Month: July 2015

Can a parent be held responsible for child abuse when a guardianship is in place over a child?

Posted on by Jeff Jaeger

Jennifer L. v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – June 4, 2015)

The issue is whether a parent can be held responsible for neglecting a child when a legal guardianship is in place over the child.

Jennifer is civilly committed and resides in Wisconsin under a doctor’s care. She has been diagnosed with schizoaffective disorder. A court order requires that Jennifer take her prescribed medication and see a caseworker.

R.L. is Jennifer’s daughter. R.L. was residing in Nevada with her father, David, and his wife, Evelyn, at the time of David’s death in 2009. Evelyn cared for R.L. for a short time after David’s death and was appointed R.L.’s guardian in December 2009. However, in May 2010, Evelyn terminated her guardianship and Evelyn’s neighbor, Marjorie, became R.L.’s legal guardian. Thereafter, Marjorie moved to California and left R.L. under the care of Brenda. Although school documents identified Brenda as R.L.’s guardian, Brenda’s guardianship was never legitimately established pursuant to NRS Chapter 159.

While R.L. was residing with Brenda, she accused Brenda of battering her, encouraging her to sell marijuana, threatening to kill her if she called Child Protective Services, and spending her social security checks without providing for her basic needs. After R.L. resided with Brenda for three years, the Department of Family Services (DFS) removed R.L. The allegations against Brenda were unsubstantiated, but Brenda no longer wanted R.L. living in her home.

Subsequently, the State filed an abuse and neglect petition naming R.L. as a minor in need of protection pursuant to NRS Chapter 432B and asking the court to declare R.L. a ward of the court. The petition identified Jennifer and Marjorie as R.L.’s mother and legal guardian, respectively, and alleged that Jennifer’s mental health issues adversely affected her ability to care for R.L. Marjorie was eventually removed from the petition, leaving Jennifer as the sole responsible party.

Jennifer entered a denial in response to the petition. She also filed a motion to dismiss the petition, arguing that no material facts were at issue because she had neither legal nor physical custody of R.L. and therefore could not be responsible for neglect.

On October 31, 2012, an order of reasonable efforts was issued by the hearing master. The hearing master found that DFS made reasonable efforts pursuant to NRS Chapter 432B to prevent removal, including discussion with Jennifer about placing R.L. in her home. The hearing master further found that allowing R.L. to reside with Jennifer was contradictory to R.L.’s welfare.

On February 20, 2013, the hearing master issued a decision sustaining the allegations in the abuse and neglect petition and finding that Jennifer’s anxiety and depression affected her ability to provide care for R.L. Among other findings, the hearing master found specifically that (1) Jennifer was receiving intensive in-home care; (2) Jennifer had a co-occurring diagnosis of schizoaffective disorder with delusions and alcohol dependence; (3) Jennifer had severe memory impairment, for which she was required by court order to take medication; and (4) when R.L. last visited Jennifer, R.L. took on the parent role. The hearing master found that it was in R.L.’s best interest to be adjudicated a child in need of protection pursuant to NRS 432B.330 and recommended that R.L. remain in the custody and control of DFS. The juvenile division of the district court adopted the hearing master’s recommendation, finding Jennifer responsible for neglect because her mental condition prevented her from providing care for R.L. Jennifer’s request to stay the proceedings pending a writ petition to the Nevada Supreme Court was denied by the juvenile division of the district court.

Pursuant to NRAP 3A(b)(7), Jennifer cannot substantially appeal from the juvenile division of the district court’s abuse and neglect determination. Since Jennifer’s petition raised the important legal question of whether a parent may be responsible for abuse or neglect when parental rights have not been relinquished and a guardianship over the child pursuant to NRS Chapter 159 is in place, the Nevada Supreme Court exercised its discretion and considered the petition.

Jennifer argued that she cannot be responsible for neglect because Marjorie was R.L.’s guardian when the petition was filed. The State contended that NRS 159.079, the statute under which Marjorie’s guardianship was established, did not relieve a parent from the duty to provide for the care, support, or maintenance of a child. The juvenile court concluded that a guardianship need not be set aside for parental responsibility to exist.

Despite NRS 159.079’s plain meaning, Jennifer contended that her case was similar to Chapman v. Chapman, 96 Nev. 290, 294, 607 P.2d 1141, 1144 (1980), where the Nevada Supreme Court determined that a parent could not be responsible for neglect when the child was left with someone known to be providing proper care for the child. According to Jennifer, R.L. had been receiving proper care from Brenda, and there was no dispute over that fact. However, the Court noted that fact is disputed by both the State and the juvenile division of the district court; the facts established that Brenda was no longer willing or able to care for R.L. Thus, the juvenile court concluded that Chapman was inapplicable. The Court also determined that the rule announced in Chapman did not apply to this case.

The Court explained it may be true that R.L. was initially being properly cared for by her stepmother Evelyn and then by Marjorie. However, those circumstances changed when R.L. was residing with Brenda and reports of alleged abuse and neglect surfaced. Although the reports against Brenda were unsubstantiated, Brenda was no longer willing to provide care for R.L. Moreover, Jennifer was unable to provide care for R.L. due to her mental illness. Thus, at the time of the petition, R.L. was not receiving proper care, making this case distinguishable from Chapman.

