The High Court Rules No Redress in Nevada Courts for Wrong-Doing in Georgia That "Affects" Persons in Nevada

Today the United States Supreme Court reversed a ruling of the Ninth Circuit.  In Walden v. Fiore, the Court held that “a court in Nevada may [not] exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs with
connections in Nevada.”  The Court reasoned that “a plaintiff cannot be the only link between the defendant and the forum.”  The Ninth Circuit held that personal jurisdiction in Nevada was proper because the defendant's allegedly tortious actions in Atlanta, Georgia affected persons with a “significant connection” to Nevada.
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OJ Simpson's Chances For A New Trial

OJ Simpson's bid to get a new trial in his Nevada convictions for 19 various felony counts ranging from kidnapping, assault, robbery and the use of a deadly weapon, resulted in a five-day evidentiary hearing from May 13 to May 17, 2013, last week.  Simpson's Petition was filed with the Clark County District Court over a year ago on May 12, 2012.  Various witnesses testified, including Simpson himself, a first in any of his criminal prosecutions, and Simpson's trial attorney, Yale Galanter, whom Simpson claims was ineffective at trial, entitling Simpson to a new trial.  At the evidentiary hearing, Galanter passionately denied any error or omission on his part during Simpson's trial.

Simpson's claim of ineffective assistance of counsel is not uncommon when convicted criminal defendants have exhausted all their appeals as of right.  The claim is filed in the form of a Petition for a Writ of Habeas Corpus and is based on an allegation that the petitioner's Sixth Amendement Constitutional right to assistance of counsel was violated and thus unvalidates the petitioner's conviction.  The petition must first be filed in the trial court.  The standard for showing ineffective assistance of counsel rising to a level that violates a defendant's constitutional rights to such a degree that would require a defendant to obtain a new trial is set forth in the 1984 United States Supreme Court decision of Strickland v. Washington, as adopted by the Nevada Supreme Court.in the case entitled Warden v. Lyons.

Under the Strickland standard, in order to establish a claim of ineffective assistance of trial counsel sufficient  to invalidate a judgement of conviciton, Simpson is required to denonstrate (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that his counsel's errors were so severe that they rendered the jury's verdict unreliable.  The Nevada Supreme Court has held that the severity of the errors must have prejudiced the defendant to such a degree that but for the errors, the verdict would probably have been differenct.  According to Nevada case law, in deciding the petition the trial court need not address both components of the inquiry if Simpson makes an insufficient showing on either one.

The Strickland test is a high bar for a convicted defendant to overcome, and in Nevada, defendants' petitions have been denied even in cases where trial counsel admitted to embezzling large amounts of their clients' money, and in cases where a juror subsequently provided an affidavit indicating he witnessed the defendant's trial counsel sleeping during the trial.  Statistically speaking, it is not likely that Simpson's petition will be granted, so we may see an appeal before the Nevada Supreme Court in the future.

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Ninth Circuit Takes Up Unique Nevada Voting Law

Today, the Ninth Circuit Court of Appeal heard oral argument regarding the constitutionality of a voting law unique to Nevada.  Nevada voters may choose to cast their ballot for "none of these candidates" in elections, though the choice cannot "win" the election.

The law has been on the books since the 1970's and was challenged last year by the Republican party as being unconstitutional. The Ninth Circuit blocked a ruling by United States District Court judge Hon. Robert Jones siding with the Republican party, allowing the ballot choice to go forward for the 2012 national election. Oral agrument took place this morning before a three-judge panel of the Ninth Circuit.

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The Oklahoma Supreme Court Should Have Read This Blog

Apparently irritated at the Oklahoma Supreme Court, the United States Supreme Court today summarily reversed the Oklahoma Supreme Court decision incorrectly ruling that an arbitrator, rather than the court, must decide whether an arbitration clause in an employment contract was valid.  See this blog's report of the United States Supreme Court's prior decision on this issue here. 

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Are Republicans Intentionally Disenfranchising Obama Supporters?

As election day approaches, the courts are tackling various challenges to voter laws.  Joining the recent decision by the Pennsylvania Supreme Court is the United States Supreme Court.

