, 111 P. 930, 935 (1910) (quoting V. & T.R.R. Co. v. Lyon County, 6
Nev. 68, 73 (1870)).

45
Camino Et Al. v. Lewis, 52 Nev. 202, 210, 284 P. 766, 768 (1930) (Coleman, J., concurring) (quoting
Crane & Co. v. Gloster, 13 Nev. 279, 281 (1878)).

46
Speer, 116 Nev. at 679, 5 P.3d at 1064.

47
Brown v. Angelone, 150 F.3d 370, 373 (4th Cir. 1998) (citing Block v. North Dakota, 461 U.S. 273, 286
n.23 (1983)).
from the effective date of the amendment to file any successive habeas petitions.
48
However,
any such successive filing would remain subject to other procedural bars applicable to
successive petitions. Pellegrini did not file his petition until 1999 and, therefore, could not
have qualified for timely filing under this narrow exemption from the requirements of NRS
34.726.
[Headnote 10]
Moreover, we conclude that application of the time bar to successive petitions does
not violate the spirit of AB 227 or lead to absurd results. We have already recognized that the
statutory time limit at NRS 34.726(1), like the former one-year time limit at NRS 177.315,
evinces intolerance toward perpetual filing of petitions for relief,
49
which clogs the court
system and undermines the finality of convictions.
50
A plain reading of AB 227 shows its
overall spirit was one of limiting habeas petitioners to one time through the system absent
extraordinary circumstances.
[Headnote 11]
Furthermore, the application of NRS 34.726 to successive petitions does not render
nugatory the laches provision of NRS 34.800 or the waiver and successive petition provisions
of NRS 34.810. For example, it is conceivable that a petitioner could demonstrate good cause
for failure to comply with the one-year time limit and actual prejudice, but laches would
nevertheless bar the claim because of prejudice to the State and failure to demonstrate a
fundamental miscarriage of justice.
51
Additionally, despite Pellegrini's argument, it is
possible for a petitioner to file more than one petition within the one year allotted under NRS
34.726. The waiver and successive petition bars at NRS 34.810 deal with the potential for
such piecemeal application, and therefore, that statute is not rendered nugatory. Actually, it is
Pellegrini's interpretation of NRS 34.726 that could create absurd results. Under Pellegrini's
interpretation, a petitioner could file an untimely first petition, and after its proper dismissal,
assuming the claims were not waived on direct appeal or barred by law of the case, would be
permitted to raise the same claims in a successive petition, subject only to laches.
__________

48
Cf. id. at 375 (adopting similar construction of one-year filing limitation for habeas petitions under the
federal Antiterrorism and Effective Death Penalty Act).

49
See Dickerson, 114 Nev. at 1087-88, 967 P.2d at 1134; see also Colley v. State, 105 Nev. 235, 236, 773
P.2d 1229, 1230 (1989) (discussing NRS 177.315).

50
See Lozada v. State, 110 Nev. 349, 358, 871 P.2d 944, 950 (1994).

51
See NRS 34.800(1)(b) (providing for dismissal where the delay in filing [p]rejudices the State of Nevada
in its ability to conduct a retrial of the petitioner, unless the petitioner demonstrates that a fundamental
miscarriage of justice has occurred in the proceedings resulting in the judgment of conviction or sentence).
be permitted to raise the same claims in a successive petition, subject only to laches. This is
possible because, absent good cause and actual prejudice, NRS 34.810(2) bars successive
petitions raising claims that were raised and determined on the merits in a prior petitionit
does not address claims that were raised in a prior petition but were not determined on the
merits. Allowing for such abusive application for relief would be irrational. In sum, the plain
language of the one-year provision requires its application to all petitions; this reading is
consistent with the spirit of AB 227, is not absurd, and does not render nugatory other habeas
procedural bars. Accordingly, we do not look beyond the statutory scheme itself to interpret
NRS 34.726.
Nonetheless, even were we to consider the relevant legislative history, it does not
support Pellegrini's arguments. Nowhere in the legislative history is the intended effect of
NRS 34.726 on successive petitions expressly addressed. Moreover, the legislative history of
the habeas statutes shows that Nevada's lawmakers never intended for petitioners to have
multiple opportunities to obtain post-conviction relief absent extraordinary circumstances.
From our Marshall decision, which identified the constitutional flaw in the Legislature's
initial effort to create only one remedy in habeas, and through the eventual elimination of the
Chapter 177 remedy, the Legislature made every effort to limit the ability to bring repetitive,
meritless and delayed petitions. By the time Chapter 177's post-conviction relief provisions
were repealed, we had already interpreted its one-year time limit at NRS 177.315 to apply to
successive Chapter 177 petitions.
52
The statutory scheme permitted petitioners to resort to a
Chapter 34 petition only in exceptional circumstances, where the prerequisite of a prior
timely Chapter 177 petition was met or excused and where petitioners could overcome the
statutory laches, waiver, and successive petition bars. Still, it is clear that these limitations
had proven inefficient, and therefore AB 227, along with its procedural bars, was intended to
ensure that petitioners would be limited to one time through the post-conviction system. The
first argument made in voters' sample ballots in 1992 in favor of the constitutional
amendment proposed by SJR 13 evidences this one time through the system intent:
Under the existing system, a prisoner has two chances at habeas corpus relief, one in
the court of his conviction and one in the court in the district in which he is
incarcerated. This amendment would allow the Legislature to specify only one
comprehensive process, giving more finality to criminal
__________

52
See Deutscher v. Warden, 102 Nev. 388, 724 P.2d 213 (1986).
convictions. By reducing costly paperwork, the amendment would also result in
significant savings to the state.
53

Additionally, the bill sponsor's testimony made clear that the effect of repealing the Chapter
177 remedy would be that only one course of action would exist for a prisoner to challenge
the constitutionality of his/her conviction or sentence.
54

[Headnote 12]
Pellegrini and amicus also argue that the doctrine of equitable estoppel prevents the
State from asserting and the courts from applying NRS 34.726 in cases of successive
petitions. They cite to testimony before the legislative committees considering AB 227. A
representative of the Attorney General's Office testified in support of AB 227 that he
assessed the bill as doing nothing more than transferring jurisdiction where it should be.
55
This court's employee, who was chairman of the study committee involved in drafting the
proposed bill, also testified that under AB 227 [n]o access to the courts would be cut off, but
rather the process was being simplified by eliminating a redundant procedure,
56
and that
petitioners would lose no procedural safeguards currently afforded [them] under Chapter
177.
57
He testified that AB 227 remove[d] process for the sake of process, but [did]
nothing to preclude complete review of a conviction.
58
Pellegrini and amicus characterize
these statements as representations, binding upon the State and this court, that NRS 34.726
would not be applied to successive petitions. We reject their contentions.
[Headnotes 13-15]
Pellegrini and amicus cite no authority that would support application of equitable
estoppel to disregard a statute which is clear on its face. Further, we conclude that the
doctrine may not be invoked under the circumstances presented here. [E]quitable estoppel
operates to prevent the assertion of legal rights that in equity and good conscience should be
unavailable because of a party's conduct.
59
It requires justifiable reliance by the party
invoking the doctrine.
__________

53
1992 General Election Sample Ballot, Arguments for Passage of Ballot Question No. 2, at 15 (emphasis
added).

54
Minutes of the Senate Comm. on Judiciary, 66th Leg., at 3 (Nev., March 20, 1991) (testimony of
Assemblywoman Dawn Gibbons).

55
Id. (testimony of Chief Deputy David Sarnowski).

56
Minutes of the Assembly Comm. on Judiciary, 66th Leg., at 5 (Nev., February 6, 1991) (testimony of Staff
Counsel John Hawley).

57
Minutes of Senate Comm. on Judiciary, 66th Leg., at 3 (Nev., March 20, 1991) (testimony of John
Hawley).

58
Id.

59
United Brotherhood v. Dahnke, 102 Nev. 20, 22, 714 P.2d 177, 178-79 (1986).
invoking the doctrine.
60
We have recognized that the doctrine generally may not be invoked
against the government or its agencies
61
and that equitable principles will not justify a court's
disregard of statutory requirements.
62
[T]he fact that the writ has been called an equitable'
remedy does not authorize a court to ignore . . . statutes, rules, and precedents.
63
Here,
Pellegrini cannot demonstrate any justifiable reliance on the testimony in question. We
conclude that the testimony did not constitute representations that successive petitions were
exempt from the time limit later codified at NRS 34.726, and cannot reasonably be construed
to have misled either the Legislature or Pellegrini in this respect. As we have noted, a full
review of the legislative history makes it abundantly clear that the Legislature understood AB
227 would leave petitioners only one opportunity to obtain post-conviction relief absent a
demonstration of good cause and actual prejudice. Further, Pellegrini neither alleges nor
demonstrates that he relied on the testimony at issue. He failed to file his petition until over
ten years after issuance of the remittitur on direct appeal and well beyond the presumptive
period of prejudice under the laches bar at NRS 34.800.
64
Accordingly, the doctrine of
equitable estoppel provides no basis for relief here.
[Headnote 16]
Finally, Pellegrini argues that NRS 34.726, as it applies to successive petitions, is an
unconstitutional suspension of habeas corpus. We disagree and conclude that the Legislature's
enactment of the statutory one-year time limit as applicable to successive petitions is a
reasonable regulation of the right to pursue habeas corpus relief, especially in light of the
provisions for excusing the bar in instances of cause and actual prejudice. Therefore, the
Legislature had the power to enact the statute, and we find no constitutional infirmity in it.
65

Based on the foregoing, we conclude that under NRS 34.726, all of Pellegrini's claims
are barred absent a demonstration of good cause and actual prejudice.
__________

60
Merrill v. DeMott, 113 Nev. 1390, 1396, 951 P.2d 1040, 1043 (1997).

61
See Foley v. Kennedy, 110 Nev. 1295, 1302, 885 P.2d 583, 587 (1994); State v. Bunkowski, 88 Nev. 623,
634, 503 P.2d 1231, 1238 (1972).

62
See Mello v. Woodhouse, 110 Nev. 366, 373, 872 P.2d 337, 341 (1994).

63
Lonchar v. Thomas, 517 U.S. 314, 323 (1996) (citation omitted).

64
See NRS 34.800(2) (A period exceeding 5 years between the filing of . . . a decision on direct appeal of a
judgment of conviction and the filing of a petition challenging the validity of a judgment of conviction creates a
rebuttable presumption of prejudice to the state.).

65
See Passanisi, 105 Nev. at 66, 769 P.2d at 74 (The legislature may . . . impose a reasonable regulation on
the writ of habeas corpus, so long as the traditional efficacy of the writ is not impaired.).
Claims also barred under NRS 34.810
[Headnote 17]
Pellegrini's claims numbered 4, 5, 9, and 10 and a variation of claim numbered 6 were
raised and rejected on direct appeal. Variations of claims numbered 1, 3, 6, 9, 10, 12, 16, 17
and 19 were raised in Pellegrini's first-post conviction petition and rejected by the district
court in its denial of the petition, which we upheld on appeal. Our determinations on appeal
are the law of the case.
66
To the extent that the district court determined the merits of these
claims in denying the first petition, these claims are also barred under the successive petition
provisions of NRS 34.810(2) absent a showing of good cause and actual prejudice. To the
extent that any of the above claims were not fully raised in the prior proceedings, these claims
as well as claims numbered 2, 7, 8, 11, 13, 14, 15, 20, 21 and 22 are new claims which could
have been raised either at trial, on direct appeal or in the prior petition.
67
Lacking a
demonstration of good cause and actual prejudice, these claims are procedurally barred under
the waiver provisions of NRS 34.810(1)(b) or as an abuse of the writ pursuant to NRS
34.810(2).
Pellegrini does not dispute this. However, he argues that this court applies procedural
bars inconsistently in cases involving successive petitions, and, therefore, the application of
NRS 34.810 here violates his rights to equal protection and due process of law. His
contentions lack merit.
[Headnote 18]
We emphasize that we are not asked to consider any issue of stare decisisPellegrini
cites no prior decision of this court holding that the bars at NRS 34.810 do not apply under
circumstances similar to those presented here. Further, he cites no authority holding that a
court in conducting habeas review may ignore valid statutory procedural rules on the basis
that these may have been inconsistently applied in the past. Pellegrini relies on authority
stating a rule of federal habeas review which provides that federal courts are normally
prohibited from reviewing constitutional claims where a state court has explicitly invoked a
state procedural bar as a separate basis for decision.
68
Under this rule, a state court's decision
that a habeas claim is procedurally barred under state law is not adequate to bar federal
review unless the procedural bar is applied regularly in the vast majority of cases
__________

66
See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975).

67
The sole claim that was not and could not have been raised in earlier proceedings is the claim numbered
18a claim that post-conviction counsel was ineffective for failing to raise in the first petition claims numbered
1-3, 6-8, 11-17 and 19-22. Nevertheless, this claim, like Pellegrini's other claims, is time barred.

68
See, e.g., McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995).
state law is not adequate to bar federal review unless the procedural bar is applied regularly in
the vast majority of cases
69
and its application is not discretionary.
70
However, this rule has
no legitimate application to our review in habeas,
71
and we have rejected the assertion that
this court inconsistently applies the procedural default rules under NRS 34.810.
72

Even so, we take this opportunity to clarify the law regarding Nevada's procedural
rules because this is an argument arising with greater frequency, the United States Court of
Appeals for the Ninth Circuit has in two opinions rejected the adequacy of our procedural
bars for waiver, and we are concerned with the proper interpretation of Nevada's procedural
bars. First, we note that the Ninth Circuit Court of Appeals has recognized as adequate to
prohibit federal habeas review Nevada's statutory procedural bars both for claims that are
untimely
73
and for claims in noncapital cases that were waived by the failure to raise them in
a first petition or by the failure to appeal from the denial of that petition.
74
Conversely, in its
decisions in McKenna v. McDaniel
75
and Petrocelli v. Angelone,
76
the Ninth Circuit court
concluded that our procedural bars for waiver are discretionary in capital cases and thus
inadequate to prohibit federal review of the merits of waived claims.
In McKenna, a capital case, the Ninth Circuit court held that federal review of the
merits of a claim was not barred by this court's decision affirming, on the ground of waiver,
the lower court's denial of a post-conviction claim of trial court error which was not raised on
direct appeal.
77
The Ninth Circuit court stated:
[I]t would appear at first blush as if the Nevada Supreme Court made a plain statement
that McKenna's challenge to the depravity of mind instruction was procedurally waived
because he failed to raise the issue on direct appeal. After noting the possibility of
procedural default, however, the court went on to specifically reach the merits of the
federal claim.
__________

69
Moran, 80 F.3d at 1270 (citing Dugger v. Adams, 489 U.S. 401, 411 n.6 (1989)).

70
See Williams v. Georgia, 349 U.S. 375, 383 (1955).

71
See Valerio, 112 Nev. at 389, 915 P.2d at 878; Kills on Top v. State, 901 P.2d 1368, 1386 (Mont. 1995).

72
See Valerio, 112 Nev. at 389-90, 915 P.2d at 878.

73
See Loveland v. Hatcher, 231 F.3d 640, 642-43 (9th Cir. 2000); Moran, 80 F.3d at 1269-70.

74
See Bargas v. Burns, 179 F.3d 1207, 1211-13 (9th Cir. 1999).

75
65 F.3d at 1488-89.

76
248 F.3d 877 (9th Cir. 2001).

77
65 F.3d at 1488-89.
claim. This analysis was necessary to the court's holding because in Nevada failure to
raise constitutional claims on direct appeal does not necessarily bar consideration of
those claims on collateral review. See Pertgen v. Nevada, 110 Nev. 554, 875 P.2d 361,
364 (1994). . . . Thus, the court's refusal to entertain McKenna's complaints on
collateral review, at best, represents a refusal to exercise discretion to hear the claim.
This is insufficient for the State to invoke the procedural bar doctrine.
78

The Ninth Circuit court later followed McKenna in Petrocelli, where it held that, in
the context of capital cases, Nevada's procedural bar for waiver is discretionary and
inadequate to prohibit federal court review of the merits of waived claims.
79
In concluding
that Nevada courts have discretion in applying procedural bars to constitutional claims in
capital habeas cases, the Petrocelli court relied on this court's decisions in Jones v. State,
80
Hill v. State,
81
Paine v. State,
82
Pertgen v. State,
83
and Flanagan v. State.
84
The court also
relied on Warden v. Lischko
85
to support the general conclusion that the application of
Nevada's procedural bars for waiver is discretionary.
86

[Headnote 19]
We take this opportunity to clarify our prior case law relied on by the Ninth Circuit
court in McKenna and Petrocelli. First, we acknowledge that our analysis in Pertgen, though
much of it dictum, was unfortunately flawed. There, we stated:
Under certain circumstances, a valid claim of ineffective assistance of appellate
counsel may establish good cause such that we may review apparently meritorious
issues that should have been raised on direct appeal.
__________

78
Id. at 1488-89.

79
248 F.3d at 885-88. We note that in Petrocelli, id. at 886, the Ninth Circuit court mischaracterized our
decision in McKenna v. State, where we determined that a claim that an aggravating circumstance was
unconstitutional was procedurally barred on the ground of waiver. Contrary to Petrocelli's indication, this claim
was not raised in McKenna's state post-conviction petition as support for a claim of ineffective counsel; it was an
independent claim that should have been raised on direct appeal. See McKenna v. State, Docket No. 19026
(Order Dismissing Appeal at 3, January 18, 1990); see also McKenna, 65 F.3d at 1488.

80
101 Nev. 573, 707 P.2d 1128 (1985).

81
114 Nev. 169, 953 P.2d 1077 (1998).

82
110 Nev. 609, 877 P.2d 1025 (1994).

83
110 Nev. 554, 875 P.2d 361 (1994).

84
104 Nev. 105, 754 P.2d 836 (1988).

85
90 Nev. 221, 523 P.2d 6 (1974).

86
Petrocelli, 248 F.3d at 888.
have been raised on direct appeal. Under the unique circumstances of this case, we
consider appellant's allegations to be sufficient to overcome this significant procedural
hurdle. Moreover, the power of this court to address plain error or issues of
constitutional dimension sua sponte is well established. Emmons v. State, 107 Nev. 53,
60-61, 807 P.2d 718, 723 (1991); see also Edwards v. State, 107 Nev. 150, 153 n.4, 808
P.2d 528, 530 n.4 (1991) (where appellant presents an adequate record for reviewing
serious constitutional issues, this court will address such claims on the merits). Because
this case involves the ultimate punishment and because appellant's claims of ineffective
assistance of counsel are directly related to the merits of his claims, we will consider
appellant's claims on the merits in order to determine whether appellant received
ineffective assistance of counsel.
87

This language confuses the waiver analysis as it applies to claims of ineffective assistance of
counsel. Pertgen incorrectly indicated that procedural bars for waiver are applicable to claims
of ineffective assistance of counsel initially brought in a first post-conviction proceeding.
Ineffective assistance of counsel claims are properly raised for the first time in a timely first
post-conviction petition; thus, the cause and prejudice analysis is not necessary in
determining whether these claims are appropriately considered on the merits.
This was not always the rule. Before the 1980s, this court was generally willing to
review claims of ineffective assistance of counsel on direct appeal,
88
and recognized that
such claims could be waived by the failure to raise them on direct appeal.
89
As early as 1975,
however, we had begun to recognize that such claims, if without support by the record, were
not appropriate for consideration on direct review.
90
In 1981, we decided Gibbons v. State,
91
where we declined to consider a claim of ineffective assistance of counsel on direct appeal
because it was unclear whether counsel in that case had any basis for his actions which, from
the record, were seemingly ineffective. We declared that the more appropriate vehicle for
presenting a claim of ineffective assistance of counsel is through post-conviction relief.
92

__________

87
Pertgen, 110 Nev. at 560, 875 P.2d at 364.

88
See, e.g., Donovan v. State, 94 Nev. 671, 674-75, 584 P.2d 708, 711 (1978).

89
See Lischko, 90 Nev. at 222-23 & n.1, 523 P.2d at 7 & n.1.

90
See Brackenbrough v. State, 91 Nev. 487, 537 P.2d 1194 (1975).

91
97 Nev. 520, 522-23, 634 P.2d 1214, 1216 (1981).

92
Id. at 523, 634 P.2d at 1216.
In step with our decisions limiting the availability of review on direct appeal of most
claims of ineffective assistance of counsel, we also held that such claims, if properly brought
for the first time in a post-conviction petition, would not be subject to the post-conviction
procedural bar for waiver.
93
But this left open the question of whether such claims were
waived if they would have been appropriate for resolution on direct appeal without an
evidentiary hearing. Ultimately, we adopted a bright-line rule in Daniels v. State
94
and held
that, [b]ecause of the usual need for an evidentiary hearing to resolve a claim of ineffective
counsel, the failure to raise the claim on direct appeal does not constitute a waiver of the
claim for purposes of post-conviction proceedings.
[Headnotes 20, 21]
Following these determinations, we have generally declined to address claims of
ineffective assistance of counsel on direct appeal unless there has already been an evidentiary
hearing
95
or where an evidentiary hearing would be unnecessary.
96
In reviewing our prior
decisions, we are mindful that we have not always acknowledged the exceptions to the rule
barring review of such claims on direct appeal. For example, we have stated, without
qualification, that this court has consistently concluded that it will not entertain claims of
ineffective assistance of counsel on direct appeal.
97
Therefore, fairness to habeas petitioners
requires a bright-line rule regarding the waiver of these claims. Accordingly, we reaffirm our
previous holding in Daniels and specifically hold that claims of ineffective assistance of
counsel brought in a timely first post-conviction petition for a writ of habeas corpus are not
subject to dismissal on grounds of waiver, regardless of whether the claims could have been
appropriately raised on direct appeal. That being stated, Pertgen does not stand for a
relaxation of the procedural bars for waiverthe issue of ineffective assistance of counsel
was appropriately raised in the post-conviction proceeding under review. The procedural bar
was not applicable to the claim. Pertgen failed to make a crucial distinction: trial court error
may be appropriately raised in a timely first post-conviction petition in the context of
claims of ineffective assistance of counsel, but independent claims based on the same
error are subject to the waiver bars because such claims could have been presented to the
trial court or raised in a direct appeal.
__________

93
Bolden v. State, 99 Nev. 181, 183, 659 P.2d 886, 887 (1983).

94
100 Nev. 579, 580, 688 P.2d 315, 316 (1984), overruled on other grounds by Varwig v. State, 104 Nev.
40, 752 P.2d 760 (1988). The Legislature subsequently amended the waiver provisions at NRS 177.375
applicable to guilty pleas to reflect that such claims were properly brought in a post-conviction petition. See
1987 Nev. Stat., ch. 539, 45, at 1231-32.

95
See, e.g., Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995).

96
See, e.g., Mazzan v. State, 100 Nev. 74, 80, 675 P.2d 409, 413 (1984).

97
Corbin v. State, 111 Nev. 378, 381, 892 P.2d 580, 582 (1995).
be appropriately raised in a timely first post-conviction petition in the context of claims of
ineffective assistance of counsel, but independent claims based on the same error are subject
to the waiver bars because such claims could have been presented to the trial court or raised
in a direct appeal.
98

[Headnotes 22, 23]
We also view as problematic and disapprove of Pertgen's other implication that
special discretion attaches to procedural bars applied in capital habeas cases. The Ninth
Circuit court in Petrocelli also relied on Jones and Flanagan as support for the conclusion
that this court relaxes its procedural bars in capital habeas review. Our decisions in the latter
two cases resolved direct appeals from judgments of conviction. On direct appeal of any
judgment of conviction, this court has discretion to review instances of plain error despite the
failure to preserve an issue at trial or the failure to raise the issue on appeal.
99
We have
acknowledged the special import attached to this discretion where the death penalty has been
imposed.
100
However, this plain error rule is a rule for review on direct appeal and does not
create a procedural bar exception in any habeas proceeding, capital or not.
[Headnotes 24, 25]
As noted by the Ninth Circuit court in Petrocelli,
101
in Paine, a direct appeal from a
death sentence, we elected to address issues that we had previously determined in a prior
appeal wherein we remanded the case for a new penalty hearing.
102
We briefly discussed
these issues in Paine, stating that we did so without attenuating the force and applicability of
the law of the case.
103
Our decision was proper, as the law of the case doctrine states that
[t]he law of a first appeal is the law of the case on all subsequent appeals in which the facts
are substantially the same.'
104
Paine argued that new evidence was adduced at his second
penalty hearing.
105
Thus, it was appropriate for this court in applying the law of the case
doctrine to address whether the facts were substantially the same in both appeals.
__________

98
See NRS 34.810(1)(b).

99
not brought to the attention of the court.); see, e.g., Collman v. State, 116 Nev. 687, 711-12, 7 P.3d 426,
441-42 (2000), cert. denied, 121 S. Ct. 1617 (2001); Geary v. State, 112 Nev. 1434, 1440, 930 P.2d 719, 723
(1996), clarified on other grounds on rehearing, 114 Nev. 100, 952 P.2d 431 (1998).

100
See, e.g., Geary, 112 Nev. at 1440, 930 P.2d at 723.

101
See Petrocelli, 248 F.3d at 888.

102
Paine, 110 Nev. at 615-16, 877 P.2d 1028-29.

103
Id. at 615, 877 P.2d at 1029.

104
Hall, 91 Nev. at 315, 535 P.2d at 798 (quoting Walker v. State, 85 Nev. 337, 343, 455 P.2d 34, 38
(1969)).

105
Paine, 110 Nev. at 615, 877 P.2d at 1028.
law of the case doctrine to address whether the facts were substantially the same in both
appeals. We also addressed Paine's argument that in the previous appeal we erroneously
interpreted the law with respect to an aggravating circumstance.
106
However, it cannot be
seriously disputed that a court of last resort has limited discretion to revisit the wisdom of its
legal conclusions when it determines that further discussion is warranted.
107
We reject the
suggestion that the rare exercise of that discretion must result in a determination that the law
of the case doctrine is inadequate to bar reassertion of a claim in habeas.
108

The Ninth Circuit court's reliance on Hill v. State
109
also warrants discussion. This
was an appeal from an order dismissing a second post-conviction petition in a death penalty
case, wherein we reached the merits of claims of ineffective assistance of trial and appellate
counsel without mention of the waiver and successive petition bars. This case involved
unique circumstances that were not fully set forth in our opinion. Hill had filed a first petition
for post-conviction relief in proper person, which was summarily dismissed by the district
court. At the time the relevant statutes required appointment of counsel in cases of indigence.
110
Hill filed a late notice of appeal from that dismissal, and we determined that we lacked
jurisdiction to entertain the appeal.
111
However, we noted that dismissal of the appeal with
prejudice would be inappropriate, and we dismissed the appeal without prejudice to Hill's
right to refile the petition. Further, in the event that Hill elected to re-file his petition, we
instructed the district court to appoint counsel for Hill and to conduct an evidentiary hearing.
112
Our opinion dismissing the appeal from the order denying the second petition does not
mention the procedural bars; however, this is because the district court had recognized that
pursuant to our order dismissing the earlier appeal, the second petition was a properly refiled
or renewed first petition. Therefore, the procedural bars were not raised on appeal from the
denial of the second petition, and we did not discuss them.
Finally, the Ninth Circuit court also relied on Warden v. Lischko
113
for the
proposition that this court generally has discretion to overlook procedural bars.
__________

106
Id.

107
See Arizona v. California, 460 U.S. 605, 618 n.8 (1983).

108
See Adams, 489 U.S. at 411-12 n.6 (recognizing that to be adequate, a procedural bar need only be
applied on the vast majority of cases).

109
114 Nev. 169, 953 P.2d 1077 (1998).

110
See 1987 Nev. Stat., ch. 539, 42, at 1230-31.

111
Hill v. State, Docket No. 18253 (Order Dismissing Appeal, June 29, 1987).

112
Id.

113
90 Nev. 221, 523 P.2d 6.
tion to overlook procedural bars. There, in reviewing an appeal from an order granting a
post-conviction petition under NRS Chapter 177, we stated:
Although the district court properly may have refused to entertain Lischko's
post-conviction petition because of his failure to urge the incompetency of trial counsel
as a claim of error upon direct appeal, it chose instead to conduct an evidentiary hearing
and rule upon the merits. That choice fell within its discretionary power.
114

[Headnote 26]
Lischko's petition was filed in July of 1972.
115
As we have explained, at that time the
statutory procedural bar for waiver was far less stringent than the current statutory bar at NRS
34.810. Moreover, Lischko was decided during the transitional period before this court had
formulated its current rules for when claims of ineffective assistance of counsel must be
brought. To the extent that Lischko supports the discretionary application of the current
procedural bar for waiver, we hereby overrule it. The current statutory language is mandatory.
116

In sum, we conclude that we have been consistent in requiring good cause and actual
prejudice to overcome the statutory procedural bars. We perceive no basis to ignore the
procedural bars here. Thus, NRS 34.810 requires Pellegrini to demonstrate good cause and
actual prejudice.
Good cause, actual prejudice and fundamental miscarriage of justice
[Headnotes 27, 28]
To overcome the procedural bars of NRS 34.726 and NRS 34.810, Pellegrini had the
burden of demonstrating good cause for delay in bringing his new claims or for presenting the
same claims again and actual prejudice.
117
To show good cause, a petitioner must
demonstrate that an impediment external to the defense prevented him from raising his claims
earlier.
118
For example, such an impediment might be demonstrated by a showing " 'that
the factual or legal basis for a claim was not reasonably available . . . or that "some
interference by officials" made compliance [with the procedural rule] impracticable.' "
__________

114
Id. at 222-23, 523 P.2d at 7 (footnote omitted).

115
See id. at 225, 523 P.2d at 8 (Mowbray, J., dissenting).

116
See NRS 34.810(1) (The court shall dismiss a petition . . . .); NRS 34.810(2) (A second or successive
petition must be dismissed . . . .). We also overrule Lischko to the extent that it may be read to suggest that this
court must review the merits of a post-conviction claim whenever the trial court has elected to do so.

117
See NRS 34.726(1); NRS 34.810(3); Crump v. Warden, 113 Nev. 293, 302, 934 P.2d 247, 252 (1997);
Hood v. State, 111 Nev. 335, 337-38, 890 P.2d 797, 798 (1995).

118
Harris v. Warden, 114 Nev. 956, 959, 964 P.2d 785, 787 (1998).
an impediment might be demonstrated by a showing that the factual or legal basis for a
claim was not reasonably available . . . or that some interference by officials made
compliance [with the procedural rule] impracticable.'
119
[A]ctual prejudice requires a
showing not merely that the errors [complained of] created a possibility of prejudice, but
that they worked to [the petitioner's] actual and substantial disadvantage, in affecting the state
proceeding with error of constitutional dimensions.'
120

[Headnotes 29-31]
This court may excuse the failure to show cause where the prejudice from a failure to
consider the claim amounts to a fundamental miscarriage of justice.
121
We have
recognized that this standard can be met where the petitioner makes a colorable showing he is
actually innocent of the crime or is ineligible for the death penalty.
122
To avoid application
of the procedural bar to claims attacking the validity of the conviction, a petitioner claiming
actual innocence must show that it is more likely than not that no reasonable juror would
have convicted him absent a constitutional violation.
123
Where the petitioner has argued that
the procedural default should be ignored because he is actually ineligible for the death
penalty, he must show by clear and convincing evidence that, but for a constitutional error, no
reasonable juror would have found him death eligible.
124

[Headnotes 32, 33]
Pellegrini does not challenge the district court's determination that his allegations of
good cause relating to the effectiveness of counsel rested on the performance of counsel in the
first post-conviction proceeding, which cannot excuse Pellegrini's failure to comply with the
procedural rules. In any event, there was no merit to this allegation of good cause. Pellegrini
filed his first petition in December 1989. At that time, there was no constitutional or statutory
right to post-conviction counsel.
125
Where there is no right to counsel there can be no
deprivation of effective assistance of counsel and hence, 'good cause' cannot be shown
based on an ineffectiveness of post-conviction counsel claim.
__________

119
Id. at 959-60 n.4, 964 P.2d at 787 n.4 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (citations
omitted).

120
Hogan v. Warden, 109 Nev. 952, 960, 860 P.2d 710, 716 (1993) (quoting United States v. Frady, 456
U.S. 152, 170 (1982)).

