Doe vs. State, Legislature of the 77th Session (Nev. Supreme Ct. – Dec. 7, 2017)
In November 2000, the Nevada Constitution was amended to allow the possession and use of marijuana for the treatment or alleviation of various medical conditions. This amendment also required the Legislature to establish a registry of patients who were authorized to use marijuana for medical purposes. As a result, the Legislature enacted Assembly Bill 453, allowing registry identification cardholders to use medical marijuana without fear of state prosecution for certain marijuana-related offenses. Subsequently, the Legislature established two fees to defray the costs of administering the registration program: an application fee and a processing fee. In this appeal, the Supreme Court of Nevada examined whether Nevada’s medical marijuana registry violates the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.
In 2015, appellant John Doe applied for, and received, a registry identification card after his doctor recommended he try medical marijuana to treat his migraine headaches. Doe subsequently filed suit against the Nevada Legislature, the Governor, and the Department of Health and Human Services (the DHHS) (collectively, respondents). In particular, Doe argued that the medical marijuana registry and its associated fees violated his due process and equal protection rights, and his right against self-incrimination. Doe also argued that the DHHS committed fraud and was unjustly enriched by the registration fees.
Continue reading “Is Nevada’s medical marijuana registry unconstitutional?”
Nevada Appellate Courts Advance Opinions for December 7, 2017
MULLNER (TROY) VS. STATE
- Can a court consider felony convictions originating from juvenile offenses in habitual criminal sentencing.
IN RE: PARENTAL RIGHTS AS TO T.L.
- When does a parent lack standing to challenge a court’s placement decision following the termination of his or her parental rights.
AGWARA VS. STATE BAR OF NEVADA
- Can an attorney assert his Fifth Amendment right against self-incrimination to quash subpoenas issued by the State Bar that seek production of client accounting records and tax records.
NEVILLE, JR. VS. DIST. CT. (TERRIBLE HERBST, INC.)
- Does NRS Chapter 608 provide a private right of action for unpaid wages.
ABID VS. ABID (CHILD CUSTODY)
- Is illegally obtained evidence admissible in a child custody proceeding.
DOE VS. STATE, LEGISLATURE OF THE 77TH SESSION
- Does Nevada’s medical marijuana registry violate the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.
Gardner vs. Dist. Ct. (Henderson Water Park, LLC) (Nev. Supreme Ct. – Nov. 22, 2017)
In this proceeding, the Supreme Court of Nevada considered whether seven managers of a limited liability company (LLC) were subject to suit for personal negligence as individual tortfeasors or under an alter ego theory of liability.
The Gardners, on behalf of their child L.G. (the Gardners), filed suit after L.G. suffered injuries resulting from a near-drowning at Cowabunga Bay Water Park in Henderson. The Gardners brought suit for negligence against Henderson Water Park, LLC, which does business as Cowabunga Bay Water Park (the Water Park), and its two managing members, West Coast Water Parks, LLC, and Double Ott Water Holdings, LLC (the member-LLCs). In turn, Orluff Opheikens, Slade Opheikens, Chet Opheikens, Shane Huish, Scott Huish, Craig Huish, and Tom Welch (the Managers) have an ownership interest in, or manage, the member-LLCs, and they also served on a management committee governing the Water Park.
Continue reading “Does the alter ego doctrine apply to limited liability companies (LLC)?”
Collins (Lesean) vs. State (Nev. Supreme Ct. – Nov. 22, 2017)
A jury convicted Collins of robbery and first-degree murder, for which he was sentenced to life in prison without the possibility of parole. On appeal, Collins argued, among other issues, that the testimony of the lead investigator in the case violated the rule against a witness giving an opinion on a defendant’s guilt.
Four days after Payton went missing, two ATV riders discovered her decomposed body in a ravine. Drag marks led through the dirt and brush to the body. No purse, wallet, cell phone, or means of identification or transportation were found. Payton’s shirt was pulled up over her head, and she was shoeless. Three of her acrylic fingernails had broken off – two were found at the scene – and one of her pockets was inside out. Some nearby rocks had blood on them.
Payton’s sister identified her body. Although identifiable, the body had decomposed too much for the coroner to definitively state the cause of death. The autopsy established that before she died, Payton sustained three blows to her head from a rod-like instrument. While the blows did not fracture Payton’s skull, they were strong enough to render her unconscious. The coroner deemed Payton’s death consistent with asphyxiation or being locked in the trunk of a car in southern Nevada’s late summer heat.
Continue reading “Can a witness give an opinion about a defendant’s guilt?”
Nevada Appellate Courts Advance Opinions for November 22, 2017
BRADLEY VS. DIST. CT. (HUDSON)
- Does NRS 49.209’s privilege between a psychologist and patient apply when a criminal defendant seeks records related to a patient who is court-ordered to partake in therapy.
NATIONSTAR MORTG., LLC VS. SATICOY BAY LLC SERIES 2227 SHADOW CANYON
- Is commercial reasonableness a relevant inquiry in an HOA foreclosure sale of real property.
YU VS. YU
- When can a post-judgment vexatious litigant determination be challenged on appeal.
GARDNER VS. DIST. CT. (HENDERSON WATER PARK, LLC)
- Does the alter ego doctrine apply to limited liability companies.