Because Chapman is inapposite and NRS 159.079(7) explicitly preserves parental responsibility for a child, even when a guardianship is in place, the Court concluded that the juvenile court properly sustained the neglect petition based on Jennifer’s inability to provide proper care for R.L.

Nevada Supreme Court conducts a minimum contacts test

Posted on by Jeff Jaeger

Catholic Diocese, Green Bay v. John Doe 119 (Nev. Supreme Ct. – May 28, 2015)

The issue is whether Nevada courts have personal jurisdiction over a foreign Catholic diocese.

The Catholic Diocese of Green Bay, a religious organization incorporated and headquartered in Wisconsin, employed Father Feeney as a priest. Feeney later served as a priest in California before coming to the Diocese of Reno-Las Vegas.

It was alleged that, during Feeney’s time in Las Vegas, Feeney sexually assaulted John Doe. Doe sued the Diocese of Green Bay for negligently hiring and retaining Feeney, asserting that the Diocese is responsible for injuries caused by the sexual abuse.

The Nevada Supreme Court concluded that the Diocese of Green Bay did not have sufficient contacts with Nevada to show that it purposefully availed itself of the state’s laws and protections. The Court also found that Feeney was not the Diocese’s agent during his ministry in Las Vegas because his promise of obedience to the Diocese of Green Bay, through the ecclesiastical doctrine of incardination, was not sufficient to establish an agency or employment relationship.

Nevada Supreme Court adopts nonmutual claim preclusion

Posted on by Jeff Jaeger

Weddell v. Sharp (Nev. Supreme Ct. – May 28, 2015)

The Nevada Supreme Court adopted the doctrine of nonmutual claim preclusion, meaning that a defendant may validly use claim preclusion as a defense by demonstrating that (1) there has been a valid, final judgment in a previous action; (2) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first action; and (3) privity exists between the new defendant and the previous defendant or the defendant can demonstrate that he or she should have been included as a defendant in the earlier suit and the plaintiff cannot provide a good reason for failing to include the new defendant in the previous action.

Weddell and Stewart were former business partners who were engaged in multiple business ventures. Through time, several disputes arose between the partners regarding their business dealings. The partners agreed to informally settle their disputes by presenting them to a panel of three attorneys (attorneys). Because the attorneys had previous dealings with Weddell and Stewart, both Weddell and Stewart signed a Memorandum of Understanding in which they acknowledged the potential for conflicts of interest, waived those potential conflicts, recognized that the attorneys would be neutral in the dispute-resolution process, and agreed that the decision rendered by the attorneys would be binding, non-appealable and could be judicially enforced.

The Memorandum of Understanding did not specify the process by which the attorneys would go about rendering their decision, and the record did not clearly reflect the process that was actually taken. In any event, the attorneys issued a decision resolving the partners’ disputes that, for the most part, was favorable to Stewart. Stewart then filed a lawsuit against Weddell, seeking a declaratory judgment that the attorneys’ decision was valid and enforceable. Weddell filed an answer and counterclaim to Stewart’s complaint in which he asked the district court to enforce only the portion of the attorneys’ decision that was favorable to him. In support of his requested relief, Weddell questioned the attorneys’ neutrality in rendering their decision, specifically alleging that the attorneys had failed to answer certain questions that Weddell had wanted answered, that the attorneys had concealed pertinent facts from each other, and that the attorneys had concealed from Weddell their knowledge that Stewart had defrauded Weddell. Weddell, however, did not assert cross-claims against any of the attorneys. During the first day of a bench trial, appellant.

During the first day of a bench trial, Weddell informed the district court that he would enter a confession of judgment acknowledging that the attorneys’ decision was, indeed, valid and enforceable against him in its entirety. Weddell proceeded to confess judgment and stipulated to dismiss his counterclaim. Over two years later, however, Weddell instituted an action against the attorneys in which he asserted causes of action stemming from the attorneys’ conduct in the dispute-resolution process. The attorneys filed a motion to dismiss the complaint and requested attorney fees as sanctions, contending that, among other reasons, dismissal was warranted on claim preclusion principles and that Weddell had filed the complaint without reasonable grounds, warranting sanctions under NRS 18.010(2)(b). The district court granted the attorneys’ motion to dismiss, finding that the three factors for claim preclusion articulated by the Nevada Supreme Court in Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 194 P.3d 709 (2008), had been satisfied. The district court also entered a subsequent order granting the request for attorney fees. Weddell appealed both orders.

Five Star modified the previous four-factor test for when claim preclusion could be asserted as a valid defense in favor of the following three-factor test, which was the test that the district court in this case employed: (1) the parties or their privies are the same, (2) the final judgment is valid, and (3) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first case.

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Must DNA evidence prove a defendant is the victim’s father to support a conviction for incest?

Posted on by Jeff Jaeger

Guitron v. State (Nev. Ct. App. – May 21, 2015)

NRS 201.180 defines incest as occurring when persons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void either intermarry with each other commit fornication or adultery with each other. A parent and natural child are within the degree of consanguinity wherein a marriage between the two would be declared by law incestuous and void.

The issue is whether the State must present DNA evidence conclusively proving a defendant is the father of the victim to support a conviction for incest.

