Annual Santa Fe Dinner Join Hosts Kim Fenner and Margo Piscevich

January 2016, Vol. 38, No. 1
The
OFFICIAL PUBLICATION OF THE WASHOE COUNTY BAR ASSOCIATION
Thursday, January 21, 2016
Annual Santa Fe Dinner
Join Hosts Kim Fenner and Margo Piscevich
E
ach
January since
2006, Washoe
County Bar
members and
guests have
celebrated the
Association’s
1905
founding with
a dinner at
the popular
Santa Fe
Basque
restaurant in
downtown
Reno. This
year the
WCBA Board
has named
Margo Piscevich and Kim Fenner
as our Honorary Dinner Hosts.
Margo and Kim, both long time
members of Washoe County Bar
Association, have recently retired
from the practice of law. Please
join them for a picon punch or
two. The Bar opens at 5:30 and
dinner is served at 6:30. Dinner
``
Random
Thoughts
PG 2
Conversations
On Discovery
PG 3
Pro bono
PG 5
SPECIALTY
COURTS
PG 6
FAMILY LAW
PG 8
Appellate
Briefs
PG 10
is family style. Reservations are
limited to the first 200 guests.
$40 per person. $320 for a table
of eight with signage. RSVP
online at wcbar.org/events.
JUDICIAL
ETHICS
PG 12
MEDIATION
Marital waste
PG 15
PG 16
Random Thoughts
Cotter Conway
President
So you want to be a lawyer..........
M
ost aspiring lawyers in the
early history of America
had few options for
studying law. There were few law schools
in America and only those persons with
considerable wealth could afford such
a luxury. As a result, many were forced
to engage in legal study through an
apprenticeship with a practicing lawyer.
These apprenticeships were widely
derided as an unsatisfactory way to learn
the law, but one of the nation’s most
famous lawyers studied the law through
an apprenticeship.
Our 16th President, Abraham
Lincoln, became a lawyer under an Illinois
law enacted in 1833. This law stated that
to be a lawyer, someone simply had to
“obtain a certificate procured from the
court of an Illinois county certifying to
the applicant’s good moral character.”
So, on September 9, 1836, Lincoln
was issued a license to practice law by two
justices of the Illinois Supreme Court.
Later, in a more formal session, on March
1, 1837, Lincoln appeared before the clerk
of the Illinois Supreme Court and took
an oath to support the Constitution of
the United States and of Illinois. Lincoln
was then formally enrolled as an attorney
The
licensed to practice law in all the courts of
the state of Illinois. No formal schooling,
no bar examination!
Lincoln lacked the necessary resources
to attend a law school and there were
no such schools in rural Illinois in those
days anyway, so to prepare for his legal
career, Lincoln read William Blackstone’s
Commentaries on the Laws of England,
and borrowed from Stephan Logan,
an attorney who would later become
Lincoln’s law partner. Lincoln’s early
career as a lawyer was a vocation, and
an apprenticeship, rather than a formal
or informal learned study of the various
subjects in law, followed by a formal
standardized examination.
Most modern lawyers now attend an
accredited law school and then sit for
their respective state’s bar examination,
but apprenticeships are still an option in
a few states. In California, Maine, New
York, Vermont, Virginia, Washington
and Wyoming, it is referred to as law
office study and the participants called
law readers. Law office study is very rare
and law office readers comprised only 60
of the 83,986 people who took state and
multi-state bar exams in 2014, according
to the New York Times.
HOLLY PARKER, Editor
GINA MACLELLAN, Managing editor
Annual subscription rate for non-members of WCBA: $36
The Writ is the official publication of the Washoe county Bar Association
Articles appearing in The Writ express the views of the authors and not
necessarily those of the WCBA. For Advertising call The Writ at 775-7864494. WCBA reserves the right to accept or deny any advertising.
WCBA, P.O. Box 1548, Reno NV 89505
Tel: 775-786-4494 FAX: 775-324-6116
www.wcBar.org e-mail: GINA @wcbar.org
Regardless of the path one might take
to becoming a lawyer, there are many
ways to learn about the law long before
one decides to attend law school. Each
year, the Washoe County Bar Association
hosts the Nevada High School Mock Trial
Regional Competition. This program
was created to help high school students
acquire a working knowledge of our
judicial system, develop analytical abilities
and communication skills, and gain an
understanding of their obligations and
responsibilities as participating members
of our society. Here comes the ask.
Each year, the Washoe County
Bar Association looks to its attorney
membership to act as scoring judges for the
event. It is an enlightening opportunity to
witness some of the great young minds in
our local community and provide some
guidance from your experience as a lawyer.
This year, the Regional Competition will
be held on Friday, February 19, at the
Bruce R. Thompson Courthouse and
Federal Building. I look forward to seeing
many of you there to help mentor the
next generation. You never know, one
may turn out to be president one day.
(Please see page 19 for signup form.)
PRESIDENT Cotter conway
VICE PRESIDENtCraig denney
SECRETARY
justin bustos
TREASURER
patricia halstead
SERGEANT-AT-ARMS
holly parker
EXECUTIVE DIRECTORGINA MACLELLAN
Printed on recylable paper using vegetable-based ink.
2
January 2016, Vol. 38 No. 1
Conversations on Discovery
By Wesley M. Ayres, Discovery Commissioner
D
espite the fact that federal
discovery rules are routinely
amended, complaints about
costs, delays, and burdens in civil litigation
have persisted for many years. In May
2010, the federal Advisory Committee
on Civil Rules (“Advisory Committee”),
part of the Judicial Conference of the
United States, sponsored a Conference
on Civil Litigation to identify litigation
problems and explore the opportunities
for improvement. The participants—
more than 200 invited judges, lawyers,
and academics—agreed that “the time
has not come to abandon the system and
start over.” Rather, they determined that
the disposition of civil actions could be
improved through education of the bench
and bar, implementation of pilot projects,
and rules amendments. See Advisory
Comm. on Civil Rules and Comm. on
Rules of Practice and Procedure, Jud.
Conf. of the U.S., Report to the Chief
Justice of the United States on the 2010
Conference on Civil Litigation 1, 5-12
(2010), available at http://www.uscourts.
gov/rules-policies/records-and-archivesrules-committees/special-projects-rulescommittees/2010-civil (follow report
hyperlink).
After considering comments and
testimony, the Advisory Committee
finalized its proposed rules amendments
in April 2014, and the Standing
Committee on Rules of Practice and
Procedure approved them in May 2014.
See Comm. on Rules of Practice and
Procedure, Jud. Conf. of the U.S., Report
to the Chief Justice of the United States
and Members of the Judicial Conference of
the United States 75 (2014), available at
http://www.uscourts.gov/ rules-policies/
archives/committee-reports/reportsjudicial-conference-september-2014.
The committee’s proposals were approved
by the Judicial Conference in September
2014, and the Supreme Court approved
the proposed amendments on April 29,
2015. See Transmittal of Proposed Rules
Amendments to Congress, Admin. Office
of the U.S. Courts, at 13 (Apr. 29, 2015),
http://www.uscourts.gov/file/18022/
download?token=4S6SRw0T [hereinafter
“Transmittal”]. Congress took no contrary
action, so the amendments became
effective on December 1, 2015. See
Rules Enabling Act, 28 U.S.C. § 2074(a)
(2012). The amendments impacting
discovery are discussed below.
The need for cooperation in discovery
has long been recognized by courts. See,
e.g., Shapiro v. Freeman, 38 F.R.D. 308,
312 (S.D.N.Y. 1965) (“[i]t is time that
depositions be conducted by members
of the bar in a cooperative manner, in
accordance with both the letter and spirit
of the rules, without petty bickering”);
see also Cardoza v. Bloomin’ Brands, Inc.,
No. 2:13-cv-01820-JAD-NJK, 2015
WL 6123192, at *6 (D. Nev. Oct. 16,
2015) (“[c]ounsel should strive to be
cooperative, practical and sensible, and
should seek judicial intervention ‘only
in extraordinary situations that implicate
truly significant interests’”) (quoting
In re Convergent Techs. Secs. Litig., 108
F.R.D. 328, 331 (N.D. Cal. 1985)). In
this spirit, Rule 1 has been amended to
emphasize that the civil rules should be
construed, administered, “and employed
by the court and the parties” (emphasis
added) to secure the just, speedy, and
inexpensive determination of every action
and proceeding. Although some “takeno-prisoners” litigators may disagree, “[e]
ffective advocacy is consistent with—and
indeed depends upon—cooperative and
proportional use of procedure.” See Fed.
R. Civ. P. 1 advisory committee’s note;
see also NRCP 26(g)(2)(C) (essentially
precluding discovery requests and
responses that are “unreasonable or unduly
burdensome or expensive, given the needs
of the case, the discovery already had in
the case, the amount in controversy, and
the importance of the issues at stake in the
litigation”); Nev. Rules of Prof ’l Conduct
R. 3.2 (lawyer must make reasonable
efforts to expedite litigation, including
discovery).