Yesterday,  Monday October 15, 2012, the United States Supreme Court agreed to hear an appeal from the Ninth Circuit's April 12, 2012 decision to strike down Arizona's Proposition 200 requiring voters to provide proof of citizenship in order to register to vote. The Ninth Circuit Court of Appeal stated that under the National Voter Registration Act (NVRA), the states must "accept and use" the federal form to register to vote, which requires prospective voters to swear or affirm by their signature that they are a citizen of the United States.  The Arizona law sought to require prosepective voters to produce proof of citizenship in order to register.  The Ninth Circuit upheld Proposition 200's provision requiring voters to provide identification at the poll, but stated that the NVRA supercedes the requirement to provide proof of citizenship with the use of the NVRA voter registration form.  The Court will not hear oral argument in this case until after the election, in early 2013.

In another voters' rights case, the Supreme Court today declined to stay a decision of the Sixth Circuit Court of Appeal affirming an injunction by the lower court preventing the 2011 revisions to Ohio Rev. Code s. 3509.03 from taking effect to stop voters from casting early ballots during the three days before the November 2012 general election.  The Sixth Circuit held that the revisions to the statute were unconstitutional and blocked the revisions from taking effect.  The state of Ohio applied to the Supreme Court for a stay of the injunction "pending the filing and disposition of a petition for a writ of certiorari."  The Supreme Court stated simply in its order, "The application for stay presented to Justice Kagan, and by her referred to the Court is denied."  It remains to be seen if the Supreme Court will ultimately grant certiorari to the State of Ohio, but this will also be decided after the November election.

If anything, this flurry of appellate activity surrounding voters' rights is an indication of just how close this election is expected to be.  Every vote counts, and it appears the Republican strategy is to disenfranchise the citizens who are most likely to be a vote for Obama.  If this sounds harsh or overstated, take a look at the words of Rep. Daryl Metcalfe (R-PA), or better yet, listen to those of Penn. Republican House Speaker Mike Turzai.



UPDATE (Oct. 17, 2012): See also this reported incident..

Perhaps the Republican theme is a fear of foreigners.  In the 2008 election, it appeared to be the Birthers' fear that a foreign born President would be elected.  That red herring had to be dropped in light of the fact that Mitt Romney's father was born in Mexico.  In 2012, perhaps the fear is that foreigners are reelecting him.

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Obamacare Mostly Constitutional, Says Divided Supreme Court

The much anticipated decision is in.  A divided court upheld the Affordable Care Act, dubbed "Obamacare."
The Supreme Court held that under the Act, Congress did not intend the penalty assessed if individuals did not obtain health insurance to be a tax, but that Congress's intentions were not controlling on the Court as to whether the penalty was actually a tax.  Thus, by ruling that the penalty was not intended to be a tax, the Court held that the Anti-Injunction Act is not implicated.  What this means, is that the Court did not dismiss this case and tell appellants to wait until they have actually paid the penalty before coming back to the Supreme Court and asking for a refund. Rather than having to wait until 2014 to decide the constitutionality of the individual mandate/penalty, the Court chose to dispense with the challenge to the ACA now.
The Court next held that Congress could not impose the individual mandate under the Commerce Clause.  But, the Court held, the Act can be upheld as arising under Congress's taxing authority.  In rejecting the Commerce Clause as authority for the individual mandate, the Court explained that the ACA did not regulate commerce so much as it required individuals to engage in it. So a mandate to purchase broccolli is not the next move for Congress.  This is the slippery slope where the Supreme Court drew its line.  The individual mandate to purchase health insurance is nevertheless constitutional.  In upholding the mandate, the Court explained that the tax was not so large that there is no choice but to purchase health insurance, and that not purchasing insurance has no legal consequences beyond payment of the tax.
The Court struck down the penatly assessed to States that choose not to participate in the expansion of Medicaide as being an unconstiutional use of Congress's spending power.  This the Court ruled however, does not invalidate the remaining provisions of the ACA.