Guitron met the victim’s mother, Anita, in Las Vegas in 1997 or 1998. The couple dated for some time, after which Anita moved to Michigan. When she left Las Vegas, Anita was approximately two to three months pregnant with the victim, who she asserted was Guitron’s child. However, Anita did not tell Guitron she was pregnant and she had no contact with Guitron for some years after leaving Las Vegas. When the victim was five years old, Anita applied for child support from Guitron, which the court awarded following a positive paternity test.

In October 2010, Guitron called Anita while she was living in Ohio with the victim and her two other children fathered by another man. The victim, who was then 11 years old, overheard the conversation, realized it was her father on the phone, and asked to speak with him. The victim testified that during this first telephone conversation, Guitron told her he was her father. Anita described the victim as a kid in a candy store upon speaking with her father for the first time.

Following this phone call, Anita moved back to Las Vegas in late 2010 and resumed her relationship with Guitron. The victim, who was in elementary school, was thrilled to finally meet her father. Guitron began living with the family shortly after the move. During this time, the victim discussed sex with Anita and had at least some knowledge and understanding of sex.

When the victim was 12 years old, Anita realized the victim was pregnant. Initially, the victim told Anita a neighbor boy was the father. The next day, Anita took the victim to a pregnancy center where medical personnel confirmed she was eight months pregnant. Based on the victim’s statements during the examination, the medical staff called the police and alleged Guitron had sexually assaulted the victim. The victim then admitted to both Anita and the police that Guitron was the baby’s father. She explained she initially lied because Guitron told her to say the neighbor boy was the father. DNA testing by the Las Vegas Metropolitan Police Department conclusively proved Guitron was the father of the victim’s baby. Additionally, Guitron sent letters to the victim during the pendency of the case, openly admitting he was the baby’s father.

At trial, based on his statement during an interview to detectives prior to his arrest, Guitron asserted he and the victim only engaged in sex on one occasion. Further, he alleged the victim initiated that single sexual encounter, which occurred while Guitron was intoxicated and partially unconscious. Guitron argued the victim was sexually curious and wanted to have sex with him, and she was capable of understanding the consequences of her actions despite her age. He also asserted the State did not meet its burden of proof on the incest charge because the State did not present DNA evidence proving he was the victim’s father. The State countered with evidence Guitron had groomed the victim and engaged in sexual conduct with her on multiple occasions, even when the victim resisted his advances. The State also presented witness testimony that Guitron was the victim’s father.

The jury convicted Guitron of incest, four counts of sexual assault with a minor under the age of 14, and two counts of lewdness with a child under the age of 14. Guitron appealed.

On appeal, Guitron argued, among other issues, that his conviction for incest was not supported by the evidence, solely because the State failed to present DNA evidence conclusively proving he is the father of the victim.

NRS 51.265 provides that reputation among members of a person’s family by blood or marriage, or among his or her associates, or in the community, is not inadmissible under the hearsay rule if it concerns his or her birth, marriage, divorce, death, legitimacy, relationship by blood or marriage, ancestry or other similar fact of his or her personal or family history.

At trial, both the victim and her mother, Anita, testified Guitron was the victim’s father. Further, Guitron paid child support for the victim after paternity tests concluded he was the father of the victim. Thus, the jury heard testimony from both the victim and Anita that Guitron was the victim’s father. Therefore, the Nevada Court of Appeals believed that under NRS 51.265, the jury could reasonably conclude from the evidence presented, Guitron was the victim’s father.

Additionally, NRS 51.035(3)(a) provides a party’s own statement offered against him is not hearsay and is admissible against him. Guitron admitted to detectives that DNA testing confirmed his paternity in prior child support proceedings and he repeatedly told detectives the victim was his biological child. Thus, the Court concluded that Guitron’s numerous admissions to detectives are admissible evidence sufficient to prove paternity beyond a reasonable doubt, despite the State’s lack of DNA evidence of paternity to the jury.

Furthermore, 51.345(1) excepts from the hearsay rule statements that, at the time they are made, would subject the declarant to criminal liability or social disapproval, and that a reasonable person in the position of the declarant would not have made unless he believed it to be true. At trial, the State presented letters written by Guitron to the victim. In those letters, Guitron told the victim “you are my beautiful daughter” and “I love you,” and instructed the victim to remember “we had [a] talk in the backyard about the fact about [C.G.] being your sister and your daughter and my daughter, too. Remember me and you said that’s going to be weird like on Jerry Springer show. But me and you got a daughter together.”

Thus, in addition to the DNA evidence showing conclusively Guitron was the baby’s father, Guitron wrote several letters to the victim asserting she was his daughter and the victim’s baby was also his child. As this open admission of incest would and did subject Guitron to both criminal liability and social disapproval, and because Guitron did not argue he did not believe the statements to be true, these letters were likewise admissible evidence upon which the jury may have based its verdict. Thus, the Court found that based on Guitron’s own statements, the jury could reasonably infer he was the biological father of the victim. Accordingly, because ample evidence reflected that Guitron was the father of both the victim and her baby, the Court affirmed the incest conviction.

Is it a constitutional error if a court fails to notify the parties about a note from a jury?