The deadline for issuing scheduling
orders has also been modified. Although
scheduling orders still must issue as soon
as practicable, the deadlines for issuance
have are now the earlier of (a) 90 days
after any defendant has been served with
the complaint (instead of 120 days),
or (b) 60 days after any defendant has
appeared (instead of 90 days). See Fed. R.
Civ. P. 16(b)(2). In addition, three items
have been added to the list of matters that
may be included in a scheduling order:
(a) a provision for the preservation of
electronically stored information (“ESI”);
(b) an agreement reached under Federal
Rule of Evidence 502 regarding the
possible waiver of protection following
disclosure of information protected by
the attorney-client privilege or the workproduct doctrine; and (c) a directive that
the parties request a court conference
before filing a discovery-related motion.
See id. 16(b)(3)(B)(iii), (iv), (v).
The amendments also change the
scope of discovery. For several years,
federal civil actions have been subject to
a two-tiered standard. The presumptive
standard allowed parties to obtain
discovery “regarding any nonprivileged
matter that is relevant to any party’s
claim or defense.” For good cause,
the court could order discovery of any
matter relevant to the subject matter
involved in the action. The amended rule
provides a single standard governing the
scope of discovery; information is now
discoverable if it
is relevant to any party’s
claim or defense and
proportional to the needs
of the case, considering the
importance of the issues
at stake in the action, the
amount in controversy,
the parties’ relative access
continued next page
January 2016, Vol. 38 No. 1
3
Discovery Continued from page 3
to relevant information,
the parties’ resources, the
importance of the discovery
in resolving the issues, and
whether the burden or
expense of the proposed
discovery outweighs its
likely benefit. . . .
See id. 26(b)(1) (emphasis added).
This amendment reinforces the parties’
obligation to consider these factors in
making discovery requests, responses, or
objections. See id. advisory committee’s
note. The amended rule removes language
explaining the extent of discovery (e.g.,
may include the location of relevant
documents) as unnecessary. See id.
The proportionality factors should
look familiar to practitioners, since
they essentially come from former Rule
26(b)(2)(C)(iii) (which now states
that discovery must be limited if “the
proposed discovery is outside the scope of
discovery permitted by Rule 26(b)(1)”).
The order of those factors has been altered
to add prominence to the importance of
the substantive issues at stake, and the
committee note emphasizes that courts
should consider the private and public
values at issue in the litigation—parties
seeking nonmonetary remedies, or raising
public policy issues, must have sufficient
discovery to prove their cases. See id.
The language requiring courts to consider
“the parties’ relative access to relevant
information” is new, but this consideration
was already implicit in former Rule 26(b)
(2)(C)(iii). The rule also acknowledges
that some cases involve “information
asymmetry” (i.e., one party has much
discoverable information, the other very
little). In those cases, proportionality
may require one party to bear greater
burdens in responding to discovery than
the other. See id.
The Advisory Committee cautions
that the party seeking discovery does not
necessarily bear the burden of addressing
all proportionality considerations. Indeed,
a party claiming undue burden or expense
ordinarily has far better information
regarding that contention. Conversely,
a party requested to provide discovery
4
January 2016, Vol. 38 No. 1
may have little information about the
importance of the discovery in resolving
the issues as understood by the requesting
party.
But boilerplate objections
that discovery is not proportional are
not proper under the amended rule.
Instead, courts will expect parties to
address proportionality considerations
at their Rule 26(f ) conference, and in
scheduling and pretrial conferences,
with court relief available only if other
efforts to address these issues prove
unsuccessful. “The parties and the court
have a collective responsibility to consider
the proportionality of all discovery
and consider it in resolving discovery
disputes.” See id.
The prior version of Rule 26 is also
being amended to remove language
that has often been misunderstood and
misapplied. For many years, too many
attorneys and courts have maintained
that the scope of discovery extended
to any matter that was “reasonably
calculated to lead to the discovery of
admissible evidence.” That contention
was never correct. In fact, the “reasonably
calculated” language was added to Rule 26
in 1946 because parties were attempting
to use inadmissibility to bar the discovery
of otherwise relevant information. See
Transmittal at 118. Relevance—whether
to the subject matter, or to the parties’
claims and defenses—has always defined
the scope of discovery. Amended Rule 26
removes the old “reasonably calculated”
sentence, and replaces it with the following
language: “Information within this scope
of discovery need not be admissible in
evidence to be discoverable.” See Fed. R.
Civ. P. 26(b)(1).
Other provisions of Rule 26 have
been changed as well. Rule 26(c), the
rule governing protective orders, has
been amended to make clear that courts
may allocate the expenses of discovery,
when appropriate.
See id. 26(c)(1)
(B). Amended Rule 26(d) is new, and
it allows a party to serve an early request
for production—that is, a party who
has been served with the summons and
complaint may serve and be served with
a Rule 34 request for production at any
time “[m]ore than 21 days” after service
of process. See id. 26(d)(2)(A). For
purposes of determining the deadline
for service of a written response, “[t]he
request is considered to have been served
at the first Rule 26(f ) conference.” See
id. 26(d)(2)(B). The purpose of this early
request is to facilitate discussion at the
Rule 26(f ) meeting and at the initial case
management conference with the court.
See Transmittal at 70. The amendments
to Rule 26(d) also permit parties to
stipulate to case-specific sequences of
discovery. See Fed. R. Civ. P. 26(d)(3).
Under amended Rule 26(f ), the parties’
discovery plan must state their views and
proposals regarding preservation of ESI
and orders under Federal Rule of Evidence
502 (thus paralleling the amendments to
Rule 16(b)). See id. 26(f )(3)(C), (D)
Rules 30(a)(2), 30(d)(1), 31(a)(2), and
33(a)(1) have all been amended to reflect
the recognition of proportionality in Rule
26(b)(1); previously, these rules referred
only to Rule 26(b)(2). Rule 34(b)(2)
(A) has been modified to reflect the new
provision at Rule 26(d)(2) allowing early
service of a request for production. Rule
34(b)(2)(B) contains two amendments.
The first—requiring parties to state
any grounds for objection “with
specificity”—is designed to eliminate
broad, boilerplate objections. See Fed. R.
Civ. P. 34 advisory committee’s note. The
second allows a party to state that it will
produce copies of responsive documents
instead of permitting inspection of those
documents. But the production must
be completed “no later than the time for
inspection specified in the request, or
another reasonable time specified in the
response.” This is intended to eliminate
a response in which a party agrees to
produce documents in due course, but
without indicating when production will
actually occur. See id. Finally, Rule 34(b)
(2)(C) now requires that an objection
state whether any responsive materials
are actually being withheld on the basis
of a given objection. “This amendment
should end the confusion that frequently
arises when a producing party states
several objections and still produces
information, leaving the requesting
party uncertain whether any relevant and
responsive information has been withheld
on the basis of the objections.” See id.
PRO BONO CORNER
Rule 37 has been amended to provide
that a failure to produce documents (as
opposed to the failure to serve a written
response) will be sufficient to support
a motion to compel. See id. 37(a)(3)
(B)(iv). The only other change to Rule
37 concerns subsection (e). Previously,
this subsection provided that absent
exceptional circumstances, a court could
not impose Rule 37 sanctions for a party’s
failure to provide ESI “that was lost as a
result of the routine, good-faith operation
of an electronic information system.” For
various reasons, this short provision was
deemed inadequate:
This limited rule has not
adequately addressed the
serious problems resulting
from
the
continued
exponential growth in
the volume of such
information.
Federal
circuits have established
significantly
different
standards for imposing
sanctions
or
curative
measures on parties who fail
to preserve electronically
stored
information.
These developments have
caused litigants to expend
excessive effort and money
on preservation in order
to avoid the risk of severe
sanctions if a court finds
they did not do enough.
Id. 37(e) advisory committee’s note.
Accordingly, amended Rule 37(e)(1)
now provides that if a party fails to take
“reasonable steps” to preserve ESI that
should have been preserved, and the ESI
cannot be restored or replaced, the court,
upon a finding of prejudice, “may order
measures no greater than necessary to
cure the prejudice.” The determination
of whether “reasonable steps” have been
taken to preserve ESI may be affected
by myriad factors, including the party’s
sophistication with litigation; a party’s
knowledge of and ability to protect against
certain risks; and whether preservation
efforts were appropriately proportional
(considering factors such as the party’s
resources, etc.). Neither party is assigned
the burden of proof on this issue; rather,
each party is responsible for providing
such information and argument as it
can, and the court may ask either side to
provide more. See id.