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Arizona's Immigration Law Is Mostly Unconstitutional, Says US Supreme Court

The United States Supreme Court handed down its long anticiated ruling in Arizona v. Untied States, putting at issue Arizona's controversial immigration law, SB 1070, passed in 2010.  The Ninth Circuit struck down the law in its entirety, and Arizona appealed to the US Supreme Court. Today, the US Supreme Court struck down three of four provisions as violating the Supremacy Clause of the US Constitution.
The Arizona law sought to criminalize the failure to comply with federal registration requirements for illegal alieans, and seeking employment or engaging in work in Arizona while being an illegal alien. SB 1070 also gave authority to Arizona law enforcement to arrest without a warrant anyone who the officer had probable cause to believe is an illegal alien, and to stop, detain or arrest to determine a person's immigration status.
The Supremacy Clause of the Constitution has been interpreted to provide that in areas where the federal government intends that its laws occupy the entire subject matter of that law, no state can enact laws that attempt to address that subject matter.  It has long been held that the federal government occupies the entire subject matter of immigration and that states cannot regulate this subject matter.  In striking down the criminal elements and the authority to arrest without a warrant granted by SB 1070, the US Supreme Court pointed out that the federal government has established that illegal alien status is a civil, not criminal matter, and that the federal government has the sole discretion to make such policy decisions regarding immigration and its enforcement.  The Court stated, "Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime."  The Court went on to state that the federal government has the power to consider equities in forming policies regarding enforcement of the federal immigration laws.
This particular point gets to the heart of the matter.  Arixona's SB 1070 sought to make criminals of immigrants, who may be hard working, otherwise law abiding residents.  This is not Arizona's call. This is the federal government's call.  The scare tactics employed by Arizona law makers that illegal aliens are all rampant, violent criminals, casts a net that ensnares workers trying to make a living and who make a positiove contribution to society.  Enacting laws based on fear and ignorance harken back to some of the darker moments in human history, and should have no part in this country's democratic society.  Additionally, the Supremacy Clause prevents the 50 states from enacting 50 different sets of immigration laws, as the federal government already has a body of law in place. 
The Court upheld the provision of SB 1070 that authorizes Arizona law enforcement to "make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest . . ."  The Court emphasized that SB 1070 provided that the "stop and check" provision could not be the result of racial profiling and that communication between federal and state authorities was inherent and imperative. 
Despite holding the challenge to the stop and check provision of SB 1070 as being premature because Arizona courts did not have an opportunity to interpret how it will be enforced, the Court specifically left open future challenges to the stop and check provision based on Arizona's enforcement and interpretation of its law.



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Would You Like Broccoli With That Health Insurance Plan? The Supremes Discuss The Slippery Slope Of ObamaCare

Broccoli, cell phones and burial services, oh my! What will the government force us to buy next? The parade of horribles was the topic du jour at Tuesday's oral argument before the US Supreme Court on the constitutionality of the individual mandate contained in the Affordable Care Act. The Supremes expressed concern over the slippery slope potentially created by the ACA and where the line should be drawn. At issue is whether the individual mandate of the ACA is authorized by the United States Constitution art. 1 sec. 8 clause 3, the Commerce Clause, which gives Congress the power to regulate interstate commerce. The Supreme Court has, over the past 190 years, interpreted the Commerce Clause to allow congress to regulate all sorts of industries, from ship navigation, to the Chicago meat industry, to wheat production for personal use.


Justice Scalia, notorious for his conservative legal opinions, asked the first question of Solicitor General Donald Verrilli, setting the tone for the day. Scalia queried, perhaps disingenuously, why couldn't the federal government just directly address the problems of individual access to health care rather than the individual mandate to purchase health insurance. The answer of course, is that the present Congress will not create a public health care option. Appropriately, Mr. Verrilli did not give this answer, but offered instead that the ACA is in fact addressing the problem directly.


The Justices' questions centered around the concern that if Congress can require individuals to purchase health care, why can't Congress require the purchase of a cell phone, of broccoli, of health club memberships or of funeral services? Verrilli;s answer to these questions pointed out the health care market is different because (a) it is the only market where you can show up without the means to pay and you will still be provided the service at the expense of those who do pay; (b) everyone will eventually need health care and thus everyone is a market participant; (c) the ACA seeks to regulate the health care industry, not the insurance industry, and requires the method of payment for health care be through health insurance; (d) the ACA uses the most efficient method that allows consumer choice among insurance policies; and (e) the ACA does not provide any enforcement powers--if insurance is not purchased, the penalty is not anymore than what one would have paid for the insurance.


The respondents arguing to strike the mandate did not have any easier a time with the Justices. Attorney Paul Clemente, arguing for the respondent 26 states, argued the ACA forces individuals to purchase a product. Clemente argued that defining the market as those who access health care was improper, and that the market being regulated was those that purchased insurance. Clemente suggested it would be constitutional for the ACA instead to only require that insurance be purchased at the point of sale; i.e. only when one gets sick and shows up to the Emergency Room. The Justices focused their questions to Clemente on issues regarding the definition of the market being regualted (insurance versus health care), the fact that uninsured patients already shift the cost of their health care to paying patients, and what difference does it make if the ACA requires the purchase of insurance prior to getting sick or at the time of receiving health care services.