121
Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996); Hogan, 109 Nev. at 959, 860 P.2d at
715-16; cf. NRS 34.800(1)(b).

122
See Mazzan, 112 Nev. at 842, 921 P.2d at 922; Hogan, 109 Nev. at 954- 55, 959, 860 P.2d at 712,
715-16.

123
Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496).

124
Sawyer v. Whitley, 505 U.S. 333, 336 (1992); Hogan, 109 Nev. at 960, 860 P.2d at 716.

125
See McKague v. Warden, 112 Nev. 159, 163-65, 912 P.2d 255, 257-58
there is no right to counsel there can be no deprivation of effective assistance of counsel and
hence, good cause' cannot be shown based on an ineffectiveness of post-conviction counsel
claim.
126
Therefore, we conclude that the district court did not err in determining an
evidentiary hearing was not warranted on these allegations.
To demonstrate error, Pellegrini focuses on his assertions of incompetence and
insanity. He contends these assertions are sufficient to warrant an evidentiary hearing on the
issues of whether he has demonstrated good cause for his failure to comply with the
procedural rules and whether application of the procedural bars would cause a fundamental
miscarriage of justice due to his actual innocence by reason of insanity. He further argues that
the district court erred in applying the law of the case doctrine to bar consideration of these
claims. We conclude that the law of the case doctrine was not applicable under the
circumstances presented here. However, we further conclude that Pellegrini failed to show
good cause or show a fundamental miscarriage of justice would result from application of the
procedural bars, and that an evidentiary hearing was not warranted. Therefore, we affirm the
district court's decision to deny relief.
127

[Headnotes 34, 35]
Under the law of the case doctrine, issues previously determined by this court on
appeal may not be reargued as a basis for habeas relief.
128
In concluding that the law of the
case precluded consideration of Pellegrini's allegations of incompetence and insanity to prove
good cause or a fundamental miscarriage of justice, the district court relied on the prior denial
of claim 1(e) of Pellegrini's first petition. That claim alleged that trial counsel failed to
investigate and present evidence to negate the culpability and mens rea of [Pellegrini] . . . and
failed to file a Motion to Dismiss for the loss of such evidence by the State."
__________
(1996) (holding that there is no constitutional right to effective assistance of counsel except where state law
entitles one to the appointment of counsel); accord Bejarano, 112 Nev. at 1469-71, 929 P.2d at 924-25; cf.
Crump, 113 Nev. at 302-05, 934 P.2d at 252-54. In 1989, NRS 177.345(1) provided only for discretionary
appointment of counsel. See 1987 Nev. Stat., ch. 539, 42, at 1230. This statute was repealed in 1993. 1991
Nev. Stat., ch. 44, 31- 33, at 92. NRS 34.820(1) now provides for mandatory appointment of counsel for the
first post-conviction petition challenging the validity of conviction or sentence where the petitioner has been
sentenced to death. In other cases, NRS 34.750(1) provides for discretionary appointment of counsel.

126
McKague, 112 Nev. at 164-65, 912 P.2d at 258; see also Mazzan, 112 Nev. at 841-42, 921 P.2d at
921-22.

127
See Franco v. State, 109 Nev. 1229, 1241, 866 P.2d 247, 255 (1993) (stating that this court will affirm the
correct result of the district court's ruling even on different grounds).

128
See McNelton v. State, 115 Nev. 396, 414-15, 990 P.2d 1263, 1275 (1999).
Dismiss for the loss of such evidence by the State. The claim was unsupported by any
specific factual assertions. It did not refer to incompetence or insanity based on MPD.
Furthermore, it appears that all other claims raised in the petition, to the extent that they
alluded to Pellegrini's mens rea, addressed only Pellegrini's alleged intoxication at the time of
the crime. The district court denied claim 1(e) without a hearing. On appeal from the denial of
the first petition, we determined that this claim was among a group of claims of ineffective
assistance of counsel which were properly denied as either naked' claims for relief or . . .
repelled by the record.
129
We did not decide whether any evidence showed that Pellegrini
suffered from MPD, was incompetent at any time in the proceedings, or had a viable defense
of insanity. Nor did we determine whether allegations that Pellegrini suffered from MPD
might constitute good cause to excuse the failure to comply with procedural rules or whether
application of procedural bars to these claims would cause a fundamental miscarriage of
justice. Thus, our determination on appeal from the denial of the first petition established no
law of the case governing these matters.
130

[Headnote 36]
Still, the only support for Pellegrini's claims is the declaration in support of his
petition given by Dr. Riley. The declaration states that Dr. Riley interviewed Pellegrini and
conducted a battery of neuropsychological tests on him in April and May of 1997; obtained
anecdotal evidence from Pellegrini, his friends and family members regarding behavioral
abnormalities and traits Pellegrini displayed as a child and young adult; and obtained records
from a 1985 neurological evaluation wherein Pellegrini was diagnosed with migraine related
to a stress situation. The declaration further states that Dr. Riley obtained partial records
from Pellegrini's three pretrial mental health evaluations,
131
including Dr. David Kessler's
evaluation. Dr. Riley states:
Dr. Kessler concluded that Mr. Pellegrini's behavior at the time of the crime was
consistent with loss of behavioral control, including an explosive outburst of anger.
Dr. Kessler went on to state that at the time in question, the defendant was not
suffering from any type of psychiatric disorder which precluded his understanding of
the nature and quality of his actions or their wrongfulness, or rendered him
incapable of forming the requisite intent to carry out the offenses."
__________

129
Pellegrini, Docket No. 22874 (Order Dismissing Appeal at 2-3, May 28, 1993).

130
Cf. Lay v. State, 116 Nev. 1185, 1200 n.4, 14 P.3d 1256, 1266 n.4 (2000).

131
Dr. Riley's reference is the only indication in the record of the content of any pretrial evaluation. Despite
the relevant nature of these evaluations, neither Pellegrini nor the State has provided this court with any
documentation related to them.
order which precluded his understanding of the nature and quality of his actions or their
wrongfulness, or rendered him incapable of forming the requisite intent to carry out the
offenses.
Based on the above information, Dr. Riley was able to draw some preliminary
conclusions and was of the opinion that at the time of the offense, Pellegrini suffered from
a severe psychiatric disorder, which . . . is referred to as a dissociative disorder.
132
Dr. Riley
explained that the essential feature of a dissociative disorder is a disruption in the usually
integrated functions of consciousness, memory, identity or perception of the environment.
Dr. Riley opined that an accurate diagnosis of dissociative disorder at the time of trial would
have assisted the jury in determining the defendant's level of criminal responsibility and could
have been viewed as important mitigating evidence. However, Dr. Riley cautioned, [M]y
sub-specialty of neuropsychology is far afield from the area of dissociative disorders. Because
of my lack of experience in assessing disorders of this nature, definitive diagnosis should be
made by an expert who is competent to conduct the specialized evaluation and interview
techniques particular to this rare type of disorder.
The evidence presented through this declaration falls far short of demonstrating good
cause for Pellegrini's delay in bringing his new claims for relief or for reraising previous
claims. Although Pellegrini contends that he was incompetent and insane at the time of the
crimes and throughout the prior proceedings, the declaration fails to set forth facts to
demonstrate how Pellegrini's mental state related to any impediment in asserting the grounds
for relief now raised in the second petition.
133

[Headnote 37]
Pellegrini further argues that because he suffered from MPD at the time of the crime,
he was legally insane and therefore meets the actual innocence standard for purposes of
determining whether a fundamental miscarriage of justice will result from the failure to
consider his second petition on the merits. We note that reasonable jurists have disagreed on
whether proof of legal insanity satisfies the actual innocence benchmark of the fundamental
miscarriage of justice exception.
134
Furthermore, other courts have recognized that whether
proof of MPD may satisfy the definition of legal insanity is one involving considerable
controversy.
__________

132
Though Dr. Riley does not use the phrase multiple personality disorder, we assume for the limited
purpose of this discussion that Dr. Riley's opinion was that Pellegrini suffered from MPD, which has been
recognized as a dissociative disorder. See Medlock v. State, 887 P.2d 1333, 1340 & n.9 (Okla. Ct. Crim. App.
1995).

133
Cf. Ford v. Warden, 111 Nev. 872, 881, 901 P.2d 123, 128-29 (1995); Phelps v. Director, Prisons, 104
Nev. 656, 660, 764 P.2d 1303, 1306 (1988).

134
Compare Britz v. Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999) (holding
recognized that whether proof of MPD may satisfy the definition of legal insanity is one
involving considerable controversy.
135
We need not determine either issue here. Even
assuming Pellegrini suffered from MPD at the time of the crime, he has set forth no facts to
show that he was legally insane due to this condition, i.e., that he labored under a delusion so
great at the time of his crimes that he was robbed of the ability to understand what he was
doing or deprived of the ability to appreciate his actions were wrong and unlawful.
136
Dr.
Riley's declaration provides no support for a conclusion that Pellegrini was legally insane at
the time of the crime, and, although it acknowledges the previous evaluation by Dr. Kessler,
it fails to rebut Dr. Kessler's conclusion indicating that Pellegrini did not meet the test for
legal insanity at the time of the crime.
Accordingly, we conclude that Pellegrini failed to allege a sufficient basis to show
good cause to excuse the procedural bars or to conclude that a fundamental miscarriage of
justice would occur from the failure to consider his claims for relief on the merits. The district
court did not err in declining to conduct an evidentiary hearing on these issues.
CONCLUSION
We conclude that Pellegrini is not entitled to relief in this appeal,
137
and we affirm
the district court's order denying his untimely and successive petition for a writ of habeas
corpus.
__________
that a defendant who is insane at the time of the offense is actually innocent for purposes of the fundamental
miscarriage of justice test), cert. denied, 529 U.S. 1006 (2000), with Weldon v. Wyoming Department of
Corrections, 963 F. Supp. 1098, 1103 (D. Wyo. 1997) (stating it is very questionable whether legal innocence
because of insanity could constitute actual innocence), aff'd, 127 F.3d 1110 (10th Cir. 1997).

135
See, e.g., Medlock, 887 P.2d at 1342 n.12; State v. Wheaton, 850 P.2d 507, 509 (Wash. 1993).

136
See Finger v. State, 117 Nev. 548, 556-57, 27 P.3d 66, 72 (2001) (stating M'Naghten test for legal
insanity followed in Nevada).

137
We have considered Pellegrini's claims related to the adequacy of the district court's findings of fact and
conclusions of law and his claims related to whether he was denied any rights by the procedure followed in the
district court. We conclude that these claims lack merit and do not warrant further discussion.
____________
117 Nev. 892, 892 (2001) Salaiscooper v. Dist. Ct.
VIRGINIA ANCHOND SALAISCOOPER, Petitioner, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF
CLARK and THE HONORABLE JOSEPH T. BONAVENTURE, District Judge,
Respondents, and THE STATE OF NEVADA, Real Party in Interest.
No. 38296
November 15, 2001 34 P.3d 509
Original petition for a writ of certiorari, prohibition, or mandamus.
Woman charged with solicitation of prostitution challenged county district attorney's
policy that plea agreements, allowing criminal defendants to avoid convictions by attending
diversion classes, would be offered only to buyers of sex, and not to sellers of sex, alleging
that the policy was selective prosecution that violated the equal protection rights of women.
The justice court upheld the policy. Woman appealed. The district court affirmed and
remanded. Woman petitioned for writ of certiorari, prohibition, or mandamus. The supreme
court held that: (1) justice courts have authority to resolve constitutional issues arising in
criminal misdemeanor cases, overruling In Re Dixon, 40 Nev. 228, 161 P. 737 (1916), and
McKay v. City of Las Vegas, 106 Nev. 203, 789 P.2d 584 (1990); (2) justice court exceeded
its jurisdiction by issuing a collaborative, en banc decision; (3) lack of underlying
conviction did not preclude supreme court's consideration of the petition; and (4) county
district attorney's plea-bargain policy did not violate equal protection.
Petition denied.
William B. Terry, Las Vegas, for Petitioner.
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Real Party
in Interest.
1. Criminal Law.
District court lacked jurisdiction over criminal defendant's interlocutory appeal of justice court's non-final order that county
district attorney was selectively prosecuting solicitation of prostitution cases based on gender, in violation of equal protection. Const.
art. 4, 21; U.S. Const. amend. 14; NRS 177.015(1)(a).
2. Criminal Law.
District court had authority to treat criminal defendant's improper interlocutory appeal, of justice court's non-final order that
county district attorney was selectively prosecuting solicitation of prostitution cases based on gender in violation of equal protection, as
a proper petition for writ of certiorari, for which an appeal from the district court's decision could be taken to the supreme
court.
could be taken to the supreme court. Const. art. 4, 21; U.S. Const. amend. 14; NRS 177.015(1)(a).
3. Criminal Law.
Justice court exceeded its jurisdiction in test case regarding allegations that county district attorney was violating equal
protection by selectively prosecuting solicitation of prostitution cases based on gender, where the judge assigned to the case
collaborated with other justice court judges to reach a collective or en banc decision. Const. art. 4, 21; art. 6, 8; U.S. Const.
amend. 14; NRS 4.370(3).
4. Justices of the Peace.
Justice courts do not have jurisdiction or authority to sit en banc or to make collaborative findings. Const. art. 6, 8; NRS
4.370(3).
5. Stipulations.
Where a tribunal has no jurisdiction, jurisdictional limits cannot be expanded by a stipulation amongst the parties.
6. Criminal Law.
It is perfectly appropriate for judicial colleagues to discuss legal issues in the context of hypothetical situations. Code of Jud.
Conduct, Canon 2.
7. Criminal Law.
Justice court had jurisdiction over criminal defendant's allegations that county district attorney was violating equal protection by
selectively prosecuting solicitation of prostitution cases based on gender, where the allegations arose in the context of a criminal
misdemeanor case. Const. art. 4, 21; art. 6, 8; U.S. Const. amend. 14; NRS 4.370(3).
8. Criminal Law.
The legislature has necessarily empowered justice courts with authority to resolve constitutional issues arising in criminal
misdemeanor cases; overruling In Re Dixon, 40 Nev. 228, 161 P. 737 (1916), and McKay v. City of Las Vegas, 106 Nev. 203, 789
P.2d 584 (1990). Const. art. 6, 8; NRS 4.370(3).
9. Certiorari; Mandamus; Prohibition.
Petitions for certiorari, mandamus, or prohibition, as petitions for extraordinary relief, are addressed to the sound discretion of
the supreme court. NRS 34.020(2), 34.160, 34.320.
10. Criminal Law; Mandamus; Prohibition.
Supreme court would consider criminal defendant's petition for writ of certiorari, prohibition, or mandamus, alleging that county
district attorney was selectively prosecuting solicitation of prostitution cases based on gender in violation of equal protection, though
there was no underlying conviction in the case. Fifty-six similar cases were pending in justice courts, so that judicial economy favored
resolution of the petition, and the petition presented an issue of statewide importance. Const. art. 4, 21; U.S. Const. amend. 14; NRS
34.020(2), 34.160, 34.320.
11. Criminal Law.
Generally, and except in extraordinary circumstances warranting interlocutory intervention, the supreme court will not consider
the legal issues presented in a criminal case prior to entry of the judgment of conviction.
County district attorney's policy that plea agreements, allowing criminal defendants to avoid convictions by attending diversion
classes, would be offered only to buyers of sex, and not to sellers of sex, was not selective prosecution of solicitation of prostitution
cases based on gender that violated equal protection rights of women.
that violated equal protection rights of women. Distinction was based on belief that one-day diversion class would have deterrent effect
only for sex buyers, and district attorney sought revocation of sex sellers' work cards for adult entertainment industry, based on
prostitution convictions. Const. art. 4, 21; U.S. Const. amend. 14; NRS 201.354.
13. Criminal Law.
The government's decision to deny an arrestee admission into a diversion program is a decision to prosecute, and on review is
treated as a claim of selective prosecution. Const. art. 4, 21; U.S. Const. amend. 14.
14. Criminal Law; District and Prosecuting Attorneys.
A district attorney is vested with immense discretion in deciding whether to prosecute a particular defendant, that necessarily
involves a degree of selectivity.
15. District and Prosecuting Attorneys.
In exercising discretion regarding whether to prosecute a particular defendant, the district attorney is clothed with the
presumption that he acted in good faith and properly discharged his duty to enforce the laws.
16. Constitutional Law; District and Prosecuting Attorneys.
Although the district attorney's prosecutorial discretion is broad, it is not without limitation. The Equal Protection Clause
constrains the district attorney from basing a decision to prosecute upon an unjustifiable classification, such as race, religion, or
gender. Const. art. 4, 21; U.S. Const. amend. 14.
17. Criminal Law.
The defendant alleging selective prosecution has the burden to prove a prima facie case of discriminatory prosecution. Const.
art. 4, 21; U.S. Const. amend. 14.
18. Criminal Law.
To establish a prima facie case of selective prosecution, the defendant must show that a public officer enforced a law or policy
in a manner that had a discriminatory effect, and that such enforcement was motivated by a discriminatory purpose. Const. art. 4, 21;
19. Criminal Law.
A discriminatory effect, as element of claim of selective prosecution, is proven where a defendant shows that other persons
similarly situated are generally not prosecuted for the same conduct. Const. art. 4, 21; U.S. Const. amend. 14.
20. Criminal Law.
A discriminatory purpose, as element of claim of selective prosecution, is established where a defendant shows that a public
administrator chose a particular course of action, at least in part, because of its adverse effects upon a particular group. Const. art. 4,
21; U.S. Const. amend. 14.
21. Criminal Law.
If a defendant proves a prima facie case of selective prosecution, the burden then shifts to the State to establish that there was a
reasonable basis to justify the unequal classification. Const. art. 4, 21; U.S. Const. amend. 14.
Where the classification is based on gender, the court applies an intermediate standard of scrutiny, for equal protection purposes,
under which the court must conclude the unequal classification is reasonable, not arbitrary, and rests upon some ground of
difference having a fair and substantial relation to the object of the legislation.
not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of the legislation. Const. art.
4, 21; U.S. Const. amend. 14.
23. Criminal Law.
Lower court's findings as to county district attorney's motivation and intent underlying policy that plea agreements, allowing
criminal defendants to avoid convictions by attending diversion classes, would be offered only to buyers of sex, and not to sellers of
sex, were findings of fact to be given deference, which would not be reversed if supported by substantial evidence, in sex seller's appeal
of lower court's determination that the policy was not selective prosecution of solicitation of prostitution cases that violated the equal
protection rights of women. Const. art. 4, 21; U.S. Const. amend. 14; NRS 201.354.
Legislature's failure to pass bill limiting plea bargaining in solicitation of prostitution cases did not establish legislative intent
that sellers of sex would not be distinguished from buyers of sex, in action by accused sex seller alleging that county district attorney's
policy that plea agreements, allowing criminal defendants to avoid convictions by attending diversion classes, would be offered only to
buyers of sex, and not to sellers of sex, was selective prosecution of solicitation of prostitution cases based on gender that violated
equal protection rights of women. Legislature never affirmatively considered the bill, which was withdrawn by sponsor so that First
Amendment issues could be considered. Const. art. 4, 21; U.S. Const. amends. 1, 14; NRS 201.354.
OPINION
Per Curiam:
INTRODUCTION
Petitioner Virginia Anchond Salaiscooper contends that, in prosecuting her for
solicitation of prostitution, Clark County District Attorney Stewart Bell is engaging in
impermissible unconstitutional selective prosecution that violates her right to equal protection
under the law. More specifically, Salaiscooper contends that the district attorney intended to
discriminate against females by implementing a policy that prohibited his deputies from
entering into plea negotiations with female defendants charged with solicitation of
prostitution, thereby foreclosing any possibility that they could attend a diversion class in
order to avoid solicitation convictions.
Had the district attorney done as Salaiscooper alleges and, in exercising his
prosecutorial discretion, intended to discriminate against women, we would agree with
Salaiscooper. However, the unrefuted evidence in this matter demonstrates that the district
attorney's prosecution policy differentiates between buyers of sex and sellers of sex, not
between males and females.
and sellers of sex, not between males and females. We cannot say that a prosecutor intends to
discriminate against females by allowing all buyers of sex, regardless of gender, to attend a
successful diversion program, which is designed solely for buyers of sex. We also cannot say
that a prosecutor intends to discriminate against females by implementing a policy treating
sellers of sex differently in order to deter acts of prostitution committed by those who work in
the adult entertainment industry. Because we conclude that this is a case of prosecutorial
discretion and not unconstitutional selective prosecution, we deny Salaiscooper's petition.
FACTS
This matter has a somewhat unusual procedural history. On February 29, 2000, Megan
Joy Hayhurst, who was charged with soliciting prostitution, filed a motion for discovery
requesting the written policy of the Clark County District Attorney's Office concerning
prosecution of solicitation of prostitution cases. Hayhurst contended that the policy violated
the Equal Protection Clauses of the United States and Nevada Constitutions because it
resulted in impermissible gender discrimination.
1
Hayhurst was represented by attorney
William B. Terry, who was also counsel of record for numerous other defendants charged
with solicitation of prostitution in the various departments of the Las Vegas Justice Court,
wherein the same argument was raised.
The policy at issue was summarized in a December 1999 memo from Clark County
District Attorney Stewart Bell to his deputies. The memo provided:
In light of some changes in policy at the Las Vegas Metropolitan Police Department
with regard to work card licensing for exotic dancers charged with prostitution, it has
been agreed . . . that (except in cases of first time male offenders who opt for the
diversion program) we will not negotiate the nature of cases of soliciting prostitution,
nor will we agree that they may be in the future dismissed for any reason.
The policy was implemented due to the American Civil Liberties Union's (ACLU) objection
to the fact that the Las Vegas Metropolitan Police Department (Metro) was revoking adult
entertainment industry employees' work cards based merely on an arrest for solicitation of
prostitution. The ACLU contended that revoking a work card needed to work in the
entertainment industry without an underlying conviction violated due process. In response to
the ACLU's objection, the district attorney implemented a no-plea-bargain policy that
prohibited his deputies from entering into a plea agreement with a defendant charged
with solicitation of prostitution allowing a plea to a lesser charge.
__________

1
See U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.
mented a no-plea-bargain policy that prohibited his deputies from entering into a plea
agreement with a defendant charged with solicitation of prostitution allowing a plea to a
lesser charge. The plain language of the policy prohibiting plea bargains excepted first time
male defendants.
Because the justice court was concerned with the gender-specific language used in the
policy, it ordered an evidentiary hearing where both sides could present evidence to support
or refute a specific finding of discriminatory purpose. As a result of the court's order, Mr.
Terry and the State agreed that they would randomly select a solicitation of prostitution case
in which to conduct the hearing out of the fifty-six pending in the various departments of the
Las Vegas Justice Court. The Salaiscooper case was randomly selected, and Justice of the
Peace Jennifer Togliatti presided over the hearing.
The State called two witnesses to testify at the hearing. The first witness was Dr.
Roxanne Clark Murphy, a clinical psychologist and the Program Coordinator for the First
Offender Program for Men in Las Vegas. Murphy testified that she developed the First
Offender Program in collaboration with Metro and that it boasted an extremely low
recidivism rate of less than one percent. Murphy explained that the diversionary program was
designed for buyers of sex that are statistically almost always male. Murphy also described
the requisite for entrance into the program was that a defendant must be a first-time offender
charged with soliciting a prostitute.
Murphy testified that the vast majority of sellers of sex are females. Murphy also
stated that it would take a minimum of a year to successfully rehabilitate a seller of sex.
Murphy explained that, in order for a diversion program to be an effective deterrent, it would
need to be a residential program that would protect women from their pimps, teach them job
skills, and provide substance abuse and psychological counseling. Murphy further explained
that more effort is required to rehabilitate and deter sex sellers than buyers because many
prostitutes have been sexually abused, selling sex since the age of 13 to 14, disassociated
from their actions through the use of drugs and alcohol, and/or controlled by a violent pimp
or procurer.
The second and last witness to testify on behalf of the State was Metro Lieutenant
Terry Davis, a supervisor of the vice department and teacher at the First Offender Program for
Men. Officer Davis testified that the program was designed for buyers of sex. Davis also
confirmed that he told a Las Vegas newspaper that the impetus of the policy was Metro's need
for an underlying solicitation of prostitution conviction in order to revoke an adult
entertainment industry employee's work card.
At the end of the hearing, Judge Togliatti reserved her ruling so that the seven justices
of the peace in Las Vegas Justice Court, who were not present at the evidentiary hearing,
could take the matter under advisement and reach a collective decision. On December 27,
2000, Judge Togliatti issued a lengthy order stating that the Las Vegas Justice Court had
unanimously found that the policy did not discriminate on the basis of gender and that its
distinction based on buyers of sex and sellers of sex was constitutionally permissible. In so
finding, Judge Togliatti qualified this conclusion by stating that the judges were relying on
the district attorney's representations that his policy applied to all sellers of sex regardless of
gender, and consequently ordered Mr. Bell to clarify this fact in writing to his deputies within
ten days.
In response to the court's order, Mr. Bell filed a clarification of policy in the justice
court, affirming that he had distributed a memo clarifying that the First Offender Program for
Men was available only to buyers of sex regardless of whether they were male or female.
Accordingly, under the clarified policy, if a female buyer of sex was charged with solicitation
of prostitution, she, like a male buyer of sex, would have the option of attending the First
Offender Program, thereby avoiding a solicitation conviction.
[Headnotes 1, 2]
Salaiscooper appealed the justice court ruling to the district court, which concluded
that the decision of the justice court was supported by substantial evidence, and that the
policy of the Clark County District Attorney's Office was constitutional.
2
Consequently, the
district court remanded the Salaiscooper case back to the Las Vegas Justice Court for trial.
Thereafter, the district court stayed the justice court proceedings until this court addressed the
issue by way of extraordinary writ. Salaiscooper then filed the instant petition for a writ of
certiorari, or in the alternative, a writ of prohibition or mandamus, contending that both
the justice court and the district court erred in concluding that the no-plea policy's
distinction based on buyers and sellers of sex was constitutionally permissible.
__________

2
NRS 177.015(1)(a) permits an appeal to the district court only from a final judgment of the justice court.
Here, petitioner appealed to the district court from an interlocutory order of the justice court, and there is no
statutory provision or court rule permitting such an appeal. Thus, the district court lacked jurisdiction to consider
the appeal. Petitioner should have sought, and certainly would have obtained, the district court's review of the
order by way of a petition for a writ of certiorari. This court could have then properly reviewed the district
court's ruling in an appeal authorized by statute. See NRS 34.120 (authorizing an appeal to this court from an
order of the district court resolving a petition for a writ of certiorari). Although the district court lacked
jurisdiction to consider the interlocutory appeal, we conclude that the district court clearly had jurisdiction to
exercise its discretion to treat the matter before it as a petition for a writ of certiorari. See, e.g., In re Temporary
Custody of Five Minors, 105 Nev. 441, 777 P.2d 901 (1989). In light of the far reaching consequences of the
issues presented, we are confident the district court would have exercised that discretion for the same reasons we
have exercised our discretion to review the instant original petition.
then filed the instant petition for a writ of certiorari, or in the alternative, a writ of prohibition
or mandamus, contending that both the justice court and the district court erred in concluding
that the no-plea policy's distinction based on buyers and sellers of sex was constitutionally
permissible. We discuss the issues raised in the petition below.
DISCUSSION
[Headnote 3]
We begin by addressing the unusual procedural posture of the controversy before us.
The justice court decision at issue in this case, although signed by the justice of the peace
who presided over the hearing, apparently resulted from the collaborative deliberation of all
seven judges of the Las Vegas Justice Court. Indeed, at the conclusion of the evidentiary
hearing on the constitutionality of the policy, Chief Judge Togliatti stated:
I'm ordering a copy of the transcript . . . . I will take it under advisement for the seven
of us to review the transcript, and we will issue and prepare a written record and
decision. I can't give you a definite time frame because we are dealing with seven of us.
Apparently, because this identical issue arose in cases pending in all seven departments, the
judges of the Las Vegas Justice Court thought it more efficient and cohesive to reach a
collaborative decision in a single test case, rather than reassign all cases raising this issue to
a single department or decide the issue individually. Although well-intentioned, we cannot
approve of such a practice because it is not authorized by the legislature.
[Headnotes 4, 5]
The justice courts are courts of limited jurisdiction, and the jurisdictional boundaries
of Nevada's justice courts are defined by the legislature.
3
The legislature has vested the
justice courts with original jurisdiction in criminal misdemeanor cases.
4
The legislature,
however, has not vested the justice courts with the jurisdiction or authority to sit en banc or
to make collaborative findings. Where a tribunal has no jurisdiction, it is well-recognized that
jurisdictional limits cannot be expanded by a stipulation amongst the parties.
5

[Headnote 6]
In the instant case, the justice court exceeded its authority in its procedural treatment
of this matter to the extent that it collaborated with other judges of the Las Vegas Justice
Court to reach a collective decision.
__________

3

4
NRS 4.370(3).

5
State of Nevada v. Justice Court, 112 Nev. 803, 919 P.2d 401 (1996).
procedural treatment of this matter to the extent that it collaborated with other judges of the
Las Vegas Justice Court to reach a collective decision. Although it is perfectly appropriate for
judicial colleagues to discuss legal issues in the context of hypothetical situations, there is no
statute or court rule authorizing a collective decision of an existing controversy before a
justice court or district court.
6

[Headnotes 7, 8]
Although the technical procedure implemented to review this matter was improper,
we conclude that the justice court properly exercised jurisdiction over the substantive equal
protection issue because it arose in the context of a criminal misdemeanor case. The
legislature has necessarily empowered justice courts with authority to resolve constitutional
issues arising in criminal misdemeanor cases.
7
For example, the justice courts are often
called upon to resolve constitutional issues in ruling on motions to suppress evidence
8
or in
ruling upon the constitutionality of prior convictions where a defendant is charged with a
second misdemeanor violation of driving under the influence.
9

This court has previously discussed the municipal courts' authority to rule on
constitutional issues in the cases of In Re Dixon,
10
and McKay v. City of Las Vegas.
11
In
Dixon, this court was concerned with a municipal court ruling upholding the constitutionality
of an ordinance imposing a licensing tax.
12
Similarly, in McKay, this court was concerned
with municipal court and district court decisions holding that a state statute imposing a court
assessment fee was unconstitutional.
13
Our decisions in both Dixon and McKay correctly
held that a municipal court has no jurisdiction to consider the constitutionality of legislation
imposing a tax or an assessment. Neither case, however, should be read for the proposition
that municipal or justice courts have no authority whatever to consider issues of constitutional
dimension. The justice courts have express authority to consider constitutional issues,
including claims concerning the constitutionality of searches, admissibility of evidence,
the validity of prior convictions, and as in this case, issues involving selective,
discriminatory, gender-based prosecution.
__________

6
See generally NCJC Canon 2.

7
Nev. Const. art. 6, 8; NRS 4.370(3).

8
NRS 189.120; State v. Shade, 110 Nev. 57, 867 P.2d 393 (1994).

9
See Parsons v. State, 116 Nev. 928, 937, n.8, 10 P.3d 836, 841-42 n.8 (2000).

10
40 Nev. 228, 161 P. 737 (1916) (holding that a municipal court, had no constitutional or statutory authority
to rule on the legality and constitutionality of a tax imposed on attorneys practicing within the city limits).

11
106 Nev. 203, 789 P.2d 584 (1990) (holding that municipal courts have no power to declare a tax statute
unconstitutional).

12
40 Nev. at 239, 161 P. at 740.