In the event the court finds that
a party improperly failed to preserve
evidence “with the intent to deprive
another party of the information’s use in
litigation,” Rule 37(e)(2) prescribes three
remedies; the court may (a) presume that
the lost ESI was unfavorable to the party
who failed to preserve it; (b) instruct
the jury that it may or must presume
the information was unfavorable to that
party; or (c) dismiss the action or enter
a default judgment. The prescribed
measures are discretionary, and the
court need not adopt any of them
when the lost information is relatively
unimportant, or lesser measures would
be sufficient to redress the loss. See
id. Further, this subdivision does not
apply to instructions other than adverse
inference instructions. Thus, it does not
preclude a court from permitting a party
to present evidence concerning the loss
of ESI, and instructing the jury that it
may consider that evidence, inter alia,
in making its decision. See id. Finally,
nothing in amended Rule 37(e) precludes
an independent tort claim for spoliation
Wes Ayres is the Discovery Commissioner
for the Second Judicial
District Court. His
columns are online and
searchable at wcbar.org.
Lawyer in the Library
(bold denotes volunteering more than
once this year)
Bryce C. Alstead
Sarah V. Carrasco
Bryan J. Carpenter
Theodore E. Chrissinger
Travis H. Clark
Alison Colvin
Linda N. Daykin
Gerald M. Dorn
Jack S. Grellman
Doug R. Rands
David J. Reese
Devon T. Reese
Tamatha R. Schreinert
Clark V. Vellis
Nevada Legal Services
(bold denotes multiple cases/clinics)
Cases
Ryan Campbell
Alison Colvin
Geoffrey Giles
Edmund Gorman
Stephen Harris
Michael Lehners
Rendal Miller
Sean Patterson
Bruce Rader
David Reese
Muriel Skelly
John Springgate
Rodney Sumpter
Kevin Van Ry
McClure Wallace
Clinics
Edwin Basl
Alison Colvin
Ryan Earl
Lane Mills
Natalie Reed
Joseph Sanford
Peter J. Smith
Kenneth Stover
Kevin Van Ry
Luke Welmerink
Kriston Whiteside
January 2016, Vol. 38 No. 1
5
SPECIALTY COURTS
By Honorable Dorothy Nash Holmes
T
New and Improved Specialty Courts in Nevada
hree million dollars sounds
like a lot of money, especially
when it is “new” money
from the Nevada Legislature. The 2015
Legislature voted a $3 million General
Fund appropriation to the Administrative
Office of the Courts to distribute to
specialty courts, provided we add 800900 new participants in one year. That
sounds easy enough, but not when the
money becomes available at the start
of the new fiscal year on July 1st and
distribution decisions are not made until
October.
While Nevada has had 46 specialty
courts for years, several more were created
in recent years and funded as self-pay,
with grants or portions of courts’ budgets.
When the new money was considered,
those previously existing, but not AOCfunded, finally got their shot at “a piece of
the pie.” In addition, 21 new programs are
now funded and have only nine months
to gear up into full operation.
The first step was to set aside $200,000
as “seed money” to start new DUI Courts
in areas not yet fully served. Felony DUI
Courts are intended to pay for themselves
with participants paying the majority of
program costs, per statute in Nevada.
Spreading therapeutic justice farther
across Nevada, four new DUI Courts
were authorized to be funded in the
Fourth Judicial District Court; the Sixth
Judicial District Court; Western Region
(Fallon, Yerington and northern Mineral
County); and Las Vegas Municipal Court.
In a new state rule, all courts will now
have to assess participant fees, except for
mental health, family, juvenile, homeless
and veterans courts, which are mostly
populated with needy or poverty-level
persons. Payments to each court must go
back into that court program, and not to
the governing entity’s General Fund.
Once the funding decisions for the new
money were approved by the state Judicial
Council, regional subcommittees of the
Specialty Court Funding Committee
6
January 2016, Vol. 38 No. 1
met to review applications and allocate
Court. The Second Judicial District gets
the remainder of the $3 million based
increased funding for its existing Adult
on population, with 68% going to Clark
Drug Court and funds to start up a new
County and surrounding communities;
Medication-Assisted Treatment program
17% to Washoe County; and 15% to
and to expand its Mental Health Court
the rural region. Those regions should
into the northwestern part of the state.
produce new participant numbers
Rural Nevada needs Family Courts
commensurate with their distributions to
so they were funded in the First and
bring in the new 800-900 participants.
Fourth Judicial Districts. A new Juvenile
The southern Nevada share of
Diversion Court will start in the Sixth
$1,903,922 will fund new programs in
Judicial District. More money will
Municipal Courts in Boulder City (drug
fund existing Adult Drug Courts in the
court); Henderson (veterans court); Las
Fourth, Fifth and Sixth Judicial Districts,
Vegas (veterans court); and Mesquite
and augment the existing Juvenile Drug
(habitual offender court). New Justice
Court in the Fourth Judicial District. The
Court programs receiving funds include:
Western Regional Court will add a new
Las Vegas (veterans
court); North Las
Vegas
(community
court); and Laughlin
(drug court.) The
Eighth
Judicial
District
Court’s
existing mental health
and drug courts got
additional funds from
the $3 million, as did
the Las Vegas Justice
Drug Court, and
Las Vegas Municipal
Court’s YO program
Large Deposition Suites
(youthful offenders),
Convenient Location
WIN ( prostitutes)
and HOPE Court.
Court Reporters Certified in Nevada
From
Washoe
and California
County’s share of
Videoconferencing
$476,000,
Sparks
Online Scheduling
Justice Court will
Statewide and National Coverage Available
be starting a new
“Alcohol and Other
Hoogs Reporting Group
Drugs Court” and
is the best choice for you.
Reno Justice will get
In Northern Nevada (775) 327-4460
new funding for its
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Legislature but not
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previously
funded
apart from the longwww.hoogsreporting.com
standing Compliance
Reliability, accuracy, and thoroughly
professional court reporting service.
Medication-Assisted Treatment program
and a Mental Health Court. Justice
Courts in Carson City and East Fork
will both receive funds for Misdemeanor
Drug Court and Sobriety Court,
respectively. The rural courts split a total
of $418,950.
While the Ten Key Components of
Drug Court were first adopted in 1997 by
the then-fledgling National Association
of Drug Court Professionals (NADCP)
and a drug court research body, Nevada’s
Judicial Council has waited since 2004
for our own Specialty Court Funding
Committee to formally accept the national
standards and require adherence to them.
That was accomplished in September
and ratified by the Judicial Council in
October. Now the Key Components
and best practice standards published by
the NADCP are the accepted basis for
Nevada’s treatment courts.
Thus, the scramble is now on for
21 new programs to get started, and
all existing ones to figure out how to
implement the national specialty court
guidelines and criteria designed to ensure
excellence and consistency. Many of
Nevada’s existing 46 specialty courts
did not have the resources or staffing to
follow all the Key Components which
require court teams who do case staffing,
community partnerships, expedited
case handling and wrap-around social
services. Now their funding will depend
upon it; programs not meeting the new
state guidelines and criteria will lose AOC
funding.
Nevada will now have 67 treatment
courts. All will have to install and use
the Drug Court Case Management
(DCCM) computerized system created
by the Administrative Office of the
Courts approximately two years ago.
That will standardize Nevada’s practices
and reporting for the treatment courts in
a state that was among the first to open
drug courts in the 1990s. It’s about time.
Judge Dorothy Nash Holmes presides over Dept. 3
in Reno Municipal Court.
She is adjunct faculty at
TMCC and UNR, and
teaches a course on Specialty
Courts for the online Justice
Management Master’s Degree
Program at UNR.
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January 2016, Vol. 38 No. 1
7
FAMILY L AW
By Alexander Morey, Silverman, Kattleman, Springgate, Chtd.
Preference? What is a Preference?
L
ast month, I outlined the recent
family law legislation, AB 362.
This month, I focus on a piece
of the new child custody legislation, AB
263. AB 263, Section 6 reads “When
a court is making a determination
regarding the physical custody of a child,
there is a preference that joint physical
custody would be in the best interest of
a minor child if:”1 Not a lot of words
there. Seems simple enough. But, what
is a preference?
The immediately preceding section
establishes a presumption in favor of joint
legal custody. The Legislative Counsel’s
comment to the enactment states
“Sections 5 and 6 provide that if a parent
has demonstrated, or has attempted to
demonstrate but has had his or her efforts
frustrated by the other parent, an intent
to establish a meaningful relationship
with a child, such a demonstration
or attempted demonstration creates a
presumption that joint legal and physical
custody, respectively, is in the best interest
of the child.”2 So, is a preference a
presumption?
The American Heritage Dictionary
of the English Language, 4th Ed.,
contains “n. The selecting of someone
or something over another or others”
as the first definition for “preference”.