Posted on by Jeff Jaeger

Manning v. State (Nev. Supreme Ct. – May 07, 2015)

A man entered the ABC Beer and Wine Store in Las Vegas where Potente was working. Potente recognized the man because she had seen him in the store two to three times before. During one of his prior visits, he spoke to Potente about selling either DVDs or CDs. When the man robbed the store, Potente stated that he looked around the store and then proceeded around the counter to where she stood behind the cash register. According to Potente, the man roughly pushed her aside and went to a set of plastic drawers where the store kept gaming money and receipts in envelopes, he took an envelope, and he then left the store. The robbery took approximately one minute to complete.

Three days after the incident, a responding officer returned to the convenience store with a six-person photo lineup. The officer showed Potente the lineup and asked her if she saw anyone in it that she recognized. Potente promptly identified Manning as the individual who came into the store that day and took the envelope. Manning was arrested after police discussed the case with Schafer, who was acquainted with Manning. The State subsequently charged Manning with burglary, battery with intent to commit a crime with a victim 60 years of age or older, and robbery with a victim 60 years of age or older.

The case proceeded to trial. The jury retired for deliberations late in the day and, about an hour later, gave the court a note indicating that it was deadlocked 10-2 in favor of conviction. The court instructed the marshal to tell the jury to come back the next day and continue deliberating. The court failed to inform the parties of the note until the next day after the jury returned its verdict finding Manning guilty of all charges.

After receiving the verdict and learning of the jury’s note that it was deadlocked, Manning filed a motion for a new trial. Manning argued that a new trial was warranted because he did not receive notice that the jury considered itself deadlocked, thus depriving him of his right to request a mistrial. The court denied the motion because the jury’s note did not contain a question about law or evidence.

The district court entered a judgment of conviction, sentencing Manning to six to 15 years in the Nevada Department of Corrections. Manning appealed.

The Nevada Supreme Court noted that the Ninth Circuit has determined that a district court’s failure to notify defense counsel about a jury’s inquiry during deliberations violates the defendant’s constitutional right to counsel during a critical stage of trial. See Musladin v. Lamarque, 555 F.3d 830, 840-43 (9th Cir. 2009). Accordingly, the presence of both the defendant and his or her counsel is required when discussing questions from the jury because counsel might object to the instruction or may suggest an alternative manner of stating the message, a critical opportunity given the great weight that jurors give a judge’s words. The defendant’s or attorney’s presence may also be an important opportunity to try and persuade the judge to respond.

Thus, the Court believed that due process gives a defendant the right to be present when a judge communicates to the jury, whether directly or via his or her marshal or other staff. A defendant also has the right to have his or her attorney present to provide input in crafting the court’s response to a jury’s inquiry. The Court held that a court violates a defendant’s due process rights when it fails to notify and confer with the parties after receiving a note from the jury. Therefore, the Court concluded that the district court erred in this regard in Manning’s case.

The Court also held that when a district court responds to a note from the jury without notifying the parties or counsel or seeking input on the response, the error will be reviewed to determine if it was harmless beyond a reasonable doubt.

The Court concluded that the district court’s error was harmless beyond a reasonable doubt. In this case, at the end of the day, after only a little more than an hour of deliberations, the jury’s note informed the district court that it was deadlocked 10-2. In response, the district court told the marshal to excuse the jury for the day and instruct them to return the next day to continue deliberations. The message that the district court instructed the marshal to give to the jury was simple and did not contain any legal instructions. Although the district court should have reconvened the proceedings and, on the record, discussed the jury’s note and conferred with counsel in developing a response, the Court did not believe that the result here would have been substantively different had it done so. It was unlikely that after only an hour of deliberations, the district court would have proffered additional instructions to the jury or required the jurors to continue deliberating past 5 p.m. Moreover, the Court believed that the district court correctly directed its marshal to excuse the jury and tell them to return the next day to continue deliberating. It was unlikely that the marshal would have altered this simple instruction in any meaningful or prejudicial manner. Therefore, the Court concluded that this error did not warrant reversal.

Are individuals injured while in a prison work release program covered by workers’ comp?

Posted on by Jeff Jaeger

Nev. Dep’t of Corrs. v. York Claims Servs. (Nev. Supreme Ct. – May 07, 2015)

NRS 616B.028(1) entitles a person to coverage under the modified program of industrial insurance established by regulations adopted by the State of Nevada Division of Insurance if that person is an offender confined at the state prison, while engaged in work in a prison industry or work program. The issue is whether the State or a private employer is responsible for workers’ compensation coverage for individuals injured while in a prison work release program. More specifically, does NRS 616B.028(1) apply to offenders participating in a work release program.

In 2010, Piper, who was convicted and imprisoned for burglary two years earlier, was transferred to Casa Grande Transitional Housing in Las Vegas, Nevada, to serve out the remainder of his sentence. Casa Grande is similar to a halfway house and is operated by the Nevada Department of Corrections (NDOC) for offenders participating in NDOC’s work release program. Among other various rules and restrictions, an offender at Casa Grande must either have a job or be in the process of searching for a job in the private sector.

Washworks Rainbow, LLC, a full-service car wash in Las Vegas, hired Piper to wipe down vehicles after they were washed. Washworks paid premiums on behalf of Piper to York so that Piper was covered under its workers’ compensation insurance coverage, just as Washworks did for all of its employees. After discovering that Piper had a background in gardening, Washworks’ owner, Olden, asked Piper to trim some trees on Washworks’ property. While trimming the trees, Piper fell off his ladder and struck his head on the ground. Piper, rendered unconscious by the fall, suffered a traumatic brain injury and was taken to the hospital. An emergency craniotomy was performed in order to accommodate brain swelling, essentially saving Piper’s life. Over the next four months, Piper underwent various brain surgeries and was transferred between hospitals and rehabilitation centers.