13
106 Nev. at 204-05, 789 P.2d at 585.
issues, including claims concerning the constitutionality of searches, admissibility of
evidence, the validity of prior convictions, and as in this case, issues involving selective,
discriminatory, gender-based prosecution. To the extent that our decisions in Dixon and
McKay might be read to support a holding to the contrarythat a justice court has no power
to rule on any constitutional question posited in a criminal misdemeanor casethey are
hereby overruled.
Having concluded that the justice court had jurisdiction to entertain the question of
the constitutionality of the policy, we turn to the substance of the petition. Salaiscooper seeks
an extraordinary writ directing the Honorable Judge Joseph T. Bonaventure to in turn direct
the Clark County District Attorney's Office to cease and desist exercising a discriminatory
policy. Salaiscooper contends that extraordinary relief is warranted because she has no
adequate remedy at law to appeal the district court's decision regarding the constitutionality of
the policy.
Salaiscooper seeks one of three extraordinary writs. First, a writ of certiorari is
available where an inferior tribunal, board or officer, exercising judicial functions, has
exceeded the jurisdiction of such tribunal, board or officer and there is no appeal, nor, in the
judgment of the court, any plain, speedy and adequate remedy at law.
14
Second, a writ of
mandamus is available to compel the performance of an act which the law requires as a duty
resulting from an office, trust or station or to control an arbitrary or capricious exercise of
discretion.
15
Third, a writ of prohibition is available to arrest the proceedings of a district
court exercising its judicial functions, when such proceedings are in excess of the jurisdiction
of the district court.
16

[Headnote 9]
Petitions for extraordinary relief are addressed to the sound discretion of this court.
17
Generally, we will not consider a writ petition if a petitioner has a plain, speedy and adequate
remedy in the ordinary course of law.
18
However, this court has, in rare instances, selectively
exercised its constitutional prerogative to entertain a petition despite the fact that there was an
adequate, alternative remedy at law.
19
For example, this court held that extraordinary relief
was warranted in a matter of statewide importance,
__________

14
NRS 34.020(2).

15
NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

16
NRS 34.320.

17
State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983).

18
NRS 34.170.

19
See, e.g., State of Nevada v. Dist. Ct., 116 Nev. 127, 994 P.2d 692 (2000); Jeep Corp. v. District Court, 98
Nev. 440, 652 P.2d 1183 (1982).
extraordinary relief was warranted in a matter of statewide importance,
20
in a matter where
sound judicial economy and administration militated in favor of such petitions,
21
and in a
matter where there was a gross miscarriage of justice.
22

[Headnotes 10, 11]
In the instant case, although there is no underlying conviction, the policy of judicial
economy supports our decision to consider the merits of this petition. There are fifty-six
similar cases pending in the justice courts, which without intervention would require fifty-six
separate trials and subsequent appeals that may be potentially affected by this court's decision.
Further, Salaiscooper's petition presents an issue of great statewide significance; namely,
whether the district attorney engaged in impermissible and unconstitutional selective
prosecution that violates her right to equal protection under the law. Although we address the
merits of this case, we emphasize that generally, and except in extraordinary circumstances
warranting interlocutory intervention, we will not consider the legal issues presented in a
criminal case prior to entry of the judgment of conviction. Our decision to do so here is
expressly limited to the unique facts, peculiar procedural history, and far-reaching questions
presented in this case.
[Headnote 12]
Salaiscooper argues that, in enacting the policy, the district attorney engaged in
impermissible and unconstitutional selective prosecution that violated her right to equal
protection under the law. Specifically, Salaiscooper argues that the policy's distinction
between buyers and sellers of sex is nothing more than a facade concealing conscious,
intentional discrimination against women, and thereby violates the Equal Protection Clauses
of the United States and Nevada Constitutions.
23
We conclude that Salaiscooper's argument
lacks merit.
[Headnotes 13-16]
The government's decision to deny an arrestee admission into a diversion program is
a decision to prosecute and [on review is treated] as a claim of selective prosecution.
24
A
defendant alleging unconstitutional selective prosecution has an onerous burden. Indeed, a
district attorney is vested with immense discretion in deciding whether to prosecute a
particular defendant that necessarily involves a degree of selectivity.
__________

20
Id.

21

22
State v. Babayan, 106 Nev. 155, 176, 787 P.2d 805, 819 (1990).

23
See U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.

24
Fedorov v. U.S., 600 A.2d 370, 377 (D.C. 1991).
sarily involves a degree of selectivity.
25
In exercising this discretion, the district attorney is
clothed with the presumption that he acted in good faith and properly discharged his duty to
enforce the laws.
26
Although the district attorney's prosecutorial discretion is broad, it is not
without limitation.
27
The Equal Protection Clause constrains the district attorney from
basing a decision to prosecute upon an unjustifiable classification, such as race, religion or
gender.
28

[Headnotes 17-22]
The requisite analysis for a claim of unconstitutional selective prosecution is two-fold.
First, the defendant has the burden to prove a prima facie case of discriminatory prosecution.
29
To establish a prima facie case, the defendant must show that a public officer enforced a
law or policy in a manner that had a discriminatory effect, and that such enforcement was
motivated by a discriminatory purpose.
30
A discriminatory effect is proven where a
defendant shows that other persons similarly situated are generally not prosecuted for the
same conduct.
31
A discriminatory purpose or evil eye is established where a defendant
shows that a public administrator chose a particular course of action, at least in part, because
of its adverse effects upon a particular group.
32
If a defendant proves a prima facie case, the
burden then shifts to the State to establish that there was a reasonable basis to justify the
unequal classification.
33
Where the classification is based on gender, the court applies an
intermediate standard of scrutiny; in other words, the court must conclude the unequal
classification in the policy is reasonable, not arbitrary, and [rests] upon some ground of
difference having a fair and substantial relation to the object of the legislation.' "
__________

25
State v. Barman, 515 N.W.2d 493, 497 (Wis. Ct. App. 1994); see also U.S. v. Armstrong, 517 U.S. 456,
464 (1996) ( so long as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion' (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978))).

26
People v. Nelson, 427 N.Y.S.2d 194, 198 (Crim. Ct. 1980).

27
Federov, 600 A.2d at 376.

28
See id.

29
Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (holding that laws that are administered with an
unequal hand and an evil eye are unconstitutional); see also Armstrong, 517 U.S. at 464-65.

30
See Armstrong, 517 U.S. at 464-65.

31
U.S. v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989) (citing U.S. v. Wilson, 639 F.2d 500, 503 (9th Cir.
1981)).

32
Wayte v. U.S., 470 U.S. 598, 610 (1985); State v. McCollum, 464 N.W.2d 44 (Wis. Ct. App. 1990);
Armstrong, 517 U.S. at 465.

33
Minneapolis v. Buschette, 240 N.W.2d 500, 505 (Minn. 1976).
ground of difference having a fair and substantial relation to the object of the legislation.'
34

In the instant case, the justice court found that the district attorney had a valid,
gender-neutral motivation for creating the policy classificationto draw a distinction
between buyers and sellers of sex in order to deter acts of prostitution. More specifically, the
justice court found that it was reasonable for the district attorney to prohibit sellers of sex
from attending the one-day diversion program because it would have no deterrent effect. The
justice court opined that the classification was therefore necessary because buyers of sex
should not be precluded from participating in a successful diversion program merely because
such treatment would be ineffective in rehabilitating the sellers. Finally, the justice court
found that there was nothing sinister about the district attorney's primary goal of obtaining
solicitation of prostitution convictions against sellers of sex so that he could revoke their
work cards and, ultimately, stop prostitutes from working in the adult entertainment industry.
[Headnote 23]
The lower court's findings with respect to the district attorney's motivation and intent
underlying the policy are findings of fact to be given deference, and they should not be
reversed if supported by substantial evidence.
35
The district court correctly concluded that
there is substantial evidence in support of the justice court's factual findings. In particular, Dr.
Murphy testified that the diversion class would not be an effective deterrent for sex sellers
because they would need a one-year rehabilitation program in light of the deeply-entrenched
culture of drug abuse, psychological abuse, and violence associated with prostitution.
Moreover, Officer Davis testified that the district attorney needed solicitation convictions
against sellers of sex so that Metro could revoke their work cards and eradicate prostitution
from the strip clubs. Because the State presented evidence that the purpose of the policy's
buyer/seller distinction was to deter acts of prostitution, the justice court's findings that the
policy did not run afoul of the Equal Protection Clause is supported by substantial evidence.
Other jurisdictions have reached an analogous conclusion, holding that it is
constitutionally permissible to treat prostitutes differently than the customers who patronize
them.
36
In People v. Superior Court of Alameda County, the Supreme Court of California,
sitting en banc, held that it was permissible for law enforcement officials to target sellers of
sex, because the "sexually unbiased policy of concentrating its enforcement effort on the
'profiteer' " was not initiated by an intent to discriminate.
__________

34
Id. (quoting Reed v. Reed, 404 U.S. 71, 76 (1971)).

35
People v. Superior Court of Alameda County, 562 P.2d 1315, 1320 (Cal. 1977).

36
See id.; Buschette, 240 N.W.2d at 505.
enforcement officials to target sellers of sex, because the sexually unbiased policy of
concentrating its enforcement effort on the profiteer' was not initiated by an intent to
discriminate.
37
The court reasoned that the policy was created because of the belief that
focusing criminal prosecution on the sellers of sex had the most deterrent effect: Prostitutes,
the municipal court found, average five customers per night; the average customer does not
patronize prostitutes five times a year. Because of an effective grapevine, arrest of one
prostitute by an undercover officer will deter others, at least for a time.
38

[Headnote 24]
Like the law enforcement officials in Alameda, the law enforcement officials in Clark
County believed that targeting sex sellers would deter future acts of prostitution. The State
presented evidence in support of its belief that a one-day class would not stop a prostitute
from selling sex. Salaiscooper, however, argues that the policy is unconstitutional as a matter
of law because the legislature did not intend for Nevada's district attorneys to draw a
distinction between sellers of sex and buyers of sex.
39
Salaiscooper argues that the
legislature's intent can be gleaned from the fact that the 1999 Nevada Legislature rejected
Assembly Bill 230, a bill that was proposed by Metro.
A.B. 230, if enacted, would have prohibited any Nevada district attorney from
dismissing a charge for solicitation of prostitution (or negotiating the charge down to a lesser
offense) where the charge was supported by probable cause.
40
A.B. 230 further provided
that an adult entertainer's work license would be revoked following a solicitation
conviction.
__________

37
562 P.2d at 1320. Sellers of sex were targeted: (1) by utilizing male police officer decoys; (2) where
no decoy was used, by arresting only the prostitute and letting the buyer go free; and (3) even in instances where
both were arrested, the prostitute would be subject to custodial arrest and quarantine, where the male customer
would be released on his own recognizance. Id. at 1321-23.

38
Id. at 1321. This identical reasoning was also set forth in Buschette, 240 N.W.2d at 505, which held that it
was permissible for the police to arrest prostitutes, and not their customers, because the arrest of one seller will
prevent more occurrences of the behavior proscribed by the ordinance in question than the arrest of a number of
buyers. In so holding, the Buschette court emphasized that: [p]lainly, it is outside the province of a trial court
to direct a police department, whose manpower is already severely strained in coping with the increase in such
major felonies as murder, robbery, rape, and other assaults, how best to utilize its personnel in the enforcement
of a relatively minor misdemeanor statute.' Id. at 505-06 (quoting U.S. v. Wilson, 342 A.2d 27, 32-33 (D.C.
App. 1975) (Reilly, C. J., concurring)).

39
We recognize that our legislature, in criminalizing prostitution, has not drawn a distinction between buyers
and sellers of sex. NRS 201.354 provides that [i]t is unlawful for any person to engage in prostitution or
solicitation therefor, except in a licensed house of prostitution. NRS 201.295(4) defines prostitution as
engaging in sexual conduct for a fee.

40
A.B. 230, 70th Leg. (Nev. 1999).
vided that an adult entertainer's work license would be revoked following a solicitation
conviction.
41
The recital of A.B. 230 referenced the increasing problem with [adult]
entertainers engaging in the crime of engagement in or solicitation of prostitution and
provided that it is necessary for the State of Nevada to exercise its police powers to prevent
such crimes.
42

Despite Salaiscooper's contention, we conclude that the legislature's failure to pass
A.B. 230 does not reflect upon the legislature's intent because it never affirmatively
considered A.B. 230. In fact, Metro formally withdrew the legislation from consideration,
explaining that the First Amendment issues presented in the bill needed to be carefully and
deliberately crafted and that [i]n light of recent legal challenges and case law development,
[Metro] believed that it was not timely to act on A.B. 230.
43
Because the committee
minutes clearly indicate that the substance of A.B. 230 was never considered, we conclude
that Salaiscooper's contention lacks merit.
CONCLUSION
In light of our conclusion that the policy does not violate the Equal Protection Clauses
of the United States and Nevada Constitutions, we conclude that extraordinary relief is not
warranted in this matter. The legislature has vested the district attorney with prosecutorial
discretion, and we conclude it is within the purview of the district attorney's prosecution
powers to treat buyers of sex differently than sellers of sex. After all, the decision to
prosecute, including the offer of a plea bargain, is a complex decision involving multiple
considerations, including prior criminal history, the gravity of the offense, the need to punish,
the possibility of rehabilitation, and the goal to deter future crime. Unless a defendant can
prove that a district attorney's decision to prosecute arose from an impermissible desire to
discriminate on the basis of race, gender or other protected class, our federal and state
constitutions do not compel our intervention. Because there is no evidence of a discriminatory
motive in the case before us, we deny Salaiscooper's petition.
__________

41
Id.

42
Id.

43
Hearing on A.B. 230 Before the Assembly Comm. on Judiciary, 70th Leg. (Nev., March 1, 1999).
____________
117 Nev. 907, 907 (2001) Allyn v. McDonald
KATE T. ALLYN, an Individual, Appellant, v. SHARON McDONALD, an Individual,
Respondent.
No. 34470
November 21, 2001 34 P.3d 584
Appeal from an order dismissing a legal malpractice action pursuant to NRCP 41(e).
Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Former client filed legal malpractice action against attorney stemming from attorney's
failure to file separate personal injury lawsuit against client's former husband following
divorce action. After remand reversing grant of summary judgment for attorney, 112 Nev. 68,
910 P.2d 263 (1996), the district court dismissed for failure to prosecute. Client appealed.
The supreme court held that action was not brought to trial after appeal when client
challenged attorney's motion to dismiss on res judicata grounds.
Affirmed.
William M. O'Mara, Reno; Carlye Christianson, San Diego, California, for Appellant.
Lemons Grundy & Eisenberg, Reno, for Respondent.
For purposes of rule requiring action to be brought to trial within three years from remand following an appeal, legal malpractice
action alleging attorney failed to file tort action against former client's former husband was not brought to trial when client
challenged attorney's motion to dismiss on res judicata grounds, as ruling did not resolve entire action but simply determined that client
would have been barred from suing for abuse because issue was fully litigated in divorce action, but ruling did not resolve issue of
whether client had given attorney instructions regarding forum in which to litigate abuse issue. NRCP 41(e).
Even if it was trial court's erroneous ruling on res judicata issue that caused delay that ultimately pushed the proceedings beyond
the mandatory three-year period following remand from appeal, such circumstances could not be considered in determining whether to
dismiss case as a consequence of failure to prosecute, as dismissal provision was mandatory. NRCP 41(e).
OPINION
Per Curiam:
Appellant Kate Allyn sued her former attorney, respondent Sharon McDonald, for
legal malpractice stemming from McDonald's failure to file a separate personal injury
lawsuit against Allyn's former husband following their divorce action.
McDonald's failure to file a separate personal injury lawsuit against Allyn's former husband
following their divorce action. The district court dismissed the malpractice action for failure
to prosecute under NRCP 41(e) because three years had elapsed following Allyn's first
appeal, and the case had not been brought to trial.
We must decide whether Allyn's action was brought to trial within the meaning of
NRCP 41(e) based upon McDonald's motion to dismiss (on res judicata grounds) and whether
the district court erred in its ruling by refusing to accept Allyn's reasons for failing to bring
the case to trial within the rule's mandatory period. We conclude that the district court did not
err in applying NRCP 41(e), and therefore, we affirm the district court's order dismissing the
case.
FACTS
This litigation saga began in 1989 when Sharon McDonald, an attorney, represented
Kate Allyn in Allyn's divorce action. McDonald allegedly also promised to file a separate
personal injury action on Allyn's behalf against her former husband for battery and other
causes of action stemming from the couple's physically, mentally, and sexually abusive
relationship. McDonald failed to file a complaint before the statute of limitations ran on
Allyn's tort causes of action against her former husband. Accordingly, Allyn sued McDonald
for malpractice in November of 1992.
After answering Allyn's complaint, McDonald filed a motion for summary judgment,
contending that Allyn's malpractice claim could not be proven without expert testimony, and
Allyn had failed to certify an expert. The district court granted McDonald summary
judgment. Allyn appealed,
1
and we reversed and remanded, concluding that Allyn did not
need an expert to establish attorney malpractice based on failure to file an action within the
statute of limitations. Remittitur was filed on February 27, 1996.
Before the previous appeal and remand, Allyn had filed a motion in limine requesting
a ruling that, as a matter of law, her former husband had abused her. Allyn argued that the
question of whether she had been abused was fully litigated at the divorce trial, and the issue
was therefore subject to res judicata. The district court had not ruled on the motion before the
first appeal. Accordingly, on February 6, 1998, almost two years after the remittitur was filed,
Allyn requested submission of the motion anew.
__________

1
Allyn v. McDonald, 112 Nev. 68, 910 P.2d 263 (1996).
The district court granted Allyn's motion, concluding that the issue of abuse was
determined in the divorce action and re-litigation of that issue is precluded in the current
trial. Consequently, McDonald orally moved to dismiss the entire case based upon the
court's ruling. McDonald argued that because the issue of spousal abuse had been fully
litigated and decided in the divorce action, res judicata would have given Allyn's former
husband a complete defense against a subsequent tort action. Therefore, McDonald argued,
Allyn would not have suffered any damages on account of McDonald's failure to file a moot
lawsuit against Allyn's former husband. Allyn countered that res judicata was inapplicable
because a tort-type action had not been fully litigated in the divorce proceeding, and in the
alternative, other malpractice issues remained.
Following a series of motions and hearings, the district court issued two separate
orders on August 10, 1998, addressing the parties' contentions. The first order concluded that,
based on the doctrine of res judicata, Allyn's tort claims against her former husband had been
fully litigated in the divorce action, and thus Allyn would have been precluded from filing
suit against him. In the second order, the district court determined that McDonald had not
committed malpractice in selecting the divorce court as the forum for litigating the
abuse-related claims, but concluded that an issue remained as to whether Allyn had given
McDonald any instructions regarding forum selection.
Allyn then sought leave to file an amended complaint based on the district court's
ruling, but she did not request submission of the motion. Accordingly, the case sat dormant
for several months. In March of 1999, Allyn finally submitted the motion, the district court
granted her request, and she filed an amended complaint.
On April 19, 1999, McDonald filed a motion to dismiss the amended complaint under
NRCP 41(e), which requires the plaintiff to bring the action to trial within three years after
the remittitur from a prior appeal is filed. Following a hearing on the matter, the district court
granted McDonald's motion, and dismissed Allyn's action without prejudice. Allyn appealed.
DISCUSSION
On appeal, Allyn contends that the district court erred in granting McDonald's NRCP
41(e) motion. NRCP 41(e) provides in pertinent part:
When in an action after judgment, an appeal has been taken and judgment reversed with
cause remanded for a new trial . . . the action must be dismissed by the trial court on
motion of any party after due notice to the parties, or of its own motion, unless brought
to trial within three years from the date upon which remittitur is filed by the clerk of
the trial court.
date upon which remittitur is filed by the clerk of the trial court.
2

[Headnote 1]
Allyn first argues that her action was brought to trial for purposes of NRCP 41(e)
when she challenged McDonald's 1998 motion to dismiss on res judicata grounds. For
support, Allyn relies on United Ass'n of Journeymen v. Manson,
3
in which we held that
proceedings that lead to the granting of summary judgment constitute a trial for purposes of
NRCP 41(e). In so holding, we explained that in contrast to proceedings that lead to a denial
of summary judgment, the granting of summary judgment involves first finding that no
triable issues of fact remain and then determining the rights of the parties by applying the law
to the facts.
4
Based on this reasoning, Allyn argues that the proceedings stemming from
McDonald's motion to dismiss fall within the parameters of Manson because McDonald
sought the same type of relief that was sought in Manson, namely, conclusion of the action
by applying the law to the facts.
We disagree. Manson is distinguishable here; unlike the summary judgment granted in
that case, the district court's ruling here did not resolve the entire action. Rather, it simply
disposed of one issue, specifically, that Allyn would have been barred from suing her former
husband for abuse. After resolving that issue, the district court ultimately allowed Allyn to
proceed with the action to resolve the question of whether Allyn had given McDonald
instructions regarding the forum in which to litigate the abuse issue.
NRCP 41(e) requires that the actionnot just an issuebe brought to trial within
the three-year period. Facing a similar question, the California courts have held that where a
complaint tenders more than one distinct ground for judgment, summary judgment as to one
issue does not prevent the plaintiff from bringing the rest of the action to trial within the
mandatory period.
5

__________

2
Emphasis added.

3
105 Nev. 816, 783 P.2d 955 (1989).

4
Id. at 820, 783 P.2d at 957.

5
King v. State of California, 89 Cal. Rptr. 715, 717-18 (Ct. App. 1970); Lemaire, Faunce & Katznelson v.
Cox, 217 Cal. Rptr. 281, 283 (Ct. App. 1985).
Allyn argues that these cases do not apply because the California law regarding mandatory dismissal
contemplates exceptions that allow for tolling of the mandatory period under circumstances beyond the plaintiff's
control. See Cal. Civ. Proc. Code 583.340. We note, however, that during the time periods relevant to these
cases, the exceptions were not part of the statute. See id. (noting that the statute was added in 1984). Thus, these
cases interpret California's former version of the statute, which is similar in essence to NRCP 41(e).
Because Allyn's action survived McDonald's motion to dismiss, she should have pressed on
to avoid the strict penalty of NRCP 41(e). We conclude that Allyn did not bring her action to
trial for purposes of NRCP 41(e) by merely challenging McDonald's motion to dismiss.
6

[Headnote 2]
Allyn next argues that the district court erred in dismissing her action because certain
equitable considerations weighed in her favor. In particular, she asserts that it was the district
court's own erroneous ruling on the res judicata issue that caused the delay that ultimately
pushed the proceedings beyond the mandatory three-year period.
NRCP 41(e), however, does not allow consideration of the circumstances surrounding
the dismissal. Although NRCP 41(e) contains both mandatory and discretionary provisions,
the applicable provision in this case provides that the action must be dismissed by the trial
court . . . unless brought to trial within three years from the date upon which the remittitur is
filed by the clerk of the trial court.
7
Following Allyn's first appeal, the district court filed
the remittitur on February 27, 1996. Thus, after February 27, 1999, the district court was
required to dismiss the action.
Our decision in Johnson v. Harber
8
illuminates the strict nature of NRCP 41(e). In
Johnson, after the plaintiff filed the action and trial was set, the defendant successfully moved
to vacate the date. Thereafter, the trial court, sua sponte, reset the trial date three more times.
Meanwhile, the plaintiff remained silent, failing to actively prosecute the case to trial within
the five-year period. Five years passed, and the defendant then moved the district court to
dismiss the action under NRCP 41(e). The district court did so. Although we acknowledged
that the plaintiff appear[ed] to be the victim of unfortunate circumstances, we upheld the
dismissal because we were bound by the mandatory nature of NRCP 41{e).
__________

6
Allyn also argues that the district court erred in dismissing her action because when the district court
eliminated her original negligence theory upon granting McDonald's motion, the district court, in essence,
created a new action. For support, she cites NRCP 42(b), which allows the district court in furtherance of
convenience or to avoid prejudice to order a separate trial of any claim. The argument is misguided. First, it
does not appear that Allyn ever moved the district court to create separate trials pursuant to NRCP 42(b). See
Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (A point not urged in the trial court,
unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on
appeal.). In any event, nothing in the rule contemplates the court ordering a separate trial simply to keep a
party's action from the reach of NRCP 41(e).

7
NRCP 41(e) (emphasis added).

8
94 Nev. 524, 582 P.2d 800 (1978).
because we were bound by the mandatory nature of NRCP 41(e).
9
As we observed, the
exercise of discretion is not involved, and NRCP 41(e) does not contemplate an
examination of the equities.
10

The policy underlying this strict rule is apparent. As the promoter of its case, the
plaintiff has the duty to carefully track the crucial procedural dates and to actively advance
the case at all stages, a duty that may require the plaintiff to take initiative and prod the
district court when the case sits dormant. Thus, except in very limited circumstances,
11
we
uphold NRCP 41(e) dismissals without regard to the plaintiff's reasons for allowing the
mandatory period to lapse.
12

CONCLUSION
Allyn's challenge to McDonald's motion to dismiss did not constitute a trial for
purposes of NRCP 41(e) because the motion did not lead to conclusion of the entire action.
Thus, dismissal of Allyn's action was mandatory, and the district court was not in a position
to consider the equities or circumstances surrounding the dismissal. Accordingly, we affirm
the district court's order of dismissal.
__________

9
Id. at 526, 94 P.2d at 801.

10
Id. (citations omitted).

11
In narrow circumstances we have excluded certain time periods from the calculation of the NRCP 41(e)
periods. See Baker v. Noback, 112 Nev. 1106, 922 P.2d 1201 (1996) (excluding the time during which a medical
malpractice complaint was pending before a screening panel); Boren v. City of North Las Vegas, 98 Nev. 5, 638
P.2d 404 (1982) (excluding the time during which the parties were prevented from bringing an action to trial by
reason of a court-ordered stay).

12
Because we conclude that the district court correctly dismissed the action, we need not consider the other
issues that Allyn raises: (1) whether the district court properly ruled Allyn's tort action against her former
husband would have been barred by the doctrine of res judicata; and (2) whether Allyn should have been
estopped from raising her res-judicata defense in light of the defense position she took before McDonald's first
motion to dismiss.
____________
117 Nev. 913, 913 (2001) Nylund v. Carson City
TERRY NYLUND and MARY ANN NYLUND, Husband and Wife, Appellants, v.
CARSON CITY, a Consolidated Municipality, Respondent.
No. 35551
November 21, 2001 34 P.3d 578
Appeal from an order granting summary judgment on the basis of NRS 414.110
immunity. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Condominium owners sued city and others, alleging that their property was damaged
when the city channeled floodwaters down their street. The district court granted summary
judgment to city. Owners appealed. The supreme court, Agosti, J., held that: (1) city could
claim immunity for pre-emergency negligence that contributed to damage caused by later
emergency management activities, and (2) city could declare emergency itself and did not
need governor's formal emergency determination to claim immunity.
Affirmed.
Evan Beavers & Associates, PC, and John H. Martin, Minden, for Appellants.
Noel S. Waters, District Attorney, and Neil A. Rombardo, Deputy District Attorney,
Carson City, for Respondent.
Statute providing for governmental immunity for emergency management activities also provided immunity for any previous
negligence that contributed to damage caused by emergency management activities, and thus, city could not be held liable for any
pre-flood negligence in designing, operating, and maintaining drainage system, even if condominium owners' property would not have
been damaged, but for that negligence, when city channeled floodwaters down their street. NRS 414.110.
In reviewing the trial court's grant of summary judgment, appellate court must decide whether the trial court has properly read
and applied the law, a question appellate court reviews de novo.
3. Judgment.
Summary judgment is only appropriate in the absence of a genuine issue of material fact.
4. Statutes.
When construing statutes, court seeks to give effect to the legislature's intent, first looking to the plain language of the statute.
5. Statutes.
If statutory language is ambiguous or otherwise does not speak to issue before court, court construes it according to that which
reason and public policy would indicate the legislature intended.
6. Statutes.
Court may infer legislative intent by reading a particular statutory provision in the context of the entire statutory scheme.
City was allowed to declare an emergency in accordance with its municipal code and thereby gain protection of statutory
immunity for emergency management activities, and governor did not have to formally declare an emergency. NRS 414.110.
OPINION
This case arises from the 1996-1997 winter flood in Carson City, Nevada. Attempting
to control the flood, Carson City decided to channel the waters down East Fifth Street. Some
of the water overflowed from the city's storm drainage system and flooded Terry and Mary
Ann Nylund's condominium. The Nylunds sued Carson City, alleging, among other things,
that the city was negligent in its handling of the flood and that the city's storm drainage
system had design and maintenance defects. We must determine whether NRS 414.110, the
emergency management immunity statute, shields Carson City from liability in this case. We
conclude that it does.
FACTS
The winter of 1996-1997 was the third wettest in Nevada's recorded history. Rains and
melting snow produced an enormous quantity of surface water that began to flood portions of
residences and businesses in Carson City. In response, the city manager declared the situation
an emergency disaster and requested the State's assistance.
Carson City employees determined that sandbagging certain areasin order to
channel the water down East Fifth Street along its natural, eastbound course toward the
Carson Riverwas the best way to control the floodwaters. On January 1, 1997, floodwaters
flowing down Fifth Street overflowed storm drains, ran across the adjacent properties of the
Order of Eagles and the Carson Park Condominiums, and eventually flooded the Nylunds'
condominium.
One year later, the Nylunds sued Carson Park Condominium Homeowners
Association, the Carson Aerie No. 1006 of the Fraternal Order of Eagles, and Carson City.
The Nylunds alleged causes of action in trespass, nuisance, wrongful channeling of
waters, and negligence against the defendants.
causes of action in trespass, nuisance, wrongful channeling of waters, and negligence against
the defendants.
In response, Carson City moved for summary judgment. Carson City argued that it
was immune from liability for its emergency management activities under NRS 414.110 and
for its pre-flood activities under NRS 41.032 and NRS 41.033. Carson City supported the
motion with the affidavits of two city employees, climatological reports, and records showing
that the city had declared the flood an emergency.
The Nylunds opposed the motion based on NRCP 56(f), arguing that they needed
more time to conduct discovery. In their opposition, the Nylunds alleged that Carson City
knew as early as 1983 that its storm drain system had certain design or maintenance defects.
In support of that allegation, the Nylunds offered a 1983 report sent to the city manager,
written by a Carson City employee who had investigated a previous flood at the Carson Park
Condominiums. The report alerted the city manager to a low spot at Como and Saliman
which floods during unusual rain storms that may have contributed to the previous flood.
The report also expressed concern that the city could be held liable for its failure to provide
adequate drainage flow.
The district court denied the Nyland's request for additional discovery and granted
Carson City's motion for summary judgment, concluding that there was no issue of material
fact because Carson City was completely immune from suit under NRS 414.110.
The Nylunds appealed.
DISCUSSION
Scope of immunity for emergency management activities under NRS 414.110
[Headnote 1]
On appeal, the Nylunds contend that the district court misapplied the emergency
management immunity statute by failing to distinguish between the Nylunds' allegations
regarding the city's negligence in handling the flood, and their allegations regarding the city's
negligence in its pre-flood activities. In particular, they argue that the city's pre-flood
activities, such as its design, operation, and maintenance of the storm drains, are not activities
related to emergency management, and therefore are not covered by the immunity created in
NRS 414.110.
[Headnotes 2, 3]
In reviewing the district court's grant of summary judgment, we must decide whether
the district court has properly read and applied the law, a question we review de novo.1
Summary judgment is only appropriate in the absence of a genuine issue of material
fact.2
applied the law, a question we review de novo.
1
Summary judgment is only appropriate in
the absence of a genuine issue of material fact.
2

NRS 414.110, the statute upon which the district court granted summary judgment,
immunizes government entities from liability arising out of emergency management
activities:
1. All functions under this chapter and all other activities relating to emergency
management are hereby declared to be governmental functions. Neither the state nor
any political subdivision thereof nor other agencies of the state or political subdivision
thereof . . . is liable for the death of or injury to persons, or for damage to property, as a
result of any such activity.
[Headnotes 4-6]
To resolve the issue the Nylunds present, we must construe NRS 414.110. When
construing statutes, we seek to give effect to the legislature's intent.
3
To do so, we first look
to the plain language of the statute.
4
But if the statutory language is ambiguous or otherwise
does not speak to the issue before us, we construe it according to that which reason and
public policy would indicate the legislature intended.
5
Also, we may infer legislative intent
by reading a particular statutory provision in the context of the entire statutory scheme.
6

Turning first to the plain language of NRS 414.110, we note that it does not
specifically address the issue at handwhether a government entity can claim immunity
under the statute for its pre-emergency negligence that contributed to damage caused by later
emergency management activities.
But we can infer the legislative intent from the other sections of the same statutory
chapter. The express purpose of NRS Chapter 414 is to empower the State and local
governments to prepare for and swiftly respond to emergencies and disasters that imperil life
and property, such as fire, flood, earthquake, and enemy attack.
7
To this end, the legislature
granted immunity for "death of or injury to persons, or for damage to property" that result
from negligence in managing an emergency.
__________

1
Calloway v. City of Reno, 116 Nev. 250, 256, 993 P.2d 1259, 1263 (2000).

2
Id.; NRCP 56(c).

3
Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).