Black’s Law Dictionary, Revised 4th Ed.,
defines a presumption of law as “a rule
of law that courts and judges shall draw
a particular inference from a particular
fact, or from particular evidence, unless
and until the truth of such inference is
disproved.” Black’s defines a presumption
of fact as “an inference . . . of the truth
or falsehood of any proposition of fact
drawn by a process of probable reasoning
in the absence of actual certainty of its
truth or falsehood, or until such certainty
can be ascertained.” That, in this author’s
humble opinion, doesn’t clear much up.3
What about Nevada case law?
Some years ago, Nevada followed the
“tender years doctrine” in custody cases.
Described crudely, the doctrine said
custody of very young children should
be awarded to the mother unless she was
proved unfit.4 In one case weakening
the doctrine, the Nevada Supreme Court
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8
January 2016, Vol. 38 No. 1
COURTS
declared the tender years doctrine, the
maternal preference, applied only when
all else was equal between the parties.5 At
the end of its life, the maternal preference
was an additional weight placed on the
scales at the end of a custody analysis if,
and only if, the scales were at equilibrium.
So, a preference is a factor in the best
interests analysis.
But, in guardianship cases, the
“parental preference” is a presumption
that a parent should have custody of
a child absent a showing of parental
unfitness or extraordinary circumstances.6
The preference applies at the beginning
of a case. A preference is a presumption
against non-parent custody.
Then there is the “familial preference”
in abuse and neglect placement decisions:
“Preference must be given to placing the
child in the following order: (1) With
any person related within the fifth degree
of consanguinity to the child or a fictive
kin.”7 Addressing this preference, the
Nevada Supreme Court determined it
is a factor that falls under the “overall
umbrella of the child’s best interest.”8
The preference applies at the beginning
of a placement decision (or upon the first
application by a relative for placement),
but only requires the trial court to first
consider placement with a qualified
relative.9 The final placement decision
rests in the discretion of the trial court.
The “parental preference” comports
with the Legislative Counsel’s comment.
The “preference” for joint physical custody
is a “presumption” in favor of joint
physical custody that must be overcome
by a preponderance of the evidence. But
the last cases on a “preference” in custody
decisions gives and the recent case on
the “familial preference” seems to give a
different meaning to preference: a factor
to tip the scales, perhaps only in case of
a tie.
The case law is not clear on whether
a preference is a presumption in disguise,
a factor mandated by the legislature for
consideration in every case, or something
else. It is clear the drafters of the bill
intended a “preference” to differ from a
presumption. But it is not clear how. The
hashtag for AB 263 is almost certainly
#appealtofollow.
ENDNOTES
1
2015 Nev. Stat. 445
2
Id. (emphasis added).
3
There is a preference in favor of a plaintiff’s
choice of forum . . . or is it a presumption.
M.K.C. Equip. Co. v. M.A.I.L. Code, 843 F.
Supp. 679, 683 (D. Kan. 1994) (“Generally,
the plaintiff’s choice of forum is given great
deference. The burden on the party seeking
to overcome the preference for the plaintiff’s
chosen forum is significant. ‘Unless the
balance is strongly in favor of the movant
the plaintiff’s choice of forum should rarely
be disturbed.’ . . . . A valid forum selection
clause may supersede the presumption in favor
of the plaintiff’s choice of forum.”) There is
a preference to strictly construe restrictive
covenants in deeds . . . but it carries a burden
of proof to overcome; is it a presumption?
Rodgers v. Reimann, 361 P.2d 101, 103 (1961)
(speaking of a burden of proof to overcome
a preference: “to carry the burden they must
overcome the constructional preference against
restrictions limiting the use of land”).
4
Peavey v. Peavey, 85 Nev. 571, 573, 460 P.2d
110, 111 (1969) (“We think the implication
in our statute to be that legislative policy
directs that children of tender years belong
to their mother in the absence of particular
circumstances establishing that she is unfit.”)
5
Arnold v. Arnold, 95 Nev. 951, 953, 604 P.2d
109, 110 (1979).
6
Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d
438, 440 (1995) (holding “the parental
preference policy is a rebuttable presumption
that must be overcome either by a showing
that the parent is unfit or other extraordinary
circumstances”).
7
NRS 432.550(5)(b).
8
Clark Cty. Dist. Atty. v. Eighth Judicial Dist.
Court, 123 Nev. 337, 346, 167 P.3d 922, 928
(2007).
9
Id.
Alexander Morey served as the Honorable
Judge Deborah Schumacher’s law clerk
from 2008 through
2010 before entering
private practice with
Silverman Kattelman
Springgate, Chtd.
where he practices
family law.
Judge Scott Pearson named
Politician of the Year
Judge Pearson has been named
Politician of the Year by the Human
Services Network. Past winners include
U.S. Senator Harry Reid, Governor
Kenny Guinn, Senator Bill Raggio and
Mayor Bob Cashell. Judge Pearson and
the winners in each of the other categories
will be honored at the 27th Annual
Human Services Awards Thursday,
January 14, 2016 from 8 to 10am in the
Capri Grand Ballroom at the Peppermill
Resort and Casino.
Save the Date
United
States
District
Court
Conference, Thursday, May 12, 2016,
Atlantis Hotel, Reno, Nevada.
The 2016 U.S. District Court
Conference in Reno, Nevada, will provide
six hours of CLE credits along with a
one hour ethics program. Registration
information will be sent to all members of
the State Bar of Nevada in early February,
2016. If you have any questions about
the conference, please contact District
Court Executive Lance S. Wilson at
702.464.5456.
LawPay Merchant
account
WCBA joins State Bar to offer the
LawPay Merchant Account — a credit
card processing solution recommended
by over 60 bar associations.
To learn more call 866-376-0950
or visit www.nvbar.org/affiniscape. You
can find the link on the homepage at
wcbar.org. Your participation supports
the State Bar of Nevada, Washoe
County Bar and Clark County Bar.
January 2016, Vol. 38 No. 1
9
APPELLATE BRIEFS
By Debbie Leonard, McDonald Carano Wilson, LLP
TOP TEN APPELLATE PRACTICE TIPS FOR THE NEW YEAR
J
anuary is a time for making
resolutions and setting goals for
the upcoming year. In that spirit, I
provide you with my top ten appellate
practice tips to guide your practice for
2016. These are derived from recent
rule changes, new case law and insights
that the justices and judges of Nevada’s
appellate courts have shared at CLE
courses and meetings of the Appellate
Litigation Section.
1. Routing statements: Don’t
forget to include a routing
statement in any brief, writ
petition or fast-track statement
that you file, as required by
amendments to NRAP 3C,
3E, 21 and 28. The routing
statement must discuss whether
the case is one that should
be retained by the Supreme
Court or assigned to the Court
of Appeals. Read NRAP 17
carefully to determine how
your case should be assigned.
If the matter is one that is
presumptively assigned to the
Court of Appeals but presents
an issue of first impression or
statewide importance, you may
advocate that it be heard by the
Supreme Court. Draft your
routing statement accordingly.
2. The district court record:
Make a thorough record below
to support any future appeal.
Preserve objections, ensure they
are transcribed and assert your
legal arguments to the district
court. To the extent you intend
to argue on appeal that the
questions presented involve
matters of first impression or
statewide public importance,
10
January 2016, Vol. 38 No. 1
you must first make those
arguments in the district court.
3. The docketing statement:
Make sure to use the new
docketing statement form.
Within 20 days after an appeal
is docketed, the appellant must
file a docketing statement, as
required by NRAP 14. The
Supreme Court just modified
the form to include what is
now question #13, which
requires the equivalent of
a routing statement. The
purpose is to allow the Supreme
Court to screen and, early in
the case, assign to the Court of
Appeals cases that meet one of
the NRAP 17(b) criteria.
4. Emergency relief: If you seek
emergency relief, make sure to
comply with the requirements
of NRAP 17(e) and provide
sufficient information to
inform the Supreme Court
as to whether the case should
be transferred to the Court of
Appeals. The Court of Appeals
may be able to address the
Check out the updates to
the NV CLE Board website
The NV CLE Board’s website now provides more information and services
than ever. As a service oriented regulator, the NV Board of CLE wants to
help lawyers meet their continuing education requirement. With that goal in
mind, we happily introduce:
Sign up in three easy steps:
1)
2)
3)
Log onto www.nvcleboard.org and click “Create Account”
Verify your identity by using your bar number and admission year.
Create an account with a valid email address and password.
(Your email address will become your username.)
In addition to MyNVCLE, a new searchable database of upcoming
approved programs is also available at www.nvcleboard.org.
Please visit www.nvcleboard.org for information and assistance on
meeting your CLE requirements.
We are here to help. Questions?
Contact us at:
Phone: 775-329-4443
Email: nevadacleboard@sbcglobal.net
matter in less time than the
Supreme Court.
5. Tolling motions: Know what
motions, as identified in NRAP
4(a)(4), toll the time to appeal.
Remember that, pursuant to
the new decision of Hollier
Trust v. Shack, 131 Nev. Adv.
Op. 59, 356 P.3d 1085 (2015),
those same motions also toll
the time to file a post-judgment
motion for attorney fees.