Justice Breyer proposed a hypothetical situation several times to the respondent attorneys, asking, what if "a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the federal Government say all 40 million get inoculated?" Mr. Clemente avoided answering, which perhaps accounts for Justice Breyer's attempt three more times to get an answer. Justice Breyer then changed the hypothetical to whether the EPA could require all automobiles have anti pollution equipment if it turned out 60% of them caused pollution. Attorney Carvin conceded the commerce clause authorized Congress to enact such a law but pointed out only those who bought automobiles would be required to do so.


The problem with the respondents' argument is they attempt to limit the individuals affected in the market being regulated by the ACA to those purchasing insurance, leading to their protest that Congress is requiring an affirmative purchase of a product that would not otherwise be purchased. To hear the respondents say it, the 40 million uninsured are uninsured by choice, rather than because they cannot afford the premiums, and thus should not be forced to purchase an unwanted product. Justice Ginsberg's comparison of the ACA to the social security system is well taken, albiet, social security is funded by a tax, making it a different animal. The truth is, as many of the Justices pointed out, every person from the time they are born will at some point need to use health care. That is the industry that the ACA targets. The ACA mandates that health care is paid for by insurance, which the respondents concede is a proper Congressional power under the commerce clause. As Justice Kennedy pointed out, "the young [healthy] person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that s not true in other industries." Thus their participation directly affects the price others will pay not just for insurance, but for health care. Health care costs go up because hospitals are required by federal law to treat those who cannot pay for their services, thus shifting the costs to everyone else. The respondents' solution that those who "choose" not to purchase insurance can be required to purchase it at the time they do need health cares serices, is not only unreasonable and naive, but implausible.

As Mr. Vermilli pointed out, 40 million Americans can not obtain health care insurance because of the cost of the premiums. If a point of sale requirement were placed on these individuals as argued by the respondents, the cost of insurance would essentially be the cost of the health service. Actuarially, the premium you pay is based on some calculus of the chance you will get sick and how much the health care you might need could cost. If someone shows up at the Emergency Room and endeavors to purchase insurance then and there, the chance that you will get sick is 100% because you are currently sick, and the cost is more or less calculable. So, the premium, from an actuarial point of view and the point of view of the insurance company should be the cost of the treatment you are seeking. Which brings us back to the uninsured showing up to the Emergency Room with no means of paying The cost would still be shifted to others with insurance.

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Obama Care Oral Arguments Underway

On Monday, March 26, 2012, oral arguments in front of the United States Supreme Court got underway to hear the legal challenge to the Affordable Care Act enacted by Congress and signed into law by President Obama on March 23, 2010.


The Supreme Court scheduled an unprecedented six hours over three days for oral argument this week after granting certiorari. At issue is the Act's individual mandate to purchase health insurance or pay a tax penalty. two federal appellate courts have upheld the mandate, one declared it unconstitutional and one appellate court declined to decide the issue under the Anti-Injunciton Act, ruling the issue could not be decided until tax payers are actually harmed by having to pay the tax/penalty in 2015.


Monday's oral argument focused mainly on whether the Anti-Injunction Act prohibited the present challenge, and whether the requirement that a tax payer who fails to purchase health insurance is assessed a tax or a penalty, which would dictate whether the AIA applies. There was discussion between the Justices and amicus curiae court appointed counsel Robert A. Long whether the Anti-Injunction Act is jurisdictional, thus robbing the courts of the ability to hear the issue, or directed at the Solicitor General, thus prohibiting the litigants from filing suit.


Nomenclature was an issue regarding whether the assessment is actually a tax or a penalty. Right out of the box, Justice Alito quipped to the Solicitor General for the Department of Justice Donald B. Verrilli, "General Verrilli, today you are arging that the penalty is not a tax. Tomorrow You are going to be back and you will be arguing that the penalty is a tax." When Chief Justice Roberts referred to the assessment as a penalty, attorney for challengers to the Act, Gregory G. Katsas, corrected "taxes, Mr. Chief Justice."