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

5
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)).

6
SIIS v. Bokelman, 113 Nev. 1116, 1123, 946 P.2d 179, 184 (1997).

7
See NRS 414.020 (setting forth the policy and purpose of the chapter).
death of or injury to persons, or for damage to property that result from negligence in
managing an emergency.
8
The sound public-policy reasons behind this language are
apparent. An emergency is a sudden and unforeseen crisis,
9
and the damage it causes can
spread quickly. When facing an emergency, the government entity leading the response
operation does not have time to deliberate and chart a course calculated to provide the
customary degree of due care. Thus, the legislature gave the response authority substantial
decision-making latitude, allowing it to make quick decisions to avert disaster, decisions that
criticswith the benefit of hindsightmight later call negligent.
In light of the policy behind NRS 414.110, we disagree with the Nylunds' contention
that it does not immunize the city for its alleged pre-flood negligence. We read the immunity
statute to cover not only negligent emergency management, but also any previous negligence
that contributed to the damage caused by the emergency management activities. This is a
natural extension of the policy underlying NRS 414.110. Because emergencies are sudden
and unexpected, the response authority does not have time to assess whether unknown or
unforeseen obstacles created by past negligence will hinder its course of action. For instance,
in this case, even if we accept the Nylunds' argument that their residence would not have been
flooded but for the city's pre-flood negligence in designing, operating, and maintaining the
drainage system, we cannot imagine that the city had time to fully assess the drainage
system's actual capacity before channeling the floodwaters down Fifth Street.
We conclude that NRS 414.110 prevents the Nylunds from attacking the city's
emergency management activities and its negligent pre-flood design, operation, or
maintenance activities that are causally related to damage caused by the emergency
management activities. Accordingly, we conclude that the district court correctly read NRS
414.110 as immunizing Carson City from the Nylunds' action and properly granted summary
judgment in Carson City's favor.
10

__________

8
NRS 414.110.

9
See Black's Law Dictionary 361 (6th ed. abridged 1991) (defining emergency as an unforeseen
combination of circumstances that calls for immediate action without time for full deliberation).

10
See NRCP 56(c) (stating that summary judgment is appropriate 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).
In light of our conclusion that there was no genuine issue of material fact, we also conclude that the district
court did not abuse its discretion in denying the Nylunds' NRCP 56(f) motion for a continuance. See Bakerink v.
Orthopaedic Associates, Ltd., 94 Nev. 428, 431, 581 P.2d 9, 11 (1978) (noting that a NRCP 56(f) motion should
be granted only if there is a genuine issue of material fact).
Immunity for local government entities under NRS 414.110
[Headnote 7]
The Nylunds next contend that Carson City cannot avail itself of the emergency
management immunity provided by NRS 414.110 because the Governor had not declared the
flood an emergency according to NRS 414.0345; the statute defines emergency as an
occurrence or threatened occurrence for which, in the determination of the governor, the
assistance of state agencies is needed.
11

Carson City does not counter the Nylunds' assertion that the governor had not declared
the flood an emergency, but argues instead that it was empowered by its own municipal code
to declare an emergency and claim immunity thereby:
All functions under this chapter and all other activities relating to emergency
management are hereby declared to be governmental functions. Pursuant to NRS
414.110, the city is not liable for the . . . property damage as a result of any emergency
service worker complying with or reasonably attempting to comply with this chapter.
12

Thus, we must next decide whether NRS 414.110 allows Carson City itself to declare
an emergency, or whether the governor-determination procedure is the only procedure
available for triggering immunity.
As set forth above, when construing a statute we are guided first by the statute's plain
language, and if that fails, by its policy, which we can infer from the context of the statute
within its overall scheme.
Construing NRS 414.0345 accordingly, we first observe that the plain language of the
section itself does not state whether or not the governor-determination procedure is exclusive.
Other sections of the Emergency Management chapter, however, indicate that the
legislature intended to empower local governments with emergency management powers and
immunity. Foremost, NRS 414.110(1) provides immunity for [a]ll functions under this
chapter and all other activities relating to emergency management.
13
Correspondingly, NRS
414.090(1) indicates that emergency management at the local level constitutes one of the
functions under this chapter that NRS 414.110 refers to:
Each political subdivision of this state may establish a local organization for
emergency management in accordance with
__________

11
Emphasis added.

12
Carson City Municipal Code 6.02.060(1).

13
Emphasis added.
the state emergency management plan and program for emergency management. . . .
Each local organization for emergency management shall perform functions of
emergency management within the territorial limits of the political subdivision within
which it is organized, and, in addition, shall conduct such functions outside of such
territorial limits as may be required.
14

In addition, the statement of the policy and procedure of the emergency management chapter
reflects the legislature's intent to localize emergency management efforts:
(a) To create a state agency for emergency management and to authorize the creation
of local organizations for emergency management in the political subdivisions of the
state.
(b) To confer upon the governor and upon the executive heads or governing bodies of
the political subdivisions of the state the emergency powers provided in this chapter.
15

Because the legislature clearly intended to empower local governments with the
power to respond to emergencies, we conclude that the legislature also intended to grant the
local governments immunity for their actions taken under the chapter. Accordingly, we
conclude that Carson City was allowed to declare an emergency itself in accordance with its
municipal code and thereby claim the immunity of NRS 414.110.
CONCLUSION
We affirm the district court's order granting summary judgment in favor of Carson
City. Carson City is immune from liability for the damage to the Nylunds' condominium
stemming from the city's emergency management activities in controlling the 1996-1997
winter flood. Additionally, we conclude that the city did not need the governor's formal
emergency determination in order to claim immunity.
Shearing, J., concurs.
The Nylunds' condominium was seriously damaged in the major Carson City flood of
1996-1997 that was created by melting snow and rain running down Fifth Street in Carson
City, a flood drainage area designated by the city. The Nylunds have shown that their damage
may have been caused by a low spot in the flood drainage area near their home and that
Carson City had been notified about this problem fifteen years earlier.
__________

14
Emphases added.

15
NRS 414.020(1) (emphases added).
been notified about this problem fifteen years earlier. At this early stage of the proceeding, we
do not know whether the city had done anything to correct the problem. If this case were
permitted to go to trial, a jury might ultimately find this inaction to be negligence. I do not
think responsibility for this alleged negligent act that resulted in damage fifteen years later
should be excused simply because an emergency situation was created when the damage
occurred.
The alleged negligence of Carson City in failing to address a recognized flaw in its
flood control plan would be actionable when the negligence was recognized and the damage
sustainedthat being early 1997. We have recognized similar lawsuits for damages.
1
However, the majority holds that the negligence that occurred more than a decade earlier is
not actionable if the later flood and damage resulted in the authorization of emergency
powers that in turn invoked immunity for those acting to address the immediate problem. I
believe this is giving greater immunity than the legislature intended when it enacted NRS
414.110, the emergency management immunity statute.
The purpose of the emergency management immunity statute is to grant protection to
those who are taking immediate action in a crisis situation. Nothing indicates that the statute
is meant to forgive all prior negligent acts contributing to the crisis at hand. Statutes limiting
Nevada's long-standing waiver of sovereign immunity are to be strictly construed.
2
Rather
than follow this well-established legal direction, the majority gives the emergency
management immunity statute an expansive interpretation that is not justified by the statute
itself or by our case law.
Further, the emergency management immunity statute specifically states that
immunity attaches to all those acting in a crisis when the Governor declares an emergency.
The majority concludes that anyone in some office of authority has the power to declare the
emergency and thus invoke the statutory immunity protection. In this case, it was the City
Manager of Carson City. I believe this too is error.
We have often stated, [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.
3
The emergency
management immunity statute specifically requires an emergency called by the Governor
to trigger immunity.
__________

1
See, e.g., Foley v. City of Reno, 100 Nev. 307, 680 P.2d 975 (1984); Crucil v. Carson City, 95 Nev. 583,
600 P.2d 216 (1979); State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972); Harrigan v. City of Reno, 86 Nev.
678, 475 P.2d 94 (1970).

2
See State v. Silva, 86 Nev. 911, 914, 478 P.2d 591, 593 (1970).

3
Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995).
management immunity statute specifically requires an emergency called by the Governor to
trigger immunity. I find this legislative directive clear and unambiguous and would enforce it
as written. Since it is undisputed that neither the Governor nor his office declared this
emergency, the immunity statute should be declared inapplicable in this case.
Accordingly, I would reverse and remand for trial.
____________
117 Nev. 921, 921 (2001) McClanahan v. Raley's, Inc.
KELLY McCLANAHAN, Appellant, v. RALEY'S, INC., Respondent.
No. 35906
November 21, 2001 34 P.3d 573
Appeal from a district court order granting a petition for judicial review and reversing
an appeals officer's determination that an employee's medical condition resulted from an
industrial accident and was compensable. Third Judicial District Court, Churchill County;
David A. Huff, Judge.
Employer petitioned for review of workers' compensation appeals officer's decision
which determined that claimant's avascular necrosis in his hip was directly related to fall at
work. The district court granted the petition and reversed the decision. Claimant appealed.
The supreme court held that: (1) substantial evidence supported officer's finding that
claimant's avascular necrosis resulted from his fall at work, and thus lower court could not
overrule that finding; and (2) officer did not improperly apply treating physician rule.
Reversed.
Kay Ellen Armstrong, Carson City, for Appellant.
Piscevich & Fenner, Reno, for Respondent.
The standard of review of a workers' compensation appeals officer's decision is substantial evidence. If the decision was based
on substantial evidence, neither the supreme court, nor the district court, may substitute its judgment for the administrator's
determination.
Substantial evidence supported workers' compensation appeals officer's finding that claimant's avascular necrosis resulted from
his fall at work, and thus lower court could not overrule that finding. Two orthopaedic surgeons personally examined claimant and
concluded that the avascular necrosis was a direct consequence of his fall, claimant testified at the hearing and described the
progressive deterioration of his left hip following the fall, and claimant's wife and his supervisor both confirmed the
deterioration, as well as a limp that became noticeable only after the fall at work.
firmed the deterioration, as well as a limp that became noticeable only after the fall at work.
An administrative agency's decision based on a credibility determination is not open to appellate review.
Preponderance of the evidence burden set forth in workers' compensation statute does not require an injured worker to offer a
greater number of expert witnesses who express opinions in his favor to establish that an injury arose out of and in the course of his
employment; rather, preponderance of the evidence merely refers to the greater weight of the evidence. NRS 616C.150(1).
5. Evidence.
State does not recognize treating physician rule, which provides that the trier of fact must give the treating physician's medical
opinion deference, and if it is not contradicted, the trier of fact should give it complete deference.
Workers' compensation appeals officer did not apply treating physician rule, which gives deference to opinion of treating
physician and is not recognized in state, in its decision that claimant's fall at work caused his hip injury. Treating physician found that
injury was not caused by the fall, and officer stated that he was giving more weight to opinions of two other doctors because they had
personally examined the claimant. NRS 616A.010.
OPINION
Per Curiam:
This case arises out of a contested workers' compensation claim. The question
presented on appeal is whether the district court improperly reweighed the evidence and
substituted its judgment for that of the administrative appeals officer. We conclude that the
district court did usurp the appeals officer's function, and we therefore reverse the district
court's order.
On July 29, 1997, appellant Kelly McClanahan, then twenty-nine years old and a
ten-year employee of respondent Raley's, Inc., slipped and fell on a wet concrete floor in the
meat department at Raley's in Fallon. At the time of his fall, McClanahan was holding a
lugger, or tray, of beef weighing approximately forty-five pounds. Because he was holding
the lugger of beef, McClanahan was unable to break his fall. As a consequence, McClanahan
landed on his left hip, and the lugger of beef landed on the lower half of his body.
As a result of the fall, McClanahan experienced some soreness in his left hip. Despite
the soreness, McClanahan finished his shift and did not seek medical treatment that day. In
fact, McClanahan did not seek medical treatment until March 199S, almost eight months
later.
McClanahan did not seek medical treatment until March 1998, almost eight months later.
McClanahan sought medical treatment because the soreness in his left hip began to worsen,
and because family members noticed a limp and encouraged him to see a doctor.
On March 26, 1998, McClanahan was examined by Allen M. Schnaser, M.D. Dr.
Schnaser diagnosed McClanahan with avascular necrosis,
1
and informed McClanahan that
he would eventually need hip replacement surgery. Dr. Schnaser also informed McClanahan
that his condition was idiopathic, meaning that the cause was unknown, and not related to his
fall at work.
On April 20, 1998, McClanahan sought a second medical opinion from Reed A.
Burch, M.D. Dr. Burch confirmed Dr. Schnaser's diagnosis of avascular necrosis, but Dr.
Burch disagreed with Dr. Schnaser regarding its cause. Dr. Burch concluded that the
avascular necrosis was the result of the trauma McClanahan experienced when he slipped and
fell directly onto his left hip almost nine months earlier.
Because Dr. Schnaser and Dr. Burch disagreed regarding causation, McClanahan and
Raley's agreed that Eric Boyden, M.D., would conduct an independent medical examination
to provide an additional opinion regarding causation. Dr. Boyden examined McClanahan on
November 9, 1998, and concluded that McClanahan's avascular necrosis was a direct
consequence of his fall at work, and was not idiopathic.
On or about March 17, 1999, Raley's sought a fourth medical opinion regarding
causation from Stuart Goodman, M.D. Dr. Goodman did not personally examine
McClanahan; rather, Dr. Goodman conducted a record review of McClanahan's medical
history. After reviewing McClanahan's medical records, Dr. Goodman concluded that the
avascular necrosis was idiopathic, and not related to the fall.
McClanahan filed a workers' compensation claim with Raley's, a self-insured
employer. McClanahan's claim was denied, and a hearing officer affirmed the denial.
McClanahan appealed the denial and, on appeal, the appeals officer concluded that the claim
must be accepted.
As to whether McClanahan's injury was compensable, the appeals officer noted that
two doctors related McClanahan's condition to his fall at work, and two doctors did not. The
appeals officer decided to give greater evidentiary weight to the opinions of the two doctors
who attributed McClanahan's injury to his fall at work, because they had personally
examined him.
__________

1
Avascular necrosis, also known as osteonecrosis, is defined as the destruction and death of bone tissue, as
caused by not enough blood (ischemia), infection, cancer, or injury. The Mosby Medical Encyclopedia 530
(1985).
at work, because they had personally examined him. Concluding that McClanahan's avascular
necrosis was directly related to his fall at work, the appeals officer determined that the injury
was compensable. Raley's then petitioned for judicial review in the district court.
In its petition, Raley's urged the district court to reverse the appeals officer's decision
because it was not supported by substantial evidence. Moreover, Raley's asserted that the
appeals officer arbitrarily and capriciously applied the treating physician rule. According to
Raley's, the treating physician rule favors the employee at the expense of the employer and,
therefore, application of such a rule violated NRS 616A.010(4), which mandates a neutral
interpretation of the workers' compensation laws, rather than a liberal interpretation in favor
of the injured employee.
The district court granted Raley's petition and reversed the appeals officer's decision.
In particular, the district court found that the appeals officer's conclusion in favor of
McClanahan was clearly erroneous based on the factual findings. Further, the district court
determined that the appeals officer had applied the treating physician rule and, in doing so,
violated NRS 616A.010(4).
McClanahan appeals to this court, asserting that the appeals officer's decision was
supported by substantial evidence, and that the district court erred by reweighing the evidence
and substituting its judgment for that of the appeals officer. Moreover, McClanahan argues
that the appeals officer did not rely on the treating physician rule, and therefore did not
violate the mandate of NRS 616A.010(4). According to McClanahan, the appeals officer did
not favor either party; rather, the appeals officer examined all of the evidence and made the
factual determination that McClanahan's fall caused his avascular necrosis.
[Headnote 1]
We must determine whether the appeals officer's final decision was based on
2
If so, neither this court, nor the district court, may substitute its
judgment for the administrator's determination.
3
Substantial evidence has been defined as
that which a reasonable mind might accept as adequate to support a conclusion.'
4

__________

2
See Bally's Grand Hotel & Casino v. Reeves, 113 Nev. 926, 935-36, 948 P.2d 1200, 1206 (1997) (stating
that an agency's decision will only be affirmed if there is substantial evidence to support the decision).

3
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 607-08, 729 P.2d 497, 498 (1986).

4
Id. at 608, 729 P.2d at 498 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))); accord State, Emp. Sec. Dep't v. Holmes, 112
Nev. 275, 280, 914 P.2d 611, 614 (1996).
[Headnote 2]
In this case, Raley's argues that the appeals officer's decision was not supported by
substantial evidence such that a reasonable person could conclude that McClanahan's
avascular necrosis resulted from his fall at work. Raley's contends that McClanahan failed to
establish, by a preponderance of the evidence, that his injury was work-related.
5
Because
two doctors concluded that McClanahan's condition was idiopathic, and not related to his fall,
and two doctors concluded that his condition was the result of his fall at work, Raley's asserts
that there was a two-to-two tie of the medical experts. According to Raley's, the two-to-two
tie does not establish, by a preponderance of the evidence, that McClanahan's avascular
necrosis resulted from his fall at work.
[Headnote 3]
We conclude that the appeals officer's decision is supported by substantial evidence
such that a reasonable mind could conclude that McClanahan's avascular necrosis resulted
from his fall at work. First, two orthopaedic surgeons personally examined McClanahan and
concluded that the avascular necrosis was a direct consequence of his fall at work. Second,
McClanahan testified at the hearing and described the progressive deterioration of his left hip
following the fall. Additionally, McClanahan's wife and his supervisor both confirmed the
deterioration, as well as a limp that became noticeable only after the fall at work. The appeals
officer specifically found McClanahan, his wife and his supervisor to be credible witnesses,
and [a]n administrative agency's decision based on a credibility determination is not open to
appellate review.
6
Therefore, the appeals officer's decision was supported by substantial
evidence.
[Headnote 4]
In so concluding, we note that the preponderance of the evidence burden set forth in
NRS 616C.150(1) does not require an injured worker to offer a greater number of expert
witnesses who express opinions in his favor to establish that an injury arose out of and in the
course of his employment. Rather, preponderance of the evidence merely refers to [t]he
greater weight of the evidence.
__________

5
See NRS 616C.150(1), which provides as follows:
An injured employee or his dependents are not entitled to receive compensation pursuant to the
provisions of chapters 616A to 616D, inclusive, of NRS unless the employee or his dependents establish
by a preponderance of the evidence that the employee's injury arose out of and in the course of his
employment.

6
Langman v. Nevada Administrators, Inc., 114 Nev. 203, 209, 955 P.2d 188, 192 (1998).
dence.
7
This court has previously stated that an equal number of witnesses on each side
does not constitute a balance of evidence.
8

[Headnote 5]
Raley's also argues that the appeals officer arbitrarily and capriciously applied the
common law treating physician rule to break the two-to-two tie between the medical experts.
The treating physician rule exists at common law, but has not been addressed by this court. It
provides that the trier of fact must give the treating physician's medical opinion deference,
and if it is not contradicted, the trier of fact should give it complete deference.
9
Raley's
asserts that the application of such a rule violates NRS 616A.010(4),
10
which mandates a
neutral, rather than a liberal, interpretation of the workers' compensation laws.
The rationale given for the rule is that [t]he treating physician has had a greater
opportunity to examine and observe the patient. Further, as a result of his duty to cure the
patient, the treating physician is generally more familiar with the patient's condition than are
other physicians.
11

Nevertheless, we question the premises upon which the treating physician rule rests.
We do not agree that because a physician has a duty to cure a patient that the physician will
necessarily be more familiar with an issue such as the cause of an injury. An ability to
reliably identify the cause of an injury may be less a product of familiarity with a patient
and more the product of specialized skill, training and experience.
__________

7
Black's Law Dictionary 1201 (7th ed. 1999).

8
Dixon v. Miller, 43 Nev. 280, 284, 184 P. 926, 929 (1919).

9
See Walker v. Secretary of Health and Human Serv., 980 F.2d 1066, 1070 (6th Cir. 1992).

10
NRS 616A.010 states as follows:
The legislature hereby determines and declares that:
1. The provisions of chapters 616A to 617, inclusive, of NRS must be interpreted and construed to
ensure the quick and efficient payment of compensation to injured and disabled employees at a
reasonable cost to the employers who are subject to the provisions of those chapters;
2. A claim for compensation filed pursuant to the provisions of chapters 616A to 616D, inclusive, or
chapter 617 of NRS must be decided on its merit and not according to the principle of common law that
requires statutes governing workers' compensation to be liberally construed because they are remedial in
nature;
3. The provisions of chapters 616A to 617, inclusive, of NRS are based on a renunciation of the
rights and defenses of employers and employees recognized at common law; and
4. For the accomplishment of these purposes, the provisions of chapters 616A to 617, inclusive, of
NRS must not be interpreted or construed broadly or liberally in favor of an injured or disabled employee
or his dependents, or in such a manner as to favor the rights and interests of an employer over the rights
and interests of an injured or disabled employee or his dependents.

11
Walker, 980 F.2d at 1070; see also Snyder v. San Francisco Feed & Grain, 748 P.2d 924, 931 (Mont.
1987).
to reliably identify the cause of an injury may be less a product of familiarity with a patient
and more the product of specialized skill, training and experience. We recognize that
physicians commonly rely not solely upon their own observations but upon the expertise of
other physicians with particular specialties when trying to resolve questions such as diagnosis
of a condition and causation of an injury. Under these circumstances physicians may send the
patient's records to another physician for review or the patient may be referred by the treating
physician to be examined by a specialist. Additionally, a treating physician will not
necessarily have spent more time with a patient than a physician who has been consulted for a
second opinion. Even if a treating physician has spent more time with the patient, we do not
view the quantity of time spent as a reason to give greater weight to that physician's opinion.
The medical issue may be too complicated to resolve based solely upon the treating physician
rule's supposition that the treating physician has spent more time with the patient than any
other doctor. It is for these reasons that we reject the treating physician rule and determine
that it has no applicability in this state.
[Headnote 6]
We conclude, however, that the appeals officer did not apply the treating physician
rule to break a two-to-two tie between the medical experts. If he had, he would have given
greater deference to Dr. Schnaser's opinion. Dr. Schnaser, McClanahan's treating physician,
rendered an opinion that was not helpful to McClanahan's case as Dr. Schnaser determined
the cause of the injury to be idiopathic and unrelated to McClanahan's fall. Also, the appeals
officer considered all of the evidence and decided to give greater evidentiary weight to the
opinions of the two specialists who related McClanahan's condition to his fall at work
because they had personally examined him. Specifically, the appeals officer concluded as
follows:
There is a legitimate dispute concerning the causation of the avascular necrosis in
[McClanahan's] hip. However, in this circumstance, I give greater weight to the
testimony and opinion of the treating physicians, since they have personally examined
[McClanahan]. Both Dr. Burch in his report, and Dr. Boyden in his testimony, excluded
other causes, including any idiopathic cause, for [McClanahan's] condition. Their
reports and testimony are relied upon to determine medical causation in this case. See
also: discussion on testimony of treating physician and experts, in 8 Larson's Workers
Compensation Law Sec. 80.24(b) (Nov. 1998).
Such weighing of the evidence is a proper responsibility of the fact finder and is permissible
under NRS 616A.010. The appeals officer's decision to accord greater weight to two experts
who had personally examined McClanahan is not tantamount to applying the treating
physician rule.
12

In sum, we conclude that the appeals officer's decision was supported by substantial
evidence, and that the district court erred by substituting its judgment for that of the appeals
officer upon judicial review. The opinions of two of the doctors who had personally
examined McClanahan, and the testimony of McClanahan, his wife and his supervisor, which
was deemed credible by the appeals officer, constitute substantial evidence upon which the
appeals officer was entitled to rely in determining that McClanahan had proved his
entitlement to compensation by a preponderance of the evidence.
Further, we conclude that the district court erred when it found that the appeals officer
improperly applied the treating physician rule in violation of NRS 616A.010(4). The appeals
officer considered all of the evidence and decided to give greater evidentiary weight to the
opinions of the two doctors who related McClanahan's condition to his fall at work because
they had personally examined him. Such weighing of conflicting evidence is permissible and
desirable under NRS 616A.010(4), and is not tantamount to applying the treating physician
rule.
Accordingly, we reverse the district court's order granting the petition for judicial
review and reversing the appeals officer's decision.
__________

12
Tangentially, we note that the appeals officer's description of the two doctors who personally examined
McClanahan as treating physicians is misplaced. In the context of the treating physician rule, the treating
physician is charged with the duty to treat the patient. In furtherance of that duty, the treating physician generally
treats the patient for an extended period of time and becomes thoroughly familiar with the patient's disability.
Here, one doctor personally examined McClanahan once, the other doctor examined him twice. Neither doctor
was enlisted to treat McClanahan's avascular necrosis; rather, the doctors were asked to diagnose his
condition.
____________
117 Nev. 929, 929 (2001) Krause Inc. v. Little
KRAUSE INC. and HOME DEPOT U.S.A., INC., Appellants, v. DON LITTLE, Respondent.
No. 36406
November 21, 2001 34 P.3d 566
Appeal from a district court order denying a motion for a new trial in a personal injury
action. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
Drywall contractor sued ladder manufacturer and retailer for injuries he received when
articulated ladder collapsed. The district court entered judgment on a jury verdict for
contractor, and defendants appealed. The supreme court, Rose, J., held that: (1) district court
did not abuse its discretion in admitting testimony of plaintiff's expert, (2) jury could
reconstruct expert's experiment described at trial by using ladder admitted into evidence, (3)
jury instruction on manufacturing defect was justified, and (4) jury instruction on future
damages was justified.
Affirmed.
[Rehearing denied January 15, 2002]
Becker, J., dissented in part.
Osborne Law Office and Ann O. Hall, Reno; Law Offices of George H. Ellis, Los
Angeles, California, for Appellants.
David L. Bolnick and William R. Kendall, Reno, for Respondent.
Bradley Drendel & Jeanney, Reno, for Amicus Curiae Nevada Trial Lawyers
Association.
Supreme court reviews the district court's grant or denial of a motion for a new trial under an abuse of discretion standard, and
the district court's decision will not be overturned absent a palpable abuse of discretion.
A district court's order denying judgment notwithstanding the verdict is not appealable; however, the supreme court may
construe an appellant's notice of appeal from an order denying judgment notwithstanding the verdict as an intent to appeal from the
underlying judgment.
Supreme court reviews a district court's decision to admit expert testimony for an abuse of discretion, and the district court's
decision will only be reversed on a showing of a clear abuse of discretion.
4. Evidence.
District court did not abuse its discretion in allowing witness to testify as an expert witness on whether articulated ladder which
collapsed was defectively designed, where witness was a registered mechanical engineer with two degrees and multiple
certifications in the field, had been a professor in university engineering department for twenty-five years,
and belonged to numerous organizations of professional engineers.
engineer with two degrees and multiple certifications in the field, had been a professor in university engineering department for
twenty-five years, and belonged to numerous organizations of professional engineers. NRS 50.275.
5. Evidence.
Statute providing for exclusion of evidence whose probative value is substantially outweighed by danger of unfair prejudice
strongly favors admissibility. NRS 48.035.
A district court's decision on whether to admit evidence claimed to be excessively prejudicial will not be disturbed unless it is
manifestly wrong. NRS 48.035.
7. Evidence.
District court's decision to admit into evidence articulated ladder which collapsed and injured plaintiff was not manifestly
wrong, though plaintiff's experts had kicked it repeatedly during tests, as defendants did not show that ladder was so fundamentally
altered that it ceased to be probative of the existence of a defect, ladder possessed at least some probative value, and its admission was
not excessively prejudicial. NRS 48.035.
8. Trial.
Jurors may not receive evidence out of court.
9. Trial.
Jury could reconstruct expert's experiment with articulated ladder that had collapsed and injured plaintiff, where expert testified
regarding experiments that indicated when ladder could collapse, ladder was admitted into evidence, and jury did not produce extrinsic
evidence but rather examined the accuracy of the expert's testimony.
Supreme court presumes that a jury follows the district court's instructions.
11. New Trial.
District court did not abuse its discretion in denying new trial on ground that it erred during products liability trial in allowing
deposition testimony of similar accidents to be read to jury, as court instructed jurors to disregard the testimony, and defendants
presented no evidence to rebut presumption that jury followed court's instruction.
12. Products Liability.
Evidence of an unexpected, dangerous malfunction gives rise to an inference of a manufacturing defect, and in such a situation,
direct proof of the malfunction's cause is unnecessary.
13. Products Liability.
Manufacturing defect instruction was justified by plaintiff's testimony that articulated ladder collapsed as he stood on it, as
testimony indicated ladder did not perform in a reasonable manner in light of its nature and intended function, and jury could properly
infer that malfunction derived from a manufacturing defect.
14. Damages.
Instruction on future damages was justified, though plaintiff presented no expert testimony regarding such damages, where
plaintiff had broken his ankle. Nature of injury was clear and readily observable, extent to which a broken bone causes pain and
suffering was common knowledge, and jury could estimate degree of plaintiff's future discomfort without necessarily receiving an
expert's assistance.
Before Shearing, Rose and Becker, JJ.
OPINION
This appeal presents two novel legal questions: first, whether jurors may reconstruct
an expert witness's experiment on an allegedly defective product; and second, whether a
personal-injury plaintiff, must present expert testimony regarding future pain and suffering in
order for the jury to award damages for the plaintiff's broken leg. We conclude that jurors
may, using admitted evidence, reenact an experiment as performed by an expert. We further
conclude that a broken bone is a sufficiently objective injury for a jury to award future pain
and suffering damages without expert testimony.
FACTS
Respondent, Don Little, a drywall contractor, purchased a Krause Multimatic ladder,
manufactured by appellant Krause Inc., from appellant Home Depot U.S.A., Inc. The
Multimatic is an articulated ladder that can be used in several ways, such as a stepladder, an
extension ladder, or a scaffold.
Little was hired to repair some water damage in a garage. Little set up the Multimatic
ladder, made sure that the hinges were locked, and began hanging drywall. While standing on
the ladder's third step, Little inadvertently bumped the release lever. The ladder then
collapsed and Little fell to the ground.
Little went directly to the emergency room. There, Dr. Mario Porras examined Little's
ankle and concluded that it was broken in two places. Dr. Porras performed surgery, which
entailed putting the bones back together using a plate and screws. Little stayed at the hospital
overnight and left with a half-cast on his ankle.
Dr. Porras examined Little a week later, placed a full cast on his ankle, and
recommended that he not apply any pressure on the ankle until the next visit. Two weeks
later, Dr. Porras concluded that Little was progressing normally and placed the ankle in a
fracture boot, a type of cast that can be removed so that the ankle can be moved. Dr. Porras
testified that five weeks after the injury, Little was progressing well, and he recommended
that Little weight-bear as tolerated. Little's healing continued and after two and one-half
months, Dr. Porras recommended that he resume full activity.
Five months after the accident, Little returned to Dr. Porras because he was
experiencing limited range of motion in his ankle.
Dr. Porras determined that Little was experiencing pain from the implanted plate and screws.
Dr. Porras removed the plate and screws in an outpatient surgery. Because Little was again
progressing well, Dr. Porras released him to full activities. While Little claimed at trial that
his ankle is still stiff and painful, Dr. Porras never testified regarding the likelihood of Little's
future pain.
Little sued Krause and Home Depot, claiming strict product liability based upon a
manufacturing and/or design defect. At trial, Little presented the expert testimony of Lindley
Manning, a Nevada registered mechanical engineer. Manning performed tests upon the
accident ladder to determine whether Little's version of the accident was accurate. He
attempted to replicate the conditions by setting up the ladder on a concrete surface (similar to
the floor of the garage in which Little was injured) and having a man of Little's approximate
size move in the manner described by Little.
After several tests, Manning discovered that when touched in a certain way, the
release lever would engage and cause the ladder to collapse. Because this touch is typical with
normal use of the ladder, Manning concluded that the ladder was defectively designed. He
opined that the ladder's dangerousness could be cured by placing a guard over the release
lever or by warning the user that the ladder could collapse when touched in this way.
Krause and Home Depot presented the expert testimony of another mechanical
engineer, Dr. Mack Quan. Dr. Quan did not perform any tests on the accident ladder. Instead,
he performed various tests on other Krause ladders. Rather than using a stunt man to activate
the release lever, Dr. Quan loaded the exemplar ladders with a static weight while pushing
and pulling from various directions. After performing his tests, Dr. Quan concluded that the
ladder was adequate for its intended use, and that Little must have attempted to climb the
ladder without locking the appropriate hinges. On cross-examination, however, Dr. Quan
admitted that if the hinges were not locked, the ladder would collapse when a person
attempted to climb it, not when the person was already standing on it. Dr. Quan also admitted
that the Multimatic is the only articulated ladder that he is aware that collapses by
disengaging one mechanism (the release lever that is located near the third rung). Other
articulated ladders require a person to simultaneously disengage two mechanisms in order to
cause collapse, making inadvertent collapses more difficult.
In a motion in limine, Little sought a ruling permitting him to present evidence of four
other similar accidents to show that the Krause Multimatic ladder was defectively designed.
The district court initially ruled that Little could present the deposition testimony of three
other claimants, Theodore Klentzin, Charles Eggers, and Gilbert Bloomquist, and
accordingly, the depositions were read to the jury.
Eggers, and Gilbert Bloomquist, and accordingly, the depositions were read to the jury. After
Little presented these depositions, the district court struck two of the depositions because they
were not substantially similar to the circumstances of Little's accident. The district court then
instructed the jury to disregard all testimony concerning Charles Eggers and Gilbert
Bloomquist. The jury was further instructed: disregard anything you have heard as a result
of that testimony in regards to either or both of these matters[,] and you shall treat those
matters as if you had never heard of them.
Ultimately, the jury returned a verdict in favor of Little and awarded him $100,000 in
damages ($80,000 in past damages and $20,000 for future pain and suffering). Krause and
Home Depot moved for judgment notwithstanding the verdict or, in the alternative, for a new
trial. The district court denied the motion, and this appeal followed.
DISCUSSION
Standard of review
[Headnotes 1, 2]
This court reviews the district court's grant or denial of a motion for a new trial under
an abuse of discretion standard.
1
The district court's decision will not be overturned absent a
palpable abuse of discretion.
2
However, a district court's order denying judgment
notwithstanding the verdict is not appealable.
3
We may construe, however, the appellant's
notice of appeal from an order denying judgment notwithstanding the verdict as an intent to
appeal from the underlying judgment.
4

Expert witness qualification
[Headnote 3]
Appellants contend that the district court erred in allowing Manning to testify as an
expert witness. This court has repeatedly stated that it will not weigh the credibility of
witnesses because that duty rests with the trier of fact.
5
Instead, we review a district court's
decision to admit expert testimony for an abuse of discretion.
__________

1
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1505, 970 P.2d 98, 122 (1998) (citing Hazelwood v.
Harrah's, 109 Nev. 1005, 1010, 862 P.2d 1189, 1192 (1993)).

