A. William Maupin
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A. William Maupin is a justice on the Nevada Supreme Court. He was elected to the Supreme Court in 1996 and again in 2002. His term ends in January 2009.
Legal Education and Experience
Legal Education
Justice Maupin graduated from the University of Nevada, Reno and the University of Arizona Law School.
Legal Experience
In 1986-1987, Maupin served as president of the Defense Trial Lawyer's of Nevada and was on the board of directors of Nevada Legal Services and Clark County Legal Services. He was a chairman of the Nevada Supreme Court committee on Alternate Dispute Resolution from 1992 to 1996, and is considered to have been a driving force behind the judicial system's successful arbitration program. He served four years on the board of governors of the State Bar of Nevada and was chairman of a Supreme Court study committee to review judicial elections. By the time Justice A. William Maupin was appointed to the District Court bench in Clark County in 1993, his legal career had already spanned 22 years in both the public and private sectors. While he handled murder cases as a public defender, he eventually focused on major civil litigation as a partner in the law firm of Thorndal, Backus, Maupin and Armstrong. Justice Maupin was retained as a district judge by popular election in 1994 and elected to the Nevada Supreme Court in 1996 and 2002.[1]
Awards and Associations
In 1997, Justice Maupin was honored with the Roger D. Foley Professionalism Award and was named in Who's Who in America.[1]
Campaign Contributions
For copies of Maupin's contributions, expenses, and financial disclosure reports, visit The Nevada Secretary of State Web Site.
In the News: Articles
MGM official to lead panel studying Nevada's judicial system (3/29/07)
MGM Mirage Senior Vice President Paula Gentile will lead the 33-member commission that is charged with improving Nevada's judicial system. On Wednesday, Gentile was elected chairwoman of the Article 6 Commission, a group formed last fall by Supreme Court Chief Justice Bob Rose. Article 6 is the section of the state constitution that pertains to judicial matters.
New Chief Justice A. William Maupin said he and other Supreme Court justices do not want to control the direction and set the agenda for the commission. Members of the general public, lawyers and lower-court judges should develop recommendations on what they want Nevada's court system to look like in 20 years, he said.
"It has to be your creation," Maupin told the commission. "We will provide you with whatever resources you need. We were concerned the Supreme Court was steering this effort. We don't want that."
During the meeting, National Judicial College President Bill Dressel, Boyd School of Law Dean Richard Morgan, Reno lawyer Thomas "Spike" Wilson, Las Vegas businessman Mike Benjamin and Henderson real estate agent Tina Siller were appointed to be the executive committee. During the meeting, members engaged in an informal debate on whether District Court judges and Supreme Court justices should be appointed and then stand for re-election in a yes or no retention election. A bill before the Legislature would accomplish that objective, but it needs public approval.
"Now people who raise the most money, have the best 30-second message and put up the most signs get elected," Supreme Court Justice James Hardesty said. Craig Walton, president of the Nevada Center for Public Ethics, suggested that an objective standard should be developed on qualifications needed by judges. He added there also must be a way for the public to learn who are the best qualified candidates.[1]
Judicial Performance Evaluations Make their Mark (May 19, 2008)
Justice Nancy Saitta received by far a lower retention rating than any of her peers in the 2008 Judicial Performance Evaluation survey, winning the approval of only 45 percent of respondents. The next lowest retention rating belonged to Justice James W. Hardesty, who scored 26 points higher than Saitta. All the justices but Saitta got retention scores in the 70s and 80s. The average retention score for the seven justices, including Saitta, was 74 percent.
Chief Justice Mark Gibbons, the only justice running for re-election this year, led the pack with an 86 percent retention score, the same total he got two years ago. Retiring Justice Maupin was a close second with an 84 percent favorable rating. Lawyers were asked to rate justices "more than adequate," "adequate," or "less than adequate" on nine job-related attributes ranging from application of the law to courteousness. For every justice except Saitta, the lawyers' ratings averaged more than 50 percent "more than adequate." But in Saitta's case, the average score was only 32 percent "more than adequate," and 33 percent "less than adequate."
Looking ahead, Gibbons said he hoped to continue working to bolster public confidence in the judiciary. "We want to make the court more user-friendly and responsive to the public," Gibbons said.[1]
Maupin announces not seeking third term (January 10, 2008)
With the announcement that Bill Maupin isn't seeking a third term on the Nevada Supreme Court, it took only a day for the position to draw two contenders. Washoe District Judge Deborah Schumacher and former Clark County District Judge Don Chairez, both 52, filed for Supreme Court Seat B on Wednesday. For Chairez, a former Clark County District Judge, it is his second attempt to win the seat. Maupin defeated him in 2002 by a margin of more than 2 to 1. Schumacher, a member of the Washoe bench since her appointment by Gov. Bob Miller in 1997, conceded it will take a lot of work to win against a Clark County candidate.