6. Dismissal with leave to
amend: If you wish to appeal
from a dismissal order that
granted leave to amend,
follow the proper procedure
established in Bergenfield v.
BAC Home Loans Servicing,
131 Nev. Adv. Op. 68, 354
P.3d 1141 (2015). An order of
dismissal with leave to amend
is not final or appealable. To
stand on the complaint as pled
and obtain appellate review of
the dismissal order that gave
leave to amend, you must
notify the district court so that
a final appealable order can be
entered.
7. Citation to unpublished
dispositions: SCR 123 has
been repealed and NRAP 36
amended to allow for citation
to unpublished dispositions
of the Nevada Supreme Court
issued after January 1, 2016, as
long as certain criteria are met.
The language of the amended
rule is unclear as to whether
unpublished orders of the
Court of Appeals can be cited.
If you cite to unpublished
dispositions, follow the
requirements of NRAP 36.
8. Writ petitions: Ask yourself
the following questions before
you file a writ petition: (1)
does the issue presented
warrant extraordinary relief;
(2) can the issue be sufficiently
reviewed on appeal from a final
judgment; (3) is the factual
record adequately established
to support the writ petition;
(4) is the issue a pure question
of law; (5) does the issue have
statewide public importance
and reach beyond the litigants
to the case; (6) can the district
court proceedings be stayed
while the writ petition is
pending in the appellate
courts? If the answer to these
questions is “yes,” the time
and resources that a writ
petition will consume may be
worthwhile. If “no,” a request
for writ relief will likely be
unsuccessful.
9. Pro bono appeals: Take a
pro bono appeal. Contact
Melanie Kushnir at the Legal
Aid Center of Southern
Nevada (mkushnir@lacsn.
org) to get on the email
list of cases as they become
available. Attorneys who
take a pro bono appeal are
guaranteed oral argument. If
you do not have time to take
an appeal, be a volunteer
mentor to other attorneys who
do. You can supervise a law
student, participate in moot
courts or provide expertise
on a substantive area of law
(for example, many appeals in
the pro bono program involve
family law). Hone your
appellate skills while helping
others.
10. The Appellate Litigation
Section: Join the Appellate
Litigation Section of the
State Bar. Be involved in rule
amendments, keep abreast of
changes in appellate procedure,
help develop an appellate
specialty in Nevada and
get to know other appellate
practitioners.
Best of luck to you in 2016.
Debbie Leonard is partner at McDonald Carano
Wilson LLP, where her practice focuses on appeals
before Nevada’s appellate
courts, the Ninth Circuit
Court of Appeals and
administrative agencies.
She served as the 20132014 Chair of the State
Bar’s Appellate Litigation
Section and is Editor-inChief of the forthcoming
edition of the Nevada Practice Manual, which
will become available electronically starting in
January 2016.
Washoe County Bar Association honored its newest class of Honorary Members - those members who
were admitted in Nevada in 1976 and have been longtime members of WCBA. From right to left:
Thomas P. Erwin, Hon. Gregg Zive, Connie Westadt, Hon. Steve Elliott, Bob LeGoy,
Ann Morgan (Emcee) and Robert Spitzer.
January 2016, Vol. 38 No. 1
11
JUDICIAL E THICS
Hon. David Hardy, Chief Judge, Second Judicial District Court
”Judges, like everyone else, are locked in the human condition.
At times, even the best among us fall short”1
T
hough I write about judicial
ethics I believe most judges
act ethically. I generally avoid
the sensational examples of misconduct,
which can be unfair without context or
input from the subject judge. Many good
judges, myself included, make regrettable
mistakes. As I study judicial ethics I
detect trends, some old and some new,
that can inform our own conduct. Some
examples are instructive. I therefore
present my summary of discipline trends
from 2015.
Sex, Gender, and Bizarre Behavior.
This trend remains a concern in 2015.
A Michigan judge placed a woman on
probation. She sent a Christmas card
thanking him for being “an extremely firm
yet fair judge.” The judge responded with
a handwritten note on court stationary:
“You continue to sound well. No need
to thank me. Well, maybe you can. I am
not sure of your marital status. But if you
are not, would you be interested in seeing
me? Being on probation is a complication.
I am interested if you are.”
An Arkansas judge was accused of
using his judicial status to form sexual
relationships with young defendants. He
offered “substitutionary sentences” that
involved community service at his home
and other locations of his choice. He
photographed the defendants bending
over to pick up litter, and ultimately
solicited sexual relations in exchange for
dismissing cases and reducing sentences.
A New Jersey judge embarrassed a
court clerk when, in the presence of others,
he placed his hand on her upper back/
neck area and escorted her back to work.
On another occasion he grabbed her ear
lobe, as if she were a child, and pulled her
12
January 2016, Vol. 38 No. 1
out of a room. A Rhode Island judge is
being investigated for his “propensity” to
remove his pants while in chambers. His
female coworkers were understandably
reluctant to go into his chambers alone.
He reportedly announced “I’m the man”
and “there is no woman that can teach me
anything.”
Those Who Apply the Law Should
Comply With the Law. Several judges
were charged with violating the law this
year. A New York judge was charged with
stealing $4,249.47 from a pee wee baseball
team while she was its treasurer. Another
New York Judge resigned after police found
60 marijuana plants, drug paraphernalia,
and methamphetamine in his home. A
Pennsylvania judge was removed from
office for not filing state and federal tax
returns, opening a shoe store without a
license, and not withholding sales tax.
Another Pennsylvania judge was charged
with hindering a prosecution by making a
false statement to law enforcement.
A Texas judge was convicted for his
role in a phony invoice scheme. Another
Texas judge was charged with 9 federal
weapons counts. A Louisiana judge was
charged with Medicare fraud. A New
Jersey judge was indicted for allegedly
harboring her fugitive boyfriend in her
home.
Minnesota has a constitutional
residency requirement for judges. A
judge sold his home within his judicial
district and moved into a home outside
his district. Six months later he filed an
affidavit of candidacy listing the address
for his former home. He knew his
affidavit was inaccurate but claimed to
“be in a rush” and it was “a spontaneous,
split-second decision.” While admitting
error he denied any intent to deceive the
electorate.
The Longer I’m a Judge Demeanor
I Get. Being patient, dignified, and
courteous is the work of a lifetime.
An Indiana judge began a family law
hearing by telling the litigants their
dispute was “ridiculous,” “retarded,”
“indicative of stupidity,” “nuts,” and “not
what this court is for.” He also referred
to the parents as “knuckleheads.” A
defendant in Michigan failed to appear
for an arraignment. The judge called the
defendant and left the message, “This
is [the judge and you] missed a court
appearance and a court-ordered drug test.
. . . My strong suggestion is that when you
get this message you keep going because
if I find you it will not be pleasant. Have
a good day.”
A Texas judge held a marathon court
session through the night until 4:00 a.m.
This same judge often left the courtroom
without explanation or prediction of
when she would return. Lawyers and
litigants were forced to remain in court
or risk being absent when she did return.
The disciplining court concluded:
The first principle of courtesy
is consideration of others.
Though a judge need not
disclose why she is leaving
the bench or what she will
be doing while she is gone,
common courtesy requires
a judge to let those waiting
to be heard know whether
and when she anticipates
returning. By persistently
leaving the bench for
extended periods of time
without
communicating
this basic information to
those in attendance, the
[judge] showed a lack of
consideration for courtgoers and thus failed to act
with the courtesy expected
of a judicial officer.
I am a Judge. Judges must carefully
avoid lending the prestige of their offices
to advance the interests of themselves and
others. Nonetheless, some judges invoke
their judicial status at inappropriate times.
A Florida judge was charged with her
second DUI; she displayed her judicial
badge when stopped by law enforcement.
A Michigan judge was disciplined for
interfering with the investigation and
prosecution of his intern. A Kentucky
judge had a verbal confrontation with a
police officer about people parking in his
church’s private parking lot and demanded
that police cite the drivers. Several judges
attempted to intervene in numerous bail
and pre-trial release decisions involving
family and friends.
A New York judge’s son was detained in
a park for suspicion of torturing animals.
The next morning the judge called the
chief of police to dissuade him from filing
criminal charges. The discipline court
concluded:
Seeking special consideration
from local law enforcement
officials
is
especially
problematic.
There is
inherent pressure on the
police—who
presumably
appear in the judge’s court
and knew that the suspect’s
father was the local judge—
to agree to the request.
And seeking such favors
from police impacts future
cases—if the police accede
to a request that benefits
a judge’s child, the judge’s
impartiality in subsequent
cases in which the police
appear is compromised. A
defendant could have little
confidence in a judge’s
impartiality if the defendant
knows that the police had
done the judge a significant
favor.