2
Allum v. Valley Bank of Nevada, 114 Nev. 1313, 1316, 970 P.2d 1062, 1064 (1998).

3
See Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 790 n.1 (1995) (citing Ross v.
Giacomo, 97 Nev. 550, 635 P.2d 298 (1981)).

4
See Uniroyal, 111 Nev. at 320 n.1, 890 P.2d at 790 n.1.

5
See, e.g., Thomas v. State, 114 Nev. 1127, 1142, 967 P.2d 1111, 1121
court's decision to admit expert testimony for an abuse of discretion. We will only reverse a
district court's decision to admit expert testimony on a showing of a clear abuse of discretion.
6

Appellants argue that this court should adopt a new standard for the admissibility of
expert testimony, akin to Daubert v. Merrell Dow Pharmaceuticals, Inc.
7
We have
previously declined to adopt the Daubert standard.
8
We now take this opportunity to
reaffirm our existing legal standard concerning the admissibility of expert testimony. The
district court is in a better position than this court to determine the helpfulness of proposed
testimony in light of the material facts in issue. When the district court's exercise of discretion
is not manifestly wrong under NRS 50.275, we will not reverse.
9

NRS 50.275 provides that [i]f scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by special knowledge, skill, experience, training or education may
testify to matters within the scope of such knowledge. Here, the ladder's alleged
defectiveness was a fact in issue. Here, scientific knowledge regarding the ladder's potential
to collapse had the potential to assist the jury in determining whether the Krause ladder was
defective.
[Headnote 4]
Manning is a registered mechanical engineer with two degrees and multiple
certifications in the field. Manning has been a professor in the engineering department of the
University of Nevada, Reno, for twenty-five years. Further, Manning belongs to numerous
organizations of professional engineers. Under such circumstances, we find no abuse of
discretion in the district court's decision to characterize Manning as a qualified expert with
special knowledge that could assist the jury.
Spoliation of evidence
[Headnotes 5, 6]
Krause and Home Depot also argue that the district court erred in admitting the
accident ladder into evidence. Appellants contend that Manning's experiments damaged the
ladder, making its admission highly prejudicial. "NRS 4S.035 allows the district court to
exclude evidence if the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice or undue delay.
__________
(1998) (citing Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981)); Hutchins v. State, 110 Nev. 103, 107, 867 P.2d
1136, 1139 (1994) (citing Bolden, 97 Nev. at 73, 624 P.2d at 20).

6
Mulder v. State, 116 Nev. 1, 12-13, 992 P.2d 845, 852 (2000) (citing Smith v. State, 100 Nev. 570, 572, 688
P.2d 326, 327 (1984)).

7
509 U.S. 579 (1993).

8
See Mahlum, 114 Nev. at 1482 n.3, 970 P.2d at 108 n.3.

9
See Bolin v. State, 114 Nev. 503, 525, 960 P.2d 784, 798-99 (1998).
admission highly prejudicial. NRS 48.035 allows the district court to exclude evidence if the
probative value of the evidence is substantially outweighed by the danger of unfair prejudice
or undue delay.
10
By requiring the prejudicial effect of evidence to substantially outweigh'
its probative value, NRS 48.035 [strongly favors] admissibility.
11
To merit exclusion, the
evidence must unfairly prejudice an opponent, typically by appealing to the emotional and
sympathetic tendencies of a jury, rather than the jury's intellectual ability to evaluate
evidence.
12
A district court's decision on this issue will not be disturbed unless it is
manifestly wrong.'
13

[Headnote 7]
Here, Little claimed that the ladder suffered a design or manufacturing defect which
made it unreasonably dangerous. The accident ladder was highly probative of the existence of
a manufacturing defect. Krause and Home Depot allege that Little's experts damaged the
ladder by kicking it repeatedly during tests. True, such damage may have decreased the
ladder's reliability as evidence. However, appellants did not show that the ladder was so
fundamentally altered that it ceased to be probative of the existence of a defect.
Further, Krause and Home Depot do not argue that the ladder appealed to the jury's
emotional and sympathetic tendencies. Rather, Krause and Home Depot argue that the jury
lacked the intellectual ability to evaluate the extent to which Manning damaged the ladder.
Such an argument does not establish a high degree of unfair prejudice. The accident ladder
possessed at least some probative value, and its admission was not excessively prejudicial.
We cannot say that the district court's decision to admit the ladder into evidence was
manifestly wrong.
Jury experiment
[Headnote 8]
It is well established that jurors may not receive evidence out of court.
14
This court
has recognized the rationale for the rule: For a jury to consider independent facts, unsifted
as to their accuracy by cross-examination, and unsupported by the solemnity attending their
presentation on oath, before a judge, jury, parties and bystanders, and without an
opportunity to contradict or explain them can never be countenanced.' "
__________

10
Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 45, 910 P.2d 271, 273 (1996).

11
Id. at 46, 910 P.2d at 273.

12
Id. (citing Fed. R. Evid. 403 advisory committee's note).

13
Id. (quoting Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983)).

14
Caroll J. Miller, Annotation, Propriety of Juror's Tests or Experiments in Jury Room, 31 A.L.R.4th 566,
571 (1984) (citing 75 Am. Jur. 2d, Trial 979).
attending their presentation on oath, before a judge, jury, parties and bystanders, and without
an opportunity to contradict or explain them can never be countenanced.'
15
[T]herefore,
insofar as tests or experiments carried out by the jury during deliberations have the effect of
introducing new evidence out of the presence of the court and parties, such tests and
experiments are improper and, if the new evidence . . . has a substantial effect on the verdict,
prejudicial.
16
Here, we must decide whether a jury's use of admitted evidence to reenact an
expert witness's experiment that was performed at trial has the effect of introducing new
evidence. We conclude that it does not.
[Headnote 9]
The jury's function is to be the final arbiter of truth based upon the evidence
submitted.
17
Other courts have held that when the jury reconstructs an expert's experiment,
the jury is merely testing the veracity of the expert's testimony.
18
The jury here heard
extensive expert testimony from Manning regarding experiments that indicated when the
ladder could collapse. The jury then took the accident ladder, which was admitted into
evidence, and reenacted those experiments consistent with Manning's testimony. In doing so,
the jury did not produce extrinsic evidence, but rather examined the accuracy of Manning's
expert testimony. This was a proper exercise of the jury's truth-seeking function.
This is not a situation in which the jury took it upon itself to devise its own
experiment on the admitted evidence, or considered objects or expert opinions not admitted
into evidence. Such activities would constitute misconduct.
19
Here, rather, the jury took
admitted real evidence and examined it in light of admitted expert testimony. In so doing, the
jury performed its task in a legitimate and befitting manner.
__________

15
Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721 (1979) (quoting Thomas v. Kansas Power and Light
Company, 340 P.2d 379, 385 (Kan. 1959)).

16
Miller, supra note 14, at 571.

17
See Mortensen v. State, 115 Nev. 273, 289, 986 P.2d 1105, 1116 (1999).

18
See, e.g., Banghart v. Origoverken, 49 F.3d 1302, 1307 (8th Cir. 1995) (holding that jurors' reenactment of
expert's experiment did not introduce extrinsic evidence, but merely tested the truth of the expert's statements);
Muchell v. V & V, Inc., 622 A.2d 1365, 1367 (N.J. Super. Ct. Law Div. 1992) (holding that jurors' experiment
that was consistent with the legal proofs . . . at trial was proper); People v. Engler, 540 N.Y.S.2d 591, 594
(N.Y. App. Div. 1989) (holding that jurors' reenactment of trial testimony on admitted evidence did not
constitute misconduct).

19
See Barker, 95 Nev. at 312, 594 P.2d at 721 (finding misconduct where juror introduced outside research
on the effects of heroin); State v. Thacker, 95 Nev. 500, 502, 596 P.2d 508, 509 (1979) (finding misconduct
where juror offered expert opinion on cattle weight); People v. Castro, 229 Cal. Rptr. 280, 281-82 (Ct. App.
1986) (finding misconduct where juror conducted visibility experiment at crime scene).
and befitting manner. We accordingly find no abuse of discretion in the district court's denial
of a new trial on this ground.
Similar accidents
Krause and Home Depot assert that the district court erred in denying a new trial after
the depositions of Eggers and Bloomquist were erroneously presented to the jury. Appellants
contend that the reading of the Eggers and Bloomquist depositions truly damaged their
case. The district court, however, instructed the jury to disregard the Eggers and Bloomquist
depositions. Further, we are of the opinion that the Bloomquist deposition probably should
have been admitted as evidence of a substantially similar accident.
20
Bloomquist was injured
as he descended his ladder, and although he did not state that he actually touched the release
lever, the jury could reasonably draw this inference.
[Headnotes 10, 11]
This court presumes that a jury follows the district court's instructions.
21
Krause and
Home Depot present no evidence to rebut this presumption, even though they interviewed
several jurors after trial. The district court's instructions cured any error or prejudice that
resulted from reading the depositions. Accordingly, we find no abuse of discretion in the
denial of a new trial on this ground.
22

Manufacturing defect instruction
[Headnote 12]
Krause and Home Depot further argue that the district court erred in instructing the
jury on a manufacturing defect, as Little presented no expert testimony regarding the
existence of a manufacturing defect. We have previously held, however, that expert testimony
is not always necessary to establish the existence of a manufacturing defect.
23
Rather,
evidence of an unexpected, dangerous malfunction gives rise to an inference of a
manufacturing defect.
__________

20
See Andrews v. Harley Davidson, 106 Nev. 533, 538-39, 796 P.2d 1092, 1096 (1990) (noting that minor
differences in accidents do not warrant exclusion).

21
Lisle v. State, 113 Nev. 540, 558, 937 P.2d 437, 484 (1997) (citing Tennessee v. Street, 471 U.S. 409, 415
(1985)).

22
Appellants also argue that under Galloway v. McDonalds Restaurants, 102 Nev. 534, 728 P.2d 826
(1986), they were entitled to an instruction on the absence of prior accidents to show that the ladder was not
defective. This argument is without merit; Klentzin's deposition was evidence of another prior accident and
appellants do not challenge the admission of this deposition.

23
See Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 448, 686 P.2d 925, 928 (1984).
defect.
24
In such a situation, direct proof of the malfunction's cause is unnecessary; the
circumstantial evidence of the malfunction can prove a manufacturing defect.
25

[Headnote 13]
Here, Little testified that the ladder collapsed as he stood on it. Assuming the truth of
this testimony, the ladder clearly did not perform in a reasonable manner in light of its nature
and intended function; i.e., the ladder was defective. The average juror is quite familiar with a
ladder's functions, and does not require expert testimony to know that a ladder should not
collapse while a person stands on it. The jury could properly infer from Little's testimony that
this unexpected and dangerous malfunction derived from a manufacturing defect. This
instruction was proper and the district court did not abuse its discretion in this regard.
Future damages instruction
The district court instructed that the jury could award reasonable compensation for
physical and mental pain, suffering, anguish and disability that Little was reasonably
certain to experience in the future as a result of the accident. Krause and Home Depot assert
that this instruction was improper because Little presented no expert testimony regarding
future damages.
This court has held that when an injury or disability is subjective and not
demonstrable to others (such as headaches), expert medical testimony is necessary before a
jury may award future damages.
26
We have also held that a shoulder injury causing a
demonstrably limited range of arm motion is an objective injury which does not require
expert testimony before a jury awards damages for future pain and suffering.
27
We now hold
that a broken bone is closer to the latter situation than the former, and accordingly a plaintiff
need not present expert testimony before the district court instructs on future damages.
[Headnote 14]
First, the nature of Little's injury is clear and readily observable. The jury did not
require an expert's testimony to understand the magnitude of the injury. Further, the extent to
which a broken bone causes pain and suffering is common knowledge. The jury could
estimate the degree of future discomfort which Little would experience without necessarily
receiving an expert's assistance.
__________

24
Id.

25
Id. at 450-51, 686 P.2d at 929.

26
See Gutierrez v. Sutton Vending Serv., 80 Nev. 562, 565-66, 397 P.2d 3, 4-5 (1964).

27
See Paul v. Imperial Palace, Inc., 111 Nev. 1544, 1548, 908 P.2d 226, 229 (1995).
experience without necessarily receiving an expert's assistance. Accordingly, we hold that the
district court did not err in instructing the jury on future damages.
CONCLUSION
We hold that a jury may reconstruct an expert's experiment performed or described at
trial using admitted evidence, provided the reconstruction is consistent with the experiment.
Under such circumstances, the jury is not introducing new evidence, but rather testing the
veracity of the expert's testimony.
Additionally, we also hold that a broken bone is an objective injury that does not call
for expert testimony regarding the plaintiff's future pain and suffering before the district court
instructs on future damages. Such an injury is readily observable and understandable by the
jury without an expert's assistance.
Having considered these and all of appellants' other arguments, we find no abuse of
discretion in the district court's denial of a new trial. Accordingly, we affirm the district
court's order.
Shearing, J., concurs.
Becker, J., concurring in part and dissenting in part:
I concur with the majority opinion on all issues except the future damages instruction.
Neither Gutierrez v. Sutton Vending Service, Inc.
1
nor Paul v. Imperial Palace, Inc.
2
stand
for the proposition that a plaintiff need not present expert testimony to prove future pain,
suffering or disability damages when the underlying injury is objective in nature. Rather these
cases hold that expert testimony is unnecessary where the cause of the future pain, suffering
or disability is objectively demonstrable to the trier of fact.
Gutierrez involved a blow to a young man's head. The young man claimed he could
not longer play the trumpet because of headaches related to the initial injury. However,
medical testimony indicated he had fully recovered from the injury more than a year before
the trial. We noted that no objective or clinical signs supported the claim for a continuing
injury and that the claimed disability or continuing problem, a headache, is subjective in
nature. Because the future damage was not readily observable by the jurors, we concluded
he was not entitled to present a case of future damages to the jury.
3

Subsequent to Gutierrez, we decided Lerner Shops of Nevada,
__________

1
80 Nev. 562, 397 P.2d 3 (1964).

2
111 Nev. 1544, 908 P.2d 226 (1995).

3
Gutierrez, 80 Nev. at 565-66, 397 P.2d at 5.
Inc. v. Marin, where we stated that, in cases involving subjective physical injury, the claim
must be substantially supported by expert testimony to the effect that future pain and
suffering is a probable consequence rather than a mere possibility.
4

Lerner was cited with approval in Paul. Paul involved a plaintiff who had a torn
rotator cuff. Her surgeon testified that she had a thirty percent disability in her shoulder and
she demonstrated her loss of arm motion to the jury. We stated that:
Because of this supporting evidence and because Paul's disability was not subjective,
. . . Paul provided sufficient evidence of future pain, suffering, and disability to allow
the jury to award such damages.
5

Here, Little suffered a broken ankle. He was released to full activity by his doctor. The
doctor did not testify that Little suffered from a permanent disability or that it was probable
he would experience future pain or suffering. Little testified that his ankle was still stiff and
painful, but pain and stiffness are not readily observable to a jury. It is certainly possible that
a broken ankle will cause occasional pain and stiffness, but the probability of such symptoms
can only be established through expert testimony.
Because Little presented insufficient evidence of future damages, the district court
abused its discretion in denying the motion for a new trial. I would remand the case to the
district court with instructions to issue a remittitur reducing the verdict by the amount of the
future damages or grant a new trial.
__________

4
83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967).

5
Paul, 111 Nev. at 1548, 908 P.2d at 229.
____________
117 Nev. 941, 941 (2001) Mark Properties v. National Title Co.
MARK PROPERTIES, INC., a Nevada Corporation, Appellant, v. NATIONAL TITLE CO.,
a Nevada Corporation; and LAWYERS' TITLE OF NEVADA, INC., a Nevada Corporation,
Respondents.
No. 32954
November 26, 2001 34 P.3d 587
Appeal from a summary judgment in an action concerning real property. Eighth
Judicial District Court, Clark County; Nancy A. Becker, Judge.
Real estate purchaser sued escrow agents, alleging fraud and breach of fiduciary duty.
The district court granted summary judgment to agents. Purchaser appealed. The supreme
court, Rose, J., held that: (1) fact issues as to whether agent's employee breached duty to
disclose fraud of which she was aware precluded summary judgment as to transactions to
which purchaser was a party, but (2) agent had no duty to hold escrow funds on purchaser's
request regarding escrow agreement to which purchaser was not a party.
Former opinion withdrawn; affirmed in part, reversed in part and remanded on
rehearing.
Hutchison & Steffen and Michael K. Wall, Las Vegas, for Appellant.
Hale Lane Peek Dennison Howard & Anderson and James M. Walsh and Robert C.
Vohl, Reno, for Respondents.
Appellate court reviews de novo the trial court's entry of summary judgment.
2. Judgment.
In determining whether summary judgment is warranted, the nonmoving party is entitled to have the evidence and all reasonable
inferences accepted as true.
3. Deposits and Escrows.
An escrow agent has a duty to disclose fraud committed by another party to the escrow if the facts actually known to the escrow
agent present substantial evidence of fraud.
An escrow agent has no duty to investigate circumstances surrounding a particular sale in order to discover fraud.
Generally, the escrow instructions control the parties' rights and define the escrow agent's duties.
6. Judgment.
Genuine issue of material fact existed as to whether escrow agent's employee breached her duty to disclose to purchaser fraud of
which she was aware concerning double escrow real estate transactions, or whether purchaser was already aware of facts of fraud,
precluding summary judgment for escrow agent on purchaser's action for negligence and breach of fiduciary
duty.
mary judgment for escrow agent on purchaser's action for negligence and breach of fiduciary duty.
An escrow agent owes a duty to disclose fraud only to parties to the escrow transaction.
Escrow agent owed no duty to hold escrow funds pending a court's resolution of litigation by non-party to escrow agreement,
brought against party to agreement, although that non-party was a principal to real estate transaction that was the subject of escrow
agreement and litigation.
Before Young and Rose, JJ.
On December 14, 2000, we issued an opinion affirming in part and reversing in part
the district court's summary judgment, and remanding this case to the district court.
1
Subsequently, respondent National Title Company filed a petition for rehearing, to which
Mark Properties, Inc., responded. We have reviewed the parties' submissions, as well as the
briefs and appendix, and we conclude that rehearing is warranted. Additionally, our prior
opinion must be withdrawn. We now issue this opinion in place of our prior opinion.
At issue in this appeal is whether an escrow agent has a duty beyond that set forth in
the escrow instructions to apprise a party to the escrow, and an alleged principal who is not a
party to the escrow, of fraud in a double escrow transaction. We conclude that an escrow
agent must inform a party to the escrow that fraud has been committed if the facts actually
known to the escrow agent present substantial evidence of fraud.
FACTS
In early 1995, Mark Snop and Mark Raiter, real estate investors from Israel, were
introduced to Sam Ventura, an individual described as a successful real estate developer in
Las Vegas, Nevada. Snop and Raiter later telephoned Ventura, inquiring about real estate
development in the Las Vegas market. Ventura sent Snop and Raiter a letter soliciting their
investment, and provided Snop and Raiter with a 1994 appraisal of a forty-acre parcel located
in North Las Vegas that was available for acquisition and development.
__________

1
Mark Properties v. National Title Co., 116 Nev. 1158, 14 P.3d 507 (2000).
Snop and Raiter informed Ventura that they would be willing to consider a joint
venture in which Snop, Raiter, and Ventura would each contribute cash to develop the
forty-acre parcel. Ventura, Snop, Raiter, and Ventura's associate, Michael Bash, agreed that
Snop and Raiter would form a corporation, Mark Properties, Inc., that would provide sixty
percent of the cash required for the forty-acre parcel, and Ventura and Bash, through Terra
Vegas Corporation, an entity they controlled, would provide forty percent. Everyone further
agreed that despite Terra Vegas' contribution of only forty percent of the down payment,
Terra Vegas would receive a full fifty percent ownership interest in the parcel in return for
locating the property and representing the partnership in Las Vegas.
In June 1995, Terra Vegas sent Mark Properties a proposed joint venture agreement,
escrow instructions, and an installment note for the forty-acre parcel. The purchase price of
the parcel was $2,400,000, with the parties providing $1,475,000 in cash and a note for the
remainder. In order to close escrow, Mark Properties was to deposit $885,000 in cash and
Terra Vegas was to deposit $590,000. Mark Properties gave its cash deposit to the escrow
handler, National Title Company.
On the day escrow was to close, Snop and Raiter allegedly discovered that the seller
of the forty-acre parcel was not an unrelated third party, as Ventura and Bash had represented,
but instead was Rowe Land, a corporation controlled by Bash. When Snop and Raiter
confronted Ventura and Bash about Rowe Land being the seller, Ventura explained that Rowe
Land had purchased the parcel from the original seller merely to facilitate its acquisition by
Mark Properties and Terra Vegas, and that there was no difference between the price Rowe
Land had paid for the land and the price of the sale to Mark Properties and Terra Vegas.
Relying on this information, Mark Properties concluded the transaction by releasing its
$885,000 cash deposit to Rowe Land.
Mark Properties purportedly realized later that by establishing a double escrow, Rowe
Land had purchased the parcel for a lower price, and then used the down payment tendered by
Mark Properties to satisfy Rowe Land's down payment obligation to the original owner.
According to Mark Properties, as a result of this double escrow, Bashand ultimately Terra
Vegasfraudulently profited, with Bash violating his fiduciary duty to Mark Properties.
Mark Properties insists that at the time of the transaction, it did not know Bash was profiting
from the double escrow.
Mark Properties also asserts that National Title knew the details of the double escrow.
But the facts concerning who knew what, and when any knowledge of the details of the
double escrow was acquired, are unclear and highly contested. For instance, regarding the
knowledge of both National Title and Mark Properties, Nancy Wilder, a National Title
escrow agent, testified at deposition that {1) she was aware the land was being sold
through a "double escrow" and there was a price difference between the two
transactions;
ing the knowledge of both National Title and Mark Properties, Nancy Wilder, a National Title
escrow agent, testified at deposition that (1) she was aware the land was being sold through a
double escrow and there was a price difference between the two transactions; (2) Snop,
Raiter, and their attorney were also aware of the double escrow and the price difference
because she had overheard them discussing it at the escrow closing; and (3) Snop and Raiter
had no problem with the double escrow and decided to proceed with the transaction. But
Wilder also conceded that she could not understand much of the discussions she overheard
because Snop and Raiter were speaking Hebrew or Russian; that there's a lot of things in the
conversation [she] probably missed because she often does other work during these kind of
meetings; and that she could not remember whether the subject of profit to either Mr. Bash
or Mr. Ventura . . . was ever discussed.
Before Snop and Raiter discovered this alleged fraud, other real property transactions
were consummated. Terra Vegas and Mark Properties formed Ann-Allen, L.L.C., a limited
liability company created for the acquisition and development of real property. In September
1995, Ann-Allen acquired for $700,000 a twenty-acre parcel that was attached to the
forty-acre parcel originally purchased by Mark Properties and Terra Vegas.
Furthering the purchase of the twenty-acre parcel, the parties opened another escrow
account at National Title. This transaction required a down payment of $400,000$240,000
in cash from Mark Properties and $160,000 in cash from Terra Vegas. Mark Properties and
Terra Vegas each had a fifty-percent ownership interest in the twenty-acre parcel, but
Ann-Allen held title to the parcel. Again, Ventura and Bash had arranged a double escrow, as
Rowe Land had contemporaneously entered into an escrow at Old Republic Title to purchase
the property for a lower price. Snop and Raiter contend that they were unaware Rowe Land
had purchased this land for a lower price, as they were told by Bash that Rowe Land had only
purchased the land to facilitate the sale to Ann-Allen.
Next, in early 1996, Mark Properties and Bash agreed to form Moscow Strip
Development Corporation to buy the Sunbird Inn Motel. Bash told Mark Properties that the
sale price of the Sunbird Inn was $4,000,000, and that a deposit of $75,000 was required to
open the escrow, of which Mark Properties was to contribute $50,000 and Bash was to
contribute $25,000. As with the two prior transactions, Bash's company, Rowe Land, had
contemporaneously entered into an agreement to purchase the Sunbird Inn for a lower price
from a third party, Robert and Georgina Chapman.
After Rowe Land had deposited $50,000 into escrow at Lawyers' Title, the transaction
fell through because Bash failed to obtain the proper licenses. Thereafter, Mark Properties
learned Bash was profiting from the double escrows.
Raiter met with a Lawyers' Title escrow agent and requested that she hold the $50,000
pending Mark Properties' litigation against Ventura and Bash. Despite this request, the escrow
agent refunded $38,000 to Rowe Land and $12,000 to the Chapmans.
Mark Properties filed a complaint against Lawyers' Title and National Title, alleging
negligence and breach of fiduciary duty. In response, National Title filed a motion for
summary judgment, arguing that it had no duty to disclose or investigate fraud as a matter of
law. Lawyers' Title also filed a motion for summary judgment, arguing that it owed no duty to
Mark Properties with respect to the Rowe Land/Chapman escrow because Mark Properties
was not a party to the escrow. The district court agreed with National Title and Lawyers'
Title, and granted both motions for summary judgment. Mark Properties appealed.
DISCUSSION
[Headnotes 1, 2]
We review de novo the district court's entry of summary judgment.
2
Summary
judgment is appropriate if 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
In determining whether summary
judgment is warranted, the nonmoving party is entitled to have the evidence and all
reasonable inferences accepted as true.
4

[Headnotes 3, 4]
Mark Properties contends the district court erred in ruling that National Title and
Lawyers' Title had no legal duty to disclose fraudulent circumstances of which they were
aware. We agree with Mark Properties that an escrow agent has a duty to disclose fraud
committed by another party to the escrow if the facts actually known to the escrow agent
present substantial evidence of fraud.
5
Although we conclude that the escrow agent has
such a duty, we also conclude that an escrow agent has no duty to investigate circumstances
surrounding a particular sale in order to discover fraud.
6

__________

2
Ortega v. Reyna, 114 Nev. 55, 58, 953 P.2d 18, 20 (1998).

3
NRCP 56(c); see also Lester v. Buchanen, 112 Nev. 1426, 1428, 929 P.2d 910, 912 (1996).

4
Ferreira v. P.C.H. Inc., 105 Nev. 305, 306, 774 P.2d 1041, 1042 (1989).

5
Burkons v. Ticor Title Ins. Co. of California, 813 P.2d 710, 720 (Ariz. 1991).

6
Berry v. McLeod, 604 P.2d 610, 616 (Ariz. 1979) ([A]n escrow agent has no duty to look for fraud.).
[Headnote 5]
Generally, the escrow instructions control the parties' rights and define the escrow
agent's duties.
7
Other jurisdictions have, however, recognized an exception to this general
rule, holding that an escrow agent has a duty to disclose fraud to the parties with whom it has
an escrow relationship.
8
For instance, Arizona imposes a limited duty to disclose:
[An escrow agent may not] close its eyes in the face of known facts and console itself
with the thought that no one has yet confessed fraud. Although not required to
investigate, when the agent is aware of facts and circumstances that a reasonable
escrow agent would perceive as evidence of fraud, then there is a duty to disclose.
9

We adopt this characterization of an escrow agent's duty. We cannot condone an escrow
agent's silence when the agent is aware of facts indicating that fraud is being perpetrated on a
party with whom the agent has an escrow relationship. When the escrow agent performs the
escrow with such an awareness, the agent becomes, in effect, a participant in the fraud, and
should, therefore, be liable to the defrauded party if the fraud is not disclosed.
10

We acknowledge that other jurisdictions, such as California, hold that an escrow agent
has no duty beyond that contained in the escrow instructions.
11
California courts have
refused to extend an escrow agent's duty beyond the escrow instructions on the basis that an
escrow agent has only a limited agency relationship with the parties to the escrow.
12
The
rationale behind refusing to impose a disclosure duty is that such a duty would subject the
escrow agent to a high risk of litigation, thereby discouraging reasonable persons from acting
as escrow agents.
13
We simply disagree.
__________

7
See Broussard v. Hill, 100 Nev. 325, 682 P.2d 1376 (1984).

8
E.g., Powell v. H.E.F. Partnership, 793 F. Supp. 91, 93 (D. Vt. 1992); Burkons, 813 P.2d at 716-18;
American State Bank v. Adkins, 458 N.W.2d 807, 810 (S.D. 1990).