Following Piper’s injury, Olden submitted the standard insurance forms he used anytime an employee was injured. York, the workers’ compensation insurance provider for Washworks, notified Piper that it denied his claim from his ladder fall. York asserted that Piper was in the legal custody of NDOC while working at Washworks. Thus, York asserted that pursuant to NRS 209.492 and NRS 616B.028, NDOC was financially responsible for Piper’s workers’ compensation coverage under its own insurance program.

NDOC and the State of Nevada Risk Management (Risk Management) appealed York’s denial of coverage to the State of Nevada Department of Administration Hearings Division. The assigned hearing officer found that York’s denial of Piper’s claim was improper. The hearing officer concluded that York was responsible for coverage because Piper was injured in the course and scope of his employment at Washworks.

Eight days later, while walking around his recovery facility, Piper suffered a major seizure and fell, striking his head. Once again, Piper required emergency brain surgery. York notified Piper that it would not cover any medical charges following the date of his second head injury. York asserted that Piper’s second head injury was not work-related nor was it a result of his first head injury because the seizure was a nonindustrial intervening event.

Following York’s second coverage denial, Piper, NDOC, Risk Management, and York stipulated to forego the initial hearing on York’s second denial of coverage and consolidate both issues—York’s challenge of the hearing officer’s decision and Piper’s challenge of York’s second denial—before an appeals officer. The hearing officer granted the stipulation.

Following two days of hearings and written closing statements, the appeals officer was tasked with determining two issues. First, whether the hearing officer’s decision finding York responsible for Piper’s workers’ compensation coverage from his first injury was correct. Second, whether Piper’s seizure was an intervening act precluding York from responsibility for workers’ compensation coverage for Piper’s second injury.

The appeals officer found York liable for workers’ compensation coverage for both of Piper’s injuries. As to the first issue, the appeals officer found York liable because it found that Piper was an employee of Washworks. Further, the appeals officer found that York’s reliance on NRS 616B.028 was without merit. As to the second issue, the appeals officer again agreed with NDOC, finding that the first injury was the substantial contributing cause of Piper’s second injury.

York then petitioned for judicial review of the appeals officer’s decision. On review, the district court focused entirely on York’s NRS 616B.028 argument. The district court posited that the critical question was what did the legislature intend when it used the term “work program” in NRS 616B.028(1). After a plain-language reading, the district court found that “work program” in NRS 616B.028(1) included the work release program. Thus, the district court concluded that York was not responsible for workers’ compensation coverage because NDOC was responsible under NRS 616B.028(1). Accordingly, the district court set aside the appeals officer’s decision. NDOC appealed the district court’s order.

NDOC argued that the district court erred when it found that “work program” in NRS 616B.028(1) encompassed the work release program in which Piper participated. In response, York argued that the district court correctly determined that the plain and ordinary meaning of NRS 616B .028 showed that the work release program fell within the ambit of work program.

The Nevada Supreme Court concluded that “work program” in NRS 616B.028(1) is subject to more than one reasonable interpretation and is thus ambiguous. “Work program” could be broadly construed to include the work release program, as the district court concluded. It could also be narrowly construed to refer to a specific type of program under the auspices of the prison industries.

The original version of NRS 616B.028(1) was codified in 1989. It read, “while engaged in work in a prison industry program,” as opposed to today’s version, which reads “while engaged in work in a prison industry or work program.” The “or work” addition was implemented by the Legislature in 1995.  The legislative history reveals that “or work” was added to curtail a specific situation in which inmates who were participating in prison work camps with the Division of Forestry were suing the Division of Forestry for failure to train and inadequate equipment.

The Court reasoned that while NRS 616B.028’s legislative history might not precisely state the extent of what “work program” was meant to encompass, it was clear that it did not contemplate the work release program under consideration here. The work release program is codified in NRS Chapter 213. Prison industries and programs concerning forestry are codified in NRS Chapter 209. There is no evidence indicating that the Legislature intended to expand NRS 616B.028(1) in 1995 to include the work release program, which was already enacted at the time, by adding “or work.”

Therefore, the Court concluded that “or work,” which was added to the statute in order to resolve issues surrounding inmates working for the Division of Forestry, merely clarified that NRS 616B.028(1) refers to prison industry programs codified in NRS Chapter 209, whether they take place inside the prison walls, e.g., producing license plates, or outside the prison walls, e.g., outdoor day-labor projects.

Accordingly, the Court reversed the judgment of the district court and reinstated the decision of the appeals officer, which held York liable for Piper’s workers’ compensation coverage for both injuries.

Can a state condition access to public education upon a student’s consent to searches?

Posted on by Jeff Jaeger

In re L.A.W. (Nev. Supreme Ct. – May 07, 2015)

The issue is whether the State can condition a prospective minor student’s access to public education on that student’s waiver of his right to be free from unreasonable search and seizure under the Fourth Amendment of the Federal Constitution and Article 1, § 18 of Nevada’s Constitution.

