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Las Vegas vs. The Eighth Judicial District Court of Nevada (2006)
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Hardesty concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
QUOTES FROM THE MAJORITY'S DECISION
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
Lioce vs. Cohen (2008)
Before the Court En Banc, and over the partial dissents of Justices Parraguirre and Maupin, Justice Hardesty authored the majority opinion, which held, among other things, that an attorney’s use of jury nullification arguments, arguments injecting personal opinion, and “gold rule” arguments in a closing statement during a personal injury trial were improper because they encouraged jurors to look beyond the law and relevant facts, which may constitute grounds for a new trial.
QUOTES FROM THE OPINION
- ON THE DEFINITION OF JURY NULLIFICAITON: “ [a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.”
- ON WHY THE JURY NULLIFICATION IS IMPROPER: “His arguments were directed at causing the jurors to harbor disdain for the civil jury process-a defining, foundational characteristic of our legal system-and at perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers. These arguments were irrelevant to the cases at hand and improper in a court of law and constitute a clear attempt at jury nullification.”
- ON THE RELEVANT FACTORS IN DETERMINING WHETHER A TRAFFIC STOP IS REASONABLE: “In analyzing whether there was reasonable suspicion to justify an investigative stop of a slow driver, a reviewing court may consider a variety of relevant circumstances, including the road and weather conditions, the time of day, the driving pattern, the behavior of the driver, and any other circumstance that appears to be indicative of criminal activity in light of the officer's training and experience.”
- ON THE RULE AGAINST STATING IMPROPER PERSONAL OPINIONS TO A JURY: “Under Nevada Rule of Professional Conduct (RPC) 3.4(e), an attorney shall not state to the jury ‘a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant.’”
- ON WHY THE ATTORNEY’S OPINION WAS IMPROPER: “The comments noted above reflect Emerson's personal opinion about the justness of personal injury litigants' causes and the defendants' culpability. Emerson stated that because of the sheer frivolity of these cases, it was his personal crusade to defend his clients. He also indicated that these types of cases directly contributed to the decline of the public's perception of the legal profession and to the widespread impression that personal injury cases are merit less. By representing to the jury his personal opinion that the plaintiffs' cases were worthless, Emerson not only violated his ethical duties, he also prejudiced the jury against the plaintiffs.”
- ON GOLDEN RULE ARGUMENTS: “An attorney may not make a golden rule argument, which is an argument asking jurors to place themselves in the position of one of the parties. Golden rule arguments are improper because they infect the jury's objectivity.”
- ON WHY THE ATTORNEYS CLOSING ARGUMENT CONSTITUTED A GOLDEN RULE ARGUMENT: “During his closing argument, Emerson plainly stated to the jurors, ‘You send your son or daughter' to a friend's house, where he or she was injured, and questioned, '[D]oes that mean you just go out and sue [?]' (Emphasis added.) He invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the Langs' daughter's injuries. This question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence that the Langs and Knippenberg presented. Thus, Emerson's comment amounted to an impermissible golden rule argument.”
Las Vegas vs. The Eighth Judicial District Court of Nevada (2006)
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Hardesty concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
QUOTES FROM THE MAJORITY'S DECISION
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
State of Nevada vs. Rincon (2006)
In a unanimous three judge panel decision, authored by Justice Hardesty, and joined by Justices Becker and Parraguirre, the Court concluded that the Fourth Amendment’s reasonable suspicion requirement, which is required to justify an investigative traffic stop, is not satisfied by the mere fact that a driver is traveling at a slower than usual speed. The Court held that “absent evidence of a traffic violation, there must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises that a motorist who is driving slowly is intoxicated,” unless, under “very limited and narrow circumstances,” the stop is “permissible pursuant to the community caretaking exception to the Fourth Amendment.”