9
Burkons, 813 P.2d at 718 (internal quotation marks and citation omitted).

10
3 Harry D. Miller, California Real Estate 6:26 (3d ed. 2000).

11
E.g., Lee v. Title Ins. Co., 70 Cal. Rptr. 378 (Ct. App. 1968); Blackburn v. McCoy, 37 P.2d 153 (Cal. Ct.
App. 1934); accord Gurley v. Bank of Huntsville, 349 So. 2d 43, 45 (Ala. 1977).

12
Lee, 70 Cal. Rptr. at 380-81; Blackburn, 37 P.2d at 155 (holding that the escrow relationship cannot be one
of general agency because the parties to a real property transaction have conflicting interests).

13
Lee, 70 Cal. Rptr. at 380.
[Headnote 6]
Having concluded that an escrow agent has a limited duty to disclose, we must reverse
the district court's summary judgment on Mark Properties' action against National Title.
There is a triable, albeit highly contested, issue of material fact regarding whether Wilder
breached her duty to disclose to Mark Properties fraud of which she was aware concerning
the escrows of the forty and twenty-acre parcels.
14
It is clear from Wilder's testimony that
she knew of the double escrows and the price differentials. But whether she learned of these
facts by overhearing Snop and Raiter discuss them with their attorney, or discovered the facts
previously through some other source, is in dispute. We leave the resolution of these
questions to the trier of fact.
[Headnotes 7, 8]
With respect to Mark Properties' causes of action against Lawyers' Title, we affirm the
district court's summary judgment. An escrow agent owes a duty to disclose fraud only to
parties to the escrow transaction.
15
It is undisputed that Mark Properties was not a party to
the Lawyers' Title escrow agreement. Mark Properties suggests that Lawyers' Title should
have held the Rowe Land/Chapman funds pending a court's resolution of Mark Properties'
litigation against Ventura and Bash because it (Mark Properties) was a principal to the
transaction. But there is neither compelling rationale nor any authority for such a suggestion.
In fact, if Lawyers' Title were to release funds upon a third party's request and in violation of
the escrow instructions, it would likely be liable to the parties to the escrow for breach of
fiduciary duty and conversion.
16
Accordingly, we conclude that Lawyers' Title owed no duty
to Mark Properties because Mark Properties was not a party to the Lawyers' Title escrow.
CONCLUSION
The district court erred in granting National Title's motion for summary judgment.
There is a triable issue of material fact concerning whether National Title breached a duty
owed to Mark Properties to disclose fraud of which it was aware.
__________

14
Although Ann-Allen took title to the twenty-acre parcel, it was undisputed below that Mark Properties was
a party to that escrow transaction.

15
See Berry, 604 P.2d at 616.

16
See Broussard v. Hill, 100 Nev. 325, 329, 682 P.2d 1376, 1378 (1984) (The escrow agent must strictly
comply with the terms of the escrow agreement and may not use the proceeds in any manner that is not
authorized by contract or deposit.); see also Kula v. Karat, Inc., 91 Nev. 100, 103-04, 531 P.2d 1353, 1355
(1975) (There is authority for the broad rule that as long as the [bailor-bailee] relationship exists a bailee may
not, in any case, dispute or deny the title of the bailor, or his ultimate right to possession . . . by asserting title in
a third person.).
Properties to disclose fraud of which it was aware. We also conclude that Lawyers' Title
owed Mark Properties no duty because Mark Properties was not a party to the Lawyers' Title
escrow transaction, and thus, the district court did not err in granting Lawyers' Title's motion
for summary judgment. Consequently, we affirm the district court's summary judgment as to
Lawyers' Title, we reverse the district court's summary judgment as to National Title, and we
remand for further proceedings consistent with this opinion.
17

Young, J., concurs.
____________
117 Nev. 948, 948 (2001) Sandy Valley Assocs. v. Sky Ranch Estates
SANDY VALLEY ASSOCIATES, a Nevada Limited Partnership, Appellant, v. SKY
RANCH ESTATES OWNERS ASSOCIATION, a Nevada Non-Profit Corporation;
RICHARD L. CLARK, WILLIS EICHEL, CARMEN EICHEL, THOMAS ELLIOTT,
NORA ELLIOTT, DALE ENGEL, LOUISE ENGEL, EDWARD GRIMM,
CHRISTOPHER HUKILL, ELAINE MARTIN, SAMUEL K. McCAULEY, FE
NANCY, JORDAN McCAULEY, PAUL MUSKAT, ROBERT NEAD, MARY
NEAD, ROBERT SPURLOCK, JAN (WILSON) SPURLOCK, HAROLD
THOMPSON, BARBARA THOMPSON, LOYD TOWN, ALVIN GLANTZ,
ESTELLE GLANTZ, ELAINE (HARKEY) CLARK, CLARK COUNTY, CLARK
COUNTY BOARD OF COUNTY COMMISSIONERS, CLARK COUNTY
PLANNING COMMISSION, CLARK COUNTY DEPARTMENT OF
COMPREHENSIVE PLANNING, and CLARK COUNTY DISTRICT ATTORNEY,
Respondents.
No. 33021
December 10, 2001 35 P.3d 964
Appeal from a judgment entered after a bench trial in an action for declaratory relief.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Homeowners and their association brought action to compel developer to convey
certain lots to association. After a bench trial, the district court entered judgment for plaintiffs
and awarded attorney fees as damages. Developer appealed. The supreme court held that: (1)
developer intended to convey easterly 150 feet of lot to homeowners' association for use as
a landing strip,
__________

17
The Honorable A. William Maupin, Chief Justice, voluntarily recused himself from participation in the
rehearing of this matter.
to homeowners' association for use as a landing strip, (2) developer had to convey title to lots
designated as open areas on final plat map, and (3) plaintiffs were not necessarily entitled
to award of attorney fees as damages.
Affirmed in part, reversed in part, and remanded.
Simon & Berman, Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, and Mark E. Wood, Deputy District Attorney, Clark
County, for Respondents Clark County and all county-affiliated respondents.
Kummer Kaempfer Bonner & Renshaw and John A. Curtas, Las Vegas; Deaner,
Deaner, Scann, Malan & Larsen, Las Vegas, for Respondents Sky Ranch Estates Owners
Association.
1. Contracts.
When a contract is clear on its face, it will be construed from the written language and enforced as written.
2. Evidence.
Parol evidence is not admissible to vary or contradict the clear and unambiguous terms of a written agreement.
3. Contracts; Evidence.
Parol evidence is admissible to determine the true intent of the parties when a contract is ambiguous, and thus, the
circumstances surrounding the execution of a contract and the subsequent acts or declarations of the parties may be considered to
interpret unclear contractual provisions.
4. Evidence.
Covenants, conditions, and restrictions (CC&Rs) constituted a written contract to convey land, but the covenant excepting the
easterly 150 feet of the designated landing strip created an ambiguity as to the identity of the designated landing strip in light of the
recorded plat maps for the subdivision, which contained a designated landing strip 300 feet wide and were referenced in the CC&Rs,
such that trial court could consider parol evidence to resolve the ambiguity.
Appellate court will not set aside a district court's findings of fact unless they are clearly erroneous or not supported by
6. Specific Performance.
Evidence supported finding that developer intended to convey easterly 150 feet of lot to homeowners' association for use as a
landing strip, and thus developer had to convey title of property to association, although developer claimed it reserved title in amended
covenants, conditions, and restrictions. Various documents, including recorded plat maps and promotional materials, depicted entire
width of lot as a landing strip, county commissioners conditioned approval of final plat map on association's ownership of common
area reserved for a landing strip, including easterly 150 feet of lot, and purchasers of residential lots testified that developer orally
represented to them that easterly 150 feet of lot would be used as parallel landing strip.
7. Specific Performance.
Five triangular lots designated as open areas on final plat map were intended to be part of common areas owned by
homeowners' association, and thus developer had to convey title to association. Definition of common properties within covenants,
conditions, and restrictions (CC&Rs) included recreational areas, the five lots were designated as rec[reational] areas on the recorded
tentative plat map, which county commissioners used in approving final plat map, the five lots were not developable, and there was
evidence that the five lots were always intended to be used for swimming pools and tennis courts.
When authorized, a trial court's award of attorney fees as costs will not be overturned on appeal absent a manifest abuse of
discretion.
9. Costs.
When a court is requested to award attorney fees as a cost of litigation, the matter is decided based upon pleadings, affidavits
and exhibits, and on rare occasions, a court may even determine the amount of the attorney fees based upon the court's personal
observation of the time the attorney spent in hearings and the quantity and quality of pleadings filed by the attorney.
10. Damages.
When a party claims it has incurred attorney fees as foreseeable damages arising from tortious conduct or a breach of contract,
such fees are considered special damages, and they must be pleaded as special damages in the complaint and proved by competent
evidence just as any other element of damages. The mention of attorney fees in a complaint's general prayer for relief is insufficient to
meet this requirement. NRCP 9(g).
11. Damages.
When attorney fees are considered as an element of damages, they must be the natural and proximate consequence of the
injurious conduct.
12. Damages.
If more than one claim is presented in a complaint, the party claiming attorney fees as damages must prove the fees as to each
claim.
13. Damages.
Mere fact that a party was forced to file or defend a lawsuit is insufficient to support an award of attorney fees as damages.
14. Damages.
Attorney fees may be an element of damages in cases when a plaintiff becomes involved in a third-party legal dispute as a result
of a breach of contract or tortious conduct by the defendant. The fees incurred in defending or prosecuting the third-party action could
be damages in the proceeding between the plaintiff and the defendant.
15. Damages.
Attorney fees may be awarded as damages in those cases in which a party incurred the fees in recovering real or personal
property acquired through the wrongful conduct of the defendant or in clarifying or removing a cloud upon the title to property.
16. Damages.
Actions for declaratory or injunctive relief may involve claims for attorney fees as damages when the actions were necessitated
by the opposing party's bad faith conduct.
17. Damages.
Homeowners and their association were not entitled to award of attorney fees as damages in action against developer involving
clarification of title, as association and homeowners did not allege attorney fees as special damages caused
by developer's conduct, complaint merely mentioned attorney fees as a part of the general prayer for relief,
and evidence of attorney fees was not presented and litigated at trial, and thus, in light of confusion in case
law, post-trial evidentiary hearing would be required on issue of attorney fees as damages.
tion of title, as association and homeowners did not allege attorney fees as special damages caused by developer's conduct, complaint
merely mentioned attorney fees as a part of the general prayer for relief, and evidence of attorney fees was not presented and litigated at
trial, and thus, in light of confusion in case law, post-trial evidentiary hearing would be required on issue of attorney fees as damages.
Before Maupin, C. J., Young and Becker, JJ.
OPINION
Per Curiam:
This case involves a dispute between appellant Sandy Valley Associates (SVA), a
developer, and respondents Sky Ranch Estates Owners Association, as well as the
individually named homeowners, over the ownership of certain parcels of real property within
a residential subdivision located outside of Las Vegas. The Association and the homeowners
commenced the underlying action in this case to compel SVA to convey certain lots to the
Association. Following a bench trial, the district court entered judgment in favor of the
Association and the homeowners, finding that the lots at issue were always intended to be a
part of the landing strip and common areas owned by the Association. In post-trial
proceedings, the district court awarded the Association and the homeowners attorney fees as
damages.
On appeal, SVA contends that the district court erred by ordering the conveyance of
the lots and landing strip to the Association and by awarding attorney fees as damages. We
conclude that substantial evidence supports the district court's decision concerning the
ownership of the lots and landing strip. However, we also conclude that the district court
erred in awarding attorney fees as damages. We therefore affirm that portion of the district
court's judgment that relates to property ownership and reverse that portion of the judgment
that pertains to attorney fees.
FACTS
In the late 1970s, SVA developed Sky Ranch Estates I and Sky Ranch Estates II, a
remote, fly-in community located approximately fifty miles outside of Las Vegas in Sandy
Valley. Sky Ranch Estates I and Sky Ranch Estates II occupy one-half of a quarter section of
land with a single landing strip transecting the development from the northeast corner to the
southwest corner. SVA created the Association to administer and maintain the common areas,
and recorded a declaration of covenants, conditions and restrictions (CC&Rs) in 1978, which
required SVA to convey all "common properties" within Sky Ranch Estates, including the
recreational areas, streets, landing strip, and all other areas not a part of the residential
lots, to the Association.
all common properties within Sky Ranch Estates, including the recreational areas, streets,
landing strip, and all other areas not a part of the residential lots, to the Association.
SVA conveyed title to a landing strip and lots designated as common areas on the
recorded final plat map within Sky Ranch Estates I to the Association. Later, although a
declaration of annexation was executed in 1982 that annexed Sky Ranch Estates II to Sky
Ranch Estates I, SVA did not convey title to the common area lots or the landing strip within
Sky Ranch Estates II to the Association.
In 1992, the Association and the homeowners filed a complaint for declaratory relief,
specific performance, breach of fiduciary duty, and enforcement of land use conditions
against SVA, seeking to compel SVA to convey five common area lots within Sky Ranch
Estates II, as well as a second landing strip, parallel to the first, on the easterly 150 feet of lot
39, to the Association.
1
In its answer, SVA asserted that the plat maps were approved by the
County Commissioners without reflecting changes made to the easterly half of lot 39 and that,
instead of re-mapping the parcel, SVA modified the plans for the parcel by expressly
reserving the easterly 150 feet of lot 39 in the CC&Rs, thereby preventing its use as a parallel
landing strip. SVA also disputed that the five triangular lots designated in the Association's
complaint were part of the common areas required to be conveyed to the Association.
At a two-day bench trial, the Association presented evidence that the designation
common area reserved for landing strip on the plat map referred to the entire 300-foot
width, including the easterly 150 feet of lot 39. The evidence included SVA's representation
to the County Commissioners in its plat map for Sky Ranch Estates II that the easterly 150
feet of lot 39 would be a second, parallel landing strip, and that SVA did not express any
intent to reserve the easterly 150 feet of lot 39 during the approval process before the County
Commissioners. The Association also introduced evidence that a condition of the County
Commissioners' approval of the final plat map for Sky Ranch Estates II was that the
Association own and maintain the runways and taxiways.
__________

1
In September 1996, the Association filed (under a separate district court case number) a petition for a writ
of mandamus against Clark County seeking to compel Clark County to enforce the conditions imposed upon
SVA when the final maps for Sky Ranch Estates I and Sky Ranch Estates II were approved by the Board of
County Commissioners in the early 1980s. The two cases were consolidated by the district court in October of
1997, and Clark County filed a cross-claim against SVA for specific performance. SVA responded with a
cross-claim against Clark County for specific performance based on a waiver request application SVA filed with
Clark County in 1996 while this action was pending in district court. All parties later stipulated that Clark
County would remain a named defendant only for purposes of naming all indispensable parties and that Clark
County would not actively participate in the trial nor would any adverse judgment be entered against it without
its consent.
Commissioners' approval of the final plat map for Sky Ranch Estates II was that the
Association own and maintain the runways and taxiways. The homeowners' testimony
indicated that SVA represented to them that the easterly 150 feet of lot 39 would be
developed as a second landing strip, parallel to the runway occupying the westerly 150 feet of
lot 39 and that, if the parallel landing strip was not developed, pilots would be forced to use a
nearby unpaved Bureau of Land Management runway which, because of its location,
frequently experiences cross winds, making plane operation difficult and dangerous.
The Association also presented evidence that the five triangular lots, initially
designated as rec[reational] areas on the tentative plat map and as open areas on the final
plat map, did not conform to applicable county codes for development due to their
dimensions or size. Development was not feasible on two of the lots because, in addition to
their dimensions, one contained a community well and the other was at the end of a landing
strip. Witness testimony indicated that these five undevelopable lots had been reserved for
badminton courts, tennis courts, and/or a swimming pool, and that these areas were intended
to be part of the common areas to be conveyed to the Association under the CC&Rs.
The district court entered judgment for the Association, finding that the easterly 150
feet of lot 39 as well as the five triangular lots designated as open areas on the final plat
map of Sky Ranch Estates II were always intended to be a part of the common areas owned
by the Association, and ordered that title to the property be conveyed to the Association. In
addition, based upon a post-trial motion, the district court concluded that the Association was
entitled to attorney fees as damages resulting from its action to determine title to real
property. Thereafter, the district court signed written findings of fact and conclusions of law
reflecting its decision, and ordering SVA to pay the Association $74,567.00 in attorney fees
as damages. SVA timely appealed.
DISCUSSION
I. The easterly 150 feet of lot 39 within Sky Ranch Estates II
SVA contends that the district court erred by granting the Association title to the
easterly 150 feet of lot 39 within Sky Ranch Estates II, arguing that SVA is the legal owner of
the property because SVA reserved title to the property in the amended CC&Rs.
[Headnotes 1-3]
When a contract is clear on its face, it will be construed from the written language
and enforced as written.
the written language and enforced as written.
2
Parol evidence is not admissible to vary or
contradict the clear and unambiguous terms of a written agreement. However, parol evidence
is admissible to determine the true intent of the parties when a contract is ambiguous.
3
Thus,
the circumstances surrounding the execution of a contract and the subsequent acts or
declarations of the parties may be considered to interpret unclear contractual provisions.
4

[Headnote 4]
In this case, the CC&Rs constituted a written contract to convey land, but the
covenant excepting the easterly 150 feet of the designated landing strip created an
ambiguity as to the identity of the designated landing strip in light of the recorded plat maps
for the subdivision. These plat maps contained a designated landing strip 300 feet wide and
were referenced in the CC&Rs. Thus, the district court properly considered parol evidence to
resolve the ambiguity.
[Headnotes 5, 6]
Additionally, this court will not set aside a district court's findings of fact unless they
are clearly erroneous or not supported by substantial evidence.
5
The record reveals
substantial evidence from which the district court could find that SVA intended to convey the
easterly 150 feet of lot 39 to the Association. In particular, the Association presented various
documents, including recorded tentative and final plat maps for Sky Ranch Estates and
promotional materials, all of which depicted the entire width of lot 39 as a landing strip.
Testimony from the individuals involved in the process of seeking approval of the
subdivision before Clark County, including the engineer and a Clark County official,
indicated that the County Commissioners conditioned approval of the final plat map upon the
Association's ownership of the common area reserved for a landing strip, including the
easterly 150 feet of lot 39. The purchasers of residential lots also testified that SVA orally
represented to them that the easterly 150 feet of lot 39 would be used as a parallel landing
strip. Accordingly, we conclude that the district court's decision was supported by substantial
evidence and was not clearly erroneous.
__________

2
See Ellison v. C.S.A.A., 106 Nev. 601, 603, 797 P.2d 975, 977 (1990).

3
See Trans Western Leasing v. Corrao Constr. Co., 98 Nev. 445, 447, 652 P.2d 1181, 1183 (1982).

4
See Glenbrook Homeowners v. Glenbrook Co., 111 Nev. 909, 916, 901 P.2d 132, 137 (1995).

5
See Young v. Nevada Title Co., 103 Nev. 436, 438, 744 P.2d 902, 903 (1987).
II. The five triangular open area lots within Sky Ranch II
SVA contends that the district court improperly relied upon the tentative plat map for
Sky Ranch Estates II, which designated some of the five lots as rec[reational] areas, in
granting the Association title to the property. We disagree and conclude that the district
court's decision was supported by substantial evidence.
[Headnote 7]
In particular, the record reveals that the definition of common properties within
Article II of the CC&Rs includes recreational areas and that the five lots were designated as
rec[reational] areas on the recorded tentative plat map for Sky Ranch Estates II, which the
County Commissioners used in approving the final plat map and which the district court
properly considered in determining the intent of the parties in this case. Although the lots
were designated as open areas on the recorded final plat map for Sky Ranch Estates II, the
evidence presented at trial indicates that the five lots were not developable and that the
County Commissioners approved the final plat map for the subdivision with the five lots
designated as open areas for that reason. Additionally, the evidence indicated that the five
lots were always intended to be used for swimming pools and tennis courts. Accordingly, we
conclude that the district court's decision was supported by substantial evidence and was not
clearly erroneous.
III. Attorney fees
SVA contends that the district court erred in its award of attorney fees because
attorney fees cannot be recovered unless authorized by agreement, statute or rule, none of
which exists or applies in this case. The Association and the homeowners assert that the
attorney fees were not awarded as costs, but rather as recoverable damages in the underlying
action. They contend that the prohibition against fees absent an agreement, statute or rule
does not apply to attorney fee awards as damages. This case presents an opportunity for this
court to clarify its jurisprudence regarding the difference between attorney fees as a cost of
litigation
6
and attorney fees as an element of damage.
7

__________

6
The following cases involved the award of attorney fees as a cost of litigation pursuant to a rule, statute or
agreement. Any language suggesting the fees were awarded as damages is hereby disapproved. James Hardie
Gypsum, Inc. v. Inquipco, 112 Nev. 1397, 929 P.2d 903 (1996); Artistic Hairdressers, Inc. v. Levy, 87 Nev. 313,
486 P.2d 482 (1971); Glen Falls Ins. v. First Nat'l Bank, 83 Nev. 196, 427 P.2d 1 (1967).

7
The following cases involved issues relating to attorney fees as an element of damage. Any language in
these cases that suggests attorney fees were considered pursuant to a rule, statute or agreement is disapproved.
Clark County Sch. Dist. v. Rolling Plains, 117 Nev. 101, 16 P.3d 1079 (2001); Southern
[Headnote 8]
In Young,
8
we held that attorney fees cannot be recovered as a cost of litigation
unless authorized by agreement, statute or rule. When authorized, a district court's award of
attorney fees as costs will not be overturned on appeal absent a manifest abuse of discretion.
9

[Headnote 9]
Procedurally, when parties seek attorney fees as a cost of litigation, documentary
evidence of the fees is presented to the trial court, generally in a post-trial motion. Opposing
parties have an opportunity to contest the request for attorney fees, and the trial court must
determine if any agreement, statute or rule authorizes fees. If the fees are authorized, the trial
court examines the reasonableness of the fees requested and the amount of any award. Thus,
when a court is requested to award attorney fees as a cost of litigation, the matter is decided
based upon pleadings, affidavits and exhibits.
10
On rare occasions, a court may even
determine the amount of the attorney fees based upon the court's personal observation of the
time the attorney spent in hearings and the quantity and quality of pleadings filed by the
attorney.
11

[Headnotes 10-12]
In contrast, when a party claims it has incurred attorney fees as foreseeable damages
arising from tortious conduct or a breach of contract, such fees are considered special
damages. They must be pleaded as special damages in the complaint pursuant to NRCP 9(g)
and proved by competent evidence just as any other element of damages.
12
The mention of
attorney fees in a complaint's general prayer for relief is insufficient to meet this
requirement.
__________
Nev. Homebuilders v. N. Las Vegas, 112 Nev. 297, 913 P.2d 1276 (1996); Michelson v. Harvey, 110 Nev. 27,
866 P.2d 1141 (1994); Works v. Kuhn, 103 Nev. 65, 732 P.2d 1373 (1987); Summa Corp. v. Greenspun, 96
Nev. 247, 607 P.2d 569 (1980), opinion on reh'g, 98 Nev. 528, 655 P.2d 513 (1982); International Indus. v.
United Mtg. Co., 96 Nev. 150, 606 P.2d 163 (1980); City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478
P.2d 585 (1970); American Fed. Musicians v. Reno's Riverside, 86 Nev. 695, 475 P.2d 221 (1970); Peterson v.
Wiesner, 62 Nev. 184, 146 P.2d 789 (1944); McIntosh v. Knox, 40 Nev. 403, 165 P. 337 (1917); Brown v.
Jones, 5 Nev. 374 (1870).

8
103 Nev. at 442, 744 P.2d at 905.

9
Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994).

10
James Hardie Gypsum, Inc. v. Inquipco, 112 Nev. 1397, 929 P.2d 903 (1996) (attorney fees were awarded
pursuant to agreement and properly proven by affidavit pursuant to NRCP 43(c)).

11
Artistic Hairdressers, Inc. v. Levy, 87 Nev. 313, 316, 486 P.2d 482, 484 (1971).

12
International Indus. v. United Mtg. Co., 96 Nev. 150, 606 P.2d 163 (1980) (failure to plead damages
precluded recovery); City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970) (fees not
properly
eral prayer for relief is insufficient to meet this requirement.
13
Finally, when attorney fees are
considered as an element of damages, they must be the natural and proximate consequence of
the injurious conduct. If more than one claim is presented in a complaint, the party claiming
fees as damages must prove the fees as to each claim.
14

[Headnote 13]
As a practical matter, attorney fees are rarely awarded as damages simply because
parties have a difficult time demonstrating that the fees were proximately and necessarily
caused by the actions of the opposing party and that the fees were a reasonably foreseeable
consequence of the breach or conduct. Because parties always know lawsuits are possible
when disputes arise, the mere fact that a party was forced to file or defend a lawsuit is
insufficient to support an award of attorney fees as damages.
15

[Headnote 14]
Attorney fees may be an element of damage in cases when a plaintiff becomes
involved in a third-party legal dispute as a result of a breach of contract or tortious conduct by
the defendant.
16
The fees incurred in defending or prosecuting the third-party action could be
damages in the proceeding between the plaintiff and the defendant. This type of action could
arise from claims against title insurance or bonds and breaches of duty to defend clauses in
insurance or indemnity actions.
17

[Headnotes 15, 16]
Attorney fees may also be awarded as damages in those cases in which a party
incurred the fees in recovering real or personal property acquired through the wrongful
conduct of the defendant or in clarifying or removing a cloud upon the title to property.
18

__________
pleaded in the complaint); Brown v. Jones, 5 Nev. 374 (1870) (complaint must allege with distinctness fees
resulting only from dissolution of injunction).

13
Young, 103 Nev. 436, 744 P.2d 902.

14
Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944) (failure to distinguish fees incurred in wrongful
attachment action from fees incurred in collateral criminal case resulted in denial of fees as damages).

15
Flamingo Realty v. Midwest Development, 110 Nev. 984, 991-92, 879 P.2d 69, 73-74 (1994) (fees awarded
as damages for filing a frivolous lawsuit vacated as fees were not damages tied to any cause of action and the
action was not frivolous pursuant to NRS 18.010(2)(b)).

16
Clark County Sch. Dist. v. Rolling Plains, 117 Nev. 101, 16 P.3d 1079 (2001); see Restatement (Second)
of Torts 914(2) (1979); Robert L. Rossi, Attorneys' Fees 8:3 (2d ed. 1995).

17
Rossi, supra note 16, 8:4-8:11.

18
Michelsen v. Harvey, 110 Nev. 27, 29-30, 866 P.2d 1141, 1142 (1994) (attorney fees permissible as an
element of damages in slander of title action);
Finally, actions for declaratory or injunctive relief may involve claims for attorney fees as
damages when the actions were necessitated by the opposing party's bad faith conduct.
19

[Headnote 17]
Although this action involved the clarification of title to real property, the Association
and homeowners did not allege attorney fees as special damages caused by SVA's conduct.
The complaint merely mentions attorney fees as a part of the general prayer for relief. Nor
was evidence of attorney fees presented and litigated at trial. Instead, after receiving affidavits
from counsel for the Association and homeowners, the district court, in its findings of fact
and conclusions of law, simply stated that attorney fees were awarded as damages. SVA then
moved to amend the findings of fact and conclusions of law and opposed the attorney fee
award. The Association and homeowners asserted that they were entitled to attorney fees as
damages pursuant to a statute, NRS 116.4117. In supplemental points and authorities, the
Association and homeowners argued alternatively that they were entitled to attorney fees as
damages pursuant to Summa Corp. v. Greenspun.
20
Because the district court denied SVA's
motion to amend the findings of fact and conclusions of law as to the attorney fee award
without explanation, it is unclear whether the district court awarded the attorney fees under
NRS 116.4117 or as damages under Summa Corp.
On appeal, the Association and homeowners have abandoned their argument that NRS
116.4117 supports the award of attorney fees. The Association and homeowners only assert
that the district court properly awarded attorney fees as damages pursuant to our holding in
Summa Corp.
In Summa Corp., Summa was sued for slander of title and breach of contract. A
judgment was entered against Summa that included an award of attorney fees as damages
even though no claim for damages was contained in the complaint. This court affirmed the
award of attorney fees as damages based upon NRCP 54(c), which commands the district
court to grant the relief to which the party in whose favor it is rendered is entitled, even if
the party has not demanded such relief in his pleadings.
Although attorney fees as damages were not pleaded in the complaint, evidence
regarding attorney fees as damages was introduced and litigated at trial.
__________
Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944); McIntosh v. Knox, 40 Nev. 403, 165 P. 337 (1917)
(award of attorney fees allowed as damages in wrongful attachment actions); Rossi, 8:12.

19
City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970); American Fed. Musicians v.
Reno's Riverside, 86 Nev. 695, 475 P.2d 221 (1970).