Due to previous behavioral problems, L.W., a minor, was told he was being given a last chance to enroll in Legacy High School (Legacy), but only on a trial basis and on the condition that he sign a Behavior Contract. Among other conditions, the Behavior Contract stipulated that:

The following information lists the terms and conditions upon which L.W.’s enrollment in Legacy High School is based:

…

7. I realize that I am subject to random searches by school administration.

Both L.W. and his father signed the document.

The school’s administration decided to conduct a search of all its trial enrollees. During the search of L.W., a Legacy teacher found $129 and a large plastic bag, containing two smaller bags with an eight-ball imprinted on them, each holding a green, leafy substance. At the administration’s direction, a campus police officer conducted a field test of the substance in one of the smaller bags, which came back positive for marijuana. The officer advised L.W. of his Miranda rights and, after questioning him, placed the boy under arrest.

The State charged L.W. with possession of a controlled substance with intent to sell. At a contested hearing on the charges against him, L.W. objected to the admission of evidence resulting from the search in question, specifically, testimony by the searching teacher and the campus police officer describing the fruits of the search, including statements that L.W. allegedly made explaining how he came to be holding the cash and baggies. The Hearing Master declined to suppress on the grounds that L.W. had consented to the search via the Behavior Contract. Ultimately, the Hearing Master found that the green leafy substance was marijuana, that L.W. carried it with the intent to sell, and judged him guilty of the State’s charge. The district court affirmed the Hearing Master’s findings of fact, conclusions of law, and recommendations, and formally adjudicated L.W. a delinquent. L.W. appealed.

The Nevada Supreme Court explained that in many ways, public schools act in loco parentis, and school administrations are therefore granted certain authority, which permits a degree of supervision and control that could not be exercised over free adults. However, this authority is not carte blanche, and it could hardly be argued that students shed their constitutional rights at the schoolhouse gate. Thus, a warrant and suspicion-less search of a student, of the sort that the Legacy administration conducted upon L.W., was presumptively unreasonable, absent that student’s consent or other applicable exception, of which the State conceded there was none.

Courts of other jurisdictions have held that the State cannot condition access to public education on a prospective student’s renunciation of his or her right to be free from otherwise unconstitutional searches and seizures because, in light of the draconian result of a student’s failure to give consent, such clauses amount to contracts of adhesion and therefore lack the requisite earmarks of intelligence and voluntariness. But this reasoning does not pertain where a student seeks to pursue special activities beyond education because by choosing to go out for the team or to engage in other voluntary, nonathletic activities, such students also voluntarily subject themselves to a degree of regulation, higher than that imposed on students generally.

According to the State, though L.W. may have faced a difficult choice about whether to enroll in school, he had other options and was not forced into signing a behavior contract.

In terms of the availability of the other options the State claimed were available to L.W., the Court noted that the record simply did not support their existence—the State did not proffer any such evidence before the juvenile Hearing Master or juvenile court, nor did the State make any argument on such grounds; the juvenile Hearing Master likewise made no mention of the availability of alternative schooling to L.W. in its discussion of the supposed voluntariness of the consent to search.

The Court reasoned that despite the State’s arguments to the contrary, nothing set L.W. apart from the public school student body as a whole. If the State may condition L.W.’s access to public education upon his waiver of his constitutional right to be free from unreasonable search and seizure, it could seemingly do the same for any prospective public school student.

Thus, the Court concluded that the State had failed to demonstrate that L.W.’s consent to search was voluntary; there was no record evidence that public education options beyond Legacy were available to him, and the State could not constitutionally condition L.W.’s access to a public education on his waiver of his right to be free from unreasonable search and seizure. The district court therefore should have suppressed the fruits of the administration’s search of L.W., including, specifically, the testimony of the searching teacher and campus police officer. Accordingly, the Court reversed and remanded to the district court.

Does federal law preempt Nevada’s law limiting deficiency judgments?

Posted on by Jeff Jaeger

Munoz v. Branch Banking (Nev. Supreme Ct. – Apr. 30, 2015)

In 2007, the Mr. and Mrs. Munoz borrowed money from Colonial Bank and granted Colonial Bank a security interest in their real property. In 2009, the FDIC placed Colonial into receivership and assigned the Munozes’ loan to Branch Banking and Trust Company, Inc. (BB&T).

In 2011, NRS 40.459(1)(c), which implements certain limitations on the amount of a deficiency judgment that can be recovered by an assignee creditor, became effective. In 2012, after the Munozes had defaulted on their loan, BB&T instituted an action for a judicial foreclosure of the secured property, which the Munozes did not oppose. The property was sold for less than the value of the outstanding loan at a sheriff’s sale in 2013. BB&T then filed a motion seeking a deficiency judgment against the Munozes for the remaining balance of the loan.

Reasoning that NRS 40.459(1)(c) did not apply retroactively to the Munozes’ loan, which was originated and assigned before the statute’s effective date, the district court awarded a deficiency judgment to BB&T for the full deficiency amount sought. In its order, the district court did not address whether NRS 40.459(1)(c)’s present application was preempted by federal law. The Munozes appealed.

The issue is whether NRS 40.459(1)(c)’s limitation on the amount of a deficiency judgment that a successor creditor can recover conflicts with the federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA)’s purpose of facilitating the transfer of the assets of failed banks to other institutions.