QUOTES FROM THE OPINION
- ON UNREASONABLE SEARCHES AND SEIZURES: "The Fourth Amendment prohibition against unreasonable searches and seizures extends to investigative traffic stops. In order for a traffic stop to comply with the Fourth Amendment, there must be, at a minimum, reasonable suspicion to justify the intrusion. Reasonable suspicion is not a stringent standard, but it does require something more than a police officer's hunch. A law enforcement officer has a reasonable suspicion justifying an investigative stop if there are specific, articulable facts supporting an inference of criminal activity."
- ON THE BALANCE BETWEEN THE PUBLIC INTEREST AND THE INDIVIDUAL INTEREST: “ ‘The touchstone of the Fourth Amendment is reasonableness.’ The reasonableness requirement ‘strikes a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.’ While there is a compelling public policy interest to protect Nevadans from drunk drivers, that interest is not served by allowing a police officer unfettered discretion to stop a driver for what may very well be a prudent driving decision.”
- ON THE RELEVANT FACTORS IN DETERMINING WHETHER A TRAFFIC STOP IS REASONABLE: “In analyzing whether there was reasonable suspicion to justify an investigative stop of a slow driver, a reviewing court may consider a variety of relevant circumstances, including the road and weather conditions, the time of day, the driving pattern, the behavior of the driver, and any other circumstance that appears to be indicative of criminal activity in light of the officer's training and experience.”
- ON THE COMMUNITY CARETAKING EXCEPTION: “The community caretaking doctrine recognizes that police officers have a duty to aid drivers who are in distress which is ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ The community caretaking exception applies if a police officer initiates a traffic stop based on a reasonable belief that a slow driver is in need of emergency assistance.
Johnson v. State of Nevada (2006)
Sitting En Banc, Justice Hardesty authored the unanimous decision, with Justice Rose, Maupin, and Douglas concurring, that upheld a death sentence conviction for the murders of four young adults. The court held: (1) that the Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to the selection phase of a bifurcated capital hearing (2) the defendant was not deprived of a fair hearing by prosecutor misconduct (3) the sentence passed mandatory death penalty review (4) none of the Defendant’s other issues establish a reversible error.
QUOTES FROM THE DECISION
- ON THE CONFRONTATION CLAUSE: “We held in Summers that the right to confrontation does not apply to evidence admitted in a capital penalty hearing. Our holding in Summers applies to the entirety of a capital penalty hearing, irrespective of whether the hearing is bifurcated into distinct phases as Johnson's hearing was. Even assuming that statements within the reports were testimonial under Crawford, pursuant to our reasoning in Summers, Johnson did not enjoy a Sixth Amendment right to confront their declarants.”
- ON PROSECUTOR MISCONDUCT: “Although we agree with Johnson that some remarks by the prosecutor were improper, the prejudice resulting from them was minimal, and they did not deprive him of a fair hearing. ‘[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone.’ Remarks by a prosecutor must be read in context and, if improper, will constitute harmless error when there is overwhelming evidence of guilt and this court can determine that no prejudice resulted to the defendant.”
- ON MANDATORY REVIEW OF DEATH SENTENCES: We are required pursuant to NRS 177.055(2)(c)-(e) to review every death sentence and independently consider three issues.” First, “we consider whether the evidence support the finding of the aggravating circumstance. Second, the Court considers whether the sentence “was imposed under the influence of passion, prejudice, or any arbitrary factor. Finally, the Court determines whether the “sentence was excessive considering both the crime and the defendant.”
QUOTES FROM THE CONCURRENCE
- ON THE CONFRONTATION CLAUSE: “For the reasons stated in my concurring and dissenting opinion in Summers v. State, I believe that capital defendants have a Sixth Amendment right to confront the declarants of testimonial hearsay statements admitted throughout an unbifurcated capital penalty hearing. Where the hearing is bifurcated into death-eligibility and selection phases, however, I believe that the right to confrontation extends only to evidence admitted during the eligibility phase."