Facebook is “Unfriendly” for
Judges. An increasing trend in judicial
misconduct is a judge’s use of social
media. Some postings simply reveal
poor judgment, such as the judge who
posted an image showing a man doing
body shots off a topless woman in front
of a small child with a link titled “27
adults that are really bad at this parenting
thing.” A Tennessee judge posted that the
state’s lieutenant governor was “dumb as
a rock.” A Florida judge made a “friend
request” to a divorce litigant after trial but
before entry of judgment. In a second
divorce case the same judge commented
on one of the litigant’s Facebook pages,
“yep, justice comes swiftly.”
Other judges used social media for
improper political purposes, such as the
Florida judge suspended for using social
media to seek assistance from her friends
to assist her husband’s judicial election
campaign. She urged friends to “flood”
his opponent’s Facebook page with posts
“that having ethics and integrity means
TELLING THE TRUTH!” A Kentucky
judge used Facebook to criticize the
district attorney who appealed his
decision to dismiss a jury panel because of
racial imbalance. He posted: “Do not sit
silently. Stand up. Speak up . . . History
will unfavorably judge a prosecutor who
loses a jury trial in which a black man
is acquitted and then appeals the matter
claiming his entitlement to an all-white
jury panel. No matter the outcome, he
will live in infamy.”
Other judges use social media to
comment on what they see from dayto-day. These types of postings elicit
responses, such as “One of my favorite
Clint Eastwood movies is ‘Hang ‘Em
High,’ jus saying your honor . . .” A
Minnesota judge posted during trial “In
a felony trial now State prosecuting a
pimp. Cases are always difficult because
the women (as in this case also) will
not cooperate. We will see what the 12
citizens in the jury box do.” In other cases
he posted, “We deal w/a lot of geniuses .
. . What a zoo!” One discipline court
framed the social media issue as follows:
The timing of the posts is
troublesome for the judiciary.
A judge should never reveal
his or her thought processes
in making any judgment.
Even calling attention to
certain facts or evidence
found significant enough for
the judge to comment on a
pending matter before any
decision has been rendered
may tend to give the public
the impression that they are
seeing into the deliberation
process of the judge.
Additionally, extrajudicial
comments made by a
judge about a pending
proceeding will likely invite
scrutiny, as it did in this
case. . . . And as this case
illustrates, comments made
by judges about pending
proceedings create the very
real possibility of a recusal
(or even a mistrial) and
may detract from the public
trust and confidence in the
administration of justice.
This is a wonderful season for reflection
and resolution. Judgment is our currency
and our valuations rise and fall according
to our conduct. I continue to write
because repetition is a powerful learning
tool and we should regularly reflect upon
aspirational standards of conduct. May
we all work better in this next year to
maintain Northern Nevada as the home
for conscientious judges and lawyers.
ENDNOTE
1
Cynthia Gray is the Director of the
Center for Judicial Ethics at the National
Center for State Courts. All materials
for this essay were gleaned from her
2015 weekly updates.
This is number 95 in a series of essays on
judicial ethics authored
by Chief Judge David
Hardy, Second Judicial
District Court, Dept.
15.
January 2016, Vol. 38 No. 1
13
SHELLY
O’NEILL
RENO MUNICIPAL COURT JUDGE
Dear Colleagues:
I am pleased to announce my candidacy for Reno Municipal Court Judge. A lifelong Nevadan, I have been
practicing law since 1979 and am licensed to practice in both the state and federal courts. I have enjoyed a
successful career as chief public defender, deputy attorney general, general counsel to the Nevada Public
Utilities Commission, and have founded my own law firm.
In addition to my professional experience, I have been named the American Bar Association’s National
Champion in its Client Counseling Competition, have interned with the Nevada Supreme Court, served as a
law clerk for Nevada’s Second Judicial District Court, served four three-year terms on the State Bar of Nevada
Disciplinary Board, and am listed as a certified ethical lawyer by Attorney Guide.
I am a career-long member of Northern Nevada Women Lawyers and Master Emeritus of the American
Inns of Court and have membership in the National Association of Criminal Defense Lawyers, the National
Association of Consumer Bankruptcy Attorneys, the State Bar of Nevada, the Federal District Court of
Nevada and the Northern Nevada Bankruptcy, and Washoe County Bar Associations.
Supporters of Shelly O’Neill
Neal and Mary Cobb
Robert Fahrendorf, Esq. and Kim Fahrendorf
Hugh and Pamela Ricci
Dr. Louis and Tierra Bonaldi
Peter and Francine Burge
Curtis Coulter, Esq. and Judy Coulter
Douglas Brown, Esq.
Thomas L. Qualls, Esq. and Lynell Garfield
Rick Goebel - North American Embroidery
Marshall Smith, Esq. and Peggy Smith
Tim and Rose Healion
Dean Heidrich, Esq. and Hunter Heidrich
Reverend Don Butler
Mark Trujillo, Joey Trujillo and Lisa Peterson Hub Coffee and Tea Room
Dr. James Soumbeniotis and Pamela Quilici
Kelly Turner, Esq. and Rita Kolvet
J. Douglas Clark, Esq.
Lee T. Hotchkin, Esq., August Hotchkin, Esq.
and Traci Hotchkin
Ken Creighton, Esq. and Kelli Creighton
Richard L. Elmore, Esq.
Colleen and Jessica Devine
William Patterson “Pat” Cashill, Esq.
Kay Ellen Armstrong, Esq.
Frankie Sue Del Papa, Esq.
Roland Della Santa - Della Santa Bicycles
Thomas and Terrie Flaherty
Alex J. Flangas, Esq. and Amanda Flangas
Rick Campbell, Esq. and Kelli Campbell
Trisha and Bill Gilbert - Beaujolais Bistro
Dr. Jerry and Theresa Jackson
Darcy Houghton, Esq.
Nathan MacLellan, Esq. and Kelly MacLellan
Ty and Beth Martin - Craft Wine and Spirits
Matt Newberry
Kathleen T. Breckenridge, Esq.
Rob Dotson, Esq.
Dr. Larry and Charlene Ricciardi Brinkby Animal Hospital
Mari and Jesus “Chuy” Gutierrez - Mari Chuy’s
Mexican Kitchen
Monte Neugebauer, DDS, and Missy Neugebauer
John Drakulich
Todd Bader, Esq.
Ken Ward, Esq.
Rayna Brachman, Esq.
Amy Tirre, Esq.
Carl Hylin, Esq.
Steve Besso
I would greatly appreciate your support for the primary election on June 14, 2016.
Thank you. Shelly O’Neill
Washoe County Bar Association does not endorse candidates for judicial or political office.
14
January 2016, Vol. 38 No. 1
MEDIATION MAT TERS
Margaret M. Crowley, Crowley Mediation, LLC
“Restorative Justice: Mediation in
Criminal Cases”
“An eye for an eye only ends up making the
whole world blind.” Mahatma Gandhi
A few months ago, I experienced
a parent’s worst nightmare when my
daughter and her best friend were hit
head-on by a drunk driver on I-80. It
was an extremely serious accident and
thankfully, both girls will ultimately
recover. Both suffered physical injuries
and emotional trauma. My daughter, a
freshman at Nevada, spent a few days in
the hospital and missed nearly 2 weeks of
school. She struggled daily with pain and
missed out on her education and a lot of
college fun. I watched her emotions swing
from gratitude for being alive, to anger
at her situation, to frustration when she
couldn’t do something as simple as brush
her own hair. She panicked at having
to be out on the roads again. While
prosecution and a civil action are in the
works, I realized that these proceedings
may not bring the emotional closure my
daughter and her friend will need. It’s also
possible that the young man who caused
all of this may never fully understand the
impact of his actions. There is, however,
a process designed to address this. It is
called restorative justice.
According to the Centre for Justice
and Reconciliation, “Restorative justice
is a theory of justice that emphasizes
repairing the harm caused by criminal
behavior. It is best accomplished
through cooperative processes that
include all stakeholders. This can lead to
transformation of people, relationships
and communities.” Restorative justice
recognizes that crime causes harm to
people and communities. The process
encourages the victim, offender and any
injured members of the community to be
directly involved in addressing the crime.
Many restorative justice programs in the
United States are based on the method
used by tribal courts in the 1990s. Tribal
court criminal proceedings frequently
allow any stakeholder to participate in
criminal cases, including victims and their
families, relatives of the defendant, affected
community members, and sometimes
individuals in tribal government. Fact
finders may take these statements into
account when considering a verdict or
sentence.
So how does restorative justice
work? It is often accomplished through
mediation between the victim and the
offender. Mediation gives the victim an
opportunity to meet the offender in a safe
and structured setting. The goals of the
process are to allow the victim to convey
to the offender the impact of the crime,
to let the offender take responsibility for
the resulting harm and for the parties
to develop a plan to address the harm.
Victim offender mediation often results in
an agreement on what restitution should
be. Although restitution is frequently
ordered in criminal cases, studies have
shown that when restitution is agreed on
during a mediation, it is more likely to
be paid than when it comes from a court
order alone.