The Munozes argued that NRS 40.459(1)(c) was not preempted by a conflict with federal law because it did not impair the Federal Deposit Insurance Corporation (FDIC)’s ability to act as the receiver for a failed bank or to transfer a failed bank’s assets. BB&T argued that the application of NRS 40.459(1)(c) to loans acquired from the FDIC was preempted by FIRREA because NRS 40.459(1)(c) interfered with the FDIC’s ability to assume and dispose of a failed bank’s assets.

Congress enacted FIRREA to enable the federal government to respond swiftly and effectively to the declining financial condition of the nation’s banks and savings institutions. Under FIRREA, when the FDIC is appointed receiver of a failed financial institution, it immediately becomes the receiver of all of that institution’s assets, including promissory notes that are in default. To assist the FDIC in carrying out this duty, federal law provides special status to the FDIC’s assignees so as to maintain the value of the assets they receive from the FDIC. The Nevada Supreme Court explained that if a state statute limits the market for assets transferred by the FDIC, it conflicts with FIRREA because it would have a deleterious effect on the FDIC’s ability to protect the assets of failed banks. Thus, state laws that limit the private market for assets of failed banks held by the FDIC conflict with FIRREA and are preempted.

The Court reasoned that since the statute limits a successor creditor’s recovery to no more than it paid for a loan, NRS 40.459(1)(c) prevents a creditor from realizing a profit on its purchase of a debt from an assignor creditor. This statute makes it less likely that a rational creditor would purchase such a loan. Therefore, NRS 40.459(1)(c)’s application to failed banks’ assets held by the FDIC would limit the private market for such assets by making it more difficult for the FDIC to dispose of these assets. Thus, the application of NRS 40.459(1)(c) to assets transferred by the FDIC would frustrate the purpose of FIRREA and directly conflict with this federal statutory scheme. Therefore, the Court held that NRS 40.459(1)(c) is preempted by FIRREA as to assets transferred by the FDIC.

Although the district court found that NRS 40.459(1)(c) did not apply to BB&T’s application for a deficiency judgment for a different reason, the Court noted that it reached the correct result in concluding that NRS 40.459(1)(c) did not shield the Munozes from deficiency judgment liability. The Court affirmed the district court’s order on the grounds that conflict preemption prevents NRS 40.459(1)(c)’s application in this case.

Judges sue Sheriff over electronic warrants

Posted on by Jeff Jaeger

Veil v. Bennett (Nev. Supreme Ct. – Apr. 30, 2015)

Veil became Sheriff of Lyon County, Nevada in 2007. At that time, Sheriff’s Office employees entered information from all arrest warrants delivered to the Sheriff’s Office into various electronic databases. In 2009, Sheriff Veil began trying to shift part of this task to the justice courts of Lyon County. Sheriff Veil proposed that Sheriff’s Office employees continue to enter information into the databases from arrest warrants issued by the justice courts based on Sheriff’s Office investigations. Sheriff Veil further proposed, however, that the justice courts enter information into the databases from all other justice court-issued arrest warrants, such as warrants arising from defendants’ failure to appear.

The Justice of the Peace of Walker River Township agreed to this arrangement. Bennett and Vecchiarelli, Justices of the Peace of Canal Township and Dayton Township, respectively, did not. At some point, the Sheriff’s Office ceased entering information into the databases from arrest warrants issued by the justice courts that were not based on Sheriff’s Office investigations.

Acting in their official capacities as Justices of the Peace, Bennett and Vecchiarelli petitioned the district court for a writ of mandamus to compel Sheriff Veil to enter information from all arrest warrants delivered to the Sheriff’s Office into the databases. The district court granted the petition, explaining that NRS 248.100 imposed on Sheriff Veil a duty to execute warrants, and that in the modern age, this duty included entering warrant information into electronic databases. Sheriff Veil appealed.

The issue is whether NRS 248.100(1)(c), which requires sheriffs to execute warrants, also imposes upon sheriffs the duty to enter warrant information into electronic databases.

According to NRS 248.100(1)(c), “[t]he sheriff shall … execute the process, writs or warrants of courts of justice. .. when delivered to the sheriff for that purpose.” NRS Chapter 248 does not define “execute,” but Black’s Law Dictionary defines the word as “[t]o perform or complete.” In light of the plain meaning of “execute” as that term relates to arrest warrants, the Nevada Supreme Court concluded that NRS 248.100(1)(c) unambiguously requires sheriffs to arrest defendants named in arrest warrants, but imposes no duty to enter warrant information into electronic databases.

The Court noted that Sheriff Veil must act diligently in the performance of his official duties, including his duty to execute arrest warrants by arresting defendants. The Court reasoned that it is within Sheriff Veil’s discretion, however, to determine how best to execute arrest warrants under NRS 248.100(1)(c), and the district court improperly attempted to control the exercise of that discretion.

Thus, the Court determined that while entering warrant information into electronic databases may further the objectives of both law enforcement and the justice system, NRS 248.100(1)(c) neither contemplates nor assigns this task. Therefore, it is the role of the Legislature, not the court, to determine which entity is best suited to this task. Accordingly, the Court concluded that the district court abused its discretion by ordering Sheriff Veil to enter warrant information into electronic databases, and reversed the district court order granting the petition for a writ of mandamus.

Are a defendant doctor’s personal medical records privileged in a medical malpractice case?