The attorneys were peppered with questions mainly from Ginsberg, Scalia, Sotomayor, Breyer, Roberts and Kegan, with a few questions from Alito and Kennedy. Thomas remained characteristically silent during argument.


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Noteworthy U.S. Supreme Court Decisions of 2010

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010.  Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

• Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

• If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

• Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days.  Thus, the new police interrogation  techniques will be to arrest and Mirandize  a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

• Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

• Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

• Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary.  This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions:  "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

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Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity.  Where a plaintiff's claim under ERISA 
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded 
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

Last week the United States Supreme Court decided a case originating out of Nevada,

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010).  An employee of Rent-A-

Center filed an employment discrimination suit in federal court, and the employer filed a

motion to compel arbitration.  On Certiorari from the Ninth Circuit, the Supreme Court ruled

that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),

the courts could decide the enforceability of an arbitration clause in an employment agreement 

that stated the arbitrator must decide the enforceability of the agreement as a whole,  

whereas only the arbitrator could decide whether the employment agreement as a whole

was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law.  The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument.  Additionally, Jackson's briefs argued the entire agreement was invalid.  Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument.  Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide.  Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause.  Thus, Stevens would have affirmed the Ninth Circuit's decision.

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My Afternoon With Erwin....Chemerinsky, That Is.

During my last minute marathon in December to get all my Continuing Legal Education credits before the year's end, I had the pleasure of landing in a CLE lecture given by Erwin Chemerinsky at the Boyd School of Law. Chemerinsky, is of course a reknowned law school Professor of constitutional law, and is the founding Dean of the University of California at Irvin School of Law. Chemerinsky's unique vocal cadence and his particular brand of humor always makes dry legal subjects sound more interesting. Of course, Chemerinsky's area of law is far from dry; who isn't interested in the nuances of the sexy parts of constitutional law? The CLE did not disappoint as Chemerinsky recapped the most interesting and significant U.S. Supreme Court decisions for 2009. Here are summaries of three of the Supreme Court decisions he discussed that have particular relevance to Nevada.

A Complaint Can No Longer Rely on the Notice Pleading Standard to Avoid Dismissal.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Despite being less than one year old, Ashcroft is on the verge of being the most cited case in history, according to Chemerinsky. The reason it is so important is that the circuit courts are treating Ashcroft as a new standard in pleading requirements. Notice pleading is no longer sufficient to avoid dismissal. The plaintiff must allege facts that make his claim "plausible," not just a recital of the elements, and the reviewing court may draw on common sense and its experience within the context of the allegations to determining plausibility.

Litigants May Not Contribute to the Presiding Judge's Election Campaign.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). Where a judge receives substantial campaign contributions from a litigant, and does not recuse herself, due process is violated. Being that Nevada elects its judges, this ruling has the potential to put a monkey wrench in the Nevada Judiciary. As was reported in depth by the Los Angeles Times back in 2005, Nevada is still a relatively small business and legal community, and it is not unheard of for litigants to contribute to a judge's campaign, even to the judge before which they are appearing. Caperton may change that practice. Even better, Nevada may finally adopt another system for choosing judges.

Certiorari Granted To Decide If Second Amendment Applies to State Governments.
McDonald v. City of Chicago, 129 S. Ct. ___ (2009). According to Chemerinsky, between the years 1791 - 2008, not one law was ever invalidated as violating the Second Amendment. Last year the Supreme Court invalidated a gun control law in Washington DC as barred by the Second Amendment. Now the Court will decide if the Second Amendment applies to state and local government.

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Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.

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US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.  
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."
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Inadequate Case Citation Results in $100 Fine for Attorney

The ABA Journal reports that an attorney in Wisconsin has been fined $100 for providing the Wisconsin Court of Appeals with an inadequate citation to an unpublished case. The attorney referenced the case in a footnote to support his argument for liquidated damages in a vending machine case, however got the case caption entirely wrong (citing instead to a misrepresentation case between newlyweds and a photographer) and provided a cite to nothing more than a docket number without so indicating.  The Court expressed its frustration in the unpublished opinion imposing the fine.  The pertinent portion of the opinion can be found at Legal Blog Watch.
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U.S. Supreme Court Grants Certiorari to Hear Appeal of Enron CEO's Convictions

On October 13, 2009, the United States Supreme Court granted Certiorari to hear former Enron CEO Jeffrey K. Skilliings' appeal from his conviction of 19 criminal charges stemming from his role in the 2001 collapse of the Fortune 500 company Enron.  Skilling was convicted in 2006 and sentenced to 24 years 4 months in federal prison.