Johnson v. State of Nevada (2006)
Sitting En Banc, Justice Hardesty authored the unanimous decision, with Justice Rose, Maupin, and Douglas concurring, that upheld a death sentence conviction for the murders of four young adults. The court held: (1) that the Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to the selection phase of a bifurcated capital hearing (2) the defendant was not deprived of a fair hearing by prosecutor misconduct (3) the sentence passed mandatory death penalty review (4) none of the Defendant’s other issues establish a reversible error.
QUOTES FROM THE DECISION
- ON THE CONFRONTATION CLAUSE: “We held in Summers that the right to confrontation does not apply to evidence admitted in a capital penalty hearing. Our holding in Summers applies to the entirety of a capital penalty hearing, irrespective of whether the hearing is bifurcated into distinct phases as Johnson's hearing was. Even assuming that statements within the reports were testimonial under Crawford, pursuant to our reasoning in Summers, Johnson did not enjoy a Sixth Amendment right to confront their declarants.”
- ON PROSECUTOR MISCONDUCT: “Although we agree with Johnson that some remarks by the prosecutor were improper, the prejudice resulting from them was minimal, and they did not deprive him of a fair hearing. ‘[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone.’ Remarks by a prosecutor must be read in context and, if improper, will constitute harmless error when there is overwhelming evidence of guilt and this court can determine that no prejudice resulted to the defendant.”
- ON MANDATORY REVIEW OF DEATH SENTENCES: We are required pursuant to NRS 177.055(2)(c)-(e) to review every death sentence and independently consider three issues.” First, “we consider whether the evidence support the finding of the aggravating circumstance. Second, the Court considers whether the sentence “was imposed under the influence of passion, prejudice, or any arbitrary factor. Finally, the Court determines whether the “sentence was excessive considering both the crime and the defendant.”
QUOTES FROM THE CONCURRENCE
- ON THE CONFRONTATION CLAUSE: “For the reasons stated in my concurring and dissenting opinion in Summers v. State, I believe that capital defendants have a Sixth Amendment right to confront the declarants of testimonial hearsay statements admitted throughout an unbifurcated capital penalty hearing. Where the hearing is bifurcated into death-eligibility and selection phases, however, I believe that the right to confrontation extends only to evidence admitted during the eligibility phase."
Chanos vs. Nevada Tax Commission (2008)
Justice Hardesty concurred in a unanimous opinion that voided the Nevada Tax Commission’s decision to grant a taxpayer a refund of use taxes because the commission violated Nevada’s Open Meeting Act. The decision requires the Nevada Tax Commission to deliberate, vote, and receive nonconfidential evidence in open session during its proceedings. The Court further held that the exception to the Open Meeting Law only allows the Tax Commission to close a session, upon a taxpayer’s request, for the limited purpose of receiving evidence, questioning witnesses, and hearing arguments concerning confidential information.
QUOTES FROM THE DECISION
- ON THE OPEN MEETING LAW: “Meetings of public bodies should be open whenever possible to comply with the spirit of the Open Meeting Law.”
- ON THE EXCEPTIONS TO THE OPEN MEETING LAW: “Because exceptions to the Open Meeting Law must be construed narrowly to favor openness and public bodies should meet openly whenever possible, we recognize that exceptions to the Open Meeting Law only extend to portions of a proceeding specifically, explicitly, and definitely excepted by statute.”
- ON THE CONSEQUENCE OF AN OVERBROAD INTERPRETATION OF THE EXCEPTION TO THE OPEN MEETING LAW: “[An] overbroad interpretation of the statutory exception would eviscerate the Open Meeting Law’s mandate that public bodies deliberate and vote in public meetings.”
ASAP Storage, Inc. et al. vs. The City of Sparks
Before the Court En Banc, Justice Gibbons authored the unanimous opinion, which ruled that even though Nevada has a rich history in protecting private property rights, a City’s decision to barricade streets and to deny owners entrance into their property for 48 hours during a flood was not a “taking” of private property under the Nevada Constitution. The Court held (1) the “takings” clause of Nevada’s Constitution extends not only to real property, but also to personal property (2) the city’s interference with appellant’s property did not constitute a “takings” because the city only temporarily interfered with the property and never appropriated or physically occupied the property during the flood (3) the government is immune from negligence that is related to preparing for and handling emergencies, but not pre-emergency negligence.
