SUMMARY OF COURT DECISIONS OF IMPORTANCE TO ASSEMBLY JUDICIARY ASSEMBLY COMMITTEE ON JUDICIARY FEBRUARY 8, 2011

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1 SUMMARY OF COURT DECISIONS OF IMPORTANCE TO ASSEMBLY JUDICIARY ASSEMBLY COMMITTEE ON JUDICIARY FEBRUARY 8, 2011 Prepared by Nicolas C. Anthony Legal Division, Legislative Counsel Bureau In response to Chairman Horne s request, listed below are cases in which a Nevada or Federal court has ruled since the 2009 Legislative Session that a Nevada statute is unconstitutional. Also listed are cases in which such courts have interpreted a statute, which may invite the Legislature to further clarify the law. NEVADA SUPREME COURT A. Unconstitutional Statutes I. Berkson v. LePome (new legal action after reversal on appeal) NRS II. Flamingo Paradise Gaming, LLC v. Chanos (smoking initiative) Nevada Clean Indoor Air Act - NRS * B. Judicial Interpretation III. Rivero v. Rivero (child custody) NRS , and FEDERAL COURT: UNITED STATES DISTRICT COURT A. Unconstitutional Statutes I. ACLU of Nevada v. Masto (sex offender requirements) A.B. 579 (2007) (NRS 179B.250, 179D.113, 179D.115, 179D.117, 179D.441, 179D.443, 179D.450, 179D.475, 179D.480,179D.495) S.B. 471 (2007) (NRS 176A.410, ) 1

2 NEVADA SUPREME COURT I. Berkson v. LePome, 126 Nev. Adv. Op. 46 (2010) In Berkson v. LePome, the Nevada Supreme Court held that NRS violates the separation of powers doctrine under Article 3, Section 1 of the Nevada Constitution, and struck the statute as unconstitutional. Under NRS , if a plaintiff brings a timely action and receives a judgment, and that judgment is subsequently reversed on appeal, the plaintiff or the plaintiff s heirs may bring another cause of action within 1 year after the reversal. In Berkson, the district court ruled in favor of the plaintiffs (Berkson and Malacky) on a trial for undue influence and other actions arising out of an estate proceeding. On appeal, the Supreme Court reversed the judgment, and in an unpublished order concluded that the jury s verdict was not supported by substantial evidence. The plaintiffs then filed a new action in district court; however, the district court dismissed the case under the doctrine of claim and issue preclusion (the fact that the case had already been litigated). The plaintiffs argued that they had an absolute right to file a new case under NRS , and therefore claim and issue preclusion should not apply. In a case of first impression, the Nevada Supreme Court held that NRS violates the separation of powers doctrine because it unconstitutionally interferes with the judiciary s authority to manage the judicial process and the court s ability to finally resolve matters on appeal by precluding subsequent and repetitive efforts to relitigate the same claims. In its written opinion, the Court discusses the potential legislative fixes the Legislature may consider. In dicta, the Court points to similar state statutes such as California, wherein another action may subsequently be commenced as long as the appeal was not reversed on the merits. Thus, the California approach authorizes the litigants to refile the action if the reversal was due to a technicality or issue other than the underlying merits of the case. In light of the Supreme Court s decision, unless the case is further appealed to the U.S. Supreme Court, NRS as it stands is unenforceable. The Legislature may wish to: (1) repeal NRS ; (2) let the statute stand as unenforceable; or (3) amend NRS in a manner similar to other states. 2 E-2