Posted on by Jeff Jaeger

Mitchell v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Apr. 30, 2015)

Bunting experienced heart problems following a tonsillectomy performed by Dr. Mitchell. Bunting’s guardian ad litem, Ravella, sued Mitchell and Mitchell’s employer for medical malpractice and negligent hiring and supervision, respectively. Ravella’s complaint alleged that Mitchell’s misadministration of anesthesia during the surgery caused then-seven-year-old Bunting’s heart to fail. Bunting survived, but his heart now beats with the help of a pacemaker.

At a deposition, Mitchell admitted that at the time he operated on Bunting he was addicted to Ketamine and Valium, which he had abused intermittently for years. Mitchell denied operating on Bunting—or any patient—while under the influence of drugs or alcohol. But, three months after Bunting’s tonsillectomy, Mitchell was arrested for domestic violence while high on drugs, and three months after that, Mitchell was arrested for driving under the influence. Mitchell was convicted of both offenses. He disclosed in the deposition that, after his arrests, he and his wife pursued marriage counseling and that he was treated for substance abuse by two different doctors, first on an outpatient, then on an inpatient basis.

RaveIla posited that Mitchell was impaired when he operated on Bunting and that Mitchell’s employer should have recognized his addictive behavior and prevented him from treating patients. Seeking support for her position, Ravella subpoenaed Mitchell’s counseling and substance abuse treatment records. Mitchell objected, citing the doctor-patient and family therapist-client privileges. The district court overruled Mitchell’s privilege claims. It held that Ravella’s claims and Mitchell’s and his employer’s defenses to them placed Mitchell’s drug addiction in issue in the litigation, thereby terminating the privileges that originally attached to his communications with his doctors and with his and his wife’s family therapist. Mitchell sought an extraordinary writ directing the district court to protect as privileged counseling and medical records relating to his substance abuse.

NRS 49.225 and NRS 49.247 protect as privileged confidential communications between a patient and doctor and between clients and their marriage and family therapist. These privileges initially attached to Mitchell’s doctor-patient and marriage and family therapist-client communications. The issue is whether these confidential communications lost their privileged status when Mitchell’s drug addiction became relevant to Ravella’s malpractice and negligent hiring and supervision claims.

The Nevada Supreme Court noted that a patient who voluntarily puts his physical or mental condition in issue in a lawsuit loses the protection of the doctor-patient privilege for communications with his doctor about that condition. Referred to as waiver by placing in issue or the in-issue or at-issue waiver doctrine, this judicially developed rule promotes fairness and discourages abuse of the privilege; it prevents the patient from putting his physical or mental condition in issue and then asserting the privilege to prevent an adversary from obtaining evidence that might rebut the patient’s claim. Nevada has amended its doctor-patient privilege statutes to create an express patient-litigant exception that, depending on the form of the exception statute, directs the same or a similar result as the at-issue waiver doctrine. See NRS 49.245(3).

The Court reasoned that Mitchell did not place his drug addiction in issue in the underlying malpractice suit; Ravella did. Analyzed purely as a matter of waiver, Mitchell’s doctor-patient privilege thus remained intact and was not affected by Ravella’s malpractice and negligent supervision claims. The Court went on to consider Nevada’s statutory patient-litigant exception.

Regardless of who raised the issue of the patient’s condition, for the patient-litigant exception to apply, the party seeking to overcome the privilege still must show that the condition of the patient is an element of a claim or defense in the proceeding. The Court indicated that relevance alone does not make a patient’s condition an element of a claim or defense. At minimum, the patient’s condition must be a fact to which the substantive law assigns significance.

The Court concluded that Mitchell’s drug addiction was not an element of Ravella’s malpractice claim against him. To establish medical malpractice, a plaintiff must show that: (1) . . . the doctor’s conduct departed from the accepted standard of medical care or practice; (2) . . . the doctor’s conduct was both the actual and proximate cause of the plaintiffs injury; and (3) . . . the plaintiff suffered damages as a result. While Mitchell’s drug addiction may have been relevant, it was not an element of Ravella’s medical malpractice claim.

The Court reached the opposite conclusion with respect to Ravella’s negligent hiring and supervision claims. Unlike her malpractice claim against Mitchell, Ravella’s negligent hiring and supervision claims against his employer required her to establish that the clinic knew or should have known that Mitchell was unfit for the position he held. For the purposes of NRS 49.245(3), this made Mitchell’s condition an element of Ravella’s negligent hiring and supervision claims.

The Court conditionally granted the writ and directed the district court to review the doctor-patient records in camera and enter such orders respecting their production and use consistent with the Court’s opinion.

The Court determined that no basis existed to overcome the privilege that attached to Mitchell’s and his wife’s confidential communications with their marital and family therapist under NRS 49.247. Neither Mitchell nor his wife put their counseling sessions in issue in the litigation by RaveIla against Mitchell and Mitchell’s employer. The at-issue waiver doctrine, therefore, did not apply, for the same reasons it did not apply to Mitchell’s medical records.

Furthermore, no issue respecting the treatment provided by the Mitchells’ marital and family therapist was implicated, much less an element of a claim or defense, in this case. For that reason, the Court held that the exception did not apply and ordered the district court to grant a protective order prohibiting discovery of the Mitchells’ marriage and family therapy sessions.