QUOTES FROM THE OPINION
- ON NEVADA’S “TAKINGS” STANDARD: “The Nevada Constitution states that ‘[p]rivate property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.’”
- ON WHY PERSONAL PROPERTY IS COVERED BY THE “TAKINGS” CLAUSE: “Specifically, that provision broadly applies to all types of privately owned “property” and includes no language to justify excluding personal property from its scope. Further, to define “private property” as not applying to personal property is not a reasonable alternative interpretation.”
- ON THE ACKNOWLEDGMENT OF EXPANSIVE INDIVIDUAL PROPERTY RIGHTS BY THE COURT: “To construe Nevada’s takings clause in that way would *** undermine the spirit of that provision, which we recently have noted ‘contemplates expansive property rights’ and provides the foundation of Nevada’s ‘rich history of protecting private property owners against government takings,’ while allowing for public safety and police powers.”
- ON THE STANDARD FOR A PHYICAL APPROPRIATION “TAKING” OF AN INDIVIDUAL’S PRIVATE PROPERTY: “A physical appropriation by ouster occurs when the government substantially interferes with an owner’s right of access to his or her property.” However, “the duration of any such impairment plays a significant role in determining whether the impairment substantially interferes with the owner’s right to access his or her property.”
- ON WHEN THE GOVERNMENT HAS IMMUNITY FOR PRE-EMERGENCY ACTS: : “NRS 414.110(1) creates governmental immunity for emergency preparation activities as well as emergency responses. Whether a pre-emergency act is immune turns solely on whether it was undertaken by the government in preparing for an emergency. Any pre-emergency acts that are not related to such preparation are not immunized under the statute.”
Turner vs. Mandalay Sports Entertainment (2008)
In a 4-3 decision, Justice Hardesty concurred with the majority opinion, authored by Justice Parraguirre, over the dissents of Justices Gibbons, Douglas, and Cherry, which concluded that a professional baseball team, which printed injury disclaimers on tickers, posted warning signs and made announcements concerning the danger of foul balls hit into the crowd, was not liable for the severe injuries caused by a foul ball that struck a patron sitting in a Beer Garden without protective screening as a matter of law. The majority expressly held that stadium owners have a limited duty to protect against injuries sustained from foul balls, and that once this duty is satisfied by providing sufficient protected seating, stadium owners have “no remaining duty to protect spectators from foul balls, which are a known, obvious, and unavoidable part of all baseball games.”
In contrast, the dissent, authored by Justice Mark Gibbons, argued that the negligence claim should not be dismissed as a matter of law because the patron was sitting in the Beer Garden, and the Limited Duty Rule should not be applied to areas outside of the stands because the Limited Duty Rule is a very specific exception to the general standard of care principles under Nevada’s comparative negligence system.
QUOTES FROM THE MAJORITY OPINION
- ON LIMITING THE ROLE OF THE JURY THROUGH THE ADOPTION OF THE LIMITED DUTY RULE: “Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule.” “The limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect spectators from foul balls within the confines of the stadium.”
- ON THE ROLE OF PROXIMATE CAUSE IN FOUL BALL INJURY CASES: “Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of ‘duty,’ it provides little guidance here.”
- ON THE REQUIREMENTS OF THE LIMITED DUTY RULE: “First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
- ON THE REASONING OF THE LIMITED DUTY RULE: “By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability. In addition, “[it] serves the important purpose of limiting expensive and protracted litigation that “might signal the demise or substantial alteration of the game of baseball as a spectator sport.”
- ON THE HIGH RISK OF DANGER REQUIREMENT: “The risk of an occasional foul ball, however, does not amount to ‘an unduly high risk of injury.’ Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s' negligence, and the 51s were entitled to judgment as a matter of law.”