3 II. Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. Adv. Op. 39 (2009) *This case does not involve legislatively approved statutes, but rather a statutory scheme that was enacted by the voters through initiative petition. In Flamingo Paradise Gaming, LLC v. Chanos, the Nevada Supreme Court affirmed the district court s decision holding the Nevada Clean Indoor Air Act (NCIAA) constitutional as to civil enforcement, but unconstitutionally vague in the enforcement of the criminal provisions. By way of background, the NCIAA was enacted by initiative in 2006 and is codified in NRS The NCIAA prohibits smoking in most indoor public places, with certain exceptions for casino gaming areas, stand-alone bars and taverns, retail tobacco stores, strip clubs, and brothels. As placed on the ballot, the statutory scheme imposed both criminal and civil penalties for violations. After the NCIAA was passed by the voters, various business entities brought suit in district court for declaratory and injunctive relief, arguing that the statute was unconstitutional on several grounds. By examining the facial vagueness doctrine, the Court concluded that there are two approaches to a facial vagueness challenge, depending on the type of statute at issue. The first approach arises under a facial challenge to a civil statute, and the plaintiff must show that the statute is impermissibly vague in all of its applications. When the statute involves criminal penalties or constitutionally protected rights, the second approach involves a higher standard of whether vagueness permeates the text. Both of these standards are applied through the consideration of a two-factor test for vagueness challenges, whether the statute: (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct is prohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement. In conclusion, the Court upheld the district court finding that the civil penalties were permissible but the criminal penalties were unconstitutionally vague and should be struck. The Court also concluded that because the NCIAA contained a severability clause, the text of the civil provisions could be severed from the unconstitutional criminal provisions. In light of the Supreme Court s opinion, the NCIAA is currently enforceable as to civil penalties but unenforceable with respect to any criminal penalties. The NCIAA initiative petition was passed by the voters in 2006, and became effective December 8, As such, the Legislature was prohibited from amending the NCIAA for a period of three years; however, the Legislature may now choose to amend the NCIAA (NRS ). 3 E-3

4 III. Rivero v. Rivero, 125 Nev. Adv. Op. 34 (2009) In Rivero v. Rivero, Mr. and Mrs. Rivero agreed to a divorce decree that provided for joint physical custody of their minor child, with Ms. Rivero having the child five days a week and Mr. Rivero having the child two days a week. The decree awarded no child support. Less than two months after entry of the divorce decree, Ms. Rivero brought a motion to modify for child support. The district court dismissed the motion, and found that the parties had joint physical custody. Ms. Rivero then appealed to the Nevada Supreme Court. One of the issues on appeal was the definition of joint physical custody. Ms. Rivero and the Family Law Section of the State Bar requested the Court to clarify the definition of joint physical custody. Initially, to address the definition of joint physical custody, the Court defined legal custody as having basic legal responsibility for a child and making major decisions regarding the child. Additionally, the Court opined that joint legal custody can exist regardless of the physical custody arrangements. The Court defined physical custody as the time that a child physically spends in the care of a parent. The Court noted that Nevada law presumes that joint physical custody approximates a 50/50 timeshare. Some jurisdictions have adopted bright-line rules regarding the timeshare requirements for joint physical custody so that anything too far removed from a 50/50 timeshare cannot be considered joint physical custody. The Supreme Court concluded that, consistent with legislative intent and case law, in joint physical custody arrangements, the timeshare must be approximately 50/50. However, the Court also noted that absent legislative direction regarding how far removed from 50/50 a timeshare may be and still constitute joint physical custody, the law remains unclear. Therefore, to approximate an equal timeshare but allow for necessary flexibility, the Court held that each parent must have physical custody of the child at least 40 percent of the time (approximately three days a week) to constitute joint physical custody. The Court acknowledged that the Legislature is free to alter the timeshare required for joint physical custody, but adopted this guideline to provide clarity for the district courts. The Court ultimately held that the district court abused its discretion when it determined, without making specific findings of fact, that the parties had joint physical custody when it modified the custody arrangement set forth in the divorce decree. Thus, the Court reversed and remanded the matter to the district court for further proceedings, including a new custody determination pursuant to the definition of joint physical custody clarified in the opinion. In light of the Nevada Supreme Court s ruling, current law is controlled by case precedent and the definition of joint physical custody as fashioned by the Supreme Court. The Legislature may decide to codify this decision in state law, amend existing law with a different definition of joint physical custody, or choose to let the case law govern. 4 E-4