Restorative justice can also be used
during the sentencing portion of a criminal
case through the use of sentencing circles.
A sentencing circle involves a partnership
between the criminal justice system and
the community, including the victim,
victim supporters, the offender, offender
supporters, judge and court personnel,
prosecutor, defense counsel, police, and
all interested community members. It
is a facilitative process that allows people
to develop a shared consensus on the
elements of a sentencing plan. Together,
the group identifies the steps necessary
to assist in healing all affected parties
and to prevent future crimes. In some
jurisdictions, these circles actively monitor
the offender to follow progress.
The vision of many restorative justice
programs is a move away from retributive
justice and toward this more inclusive
approach. While restorative justice has
only been around for 20 years, there
are over 300 victim offender mediation
programs in the United States. One
such program is offered through in
Clark County juvenile cases through the
Neighborhood Justice Center.
It is important to recognize that
restorative justice is not meant to replace a
criminal proceeding. Instead, it promotes
a holistic approach to crime. Restorative
justice recognizes that criminal acts
involve far more than simply breaking the
law. They also involve harm to victims,
communities and sometimes to the
offenders themselves. In addition, while
success in a criminal case is defined as a
conviction, success in restorative justice is
defined as how much harm is repaired or
prevented. While not appropriate for all
criminal cases, restorative justice can add
a healing dimension that is often lacking
in our traditional system.
As I have learned from personal
experience, when a crime is committed,
it has a ripple effect. It’s not just about a
moment in time where the law has been
violated. It is about how that moment
affects the lives of the victim and her
family, the offender and the community.
Anything that can help promote healing
from the trauma caused by crime would
be a welcome addition.
Margaret Crowley is an
experienced mediator,
Supreme Court
Settlement Judge, EEOC
Mediator, Second JD
Custody & Dependency
Mediation Panels, Pro
Tem Family Court
Master and mediation
instructor.
January 2016, Vol. 38 No. 1
15
WHEN Is G AMING MARITAL WA STE IN NE VAD A?
Hon. Egan Walker, Second Judicial District Court, Family Division
I. Introduction
When marriages end by means of a
contested divorce, battles over children,
china and cheating quickly become
the fodder of litigation. Any gaps in
the legal precedents which control
resolution of those issues, and property
issues in particular, create challenges to
the parties and courts as they attempt to
divide marital estates. One of the most
challenging and least well developed
areas in the jurisprudence of property
distribution relates to chance: In what
circumstances and in what amounts does
gambling constitute marital waste?
Gaming is an ancient practice in
Nevada which has been an economic
savior at times, and an export product
of the state to the rest of the world
more recently. Despite this history, few
commentators have offered guidance on
the topic of waste in general, and none
have commented on the effect, if any, of
gaming as it relates to property and debt
distribution at the time of divorce.1
II. What financial duties do spouses owe
to one another?
a. Fiduciary duty
The fiduciary duty owed between
spouses is described as follows:
Either husband or wife may
enter into any contract, engagement or
transaction with the other … subject in
any contract, engagement or transaction
between themselves, to the general rules
which control the actions of persons
occupying relations of confidence and
trust toward each other.
(Emphasis
added.)2
The nature of the fiduciary relationship
between husband and wife is that of
partners:
“It is generally recognized
that the marital community
is a partnership to which both
parties contribute…his or her
industry in order to further the
goals of the marriage.”3
Husband and Wife are partners in a
fiduciary relationship with concomitant
obligations of labor, candor, honesty
and transparency which continue even
16
January 2016, Vol. 38 No. 1
during the process of divorce. Counsel,
parties, and courts often fail to remember
that although the parties’ feelings are no
longer complementary, their financial
duties and responsibilities to one another
remain intact throughout the process of
divorce.
b. Duty of support.
i. During marriage
Husband and wife have a duty to
financially support one another during
marriage, even from their separate estates.
For example:
If the husband neglects to make
adequate provision for the support of his
wife, any other person may in good faith
supply her with articles necessary for her
support, and recover the reasonable value
thereof from the husband. The separate
property of the husband is liable for the
cost of such necessities if the community
property of the spouses is not sufficient to
satisfy such debt.4
This duty is reciprocal on spouses:
The wife must support the husband
out of her separate property when he
has no separate property and they have
no community property and he, from
infirmity, is not able or competent to
support himself.5
Finally, we are told:
A husband or wife abandoned
by his or her spouse is not liable for
the support of the abandoning spouse
until such spouse offers to return unless
the misconduct of the husband or wife
justified the abandonment.6
One fertile field of examination during
divorce litigation might be, therefore, to
examine how a spouse’s gambling may
have negatively impacted his or her duties
to the community. While one spouse
may gamble and lose $50 or $100 per
week without negatively impacting the
community, in the same way the other
spouse may spend similar amounts on
alcohol, hair and grooming products or
some other discretionary expense, such
spending is not traditionally considered
waste.
ii. After a complaint is filed
Several statutes codify the obligation
of support between spouses, and their
continuing fiduciary duty to one another,
even in the context of dissolution.7 For
example:
If, after the filing of the complaint,
it is made to appear probable to the
court that either party is about to do
any act that would defeat or render less
effectual any order which the court might
ultimately make concerning the property
or pecuniary interests, the court shall
make such restraining order or other
order as appears necessary to prevent the
act or conduct and preserve the status
quo pending final determination of the
cause.8
In addition:
1.
Except as otherwise
provided in subsection 2, during
the pendency of an action brought
pursuant to NRS 125.190, the court
may, in its discretion, require either
spouse to pay any money necessary for
the prosecution of the action and for
the support and maintenance of the
other spouse and their children...9
Even during litigation the parties
must support one another and maintain
their joint property:
1. In any suit for divorce the
court may, in its discretion, upon
application by either party and notice
to the other party, require either party
to pay moneys necessary to assist the
other party in accomplishing one or
more of the following:
(a) To provide temporary
maintenance for the other party;
(b) To provide temporary
support for children of the parties; or
(c) To enable the other party to
carry on or defend such suit.
2. The court may make any
order affecting property of the parties,
or either of them, which it may deem
necessary or desirable to accomplish the
purposes of this section. Such orders
shall be made by the court only after
taking into consideration the financial
situation of each of the parties.
3. The court may make orders
pursuant to this section concurrently
with orders pursuant to NRS
125.470.10
III.
Where does gaming “fit” into the
financial duties owed between spouses?
“Game” or “gambling game”
means any game played with cards,
dice, equipment or any mechanical,
electromechanical or electronic device
or machine for money, property, checks,
credit or any representative of value.11
In 1955, the Nevada legislature
unequivocally instructed that:
1. The Legislature hereby finds,
and declares to be the public policy of
this state, that:
(a) The gaming industry is
vitally important to the economy of
the State and the general welfare of the
inhabitants.12
…
Can an activity that is ‘vitally important
to the general welfare of the inhabitants
of the State nonetheless constitute waste?
If that is so, how and when it does are
neither defined nor discussed in any
reported case.
IV. What is waste?
c. Lofgren, Putterman, Wheeler
and the doctrine of waste
i. Lofgren – intentional financial
misconduct is bad
In November of 1996, the Nevada
Supreme Court decided the case of Lofgren
v. Lofgren.13 Mr. Lofgren had, during the
pendency of the parties’ divorce and after
the issuance of a financial restraining
order, transferred $96,000 in marital
funds to, among other things: improve
and furnish a home; loan or give money
to his father and to his children; and
spent $17,000 “for his own personal use”
(apparently apart from his needs for food,
shelter and housing).
The Supreme Court reinforced that
changes to NRS 125.150, made in 1993,
require an equal as opposed to an equitable
distribution of community property
absent “compelling reasons.” Nonetheless,
when applied to Mr. Lofgren’s actions,
the Supreme Court upheld the trial court
decision to reimburse the community
for unauthorized expenditures by adding
the funds back into the marital balance
equation.
The practical effect for purposes of our
discussion was to confirm that “intentional
misconduct” in handling a fiduciary
responsibility may be a compelling reason
for an unequal distribution of a marital
estate.
…we hold that if community
property is lost, expended or destroyed
through the intentional misconduct of
one spouse, the court may consider such
misconduct as a compelling reason…[for
unequal distribution]14
It would appear, as a consequence, that
a decision to hide income, (e.g. a failure to
report gambling earnings), or to gamble
away a paycheck knowing bills would go
unpaid, or a savings account, or funds
necessary for food, shelter and housing
as a matter of spite after imposition of a
financial retraining order would clearly
constitute waste.
ii.Putterman – negligent financial
misconduct is bad
A few months later, in May of 1997,
the Nevada Supreme Court decided
Putterman.15 In Putterman the trial court
had again unequally divided a marital
estate upon dissolution. In doing so,
the trial court noted that Mr. Putterman
had: (1) refused to account to the court
concerning earnings and other financial
matters over which he had control, and
(2) had appropriated to his own use
“several thousand dollars” (of credit card
purchases) which had to be satisfied by
the wife. The trial court chose as a remedy
an unequal distribution that gave wife a
country club membership and a portion
of stock in a closely held corporation
principally owned by husband but in
which wife was an employee. (The trial
court apparently had both a sense of
humor and a sense of irony.)