- ON THE SCOPE OF THE LIMITED DUTY RULE AND PERSONAL RESPONSIBILITY: "The dissent reasons that summary judgment is inappropriate because the limited duty rule does not extend to areas outside of the stands, such as the Beer Garden. In reaching this determination, the dissent applies the limited duty rule to the stands but then concludes that traditional negligence principles apply to other areas of the ballpark. In doing so, the dissent creates a ‘shifting or moveable duty of care,’ which is triggered by the plaintiff's unilateral and volitional decision to move between parts of the stadium. In our view, the defendant's duty should not change at the plaintiff's impulse, and only one duty of care should apply with respect to the general ‘peril of objects leaving the playing field.’”
- THE ROLE OF THE JURY IN DETERMINING DUTY AND ASSUMPTION OF RISK: "Several other courts that have recognized duty as a legal question also have recognized that the primary implied assumption of risk doctrine merely ‘goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.’ These courts treat the doctrine as a part of the initial duty analysis, rather than as an affirmative defense to be decided by a jury. In our opinion, this is a better application of the doctrine, and one that makes it compatible with our comparative negligence statute. Accordingly, we overrule Mizushima to the extent that it held that the primary implied assumption of risk doctrine was abolished by our comparative negligence statute. Whether that doctrine bars a plaintiff's claim should be incorporated into the district court's initial duty analysis, and therefore it should not be treated as an affirmative defense to be decided by a jury.”
QUOTES FROM THE DISSENTING OPINION
- PUBLIC POLICY REASONING FOR NOT EXPANDING LIMITED DUTY RULE: “Since Mrs. Turner was sitting in the Beer Garden and not in the stands at the time of her injury, the limited duty rule should not apply. As the New Jersey Supreme Court recognized, to apply the limited duty rule ‘to [an] entire stadium would convert reasonable protection for owners to immunity by virtually eliminating their liability for foreseeable, preventable injuries to their patrons even when the fans are no longer engaged with the game.’ Thus, ‘[b]ecause principles of fairness, and by implication public policy, support the application of traditional tort concepts to areas outside of the stands,’ we should not expand the scope of the limited duty rule past the stands. Instead, the limited duty rule is a very specific, historically based exception to the general rule that traditional negligence standard of care principles apply under Nevada's comparative negligence system.”
Lioce vs. Cohen (2008)
Before the Court En Banc, and over the partial dissents of Justices Parraguirre and Maupin, Justice Hardesty authored the majority opinion, which held, among other things, that an attorney’s use of jury nullification arguments, arguments injecting personal opinion, and “gold rule” arguments in a closing statement during a personal injury trial were improper because they encouraged jurors to look beyond the law and relevant facts, which may constitute grounds for a new trial.
QUOTES FROM THE OPINION
- ON THE DEFINITION OF JURY NULLIFICATION: “ [a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.”
- ON WHY THE JURY NULLIFICATION IS IMPROPER: “His arguments were directed at causing the jurors to harbor disdain for the civil jury process-a defining, foundational characteristic of our legal system-and at perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers. These arguments were irrelevant to the cases at hand and improper in a court of law and constitute a clear attempt at jury nullification.”
- ON THE RELEVANT FACTORS IN DETERMINING WHETHER A TRAFFIC STOP IS REASONABLE: “In analyzing whether there was reasonable suspicion to justify an investigative stop of a slow driver, a reviewing court may consider a variety of relevant circumstances, including the road and weather conditions, the time of day, the driving pattern, the behavior of the driver, and any other circumstance that appears to be indicative of criminal activity in light of the officer's training and experience.”
- ON THE RULE AGAINST STATING IMPROPER PERSONAL OPINIONS TO A JURY: “Under Nevada Rule of Professional Conduct (RPC) 3.4(e), an attorney shall not state to the jury ‘a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant.’”