5 FEDERAL COURT: UNITED STATES DISTRICT COURT I. ACLU of Nevada v. Masto, 2:08-CV (D. Nev. Oct. 7, 2008) On October 7, 2008, the United States District Court for the District of Nevada granted the ACLU a permanent injunction prohibiting the enforcement of Assembly Bill No. 579 (A.B. 579) and Senate Bill No. 471 (S.B. 471). The Federal Court held that provisions of these bills amending sex offender registration and community notification requirements violated the Due Process, Ex Post Facto, and Double Jeopardy Clauses of the U.S. Constitution, and the Contract Clauses of the U.S. and Nevada Constitutions. A.B. 579 and S.B. 471 were enacted to comply with provisions of Federal law as mandated under the Adam Walsh Child Protection and Safety Act (42 U.S.C et seq.). Generally, the passage of A.B. 579 changed laws governing the registration and community notification of sex offenders. Prior to A.B. 579, registration of sex offenders and community notification was based on the offender s risk of recidivism, under a threetier system. Tier 1 was for offenders with a low risk of recidivism; Tier 2 was for offenders with a moderate risk of recidivism; and Tier 3 was for offenders with a high risk of recidivism. Under A.B. 579, a new three-tier system was created where offenders were now classified based on the specific offense that they had committed, instead of the risk of recidivism. This new system applied to all offenders who had committed an offense after July Generally, S.B. 471 changed the laws regarding where a sex offender may live and provided for electronic monitoring under the new classification created under A.B Previously, a sex offender placed on lifetime supervision, probation or parole or with a suspended sentence could not be in or near a playground, park, school or school grounds, movie theater or certain businesses that primarily have children as customers or have events which primarily children attend. Under this bill, a Tier 3 offender convicted of certain sexual offenses against a child under the age of 14 years could not live within 1,000 feet of any place designated primarily for children. Additionally, the bill prohibited certain sex offenders from being within 500 feet of certain locations frequented by children. A few days before the bills were to go into effect, the ACLU filed a complaint in Federal District Court requesting an injunction. Plaintiffs included nine individuals who were classified as Tier 1 offenders under the old system and would have had to register as Tier 3 offenders under the new law. In a five-page order granting the injunction, the District Court found that: (1) the bills do not provide procedural due process ; (2) application of these laws is the equivalent to a new punishment tacked on to the original sentence - sometimes years after the fact - in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contract clauses of the U.S. and Nevada 5 E-5

6 Constitutions ; and (3) based on the retroactive application without any procedural protections, the provisions violate the Due Process Clause of the United States Constitution. The Attorney General filed a notice of appeal in the Ninth Circuit Court of Appeals (Case No ) on October 29, The case is still currently pending. In light of the Federal District Court s ruling, the provisions of A.B. 579 and S.B. 471 are unenforceable. The Legislative Counsel Bureau and the Attorney General have both opined that new provisions enacted by A.B. 579 and S.B. 471 have been rendered null and void by the Federal District Court s order, and the statutory provisions pertaining to sex offenders that existed before the enactment of the provision of A.B. 579 and S.B. 471 remain in effect as if those new provisions were never enacted by the Legislature. Previous versions of the Nevada Revised Statutes that existed before codification of the 2007 legislation are available on the Legislature s website and in a booklet that is available through LCB Publications. In light of the foregoing, the Legislature may decide to: (1) await the outcome of the pending appeal; (2) repeal and replace only certain nonsubstantive changes; (3) repeal the statutory scheme enacted under A.B. 579 and S.B. 471 and replace with the prior existing law; or (4) amend the relevant statutes to comply with the constitutional concerns related to retroactivity and other issues as reasoned by the Federal District Court. 6 E-6