COLLINS (LESEAN) VS. STATE
- Were a defendant’s constitutional rights violated on the first day of trial when the district court barred him from the courtroom for disruptive conduct for a two-hour period, during which it excused individual jurors for hardship, statutory ineligibility, and language barrier reasons.
- Can a witness offer an opinion as to a defendant’s guilt.
- When is a defendant entitled to a jury instruction on a lesser-included offense of voluntary manslaughter.
Sierra Pack’g v. Chief Ad. Off’r of NOSHA (Nev. Ct. App. – Nov. 16, 2017)
29 C.F.R. § 1910.132(f) requires employers to provide training regarding the use of personal protective equipment to employees exposed to hazards necessitating the use of such equipment. Sierra Packaging and Converting, LLC, argued the Nevada Occupational Safety and Health Administration improperly cited it for violating 29 C.F.R. § 1910.132(f), as no facts established that the subject employees were actually exposed to such a hazard in the course of their work or were required by that regulation to have fall protection training.
Nevada Occupational Safety and Health Administration (NOSHA) received an anonymous complaint alleging that Sierra Packaging and Converting, LLC (Sierra Packaging), violated NOSHA’s health and safety regulations by allowing employees to climb on warehouse racks without personal protection equipment (PPE). Pictures of three employees on the racking without PPE accompanied the complaint.
Continue reading “When must an employer train its employees on the use of protective equipment?”
Farmer (Steven) vs. State (Nev. Supreme Ct. – Nov. 16, 2017
Farmer was charged with numerous sexual offenses based on accusations that he used his position as a certified nursing assistant (CNA) to take advantage of multiple patients in his care. The State of Nevada argued that Farmer should face five of his accusers in one trial and Farmer argued in favor of separate trials. After a hearing on the matter, the trial court granted the State’s motion to join the offenses under the theory that they were committed pursuant to a common scheme or plan according to NRS 173.115(2). In this appeal, Farmer argued that the Supreme Court of Nevada has construed the common scheme or plan language to permit joinder only where the defendant had an overarching plan, which involved committing each offense as an individual step toward a predetermined goal, and since his offenses were crimes of opportunity, the trial court erred by joining them.
Continue reading “When can offenses be joined as a common plan or scheme?”
Nevada Appellate Courts Advance Opinions for November 16, 2017
IN RE: DISCIPLINE OF CHRISTOPHER READE
- Does SCR 102 provide for the imposition of a fine when the State Bar Disciplinary Board recommends that an attorney be suspended or disbarred.
FARMER (STEVEN) VS. STATE
- When can offenses be joined as being committed as parts of a common plan or scheme pursuant to NRS 173.115(2).
HARRIS V. STATE
- Can counsel’s affirmative misrepresentation regarding filing a postconviction petition and subsequent abandonment of the petitioner be an impediment external to the defense to satisfy cause for the delay under NRS 34.726(1)(a) for filing an untimely petition.
KNICKMEYER V. STATE OF NEVADA
- Do the provisions of NRS Chapter 289, which are intended to provide job-related protections to peace officers employed by law enforcement agencies, apply to bailiffs and marshals employed by the Eighth Judicial District Court.
SIERRA PACK’G V. CHIEF AD. OFF’R OF NOSHA
- What standard must the Nevada Occupational Safety and Health Administration utilize to establish employee exposure to hazard.
CITY OF LAS VEGAS VS. DIST. CT. (KAMIDE (STEVEN))
- Does NRS 50.155(1) impose a duty to limit out-of-court communications between witnesses about their testimony when the witness exclusion rule has been invoked.
Alotaibi (Mazen) vs. State (Nev. Supreme Ct. – Nov. 9, 2017)
In this appeal, the Supreme Court of Nevada determined whether, under the statutory definitions existing in 2012, the offense of statutory sexual seduction is a lesser-included offense of sexual assault when that offense is committed against a minor under 14 years of age.
The statutes defining statutory sexual seduction and sexual assault were amended in 2015. Under the 2015 amendments, any sexual penetration of a minor under the age of 14 is sexual assault, and it is no longer possible for statutory sexual seduction to be committed against a minor under the age of 14. Therefore, the analysis of the statutory elements in this opinion pertains only to the version of the statutes in place at the time the offenses were committed in 2012.
On the morning of December 31, 2012, Alotaibi arrived at the Circus Circus hotel where his friends had a room. In the hallway outside the hotel room, Alotaibi encountered A.D., a 13- year-old boy who was staying at the hotel with his grandmother. A.D. asked Alotaibi for marijuana, and they went outside the hotel to smoke it. Alotaibi made sexual advances toward A.D. in the elevator and outside the hotel, despite A.D.’s resistance. Alotaibi then offered A.D. money and marijuana in exchange for sex. A.D. testified that he agreed, but intended to trick Alotaibi into giving him marijuana without engaging in any sexual acts.
Continue reading “When is a defendant entitled to a jury instruction on a lesser included offense?”
Nevada Appellate Courts Advance Opinions for November 9, 2017
ALOTAIBI (MAZEN) VS. STATE.
- Is a statutory element that serves only to determine the appropriate sentence for an offense, but has no bearing as to guilt for the offense, an element of the offense for purposes of the lesser-included-offense analysis.