- ON WHY THE ATTORNEY’S OPINION WAS IMPROPER: “The comments noted above reflect Emerson's personal opinion about the justness of personal injury litigants' causes and the defendants' culpability. Emerson stated that because of the sheer frivolity of these cases, it was his personal crusade to defend his clients. He also indicated that these types of cases directly contributed to the decline of the public's perception of the legal profession and to the widespread impression that personal injury cases are merit less. By representing to the jury his personal opinion that the plaintiffs' cases were worthless, Emerson not only violated his ethical duties, he also prejudiced the jury against the plaintiffs.”
- ON GOLDEN RULE ARGUMENTS: “An attorney may not make a golden rule argument, which is an argument asking jurors to place themselves in the position of one of the parties. Golden rule arguments are improper because they infect the jury's objectivity.”
- ON WHY THE ATTORNEYS CLOSING ARGUMENT CONSTITUTED A GOLDEN RULE ARGUMENT: “During his closing argument, Emerson plainly stated to the jurors, ‘You send your son or daughter' to a friend's house, where he or she was injured, and questioned, '[D]oes that mean you just go out and sue [?]' (Emphasis added.) He invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the Langs' daughter's injuries. This question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence that the Langs and Knippenberg presented. Thus, Emerson's comment amounted to an impermissible golden rule argument.”
City of N. Las Vegas vs. The Eight Judicial District Court and Check City Partnership, LLC (2006)
Justice Hardesty authored the majority opinion, over the dissent of Justice Douglas, which denied the City of North Las Vegas’ petition for writ of prohibition or mandamus to vacate the District Court’s writs of prohibition and mandamus prohibiting the city from denying a special use permit to operate a payday loan center that was approved by the city’s planning commission. The Court held that (1) the City Council has no immediate right to appeal the District Court’s interlocutory order concerning mandamus relief, but the Court will exercise its discretion to consider the City’s writ petition. (2) An appeal to the city counsel from a planning commission decision may be abandoned because more than one appeal may be filed from a special land use permit decision. (3) The city council lacked authority to hear an administrative appeal from the planning commission’s decision to approve the payday loan permit.
In contrast, the dissent, authored by Justice Douglas, argues that even though the majority correctly concluded that the City’s “one appeal” practice violates the law, the majority should direct the district court to issue a new writ “directing the City Council to provide a new appeal period, in which the City Council must accept for filing the challenges of parties who deem themselves aggrieved.”
QUOTES FROM THE MAJORITY OPINION
- ON THE COURTS DISCRETION TO CONSIDER WRIT PETITIONS: “we will exercise our discretion to consider writ petitions despite the existence of an otherwise adequate legal remedy when an important issue of law needs clarification and this court's review would serve considerations of public policy, sound judicial economy, and administration."
- ON THE STANDARD FOR HEARING AN ADMINISTRATIVE APPEAL FROM A PLANNING COMMISSION DECISION: “As permitted by NRS 278.3195(1), the Code provides for an appeal by any person who can show that his or her property interests may be affected by a planning commission decision.”
- ON WHY MORE THAN ONE APPEAL MAY BE MADE: “Despite the City Council's arguments to the contrary, its practice of allowing only one appeal to be filed is, in the words of the district court, ‘problematic.’ ” “Since would-be appellants may have dissimilar grievances, allowing only one appeal could prevent others' grievances from being adequately addressed.” “Moreover, as in this case, other aggrieved persons' rights to challenge a planning commission decision might be impacted by the first appellant's failure to file a jurisdictionally proper appeal or to adequately prosecute the appeal."
- ON WHY THE CITY COUNCIL LACKED AUTHORITY TO HEAR THE PAYDAY CENTER APPEAL: : “Because Davis never demonstrated that her property rights might be affected by the planning commission's decision to grant Check City a special use permit to operate a payday loan center, the City Council exceeded its authority in ultimately considering the merits of her appeal.”