Despite Skilling's repeated requests for a change of venue, a Houston jury convicted Skilling in 2006 of insider trading, conspiracy, five counts of making false statements to auditors and twelve counts of securities fraud.  Skilling's appeal to the Fifth Circuit was denied. Skilling appealed to the Supreme Court and, according to NPR news reports, is claiming that the lower court erred by not granting a change of venue amidst the wide publicity his trial received in Houston, where Enron was located.

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Nevada Supreme Court Denies OJ's Request for Bail Pending Appeal

September 4, 2009

OJ Simpson will remain incarcerated while his appeal is pending.  In a two-page Order, the Court concluded that Simpson had not met his "heavy burden" to convince the Court he is not a flight risk in light of the "serious, nonprobationable, violent offenses" that Simpson was aquitted of.

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Nevada High Court Hears Oral Argument on OJ's Request for Bail Pending Appeal

Today, the Nevada Supreme Court heard oral argument from Yale Galanter, counsel for OJ Simpson, in Mr. Simpson's request for bail pending his appeal of twelve guilty verdicts, including armed robbery and kidnapping. The Nevada convictions stemmed from the well publicized events of September 13, 2007, in which Simpson and others accompanying him forced their way into a Palace Station hotel room, carrying guns and demanding the occupants turn over OJ Simpson football memorabilia. On December 5, 2008, the trial court sentenced Simpson to 15 years to life with the possibility of parole in six years.

Citing the factors in Bergna v. State, 120 Nev. __ (2004), Mr. Galanter argued before the three justice panel that Simpson is not a flight risk because Simpson's noteriety makes it impossible for him to flee or hide without intense media scrutiny. (One can only speculate that Mr. Galanter had in mind Mr. Simpson's prior failed attempt to flee arrest in 1994.) Galanter also argued that the errors by the trial judge in Simpson's trial were "so egregious and so outrageous" that there is a high likelihood that Simpson's convictions will be overturned on appeal. Of particular note, Galanter argued in rebuttal that the trial court's failure to instruct the jury on specific versus general intent rendered the verdicts invalid.

Justice Siatta expressed concern about the public policy considerations regarding granting Simpson's bail request and the precedent it could set among all convicted appellants seeking bail pending appeal. David Rogers, counsel for the State of Nevada, reiterated Justice Siatta's concerns and emphasized the high burden placed on Simpson under Bergna given the violent nature of the crimes and the significant sentence imposed. Mr. Rogers also opined that nothing would prevent Simpson from taking "a short boat ride" from Florida to another country to escape justice.

Rogers indicated the State's Response Brief to Simpson's underlying appeal would be filed sometime within two weeks.

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Ninth Circuit Reverses Las Vegas Judge's Grant of Rule 50(b) Motion

On March 3, 2009, the Ninth Circuit published the opinion, Tortu v. LVMPD, reversing a decision of the U.S. District Court District of Nevada, Hon. Robert C. Jones presiding. The plaintiff sued the Las Vegas Metro Police Dept. and several Metro Police officers for unreasonable force when plaintiff was arrested at McCarren International Airport. The jury found in favor of two of the officers and found a third officer, Engle, liable to the plaintiff. Engle filed a Rule 50(b) motion for judgment as a matter of law and, in the alternative, a Rule 59 motion for a new trial. The court granted both motions.

The Ninth Circuit reversed, stating that Engle was not entitled to file a Rule 50(b) motion without first having filed a Rule 50(a) motion prior to submission of the case to the jury. The Court cited the plain language of the Rule and the 1991 advisory committee notes stating, "This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of evidence."

The Court also reversed the district court's grant of Engle's Rule 59 motion for a new trial. The Court concluded that the district court abused its discretion because the weight of evidence was not against the jury's verdict. Contrary to the district court's reasoning that finding for the other two officers conflicted with the jury's finding for plaintiff against Engle, the Ninth Circuit conluded only that plaintiff had not met his burden of showing excessive force by the other two officers, particularly where separate evidence as to Officer Engle was given. Moreover, the district court was not entitled to substitute its evaluation of the evidence for the jury's, simply because it would have arrived at a different verdict. Thus, the jury's verdict was not irreconcilable, and Engle could have been found liable while the other two officers were not found liable.
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