20
96 Nev. 247, 607 P.2d 569 (1980), opinion on reh'g, 98 Nev. 528, 655 P.2d 513 (1982).
introduced and litigated at trial. We reasoned that the failure to plead special damages under
NRCP 9(g) did not deprive the district court of its power to award attorney fees as damages
because the matter had been tried, without objection, and NRCP 54(c) was an appropriate
vehicle for conforming the judgment to the proof.
21
We then concluded that there was
sufficient evidence to support the award and the reasonableness of the fee.
Summa Corp. merely stands for the proposition that failure to properly plead special
damages pursuant to NRCP 9(g) does not necessarily bar an award of attorney fees when
evidence of attorney fees as damages has been litigated at trial. In such a case, motions under
NRCP 54(c) or NRCP 15(b) may be appropriate mechanisms for resolving a conflict between
the pleadings and the trial evidence. Summa Corp. does not, however, permit the award of
post-trial attorney fees in contravention of Young.
This case is distinguishable from Summa Corp. Here, the Association did not
introduce or proffer any evidence supporting a claim for attorney fees as damages during trial.
Instead, the Association originally asserted that it was entitled to attorney fees, not as an
element of damages, but pursuant to statute. Thus, unlike Summa Corp., there is no basis for
the post-trial award of fees to conform to the evidence.
In addition to Summa Corp., the Association and the homeowners contend that the
district court may have based its decision to award attorney fee damages on Artistic
Hairdressers, Inc. v. Levy.
22
Artistic involved an award of attorney fees for the issuance of a
wrongful injunction. Although the language of the case speaks of attorney fees as damages,
the actual basis for the award of fees was a rule, NRCP 65. We held that an evidentiary
hearing regarding the amount of attorney fees was not required under the rule, because the
amount of the fees was small and the district court's observations of the length of the hearings
and pleadings was enough to support the fee award under the facts and circumstances of that
case. Artistic does not authorize a court to award attorney fees as damages when damages
have not been pleaded or proven at trial.
We recognize, however, that the language in Summa Corp. and Artistic may have
misled the Association and the district court into believing that the issue of attorney fees as
special damages could be raised in a post-trial proceeding. Thus, although the district court
erred in this case by considering the issue of attorney fees as damages after trial, the error is
understandable. In light of the confusion in our case law, a post-trial evidentiary hearing on
the attorney-fees-as-damages issue is appropriate in this case.
__________

21
Id. at 250-55, 607 P.2d at 571-74.

22
87 Nev. 313, 316, 486 P.2d 482, 484 (1971).
attorney-fees-as-damages issue is appropriate in this case. Accordingly, we reverse that
portion of the district court's judgment awarding attorney fees and remand this case to the
district court to conduct an evidentiary hearing. Nonetheless, we reiterate that in future cases,
this method is not appropriate for litigating attorney fees as damages. When attorney fees are
alleged as damages, they must be specifically pleaded and proven by competent evidence at
trial, just as any other element of damages.
CONCLUSION
The record contains substantial evidence supporting the district court's decision
concerning title to the easterly 150 feet of lot 39 and the five open area lots within Sky
Ranch Estates II. However, the district court erred in awarding attorney fees as damages
without an evidentiary hearing. Accordingly, we affirm that portion of the district court's
judgment concerning title to the real property, we reverse that portion of the judgment
awarding $74,567.00 in attorney fees, and we remand this case to the district court to conduct
a hearing to determine whether attorney fees were proximately caused by the conduct of
SVA, and if so, the amount of attorney fees incurred incident to obtaining title to the real
property in this case.
____________
117 Nev. 960, 960 (2001) State, Tax Comm'n v. Nevada Cement Co.
NEVADA TAX COMMISSION; DEPARTMENT OF TAXATION, THE STATE OF
NEVADA, Appellants, v. NEVADA CEMENT COMPANY, Respondent.
No. 33178
December 12, 2001 36 P.3d 418
Appeal from a district court order granting a petition for judicial review and reversing
a decision of the Nevada Tax Commission that certain parts of machinery and equipment
used by respondent are not exempt from the sales and use tax. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Taxpayer, a manufacturer of cement, sought judicial review of Tax Commission's
denial of claim for refund of sales or use taxes paid for steel grinding balls, steel kiln chains,
kiln bricks, and castable materials purchased by taxpayer. The district court reversed.
Commission appealed. The supreme court, 117 Nev. 877, 8 P.3d 147 (2000), reversed and
remanded. Taxpayer filed a petition for rehearing. The supreme court held that: (1) taxpayer's
manufacturing equipment was subject to a primary-purpose test, and (2) equipment was not
exempt from sales and use taxation under sale-for-resale exemption.
Former opinion withdrawn; reversed and remanded on rehearing.
Frankie Sue Del Papa, Attorney General, and Elaine S. Guenaga, Senior Deputy
Attorney General, Carson City, for Appellants.
Paul D. Bancroft, Incline Village, for Respondent.
1. Taxation.
Taxpayer's manufacturing equipment that was purchased for primary purpose of use in manufacturing of cement was subject to
a primary-purpose test, rather than a physical-ingredient test in determining whether it was subject to sales and use tax, although
equipment, by disintegrating during the manufacturing process, had a dual purpose of contributing to ingredients of final cement
product. NRS 372.050, 372.080.
The supreme court's review of an administrative decision is identical to that of the district court.
Questions of law, including the administrative construction of statutes, are subject to independent appellate review.
The supreme court will not substitute its judgment for that of the agency on a question of fact.
An agency's factual determinations will be upheld if supported by substantial evidence.
6. Taxation.
Equipment purchased for use in manufacturing of cement was taxable as a retail sale under the primary-purpose test and was not
exempt from sales and use taxation under sale-for-resale exemption, although equipment, by disintegrating during the manufacturing
process, contributed to final cement product. NRS 372.050, 372.080.
7. Taxation.
The use tax is a way for Nevada to tax transactions outside the state that would otherwise escape sales taxation. NRS 372.010 et
seq.
8. Statutes.
When statutes are ambiguous, the supreme court looks to the legislature's intent, and construes them in line with what reason
and public policy indicate.
9. Taxation.
In determining whether manufacturing equipment is taxable under the primary purpose test, if the property is purchased
primarily for incorporation into the final product, it is not taxable, despite the fact that some portion may assist the manufacturing
process. NRS 372.050, 372.080.
10. Taxation.
In determining whether manufacturing equipment is taxable under the primary purpose test, if the property is purchased
primarily to aid the manufacturing process, it is taxable, despite the fact that some portion becomes a part of the finished product. NRS
372.050, 372.080.
11. Statutes.
Interpretation by the agency charged with administering a statute is persuasive, and great deference should be given to that
interpretation if it is within the language of the statute.
Per Curiam:
On September 15, 2000, we issued an opinion reversing the district court's order and
remanding this matter to the district court.
1
Subsequently, respondent Nevada Cement
Company filed a petition for rehearing, and we directed a response from the Nevada Tax
Commission. We have reviewed the parties' submissions, and we conclude that rehearing is
warranted to clarify our statement of the primary-purpose test, used to determine whether
certain manufacturing equipment is subject to a sales and use tax. We further conclude that
rehearing is not warranted on the other grounds asserted by Nevada Cement. Accordingly, we
grant rehearing in part, withdraw our prior opinion and issue this opinion in its place.
In this appeal, we consider whether certain equipment purchased by Nevada Cement
for use in manufacturing cement, but which also contributes necessary ingredients to the
cement, is subject to taxation as a retail sale, or is exempt from taxation as a sale for resale. In
determining the equipment's taxability, one must look to its primary purpose. Because
Nevada Cement purchased the equipment primarily for use in manufacturing the cement, it
was subject to taxation as a retail sale.
FACTS
Nevada Cement manufactures and sells cement. Cement manufacturing involves the
crushing and mixing together of various ingredients in an abrasive and heat-intensive process.
The ingredients include limestone, clay, iron and gypsum. Throughout the manufacturing
process, measurements are taken to evaluate and regulate the amounts and proportions of
these ingredients in the product.
The manufacturing process begins when limestone, clay and iron are crushed into a
raw mix. The raw mix is then heated in a kiln to temperatures over 2,000 degrees. The
extreme heat is distributed throughout the mix by a kiln chain.
__________

1
State, Tax Comm'n v. Nevada Cement Co., 116 Nev. 877, 8 P.3d 147 (2000).
tributed throughout the mix by a kiln chain. A chemical reaction causes some of the mix to
liquefy, and the raw mix then becomes clinker, which is a rock-like substance. The clinker
is cooled, then mixed with gypsum and crushed into a fine powder, which is the finished
product.
Nevada Cement purchased many pieces of equipment for manufacturing cement, four
of which are relevant here: (1) steel grinding balls used for crushing; (2) steel kiln chains used
for distributing heat; (3) kiln bricks used to line the kiln and protect it from the intensive heat;
and (4) castable materials used to protect the passageways through which the manufactured
product passes.
Because the manufacturing process is so hot and abrasive, this equipment gradually
disintegrates over time, as pieces of the equipment flake off and become incorporated into the
finished cement product. The portion of the equipment that does not completely disintegrate
into the raw mix is eventually removed, crushed and introduced back into the mix. The
equipment's gradual disintegration is inevitable, but taken into account; because the
equipment is composed of iron, less iron is added to the raw mix at the outset. The wearing
down of the various parts adds just under one percent of the total iron needed in the
manufacturing process.
Thus, the equipment has a dual purpose: (1) use in manufacturing the cement by
crushing, distributing heat, and protecting the kiln and passageways; and (2) contribution of
ingredients to the final cement product. This dual purpose is important for determining the
equipment's taxability. Generally, sales and use taxes are imposed on tangible personal
property sold at retail.
2
In contrast, no tax is imposed on tangible personal property that is
sold for resale.
3
The purpose of the sale-for-resale tax exemption is to prevent taxes on
intermediate purchases, and to ensure that only the final sale to the customer gets taxed.
4

Here, Nevada Cement initially paid either sales or use tax on the equipment it
purchased. Nevada Cement later requested a refund, but the Nevada Department of Taxation
denied the request. Nevada Cement then filed a petition for redetermination. According to
Nevada Cement, because the equipment disintegrated during the manufacturing process and
eventually became incorporated into the finished cement product which is sold, the
equipment was purchased in part for resale, and thus was tax exempt.
__________

2
See NRS 372.105; NRS 372.185(1).

3
See NRS 372.050; NRS 372.075; NRS 372.185(2).

4
Jerome R. Hellerstein & Walter Hellerstein, State and Local Taxation 697 (6th ed. 1997).
exempt. Nevada Cement's refund claim included the four pieces of equipment at issue here,
which were wholly consumed in the manufacturing process, as well as seven other pieces of
equipment that were only substantially consumed. The matter proceeded to an administrative
hearing, after which the Department hearing officer denied the entire refund claim. On
administrative appeal, the Commission upheld the hearing officer's decision and denied the
refund claim. The Commission determined that the equipment was subject to tax as a retail
sale because it was purchased for the purpose of manufacturing and producing the cement.
Nevada Cement then filed a petition for judicial review with the district court. In its
petition, Nevada Cement pursued a refund for only the four items wholly consumed in the
process: steel grinding balls, steel kiln chain, kiln brick, and castables. The district court
granted the petition and reversed the Commission's decision. In the district court's view, the
administrative decisions erroneously adopted a primary-purpose test. The district court
applied a physical-ingredient test and concluded that the equipment contributed significantly
to the final cement product that was resold. Consequently, the court concluded that the
equipment was tax exempt and granted Nevada Cement's refund claim. The Commission then
appealed.
DISCUSSION
[Headnotes 1-6]
This court's review of an administrative decision is identical to that of the district
court.
5
Questions of law, including the administrative construction of statutes, are subject to
independent appellate review.
6
Conversely, this court will not substitute its judgment for that
of the agency on a question of fact.
7
An agency's factual determinations will be upheld if
supported by substantial evidence.
8

[Headnote 7]
The sales and use taxes at issue in this case are codified under Nevada's Sales and Use
Tax Act, NRS Chapter 372. A sales or use tax must be paid on all tangible personal property
sold at retail.
9
Specifically, the sales tax is imposed on the sale of all tangible personal
property sold at retail in this state.
__________

5
See SIIS v. Engel, 114 Nev. 1372, 1374, 971 P.2d 793, 795 (1998).

6
Id.

7
See NRS 233B.135(3); Campbell v. State, Dep't of Taxation, 109 Nev. 512, 515, 853 P.2d 717, 719 (1993).

8
See Bing Constr. v. State, Dep't of Taxation, 109 Nev. 275, 278, 849 P.2d 302, 304 (1993).

9
NRS 372.105; NRS 372.185.
tangible personal property sold at retail in this state.
10
The use tax is the complement to the
sales tax, and is imposed on the storage, use or other consumption in this state of tangible
personal property . . . which was acquired out of state in a transaction that would have been a
taxable sale if it had occurred within this state.
11
Generally, the use tax is a way for
Nevada to tax transactions outside the state that would otherwise escape sales taxation.
12

In contrast to a retail sale, items that are sold for resale are tax exempt. These items
are purchased for the purpose of being resold. More specifically, no sales tax applies to
property purchased for resale in the regular course of business. This sale-for-resale exemption
from the sales tax is found under the definition of retail sale in NRS 372.050, which
provides that a retail sale is a sale for any purpose other than resale in the regular course of
business of tangible personal property.
The sale-for-resale exemption also applies to the use tax. The use tax is imposed on
property acquired out of state in a transaction that would have been a taxable sale if it had
occurred within this state.
13
Thus, to determine whether a transaction would have been a
taxable sale within this state, one must look to the applicable sales tax statutes and the
definition of retail sale under NRS 372.050. In addition, no use tax applies to property
stored in this state for the purpose of sale in the regular course of business.
14

Nevada Cement's liability for taxes on the equipment depends upon whether its
purchase constituted a retail sale or a sale for resale. If the equipment had been purchased for
the sole purpose of use in manufacturing the cement, it would be a retail sale subject to
taxation. If, on the other hand, the equipment had been purchased for the sole purpose of
reselling it, the transaction would be a sale-for-resale, and tax exempt. But the tax issue is not
so simple when considering the dual purpose items at issue here. Nevada Cement's equipment
not only aids in manufacturing the cement, but also contributes necessary ingredients to the
final cement product, which is resold. This dual purpose led to the parties' dispute over
whether a physical-ingredient test or a primary-purpose test should apply under the tax
statutes.
Nevada Cement contends that the district court properly applied a physical-ingredient
test to determine that the items at issue in this case are tax exempt.
__________

10
NRS 372.105.

11
NRS 372.185(1) and (2).

12
State, Dep't Taxation v. Kelly-Ryan, Inc., 110 Nev. 276, 280, 871 P.2d 331, 334 (1994); see also 85 C.J.S.
Taxation 1992 (2001).

13
NRS 372.185(2).

14
NRS 372.075.
a physical-ingredient test to determine that the items at issue in this case are tax exempt.
Nevada Cement argues that under a physical-ingredient test, when an item becomes a
physical ingredient or a component of the finished product, it is a sale for resale, and is
excluded from taxation. Under Nevada Cement's test, the degree of incorporation is
irrelevant. Property is tax exempt as long as some portion, no matter how insignificant, is
incorporated into the finished product.
In support of a physical-ingredient test, Nevada Cement does not focus on the retail
sale statute, NRS 372.050. Instead, Nevada Cement asserts that NRS 372.080, a specific use
tax exemption for exported property, clearly states the test. NRS 372.080 exempts from use
taxation personal property acquired outside of Nevada
15
and thereafter kept or retained in
Nevada for the purpose of being processed, fabricated or manufactured into, attached to, or
incorporated into, other tangible personal property to be transported outside the state and
thereafter used solely outside the state.
Nevada Cement also cites to a 1955 opinion by the Attorney General
16
(Opinion
74) that examined the definition of storage and use in NRS 372.080 to determine
whether use of scrap iron in the Nevada portion of a multi-state mining process was excluded
from Nevada's use tax. In that case, some of the iron was absorbed into the copper
precipitates, which were then transported outside Nevada for further refining.
17
Opinion 74
concluded that the iron was excluded from the use tax because the iron remained incorporated
in the product while it was undergoing processing in Nevada.
18

The Commission relies on NRS 372.050(1), which defines retail sale as a sale for
any purpose other than resale in the regular course of business of tangible personal property.
As explained above, this provision exempts sales-for-resale from the sales and use tax. The
Commission argues that the language of NRS 372.050 sets forth a primary-purpose test,
under which one must look to the primary purpose of the sale. According to the Commission,
all sales for any purpose other than resale are subject to sales and use tax. Accordingly, the
Commission argues that if any purpose of a dual-purpose item is not resale, the sales and use
tax apply under a primary-purpose test. We note that the Commission essentially asks us to
apply a sole-purpose test, rather than a primary-purpose test.
__________

15
A use tax is imposed on property acquired out of state. NRS 372.185(2).

16
55-74 Op. Att'y Gen. 180 (1955).

17
Id.

18
Id. at 182.
[Headnote 8]
We conclude that under either NRS 372.050 or NRS 372.080, a primary-purpose test
applies. Both statutes are susceptible to more than one reasonable interpretation. NRS
372.050's language, defining a taxable retail sale as a sale of property for any purpose other
than resale, could suggest a primary-purpose test as well as a sole-purpose test. Similarly,
NRS 372.080, exempting from taxation the keeping, retaining, or exercising power over
property for the purpose of being processed, fabricated or manufactured into, attached to, or
incorporated into, other tangible personal property, could suggest a sole-purpose test, a
primary-purpose test, or a physical-ingredient test. Thus, these statutes are ambiguous, and we
look to the legislature's intent, and construe them in line with what reason and public policy
indicate.
19

Reason and public policy suggest that the legislature intended a primary-purpose test
to apply under both NRS 372.050 and NRS 372.080. Although the legislative history is silent
on the meaning of these statutes, both focus on the purpose of the property. Additionally, if,
as the Commission suggests, property is taxable under NRS 372.050 when any purpose is not
resale, then all dual-purpose items would be taxed even if the taxable use (manufacturing)
were insignificant. Similarly, if a sole-purpose test applied under NRS 372.080, all
dual-purpose items would be taxed. Under Nevada Cement's physical-ingredient test, a
dual-purpose item would always be tax exempt under NRS 372.080, even if the tax-exempt
use (physical incorporation) were merely incidental. Thus, both the sole-purpose and the
physical-ingredient tests would likely produce inequitable results, one by taxing too much and
the other by not taxing enough. Applying a primary-purpose test under both statutes allows a
more meaningful determination of whether property is purchased for a taxable or a
tax-exempt use.
Accordingly, we adopt the primary-purpose test described by the California Supreme
Court in Kaiser Steel Corp. v. State Board of Equalization.
20
California, like Nevada,
imposes a tax on all tangible personal property sold at retail in the state.
21
The California
statute defining retail sale is nearly identical to Nevada's: a sale for any purpose other than
resale in the regular course of business in the form of tangible personal property.
__________

19
See McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986).

20
593 P.2d 864 (Cal. 1979); see also Larry J. Stroble & Sandra Cha Sifferlen, Sales Tax Exemptions in
Retailing and Manufacturing: Resolving Mixed-Use Situations, 4 J. Multistate Tax'n 244, 245-46 (1995)
(discussing primary-purpose test).

21
Cal. Rev. & Tax. Code 6051 (West 1998).
lar course of business in the form of tangible personal property.
22
In Kaiser Steel, the court
considered whether materials purchased to aid in steel manufacturing, but which also became
components of the finished product, were taxable as a retail sale. The materials were first
used in the steel manufacturing process, and then formed a by-product called slag, which
Kaiser sold. The question was whether the materials were purchased for a purpose other than
resale (that is, to aid in manufacturing steel) and thus subject to tax, or were purchased for the
purpose of resale in the form of slag, and thus tax exempt.
23

In adopting a primary-purpose test, the Kaiser Steel court held that one must look to
the primary purpose of the purchase in determining whether a sale is taxable.
24
The court
upheld as reasonable the State Board of Equalization's determination that Kaiser purchased
the materials primarily for the purpose of manufacturing steel, and thus concluded that the
materials were subject to the tax.
25

[Headnotes 9, 10]
Thus, in determining whether manufacturing equipment is taxable under NRS
372.050 and NRS 372.080, one must consider the equipment's primary purpose. If the
property is purchased primarily to aid the manufacturing process, it is taxable, despite the fact
that some portion becomes a part of the finished product. Conversely, if the property is
purchased primarily for incorporation into the final product, it is not taxable, despite the fact
that some portion may assist the manufacturing process.
26
The district court erred by
applying a physical-ingredient test and by allowing a tax exemption.
[Headnote 11]
Our decision finds support in the Department's tax regulation pertaining to property
used in manufacturing. We have previously stated that the interpretation by the agency
charged with administering a statute is persuasive, and that great deference should be given to
that interpretation if it is within the language of the statute.
__________

22
Id. 6007.

23
593 P.2d at 865-66.

24
Id. at 866.

25
Id. at 868-69. The Kaiser Steel court recognized that the California State Board of Equalization has
permitted tax apportionment if the purchaser can establish what portion he is using for the exempt purpose and
what portion for the nonexempt purpose, although apportionment was not applicable in that case. Id. at 869.
We need not consider a tax apportionment argument in the present case, however, because it was not raised by
the parties.

26
Id. at 867.
statute.
27
NAC 372.370(1) states that a tax applies to the sale of tangible personal property
purchased for the purpose of use in manufacturing, producing, or processing tangible
personal property and not for the purpose of physically incorporating it into the manufactured
article to be sold. Subsection (2) of that regulation states that a tax does not apply to the sale
of tangible personal property purchased for the purpose of incorporating it into the
manufactured article to be sold. NAC 372.370 focuses on the purpose for which property is
purchased. The requirement that the purpose be primary is implicit. NAC 372.370 is
therefore consistent with NRS 372.050, and sets forth a primary-purpose test.
In so holding, we reject Nevada Cement's additional contention that the Department
has historically followed a physical-ingredient test, and has only recently adopted a
primary-purpose test in these proceedings. Nevada Cement argues that this change in policy
constitutes rulemaking in violation of the Nevada Administrative Procedures Act, which
requires notice and public hearing for all proposed regulations or amendments to existing
regulations.
28
The Department did not engage in rulemaking; it simply determined how the
relevant statutes operated in a specific context.
29
Moreover, because this court independently
reviews the relevant statutory provisions, the Department's position is not controlling.
We note that NRS 372.080 is a very specific use tax statute applying only in limited
factual circumstances. In particular, as a use tax, it only applies to property purchased outside
of this state.
30
Further, it applies to property that is merely stored or processed into other
property within Nevada, and is then exported. Here, the record does not indicate the extent to
which Nevada Cement either purchased its equipment outside the state or exported its
cement. However, under either NRS 372.080 or NRS 372.050, Nevada Cement's equipment
is subject to a primary-purpose test.
Under a primary-purpose test, the equipment is taxable as a retail sale. The
Department's hearing officer determined that Nevada Cement failed to provide sufficient
evidence that it purchased the equipment primarily for the purpose of physically incorporating
it into the finished product. The Commission found that the equipment was purchased for
the purpose of use in manufacturing, producing or processing tangible personal property.
__________

27
See Collins Discount Liquors v. State of Nevada, 106 Nev. 766, 768, 802 P.2d 4, 5 (1990); Nevada Power
Co. v. Public Serv. Comm'n, 102 Nev. 1, 4, 711 P.2d 867, 869 (1986).

28
See NRS 233B.060.

29
See K-Mart Corporation v. SIIS, 101 Nev. 12, 16-17, 693 P.2d 562, 565 (1985).

30
See NRS 372.185.
that the equipment was purchased for the purpose of use in manufacturing, producing or
processing tangible personal property. These administrative factual determinations are
supported by substantial evidence.
The record demonstrates that Nevada Cement purchased the equipment for the
primary purpose of use in manufacturing, and not for the primary purpose of contributing
ingredients to the final product. While Nevada Cement accounted for the equipment's
contribution of iron to the cement, that contribution was only a secondary purpose. The
equipment's gradual disintegration and incorporation into the cement was an unavoidable
consequence of the abrasive and heat-intensive manufacturing process. Accordingly, Nevada
Cement was not entitled to a tax refund, and the district court erred in granting the refund
claim.
CONCLUSION
The primary-purpose test is the proper test to analyze proposed exemptions under
NRS 372.050 and NRS 372.080, and the district court erred in applying the
physical-ingredient test. Additionally, the record contains substantial evidence to support the
Commission's determination that Nevada Cement purchased the equipment for the primary
purpose of using it in manufacturing; therefore, the purchase was a retail sale subject to
taxation. Accordingly, we reverse the order of the district court holding that Nevada Cement
is entitled to a refund and remand this matter to the district court with instructions to reinstate
the Commission's decision.
____________
117 Nev. 970, 970 (2001) Randolph v. State
CHARLES LEE RANDOLPH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 36080
December 14, 2001 36 P.3d 424
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one
count each of conspiracy to commit robbery, burglary while in possession of a firearm,
robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon,
and first-degree murder with use of a deadly weapon and from a sentence of death. Eighth
Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant was convicted in the district court of conspiracy to commit robbery,
burglary while in possession of a firearm, robbery with the use of a deadly weapon,
first-degree kidnapping with the use of a deadly weapon, and first-degree murder with the
use of a deadly weapon, and was sentenced to death.
with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon,
and was sentenced to death. Defendant appealed. The supreme court held that: (1) aiding and
abetting instruction was appropriate, (2) prosecutor's mischaracterization of reasonable doubt
standard was not prejudicial, (3) district court's comments about defense counsel in jury's
presence did not prejudice defendant, (4) defendant was not entitled to an instruction on
State's failure to gather evidence, and (5) sentence of death was not excessive.
Affirmed.
[Rehearing denied February 22, 2002]
Morgan D. Harris and Marcus D. Cooper, Public Defenders, Curtis S. Brown, Chief
Deputy Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for
Appellant.
Attorney, and James Tufteland and David T. Wall, Chief Deputy District Attorneys, Clark
1. Conspiracy.
Indictment provided defendant with adequate notice that he had to defend himself against an alternative theory of co-conspirator
liability for murder, regardless of the indictment's specific allegation that he killed victim directly, where Count I of indictment alleged
defendant conspired to commit robbery and in furtherance of conspiracy committed acts set forth in the remaining Counts, and Count
V alleged defendant murdered bartender by shooting her in the head and in doing so he was acting pursuant to a conspiracy to commit
robbery.
2. Homicide.
State was not precluded from gaining instructions and arguing that murder defendant was also liable as an accomplice, though
indictment charged defendant with directly committing the murder and did not charge him with aiding and abetting, where State did
not conceal or vacillate in its theory that defendant directly committed the murder, defendant argued that though he participated in
other crimes he did not kill the victim, and in response State sought jury instructions on aiding and abetting. NRS 173.095(1),
175.161(1), 195.020.
3. Criminal Law.
The reasonable doubt instruction should impress on the jury the need to reach a subjective state of near certitude on the facts in
issue.
4. Criminal Law.
Prosecutor's highly improper mischaracterization of reasonable doubt in closing argument as being if you have a gut feeling
he's guilty, he's guilty was not prejudicial error and did not warrant a mistrial, where jury instructions provided correct definition of
reasonable doubt, and trial court immediately ordered the incorrect remark be stricken, although better practice would have been for
trial court to further explicitly admonish the jury that remark was improper and was to be disregarded. NRS 175.211(1).
Though prosecutor's highly improper mischaracterization of reasonable doubt was not prejudicial, as trial court had ordered
remark to be stricken and jury was provided with correct definition of reasonable doubt, supreme court would issue order for
prosecutor to show cause why court should not impose sanctions on him.
6. Criminal Law.
The State is free to comment on testimony, to express its views on what the evidence shows, and to ask the jury to draw
reasonable inferences from the evidence.
7. Criminal Law.
Trial court acted within its discretion in denying defendant's motion for a mistrial on ground that prosecutor mischaracterized
evidence in closing argument. Defendant's cross-examination did not conclusively establish that witness did not hear laughter
following murder, prosecutor when making closing argument was entitled to rely on witness's other references to hearing a short
barking laugh, and jury was instructed that arguments and opinions of counsel were not evidence.
8. Criminal Law.
Judges must be mindful of the influence they wield, and the words of a trial judge may mold the opinion of the jurors to the
extent that a party may be prejudiced.
9. Criminal Law.
Trial judge's expressions of annoyance with defense counsel in front of jury did not prejudice defendant and were not grounds
for a mistrial, as such expressions numbered only two and were not extreme. Trial judge abruptly rejected defense counsel's request for
an admonition, and, after trial judge called for no more interruptions and counsel asked if court was limiting him, trial judge said
counsel was being limited at this time so please do not provoke the court any further.
10. Criminal Law.
Trial court did not abuse its discretion in not granting a mistrial based on display of emotion by victim's family during State's
initial closing argument in guilt phase of murder trial. Defendant did request an evidentiary hearing to determine how the jury was
affected, and display of emotion did not amount to plain error.
11. Criminal Law.
Giving of Kazalyn instruction on premeditation and deliberation in first-degree murder trial did not amount to reversible error,
though judgment of conviction was entered following supreme court decision that abandoned Kazalyn instruction, where jury found
defendant guilty before such decision.
12. Criminal Law.
In a criminal investigation, police officers generally have no duty to collect all potential evidence.
13. Criminal Law.
If a defendant shows that evidence the State failed to gather was material, i.e., that there is a reasonable probability that the
result of the proceedings would have been different if the evidence had been available, the court must determine whether the failure to
gather it resulted from negligence, gross negligence, or bad faith. In the case of mere negligence no sanctions are imposed but the
defendant can examine the State's witnesses about the investigative deficiencies, in the case of gross negligence the defense is entitled
to a presumption that the evidence would have been unfavorable to the State, and in the case of bad faith, depending on the case
as a whole, dismissal of the charges may be warranted.
depending on the case as a whole, dismissal of the charges may be warranted.
14. Criminal Law.
State's failure to look for clothes or shoes defendant's accomplice wore on night of murder and test clothes and shoes for blood
did not entitle defendant to jury instruction that evidence was presumed unfavorable to the State. There was no showing that such
evidence was material as defendant did not demonstrate there was a reasonable probability that his accomplice was the shooter, and
State's failure to gather such evidence was at most negligent.
Victim impact testimony is permitted at a capital penalty proceeding pursuant to state law and under 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
supreme court reviews only for an abuse of discretion.
17. Criminal Law.
Undisclosed ex parte communication between judge and juror during penalty phase of first-degree murder trial did not violate
defendant's rights to be present at all critical stages of the trial, where judge asked juror about his ability to go forward with
deliberations after being informed juror was a little sick with anxiety, but did not inquire into jury's deliberations.
Penalty of death for defendant convicted of first-degree murder was not excessive, as evidence supported finding of aggravating
factors that murder was committed during the commission of a burglary, during the commission of a robbery, and so that victim could
not identify defendant, supreme court could discern no evidence that the sentence was imposed under the influence of passion,
prejudice or any arbitrary factor, and the mitigating evidence was not weighty. NRS 177.055(2).
OPINION
Per Curiam:
Appellant Charles Lee Randolph robbed and murdered a bartender in Las Vegas in the
early morning on May 5, 1998. Randolph was convicted and received a death sentence.
Randolph demonstrates error in one of his claims on appeal: the prosecutor mischaracterized
the reasonable doubt standard in closing argument. However, we conclude that the error is not
reversible and that Randolph's other claims lack merit.
FACTS
On May 5, 1998, John Shivell was working the graveyard shift as a security guard at
an apartment complex in Las Vegas. Shivell was in a guard shack at the gated entrance of
the complex.
was in a guard shack at the gated entrance of the complex. Directly to the west was the
parking lot of Doc Holliday's, a bar. Around 1:00 a.m. he heard a sound from the parking lot
like a, a short barking, laugh. Shivell saw two men enter a car and drive out of the parking
lot. As the car passed by on the street, he identified it as an older model Cadillac with an
opera window. Shivell telephoned Doc Holliday's, but no one answered. He then called the
Las Vegas Metropolitan Police Department (LVMPD).
LVMPD officers arrived about ten minutes later and found the bar locked. After the
manager of the bar arrived to open the bar, officers entered Doc Holliday's around 2:00 a.m.
They discovered the body of Shelly Lokken, the bartender, in the cooler. Lokken's wrists were
bound by handcuffs.
Dr. Giles Green performed the autopsy on Lokken's body. Red marks on her wrists
indicated that she was still alive when she was handcuffed. She had been shot twice in the
head. The first gunshot entered Lokken's right cheek below her eye and exited below her left
ear. The shot broke off part of her epiglottis, and she inhaled blood into her lungs. The second
gunshot entered the back of her head on the right side and exited above her left eyebrow. This
shot was instantaneously fatal.
The blood pooled around Lokken's head and upper body at the crime scene was
consistent with her having first been shot while she was upright on her knees. The blood
flowed down toward the face from the wound at the back of her head, indicating that she had
fallen to the floor by the time of the second shot. A bullet impact site in the concrete floor
was consistent with this scenario. Police also found in the cooler a nine-millimeter bullet
casing, the copper jacket and lead portion from a spent bullet, and a bullet impact site in the
wall.
The bar's cash register was empty of money. The drawer below the register, which
served as a gaming bank, was also empty. Inside the office a videocassette recorder (VCR)
and multiplexer had been taken from the security surveillance system. The bottom part of a
safe in the office was unlocked and open. Lokken had the keys to the safe when she began her
shift. Missing from the safe was a green bank bag containing about $3,500.00. A total of
$4,629.00 was taken from the bar.
The afternoon following the crimes, police responded to a 911 call from two women
at a Las Vegas motel. The women told police that they had spent the night with two men who
they thought were involved in the murder at Doc Holliday's. One of the men was still at the
motel. Police went to the room occupied by the man, Tyrone Garner, and questioned him.
Garner said that he had loaned his car to someone. Police found a set of keys to the car in the
room, and Garner gave them permission to take the keys and search the car if they found it.
keys and search the car if they found it. The car was soon located a few blocks away; it
matched the description of the car seen leaving Doc Holliday's early that morning. A VCR
and multiplexer were found in its trunk. Police also found a nine-millimeter semiautomatic
pistol in the trunk. Testing showed that the pistol had fired the bullet casing and fragments
recovered from Doc Holliday's.
A multiplexer takes images from multiple cameras and simultaneously records them
on one videotape. The recovered VCR contained a surveillance videotape with input from
several cameras at Doc Holliday's. A tape showing the view from each camera in succession
was made. The tape was shown to Adell Thompson, among others. Thompson was the
general manager of Herman's Barbecue, which operated the kitchen at Doc Holliday's. The
tape showed a man whom Thompson identified as appellant Randolph. Randolph had worked
at the kitchen for two or three weeks just prior to the crimes.
The doors to the bar were always locked during the graveyard shift at Doc Holliday's.
A customer had to press a button to seek entry at the front door, and the bartender could see
the customer on a monitor linked to the video surveillance system. The bartender could then
decide whether to buzz a customer in.
The surveillance tape contained about nine minutes of footage relevant to the crimes
at Doc Holliday's. Lokken let Randolph into the bar around 12:56 a.m. He entered alone, and
the tape showed no one else in the bar except Lokken. Randolph sat down at the bar for a
short time, then stood up, reached in his waistband, and pulled out a gun. He climbed over the
bar and jumped down in front of Lokken. She raised her arms up, and Randolph moved her
out of camera view. The tape did not show Lokken again, but Randolph came in and out of
view several times. Around 1:00 a.m., he opened the cash register. A view of the bar also
showed occasional flashes of light emanating from beyond the camera view. These flashes
were attributable to the opening of the door to the kitchen/office area, which was better lit
than the bar, as Randolph went in or out that door. The tape went black just before 1:05 a.m.
Acting on an anonymous tip, LVMPD officers apprehended Randolph on May 8,
1998. As detectives drove Randolph to their office, he asked why he was in custody. The
detectives said they were investigating the shooting at Doc Holliday's, and Randolph denied
knowing anything about that. When told that he appeared on the surveillance tape, he became
quiet and said he would tell the detectives what he knew. At the office, Randolph gave a
voluntary recorded statement.
Randolph admitted that he had been on a cocaine binge before the shooting, that he
ran out of money and wanted more drugs, and that Garner drove him to Doc Holliday's so he
could steal money to buy more drugs.
and that Garner drove him to Doc Holliday's so he could steal money to buy more drugs. He
admitted that he took money from the safe and the cash register, but said he did not know
about Lokken's murder. He claimed that he let Garner into the bar through the backdoor to the
kitchen. According to Randolph, Garner wore a mask, had a gun and handcuffs, put the
handcuffs on Lokken, and took her to the cooler. Randolph said that he left the building and
heard a muffled gunshot and Garner then came out.
Randolph's account was not always coherent or consistent, e.g., he first admitted and
later denied having a gun, and he first said he didn't even hear and later said he heard a
muffled shot. No videotape or physical evidence supported Randolph's claim that Garner was
ever inside the bar.
The jury found Randolph guilty of first-degree murder with use of a deadly weapon
and four other offenses.
During the penalty phase, the State presented evidence of Randolph's prior criminal
history. It also called Lokken's mother and brother, who gave victim impact testimony.
Randolph called a forensic psychiatrist, who testified regarding Randolph's personality, abuse
that he suffered growing up, his individual and family history of substance abuse, and the
effect of his intensive use of crack cocaine. Randolph's wife and stepdaughter testified on his
behalf, and Randolph spoke in allocution.
The jurors found three aggravating circumstances, that the murder was committed:
during the commission of a burglary, during the commission of a robbery, and to avoid or
prevent a lawful arrest. As a mitigating circumstance, they found that Randolph committed
the murder while under the influence of extreme mental or emotional disturbance. Finding
that the aggravating circumstances outweighed the mitigating, the jurors imposed a sentence
of death.
1