QUOTES FROM THE DISSENTS OPINION
- ON THE DISSENTS REASONING: “Since the City Council never allowed others to file an appeal, there is no way of knowing whether any of those persons were aggrieved, with standing to challenge the planning commission decision. Accordingly, although the majority accurately concludes that the City Council's “one appeal” practice violates the law, the majority fails to carry this reasoning to its logical conclusion. That is, any act taken under the unlawful practice is void, including the City Council's implementation of its purported duty to accept only “one appeal” during the administrative appeal period. Since the City Council's unlawful practice prevented it from properly proceeding, by accepting appeals from anyone who deemed himself or herself aggrieved, the appeal period was never consummated, rendering the finality of the planning commission decision null under the Code.”
- ON THE ADVERSE AFFECTS OF THE MAJORITY OPINION "In allowing the planning commission decision to stand even though the City Council never allowed for an effective appeal period, the majority's resolution impinges on not only Davis's and Check City's rights, but also the rights of any other person who relied on the City Council's “settled practice” of permitting only one appeal to be filed. As the City Council's unlawful practice prejudiced the rights of everyone interested in the matter, the remedy therefor should likewise provide relief to all those persons."
Silver State Electric Supply Co. vs. The State of Nevada ex rel. Department of Taxation (2007)
Sitting En Banc, Justice Hardesty concurred with a unanimous opinion (Justices Cherry and Saitta did not participate), authored by Justice Gibbons, which upheld a Nevada Department of Taxation regulation that requires a person, before seeking judicial review of a final tax determination, to pay the amount of the determination or enter into a written agreement with the Tax Department to do so. The Court held that the regulation did not deprive the Plaintiff of its right to equal protection or exceed its statutory authority by requiring written agreements to pay taxes in installments be personally guaranteed by a responsible person.”
QUOTES FROM THE MAJORITY OPINION
- ON THE REQUIREMENTS OF SEEKING JUDICIAL REVIEW ON TAX DETERMINATIONS: "NRS 360.395 provides, (1) Before a person may seek judicial review pursuant to NRS 233B.130 from a final order of the Nevada Tax Commission upon a petition for redetermination, he must:(a) Pay the amount of the determination; or(b) Enter into a written agreement with the Department establishing a later date by which he must pay the amount of the determination. (2) If a court determines that the amount of the final order should be reduced or that the person does not owe any taxes, the Department shall credit or refund any amount paid by the person that exceeds the amount owed, with interest determined in accordance with NRS 360.2935."
- ON EQUAL PROTECTION: “When a party contends that a statute violates its equal protection rights but does not allege the involvement of a suspect class or fundamental right, the statute is constitutional if the classification scheme created by that statute is rationally related to furthering a legitimate state interest. NRS 360.395 protects the state's legitimate interest in securing the payment of taxes. As these taxes fund public services, the payment requirement rationally relates to furthering the state's ability to do so. For these reasons, we conclude that NRS 360.395 does not deprive Silver State of its right to equal protection; before seeking judicial review, its terms must be complied with.”
- 0N DEFERENCE T0 THE TAX COMMISSION’S INTERPRETATION: “The Tax Commission has authority to adopt regulations to carry out the mandates of NRS 360.395. Accordingly, the Tax Commission implemented NAC 360.452 to regulate the type of ‘written agreement’ that the statute allows the Tax Department to enter into. In so doing, it was required to interpret the statute. We will defer to the Tax Commission's interpretation of NRS 360.395 if that interpretation is within the provision's statutory language. We note that the Legislature's acquiescence to the Tax Commission's reasonable statutory interpretation by not modifying the statute indicates that the interpretation accords with legislative intent.”
- ON EXCEEDING STATUTORY AUTHORITY: “NAC 360.452 does not exceed statutory authority. The Legislature granted the Tax Department the authority to collect taxes by written agreements, and NAC 360.452 directly relates to such written agreements. Also, the Legislature has not modified the statutory provision allowing for written agreements since the Tax Commission adopted the regulation. Consequently, Silver State was required to comply with this regulation in entering into any NRS 360.395 agreement with the Department, and its failure to do so properly resulted in the district court's dismissal of its petition for judicial review.”
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