The Nevada Supreme Court appears
to have agreed with the trial court and
believed that Mr. Putterman’s misconduct
was at least negligent noting:
In Lofgren, we defined one
species of “compelling reasons” for
unequal disposition of community
property, namely, financial misconduct
in the form of one party’s wasting or
secreting assets during the divorce
process. There are, of course, other
possible compelling reasons, such
as negligent loss or destruction of
community property, unauthorized
gifts of community property and
even, possibly, compensation for
losses occasioned by marriage and its
breakup.16
The Nevada Supreme Court went on
to explain as it examined the district court
decision that:
It should be kept in mind that
secreting or wasting of community assets
while divorce proceedings are pending is to
be distinguished from undercontributing
or overconsuming of community assets
during the marriage. Obviously, when
one party to a marriage contributes
less to the community property than
the other, this cannot, especially in an
equal division state, entitle the other
party to a retrospective accounting of
expenditures made during the marriage
or to entitlement to more than an equal
share of the community property.17
The message from the Supreme Court
again was that Nevada is an equal division
state. We also know from Putterman
that retrospective accounting which
simply identifies “overconsumption” or
“underproduction” is to be discouraged.
One clue to the expansion Putterman
offers over Lofgren, nonetheless, must be
related to the duty of support spouses owe
to one another, especially during divorce.
Where one spouse fails, for example, to
apply his or her full labor, talents and
efforts to provide for the marital estate,
it would appear such “negligence” may be
actionable.
The question still remains, however: Is
gambling during marriage, without more,
waste and if so how would it be proven
without a retrospective accounting?
Neither Putterman nor Lofgren directly
answer the question. Even gambling
during the process of divorce, absent
a financial restraining order, would
apparently be difficult to establish as
waste. Further, when, then, does an
activity that is undertaken in the context
of the following syllogisms: (1) gaming
is fundamental to the best interests of
the citizens of the state, and (2) (the
social fable) “they don’t build casinos on
winners,” become waste?
iii.Wheeler – misconduct that
causes financial harm to the
community is bad
Six months after Putterman, in
October of 1997, the Nevada Supreme
Court decided Wheeler.18 In Wheeler the
Continued on page 18
January 2016, Vol. 38 No. 1
17
trial court had yet again unequally divided
a marital estate when the Plaintiff, wife,
produced photographic evidence the
Defendant, husband, had battered her
during the parties’ marriage. In admitting
the evidence and then unequally dividing
the parties’ marital estate, the trial judge
said:
The Court finds that a
compelling reason exists to make an
unequal disposition of the community
property. The Court bases this finding
on a review of the evidence and finds
that an abusive relationship existed
between the parties in which the
Plaintiff suffered from Defendant’s
conduct.19
In reversing the trial court, the Nevada
Supreme Court offered:
…[w]e conclude that, except
for a consideration of the economic
consequences of spousal abuse or
marital misconduct, evidence of
spousal abuse or marital misconduct
does not provide a compelling reason
under NRS 125.150(1)(b) for making
an unequal disposition of community
property. If spousal abuse or marital
misconduct of one party has had an
adverse economic impact on the other
party, it may be considered by the
district court in determining whether
an unequal division of community
property is warranted.
As a consequence, practitioners should
focus on how gaming has materially
harmed the financial standing of the
community, as opposed to a specific
focus on fault, and build cases around
an analysis of the duties owed between
spouses, and any failures to meet those
duties reflected in the questioned pattern
of gambling. Some simplistic ideas for
relevant inquiry are:
1) Was the gambling activity, either
in terms of winnings or losses, within the
actual or constructive knowledge of both
spouses?
2) Did gambling interfere with
employment and therefore earnings of
either spouse?
3) Did community debts suffer
while gambling losses accrued?
4) Did any court order preclude
gambling activity?
Did the parties
have any agreement about the limits
of gambling activity in their marital
community?
5) Does either spouse qualify for
18
January 2016, Vol. 38 No. 1
treatment as a problem gambler?
6) Can doctrines of laches or
estoppel defeat a claim of waste given
the mutual history and conduct of the
parties?
V. Conclusion
Spouses are partners in a legal contract
– marriage - and they owe duties of
financial fidelity to one another. Gaming
as entertainment, gaming as avocation,
and pathological gaming are all fertile
fields for factual development and
legal argument in light of the fiduciary
duties owed between spouses. A troika
of cases issued in the mid-1990’s offer
some guidance on the topic, but further
refinement is necessary.
Intentional misconduct, negligent
misconduct and conduct related to fault
which causes economic harm, may all give
reason for a claim of waste. Practitioners
are cautioned to focus on the negative
financial effects of the misconduct, as
opposed to the more common equitable
claims regarding the “relative merits” of
the parties, given Nevada’s equal division
statute.
Gaming is well established in the
ancient and recent history of our country
and our state. It can and does support
the public coffers, employ thousands
of Nevadan’s, offer entertainment to
its participants, and it may undermine
financial stability and all at the same
time. In circumstances where gambling
is contrary to the duties and obligations
owed between spouses, it may also be
waste.
(Endnotes)
Two articles which are noteworthy
exceptions and commended to interested
readers are: “I Spent the Money on Whiskey,
Women and Gambling; the Rest I Wasted,”
Gary Silverman, Esq.; (Nevada Lawyer; May
2011); and, “Community Waste in Nevada,”
Bruce Shapiro, Esq. (Nevada Family Law
Report, Fall 2010).
2
NRS 123.070.
3
York v. York, 102 Nev. 179, 718 P.2d 670
(1986).
4
NRS 123.090.
5
NRS 123.110.
6
NRS 123.100.
7
The examples given here are illustrative
and not dispositive of the topic of support
between spouses during marriage and/or
while in the process of dissolution.
8
NRS 125.050.
9
NRS 125.200.
10
NRS 125.040.
11
NRS 463.0152.
1
NRS 463.0129.
Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d
396 (1996).
14
Lofgren at 1283.
15
Putterman v. Putterman, 113 Nev. 606, 939
P.2d 1047 (1997).
16
Putterman at 608.
12
13
Judge Egan Walker is a District Judge in
Washoe County, Nevada. Judge Walker
has been a judicial officer since 2009, and
has heard divorce, custody, guardianship,
child support, and criminal matters. He is
currently responsible for
juvenile delinquency,
juvenile dependency
and Project ONE cases
in Washoe County. He
serves on the Nevada
State Juvenile Justice
Commission and the
Nevada Supreme Court
Commission to Study the Administration
of Guardianships. He has an undergraduate
degree in nursing from the University of
Nevada, Reno, and graduated from the
McGeorge School of Law in 1991. He has
served as faculty at the National Judicial
College, and is a Master’s degree candidate in
Judicial Studies.
Special thank you to Reno
Carson Messenger Service for helping
with the delivery of the bar renewal
E
v
e
n
t
s
See wcbar.org/events for details and registration
JANUARY
FEBRUARY
Douglasa-Carson Legal Professioals,
12noon, Red’s 395 Grill, Carson City,
RSVP NALSdclp@gmail.com
WCBA Bar Lunch, 12noon,
Harrahs, District Attorney Chris Hicks,
$25 per person
6
10
19Regional High School Mock
19 NNWLA, 5:30 pm, Self-defense Trial
Competition, Bruce Thompson
class at FAST Nevada. $15 donation is
requested. RSVP at nnwla.rsvp@gmail.
com.
20
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Thursday, January 21, 2016
Cocktails - 5:30 pm
Dinner - 6:30 pm
Sign up online at
wcbar.org
Federal Courthouse. Please use the form
below or call 786.4494 to volunteer as a
scoring judge.
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Program, Open House, 5:30 - 7pm, free
information session. Please contact Amy
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cocktails 5:30, dinner 6:30 pm Register
online at wcbar.org/events
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May 5, 2016
6:30 pm
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27
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Firm Lunch & Learn 2 Hours CLE,
Federal Courthouse, $129 Members /
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2016 High School Mock Trial Regional Competition
Friday, February 19, 2016 Federal Courthouse
Name(s) ____________________________________________________
Office Phone: ________________________________________________
Cell Phone: __________________________________________________
Email Address: _________________________________________________
Yes, I can be a scoring judge at the Regionals on Friday, Feburary 19. I can participate at:
o 8:30 am o 10:30 am o 2:00 pm
Each trial runs approximately 90 minutes.
Fax to 324-6116 or email to gina@wcbar.org
January 2016, Vol. 38 No. 1
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