Schumacher became a familiar figure at the 2007 Legislature as president of the district judges' association. She is responsible for cases that she said changed the standard for issuing change of custody orders and she drafted legislation that made it easier and faster for grandparents and other relatives to become guardians of children whose parents can't take care of them.[1]
On the Issues
Before the court En Banc, and through a Per Curiam opinion, the court reversed a district court’s order that denied a complaint for declaratory and injunctive relief, which sought to prevent the Tax and Spending Control for Nevada Initiative from being placed on the November 2006 general election ballot, because the initiative was not filed in compliance with mandatory requirements set forth in the Nevada Constitution because the copy of the iniative given to the Secretary of State was different then the copy that was distributed among voters. The court held (1) NRS 295.009, which requires initiatives to include a description of effect, and NRS 295.061, which provides the right to challenge an initiative description of effect, does not violate the First Amendment (2) Article 19, sect. 2(4), which requires an initiative’s proponents to file a true copy of the proposed initiative before circulating it must be adhered to strictly (3) procedural constitutional requirements need not necessarily yield to substantive constitutional requirements if the requirements conflict because “the Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”
- ON THE SPECIFICS OF THE INITIATIVE: “The TASC initiative generally proposes a constitutional amendment that would (1) impose spending limits for state and certain local governments; (2) require voter approval for new taxes; (3) change the existing Fund to Stabilize the Operation of State Government and the Disaster Relief Account therein, replacing them with a “Budget Stabilization Fund” and “Emergency Reserve Fund,” restricting the definition of “emergency,” barring the Governor and Legislature from appropriating funds in the event of a fiscal emergency; (4) prohibit the state from “directly or indirectly enact[ing] laws or authoriz[ing] the adoption of regulations[ ] requiring the counties and cities of the State to provide new services, expand existing services or conduct new or additional governmental function[s] without appropriating or designating state funding sources to fully support” the same; (5) freeze the “proportion of state revenue paid to all local units of government, taken as a group”; and (6) require that any proposed amendment to the Constitution mandating appropriations for specific projects or services that does not also establish a specific source of additional state revenue dedicated to fully funding those appropriations include a “notice” on the ballot stating that the amendment could be detrimental to other state services.”
- ON WHY THE DESCRIPTION-OF-EFFECT REQUIREMENT UNDER NRS 295.009(1)(b) IS CONSTTITUTIONAL: “Although the Nevada Constitution provides that the power to propose amendments to the Constitution by initiative petition is reserved to ‘the people,’ it also provides that the Legislature may enact laws that provide procedures to facilitate the initiative and referendum process. Additionally, the legislative power includes the broad power to frame and enact laws, unless there is a specific constitutional limitation to the contrary. Here, the plain language of Nevada Constitution Article 19, Section 5 imparts in the Legislature authority to enact laws to facilitate the initiative process, such as requiring a description of effect and allowing challenges on this basis.”
- ON WHAT ARTICLE 19, SECTION 2(4) STATES: “[i]f the initiative petition proposes an amendment to the Constitution, the person who intends to circulate it shall file a copy with the Secretary of State before beginning circulation.”
- ON WHY THE INITIATIVE DID NOT SATISFY ALL THE CONSTITUTIONAL FILING REQUIREMENTS: “Additionally, the committee's argument that it complied with all constitutional filing requirements when it filed the December 2005 legal-sized petition, containing the same section 4(4) language as the circulated petition, is unavailing. Both of the December versions contained defective descriptions of effect and, for that reason, only the March version is operational since it, with its compliant description of effect, was by definition the “copy” that the committee intended to circulate. Article 19, Section 2(4) states, with emphasis added, that “[i]f the initiative petition proposes an amendment to the Constitution, the person who intends to circulate it shall file a copy with the Secretary of State before beginning circulation.”
- ON WHY THE DIFFERENCE BETWEEN THE INIATIVE VERSION IS MATERIAL AND SUBSTANTIAL: (1) “the difference between the two versions' initial 2007-2009 spending limit has been calculated at approximately $1.3 billion, representing 14 percent of the state's budget, and the committee offered no nonspeculative evidence to refute the fiscal analysis. Notably, the circulated version allows for a 21-percent increase in state spending during the initial budget cycle. Contrasted to the March 8 filed version, which would constrain spending to 7.4 percent-a substantial reduction over the historical rate of growth in government spending-the difference is significant. Moreover, because the spending limit for the initial 2009-2011 biennium would become the basis for all future spending limits, the effect of the “typographical error” would reach far beyond the $1.5 billion mark.” (2) “ the circulated version allows for $1.5 billion more in spending per biennium than the filed version, and because, under the circulated version, spending could continue at or even beyond its historic rate, the primary purpose of the TASC measure would not be effectuated under the circulated version. In other words, the circulated petition, as drafted, would have no effect on the very problem that it claimed that it would remedy, i.e., government overspending. Therefore, the circulated version would not be an accurate reflection of the committee's vocalized intent to implement a constitutional limit on government spending. The circulated petition involves more than a mere “typographical error”; it is misleading.” (3) “And as the opponents point out, if the committee were permitted to file multiple versions of the initiative with the Secretary of State and rely on any or all of them, interested parties would be left to guess which version was being circulated, and only when the circulated version was submitted to the county registrars' offices for verification would anyone other than the proponents have the opportunity to review which version was to be placed on the ballot.”