DISCUSSION
Instructing the jury on aiding and abetting
Randolph objected unsuccessfully to jury instructions on co-conspirator liability and
on accomplice liability for aiding and abetting. He argues that these instructions improperly
allowed the prosecution to alter and expand its theory of the case beyond the pleadings of the
indictment.
The second amended indictment against Randolph, like the preceding indictments,
alleged in Count V that he directly committed murder by shooting Lokken in the head and
that Garner aided and abetted in committing the crime.
__________

1
Garner was tried separately, convicted, and sentenced to lengthy terms in prison. See Garner v. State, 116
Nev. 770, 6 P.3d 1013 (2000), cert. denied, 532 U.S. 929 (2001).
ceding indictments, alleged in Count V that he directly committed murder by shooting
Lokken in the head and that Garner aided and abetted in committing the crime. During the
guilt phase, Randolph called no witnesses and did not testify. He conceded during argument
that he had committed robbery and burglary but argued that Garner had shot Lokken. At the
end of the guilt phase, the district court instructed the jury on co-conspirator liability and
liability for aiding and abetting. Randolph asserts that he was ready to defend against the
State's original, specific allegation that he shot Lokken, but was not prepared to meet a
prosecution case based on co-conspirator or accomplice liability.
[Headnote 1]
First, we conclude that the indictment provided Randolph with adequate notice he
could be held liable for murder as a co-conspirator. Count I of the indictment alleged that
Randolph conspired with Garner to commit robbery and, in furtherance of the conspiracy,
committed the acts set forth in Counts II through V. Count V alleged that Randolph murdered
Lokken by shooting her in the head and that he and Garner were acting pursuant to a
conspiracy to commit robbery. These allegations of conspiracy gave Randolph sufficient
notice under NRS 173.075
2
that he had to defend against an alternative theory of
co-conspirator liability regardless of the indictment's specific allegation that he killed Lokken
directly.
Next, Randolph is correct that the indictment did not charge him with aiding and
abetting Garner in the murder of Lokken. Normally, this would preclude the State from
gaining instructions and arguing that a defendant is liable as an accomplice. However, we
hold that where a defendant raises a defense that implicates a theory of accomplice liability,
the prosecution is entitled to jury instructions on aiding and abetting.
[Headnote 2]
In Barren v. State, this court held that
where the prosecution seeks to establish a defendant's guilt on a theory of aiding and
abetting, the indictment should specifically allege the defendant aided and abetted, and
should provide additional information as to the specific acts constituting the means of
the aiding and abetting so as to afford the defendant adequate notice to prepare his
defense.
__________

2
NRS 173.075 provides in part:
1. The indictment or the information must be a plain, concise and definite written statement of the
essential facts constituting the offense charged. . . .
2. . . . . It may be alleged in a single count that the means by which the defendant committed the
offense are unknown or that he committed it by one or more specified means.
constituting the means of the aiding and abetting so as to afford the defendant adequate
notice to prepare his defense.
3

In Barren, the State purposely failed to apprise the defendant of its theory of accomplice
liability until the day of trial.
4
Thus, our holding in Barren was aimed at preserving due
process by preventing the prosecution from concealing or vacillating in its theory of the case
to gain an unfair advantage over the defendant.
5
This aim remains valid, but we conclude
that it is not implicated here because the record shows that in presenting its case the
prosecution did not conceal or vacillate in its theory that Randolph directly committed the
murder. It was Randolph who argued that although he was present and participated in the
other crimes, he did not kill the victim. In response, the State sought and the district court
gave jury instructions on aiding and abetting.
Randolph argues that the State was precluded from the benefit of such instructions
because it did not originally charge aiding and abetting. We disagree. Randolph's argument,
carried to its logical end, would allow a defendant, in any case where the State did not allege
aiding and abetting in the charging document, to escape liability for a crime by proving that
he actually aided and abetted the crime. Our holding in Barren was not intended to produce
such a perverse result.
6
Nor is such a result acceptable under Nevada statutory law: pursuant
to NRS 195.020, anyone who aids and abets in the commission of a crime is liable as a
principal.
Other Nevada statutes furnish persuasive support for our conclusion that the
prosecution was entitled to jury instructions on aiding and abetting. NRS 173.095(1) provides
that a district court may permit an indictment or information to be amended at any time
before verdict or finding if no additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.
7
And NRS 175.161(1) provides: Upon the close
of the argument, the judge shall charge the jury. . . . If either party requests it, the court must
settle and give the instructions to the jury before the argument begins, but this does not
prevent the giving of further instructions which may become necessary by reason of the
argument.
__________

3
99 Nev. 661, 668, 669 P.2d 725, 729 (1983).

4
Id. at 669, 669 P.2d at 730.

5
Id. at 668, 669 P.2d at 729.

6
Cf. State v. Petry, 273 S.E.2d 346, 349 (W. Va. 1980) (The ludicrous point of the case before us is that the
defendant can successfully defend against an indictment as a perpetrator by proving she was an aider and abettor
and vice versa, which is morally absurd.).

7
Cf. Koza v. State, 104 Nev. 262, 264, 756 P.2d 1184, 1186 (1988) (Where a defendant has not been
prejudiced by the charging instrument's inadequacy the conviction will not be reversed.).
Given these statutory provisions and the absence of any unfair concealment or
vacillation by the prosecution in presenting its case, we conclude that the district court acted
within its discretion in instructing the jury on aiding and abetting. As the Supreme Court of
Indiana reasoned in a similar case:
Appellant now argues that it was improper to give these instructions since the theory
of the State's case was that Appellant himself perpetrated these crimes and did not aid
or abet anyone else in committing them. He further argues that it was improper for the
State to submit these instructions after the close of all of the evidence and that the
submission of them at this time amounted to an amendment of the charges against this
appellant because the State was, in effect, charging Appellant with a different crime
than that with which he had originally been charged. The State properly points out that
it was not required to tender final instructions pursuant to [statute] until the close of all
of the evidence . . . . Furthermore, the evidence in the cause is one of the elements that
determines what instructions are to be given; therefore, final instructions cannot be
ultimately resolved until all parties rest on their evidence.
The evidence which tended to show that the appellant himself did not actually commit
the murders was introduced by Appellant in an effort to show that he was present and
took part in the robbery but did not take part in any killings. The instructions on
confederate liability were properly given by the trial court. They do not represent an
additional charge nor a new theory in the cause.
8

We therefore conclude that the district court appropriately gave jury instructions on
aiding and abetting in this case.
The prosecutor's mischaracterization of the reasonable doubt standard
During the State's rebuttal closing argument in the guilt phase, prosecutor William
Kephart made the following remark, with the ensuing objection by the defense and response
by the district court.
MR. KEPHART: . . . It says here that if your minds, the jurors' minds, after entire
comparison and consideration of all of the evidence, are in such a condition that they
can say that they feel an abiding conviction of the truth of the charge, there is not
reasonable doubt. You have a gut feeling he's guilty, he's guilty.
__________

8
Hoskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982).
MR. BROWN: Objection, judge. I don't think that's an accurate representation of
reasonable doubt or
THE COURT: This is closing argument, but I would instruct, strike the last comment.
Let's stay within parameters, please.
MR. BROWN: Judge, could you also admonish
THE COURT: Counsel, I have given my position. Please sit down.
9

Later, outside the presence of the jury, defense counsel objected to the court's refusal to
admonish the jury:
Mr. Wall [the prosecutor] objected to a comment that I was making during closing
statements that referenced the reasonable doubt, certainly didn't breach the description
of reasonable doubt as Mr. Kephart did. And when asked for an admonition, the court
gave one. And I asked for an admonition and the court refused.
Defense counsel sought a mistrial, and the district court denied the motion.
The earlier incident referred to by defense counsel occurred as follows.
MR. BROWN: . . . If Tyrone Garner could have committed this crime, could have
under any scenario that you can develop based on the evidence, that's reasonable doubt
as to whether Charles Randolph did. Now
MR. WALL: Judge, just for the record, I'm going to object to that last, as redefining
reasonable doubt. Reasonable doubt doesn't say any possible doubt. So, I think that
characterization of what reasonable doubt is is incorrect.
THE COURT: As to that, I would just instruct the jury to read for themselves
instruction number 48 that defines reasonable doubt.
Randolph argues that prosecutor Kephart's mischaracterization of the reasonable
doubt standard constituted reversible error and that the district court erred in not admonishing
the jury and in denying the motion for mistrial. We conclude that Kephart's remark was
highly improper but did not warrant a mistrial.
[Headnote 3]
This court recognizes that the reasonable doubt instruction should impress on the
jury the need to reach a subjective state of near certitude' on the facts in issue.
10
And this
court has repeatedly "caution[ed] the prosecutors of this state that they venture into
calamitous waters when they attempt to quantify, supplement, or clarify the statutorily
prescribed reasonable doubt standard.
__________

9
Emphasis added.

10
McCullough v. State, 99 Nev. 72, 75, 657 P.2d 1157, 1158 (1983) (quoting Jackson v. Virginia, 443 U.S.
307, 315 (1979)).
edly caution[ed] the prosecutors of this state that they venture into calamitous waters when
they attempt to quantify, supplement, or clarify the statutorily prescribed reasonable doubt
standard.
11
We have nevertheless consistently deemed incorrect explanations of reasonable
doubt to be harmless error as long as the jury instruction correctly defined reasonable doubt.
In two cases improper explanations were not harmless because they were combined with
erroneous jury instructions on reasonable doubt.
12

[Headnote 4]
Here, the jury instruction correctly provided the definition of reasonable doubt set
forth in NRS 175.211(1), and the district court immediately ordered the incorrect argument
stricken. Therefore, consistent with precedent, we conclude that Kephart's improper argument
was not prejudicial. Likewise, we conclude that Randolph has not shown that the district
court erred in denying the motion for mistrial. Denial of a motion for mistrial is within the
district court's sound discretion, and this court will not overturn a denial absent a clear
showing of abuse.
13
Because the improper remark does not require reversal, it did not
warrant a mistrial.
Two further points need to be made. First, although the district court struck the
prosecutor's remark, providing some remedy for the misconduct, we agree with Randolph that
the court should have further explicitly admonished the jury that the remark was improper
and was to be disregarded. Such an admonishment was in order, however, simply to counter
the prosecutor's misconduct, not because of the way the district court handled the State's
earlier objection to defense counsel's comments regarding reasonable doubt. The State's
objection lacked foundation because those comments were proper: defense counsel simply
argued that if the jury could develop a scenario, consistent with the evidence, in which Garner
could have committed the murder, it would constitute reasonable doubt. This was not a
forbidden attempt to define reasonable doubt; it was simply an argument that a certain
possibility would meet the standardwhich is acceptable, as Evans v. State explains:
__________

11
Holmes v. State, 114 Nev. 1357, 1366, 972 P.2d 337, 343 (1998); see also Wesley v. State, 112 Nev. 503,
514, 916 P.2d 793, 801 (1996) ([W]hen prosecutors attempt to rephrase the reasonable doubt standard, they
venture into troubled waters.); Quillen v. State, 112 Nev. 1369, 1382-83, 929 P.2d 893, 902 (1996) (warning
that analogizing reasonable doubt to the most important decisions in life, like choosing a spouse or buying a
house, is improper because such decisions are wholly unlike the one jurors must make in a criminal case); Lord
v. State, 107 Nev. 28, 35, 806 P.2d 548, 552 (1991) (Parties to a criminal case should assiduously avoid such
attempts to quantify the concept of reasonable doubt.).

12
McCullough, 99 Nev. at 75-76, 657 P.2d at 1158-59; Holmes, 114 Nev. at 1366, 972 P.2d at 343.

13
Smith v. State, 110 Nev. 1094, 1102-03, 881 P.2d 649, 654 (1994).
reasonable doubt; it was simply an argument that a certain possibility would meet the
standardwhich is acceptable, as Evans v. State explains:
We again caution the defense bar and prosecutors alike not to explain, elaborate on, or
offer analogies or examples based on the statutory definition of reasonable doubt.
Counsel may argue that evidence and theories in the case before the jury either amount
to or fall short of that definitionnothing more.
14

Thus, while the State had every right to argue that the possibility that Garner was the shooter
amounted to unreasonable conjecture, not reasonable doubt, it had no sound basis to object to
defense counsel's argument. But the district court did not sustain the State's objection or
admonish the jury, as Randolph implies. Rather, the court merely directed the jury to follow
its instruction defining reasonable doubt.
[Headnote 5]
Second, although we conclude that prosecutor Kephart's misstatement of the
reasonable doubt standard does not warrant reversal, the improper remark was particularly
reprehensible because this is a capital case and the remark was gratuitous and patently
inadequate to convey to the jury its duty to reach a subjective state of near certitude to find
guilt. Any prosecutor reasonably knows that a gut feeling of guilt is not certainty beyond a
reasonable doubt and that such an assertion should never be made to a jury. But it is apparent
that some prosecutors are not taking to heart this court's repeated admonishments not to
supplement or rephrase the definition of reasonable doubt. We can no longer tolerate
noncompliance with a simple obligation that helps ensure a fundamental component of this
nation's criminal justice systemthe right to a jury verdict of guilt beyond a reasonable
doubt.
15
We are convinced that it has become necessary to take specific action to correct
this problem, and we will therefore call the prosecutor to account in this case and in future
cases where it may arise.
16
The prosecutor's characterization of evidence during closing
argument
__________

14
117 Nev. 609, 632, 28 P.3d 498, 514 (2001).

15
Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (Denial of the right to a jury verdict of guilt beyond a
reasonable doubt is certainly [structural error], the jury guarantee being a basic protectio[n]' whose precise
effects are unmeasurable, but without which a criminal trial cannot reliably serve its function. (quoting Rose v.
Clark, 478 U.S. 570, 577 (1986))).

16
We are issuing, contemporaneously with this opinion, an order to attorney Kephart to show cause why this
court should not impose on him sanctions such as, but not limited to, a monetary fine or referral to the State Bar
of Nevada for violation of the Rules of Professional Conduct.
The prosecutor's characterization of evidence during closing argument
Randolph contends that the district court erred in denying his motion for mistrial
based on the prosecutor's characterization of evidence in closing argument during the guilt
phase. Randolph claims that the prosecutor misrepresented the testimony of John Shivell, the
security guard at the apartment complex by Doc Holliday's.
Shivell testified that he heard a sound from the bar's parking lot: At the time it
sounded like a, a short barking, laugh, you know, like a, (witness demonstrating), you know,
something of that sort. He then saw two men enter a car and drive out of the parking lot. On
cross-examination, the following exchange occurred.
Q [Y]ou heard a noise. You indicated . . . that you think it may have been, you
demonstrated a quick cackle, or you're not sure?
A Well, I don't know how to repeat it.
Q Sure.
A It's, what it sounded like was just like a barking, a bark, a laughter but very short.
. . .
Q Could that noise have been a trunk or a door closing possibly?
A I, I don't know if I can stretch it that way, you know. I don't know. Get the proper
trunk, the proper metal to metal or whatever, possibly.
Q Okay. Possibly? Certainly you couldn't characterize it as laughter?
A No. No, not, it wasn't laughter.
Q I just wanted to clear that up.
A In that sense.
At the end of his closing argument, prosecutor Kephart referred to Shivell's testimony:
[W]hat drew his attention to what was happening at the bar was a shrieking kind of
laugh. Do you recall that? And he looked over, and he saw two individuals getting into
a car. Tyrone Garner's waiting for his accomplice to leave this bar. Out comes the
defendant carrying a VCR and multiplexer, money. And he greets him, and there's a
joy, joy for the fact that the loot, in the defendant's words, was had, joy, ladies and
gentlemen. Shelly Lokken is dead, and what drew this man's attention was laughter.
Thank you.
[Headnotes 6, 7]
Randolph argues that the cross-examination of Shivell made it unambiguously clear
that the sound he heard was definitely not laughter. We disagree. Randolph focuses solely
on Shivell's words, No. No, not, it wasn't laughter, but Shivell immediately added, In that
sense. We conclude that the prosecutor was entitled to rely on Shivell's other references to
hearing a short barking, laugh and a bark, a laughter but very short and to argue that
Shivell heard laughter. The State is free to comment on testimony, to express its views on
what the evidence shows, and to ask the jury to draw reasonable inferences from the
evidence.
17
The jury was also instructed that [s]tatements, arguments and opinions of
counsel are not evidence in the case and was told that its recollection of the evidence was
determinative.
The district court acted within its discretion in denying the motion for mistrial.
18

The district court's dealings with defense counsel
Randolph also sought a mistrial based on alleged misconduct by the district court.
During the prosecutor's rebuttal closing argument in the guilt phase, defense counsel Curtis
Brown raised three objections. The first, discussed above, was to the prosecutor's assertion
that a gut feeling of guilt was sufficient to satisfy the reasonable doubt standard. After the
district court struck the comment, the court abruptly rejected defense counsel's request for an
admonition. The second objection and the court's response are not at issue. Defense counsel's
third objection was to the prosecutor's description of certain evidence. The court responded
that it was up to the jury to decide and called for no more interruptions. When counsel asked
if the court was limiting him, the court said, I'm limiting you at this time, Mr. Brown. So,
please do not provoke the court any further.
[Headnote 8]
Randolph argues that the district court's conduct placed his counsel in a bad light in
front of the jury and deprived him of a fair trial because it gave the jury the impression that
his counsel's objections were inappropriate and unreasonable. It appears that the relation
between the district court and counsel became somewhat confrontational, and the court let its
annoyance and impatience show in front of the jury. Judges must be mindful of the influence
they wield.
19
The words of a trial judge may mold the opinion of the jurors to the extent
that a party may be prejudiced.
__________

17
Bridges v. State, 116 Nev. 752, 762, 6 P.3d 1000, 1008 (2000).

18
Smith, 110 Nev. at 1102-03, 881 P.2d at 654 (stating that this court will not overturn denial of a motion for
mistrial absent a clear showing of abuse of discretion).

19
Oade v. State, 114 Nev. 619, 621, 960 P.2d 336, 338 (1998).
opinion of the jurors to the extent that a party may be prejudiced.
20
For example, in Oade v.
State we concluded that the trial court's repeated expressions of impatience with defense
counsel throughout the trial in the presence of the jury may have had an adverse impact on the
jury's impression of defense counsel and thus may have adversely affected the jury's
acceptance of the defense case.
21

[Headnote 9]
Here, the district court's expressions of annoyance with defense counsel in front of the
jury numbered only two and were not extreme. We conclude that they did not prejudice
Randolph's defense and were not grounds for a mistrial.
Display of emotion by members of the victim's family during the State's closing argument
[Headnote 10]
Randolph contends that the district court erred in not granting a mistrial based on a
display of emotion by members of the victim's family during the State's initial closing
argument in the guilt phase. Alternatively, he argues that the court erred in not holding an
evidentiary hearing to determine how the jury was affected. Randolph cites as authority the
general proposition that a defendant is entitled to a panel of impartial jurors.
22
First,
Randolph did not request an evidentiary hearing below. There is no plain error in this regard;
therefore, we decline to address this issue.
23
Second, our review of the record does not reveal
that the incident in question unduly influenced the jury, and we conclude that the district
court acted within its discretion in denying the motion for mistrial.
Rejection of appellant's proposed jury instruction defining deliberation
[Headnote 11]
The jury in this case received the Kazalyn instruction on premeditation and
deliberation, which this court abandoned in Byford v. State.
24
Defense counsel proffered an
instruction defining deliberate, and the district court refused it. Citing Byford, Randolph
claims that the refusal of his instruction constitutes reversible error.
__________

20
Id. at 623, 960 P.2d at 339.

21
Id.

22
See, e.g., Bishop v. State, 92 Nev. 510, 515, 554 P.2d 266, 269 (1976).

23

24
116 Nev. 215, 994 P.2d 700, cert. denied, 531 U.S. 1016 (2000).
reversible error. We have held that with convictions predating Byford, neither the use of the
Kazalyn instruction nor the failure to give instructions equivalent to those set forth in Byford
provides grounds for relief.
25
Byford was decided on February 28, 2000. Although
Randolph's judgment of conviction was entered on April 14, 2000, the jury found him guilty
on January 24, 2000. Therefore, this claim warrants no relief.
We note that the proof here that the murder was deliberate and premeditated is strong:
the evidence shows that Randolph planned the burglary and robbery; in carrying out those
crimes, he forced Lokken into the cooler, put handcuffs on her, and then, while she was
helpless, shot her in the head twice. Although the jury found that he committed the murder
under the influence of extreme mental or emotional disturbance, evidently because of his
cocaine addiction, the evidence amply supports a finding that Randolph determined to kill
Lokken as a result of thought, including weighing the reasons for and against his action and
considering its consequences, and that the murder was not the result of a mere unconsidered
and rash impulse.
26
Furthermore, the evidence of first-degree felony murder is indisputable.
Rejection of appellant's proposed jury instruction on the failure to gather evidence
At trial Randolph proposed a jury instruction stating that because the State failed to
seize and test brown clothing worn by Garner on the night of the crimes for the existence of
blood evidence, the clothing is irrebuttably presumed to ha[ve] contained blood evidence.
The district court rejected the instruction. Randolph contends that this was reversible error.
The following facts are relevant. A witness testified that early in the morning on May
5, 1998, Randolph and Garner returned to a trailer where the two had been earlier in the
evening smoking crack cocaine. The trailer was a location where people regularly came to use
cocaine. Upon his return, Garner changed out of a brown shirt and brown pants and put on a
green shirt and green pants. After Garner's arrest, the green shirt and pants were impounded at
the city jail and later tested for the presence of blood. The test was negative. Garner's shoes
were not impounded or tested. Although investigators were aware that Garner had changed
out of brown clothes after the crimes, they never searched for the clothes. The trunk of
Garner's car contained a pile of clothing, but investigators did not look through the clothing to
see if it included the brown shirt and pants.
__________

25
Garner, 116 Nev. at 789, 6 P.3d at 1025.

26
See Byford, 116 Nev. at 236, 994 P.2d at 714.
Randolph asserts that the State failed to gather potentially exculpatory evidence
because a finding of blood on Garner's clothing or shoes would have supported Randolph's
defense that Garner was the shooter. He argues that he therefore had a right to the proposed
jury instruction. If the evidence was material and the police acted out of gross negligence or
bad faith in not preserving it, Randolph had a right to an instruction that the ungathered
evidence was presumed to be unfavorable to the State.
27

[Headnotes 12, 13]
In a criminal investigation, police officers generally have no duty to collect all
potential evidence.
28
However, in some cases a failure to gather evidence may warrant
sanctions against the State. The defense must first show that the evidence was material, i.e.,
that there is a reasonable probability that the result of the proceedings would have been
different if the evidence had been available.
29
Second, if the evidence was material, the court
must determine whether the failure to gather it resulted from negligence, gross negligence, or
bad faith.
30
In the case of mere negligence, no sanctions are imposed, but the defendant can
examine the State's witnesses about the investigative deficiencies; in the case of gross
negligence, the defense is entitled to a presumption that the evidence would have been
unfavorable to the State; and in the case of bad faith, depending on the case as a whole,
dismissal of the charges may be warranted.
31

The State argues that evidence that Garner shot Lokken would be immaterial because
Randolph would still be liable for first-degree felony murder. But this argument overlooks
that such evidence would remain material for determining Randolph's proper sentence.
[Headnote 14]
Nevertheless, we conclude that Randolph has not shown that the ungathered evidence
was material. If testing of Garner's clothing or shoes had revealed the victim's blood, it is
possible that Randolph might not have received a death sentence. However, Randolph has not
demonstrated a reasonable probability that such testing would have revealed any blood. He
offers no evidence to corroborate his allegation that Garner was the shooter. The possibility
that testing Garner's clothing and shoes would have been favorable to his case remains mere
speculation.
Even assuming the evidence was material, the failure to collect it was at worst
negligent.
__________

27
See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998).

28
Id. at 268, 956 P.2d at 115.

29
Id. at 267, 956 P.2d at 115.

30
Id.

31
Id.
it was at worst negligent. First, Randolph has not shown that police could have collected the
brown shirt and pants. He simply assumes that a search of the trailer or the clothing in the
trunk of Garner's car would have uncovered them. Second, Randolph has not shown that the
potential evidentiary significance of Garner's shoes, which were available to police, was so
obvious that it was gross negligence not to impound and test them. Thus, assuming the
evidence was material and police were negligent in not gathering it, Randolph's remedy was
to examine witnesses regarding the deficiency of the investigation. The record shows that he
did so.
The district court did not err in refusing to give the proposed instruction.
Denial of appellant's motion to bar the admission of victim impact evidence
[Headnotes 15, 16]
Randolph claims that the district court deprived him of a fair trial by denying his
motion to bar the admission of victim impact evidence by Lokken's mother because it was
unduly inflammatory. 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.
32
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 an abuse of discretion.
33
Our review of the testimony at issue reveals
nothing that rendered the penalty phase fundamentally unfair. The district court acted within
its discretion in denying the motion and admitting the testimony.
The district court's communication with a juror without notifying counsel
Randolph claims that the district court's communication with a juror without the
presence or knowledge of the parties was prejudicial error.
Early in the afternoon on the second day of jury deliberations in the penalty phase,
after being informed that a juror had taken ill, the district court sent the jury home for the
afternoon and so informed the parties. The jury returned the next morning and reached a
unanimous verdict of death just before noon. After dismissing the jury, the district court
stated:
__________

32
Leonard v. State, 114 Nev. 1196, 1214, 969 P.2d 288, 300 (1998) (citing Payne v. Tennessee, 501 U.S.
808 (1991)).

33
Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997).
[Y]esterday at one o'clock the court was informed that [one juror] . . . had a boutwas
a little sick with anxiety yesterday. The court talked to him in chambers, asked as to his
ability to go forward or whether or not he felt he could not go forward. He indicated to
the court that after some rest, he wanted to go forward with participating in this jury
verdict. So at that time the court informed the bailiff who informed our jurors that they
were excused for the day . . . and that they would reconvene the [next] day.
[The juror] reported this morning and was able to go forward.
One week later, defense counsel filed a motion for a new trial or a new penalty
hearing based on the court's ex parte communication with the juror. The court heard argument
on the motion. Defense counsel informed the court that he had spoken to the juror after the
trial and that the juror revealed he was under a doctor's care and taking a prescribed
medication for panic attacks. The court denied Randolph's motion. The court explained that it
considered the situation to be one involving a sick juror who needed to be sent home. The
court did not inquire into the jury's deliberations: The conversation with [the juror] was very
curt, very limited, just as to his ability to go forward, if he was interested in going forward.
The court saw nothing that indicated any bias or lack of competence on the part of the juror.
Randolph argues that the district court should have informed his counsel that a juror
was suffering from a medicated psychological disorder which was severe enough to prevent
him from deliberating. With disclosure to all counsel a full evaluation and fair consideration
of this juror's ability to deliberate could have been reviewed and if necessary corrective
measures taken.
[Headnote 17]
In Rushen v. Spain, the United States Supreme Court stated that the right to personal
presence at all critical stages of the trial and the right to counsel are fundamental rights of
each criminal defendant.
34
In some cases contact between a judge and juror can violate
these rights.
35
Under the circumstances of this case, we conclude that no such violation
occurred. Randolph raises only the possibility that the lack of disclosure might have
prejudiced him in some indefinite way. In Rushen, the Court observed that the ex parte
communication [between the judge and a juror] was innocuous. They did not discuss any fact
in controversy or any law
__________

34
464 U.S. 114, 117 (1983).

35
See id. at 117-21.
applicable to the case. . . . Thus, the state courts had convincing evidence that the jury's
deliberations, as a whole, were not biased by the undisclosed communication . . . .
36
We
conclude that these observations are germane to this case as well and that the record supports
the district court's finding that Randolph was not prejudiced by the undisclosed
communication with the juror.
Mandatory review of the death sentence
circumstances;
defendant.
The jurors found three aggravating circumstances, that the murder was committed:
during the commission of a burglary, during the commission of a robbery, and to avoid or
prevent a lawful arrest. As a mitigating circumstance, they found that Randolph committed
the murder while under the influence of extreme mental or emotional disturbance.
[Headnote 18]
The evidence in this case supports the finding of all three aggravators. The
circumstances involving burglary and robbery are indisputable, and Randolph's obvious
motive for shooting Lokken was so that she could not identify him and aid police in arresting
him. We discern no evidence that the sentence was imposed under the influence of passion,
prejudice, or any arbitrary factor; nor was the mitigating evidence weighty. Considering the
crime and the defendant, we conclude that the sentence of death is not excessive.
CONCLUSION
None of Randolph's assignments of error warrants relief. We therefore affirm his
judgment of conviction and sentence.
__________

36
Id. at 121.
_____________

Nevada Reports 2001 (117 Nev.) PDF

Diunggah oleh

Informasi Dokumen

Judul Asli

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Nevada Reports 2001 (117 Nev.) PDF

Diunggah oleh

Hak Cipta:

Format Tersedia

117 Nev.

Anda mungkin juga menyukai