- WHY STRICT COMPLIANCE IS REQUIRED: “The Nevada Constitution is the organic and fundamental law of this state, and to allow a sweeping amendment to it or to this state's legislative acts, without strict adherence to the rules set forth therein, would work against government stability. The strict adherence rule can hardly be considered burdensome, especially when, as here, actual compliance was easily attainable and there exists no acceptable excuse for noncompliance. The importance of following the letter of this state's seminal law becomes even more apparent in a case such as this, when the two versions of the petition differed in such a way that the initiative's substantive meaning was altered. While the committee's error in circulating a different version of the petition appears inadvertent in this case, the resultant effect of the error is that the initiative's stated purpose of cutting government spending would be defeated in favor of the circulated petition's language, which enables government spending to grow above and beyond its historical rates.”
Before the Court En Banc, Justice Maupin, along with Justice Rose, dissented from the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
On Criminal Justice
Before the Court En Banc, Justice Maupin, along with Justice Rose, diseented from the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
On Government Accountability
Justice Maupin concurred in a unanimous opinion that voided the Nevada Tax Commission’s decision to grant a taxpayer a refund of use taxes because the commission violated Nevada’s Open Meeting Law. The decision requires the Nevada Tax Commission to deliberate, vote, and receive nonconfidential evidence in open session during its proceedings. The Court further held that the exception to the Open Meeting Law only allows the Tax Commission to close a session, upon a taxpayer’s request, for the limited purpose of receiving evidence, questioning witnesses, and hearing arguments concerning confidential information.
- ON THE OPEN MEETING LAW: “Meetings of public bodies should be open whenever possible to comply with the spirit of the Open Meeting Law.”
- ON THE EXCEPTIONS TO THE OPEN MEETING LAW: “Because exceptions to the Open Meeting Law must be construed narrowly to favor openness and public bodies should meet openly whenever possible, we recognize that exceptions to the Open Meeting Law only extend to portions of a proceeding specifically, explicitly, and definitely excepted by statute.”
- ON THE CONSEQUENCE OF AN OVERBROAD INTERPRETATION OF THE EXCEPTION TO THE OPEN MEETING LAW: “[An] overbroad interpretation of the statutory exception would eviscerate the Open Meeting Law’s mandate that public bodies deliberate and vote in public meetings.”
Before the Court En Banc, Justice Mark Gibbons authored the unanimous opinion, which ruled that even though Nevada has a rich history in protecting private property rights, a City’s decision to barricade streets and to deny owners entrance into their property for 48 hours during a flood was not a “taking” of private property under the Nevada Constitution. The Court held (1) the “takings” clause of Nevada’s Constitution extends not only to real property, but also to personal property (2) the city’s interference with appellant’s property did not constitute a “takings” because the city only temporarily interfered with the property and never appropriated or physically occupied the property during the flood (3) the government is immune from negligence that is related to preparing for and handling emergencies, but not pre-emergency negligence.
- ON NEVADA’S “TAKINGS” STANDARD: “The Nevada Constitution states that ‘[p]rivate property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.’”
- ON WHY PERSONAL PROPERTY IS COVERED BY THE “TAKINGS” CLAUSE: “Specifically, that provision broadly applies to all types of privately owned “property” and includes no language to justify excluding personal property from its scope. Further, to define “private property” as not applying to personal property is not a reasonable alternative interpretation.”
- ON THE ACKNOLEDGEMENT OF EXPANSIVE INDIVIDUAL PROPERTY RIGHTS BY THE COURT: “To construe Nevada’s takings clause in that way would *** undermine the spirit of that provision, which we recently have noted ‘contemplates expansive property rights’ and provides the foundation of Nevada’s ‘rich history of protecting private property owners against government takings,’ while allowing for public safety and police powers.”
- ON THE STANDARD FOR A PHYICAL APPROPRIATION “TAKING” OF AN INDIVIDUAL’S PRIVATE PROPERTY: “A physical appropriation by ouster occurs when the government substantially interferes with an owner’s right of access to his or her property.” However, “the duration of any such impairment plays a significant role in determining whether the impairment substantially interferes with the owner’s right to access his or her property.”
- ON WHEN THE GOVERNMENT HAS IMMUNITY FOR PRE-EMERGENCY ACTS: : “NRS 414.110(1) creates governmental immunity for emergency preparation activities as well as emergency responses. Whether a pre-emergency act is immune turns solely on whether it was undertaken by the government in preparing for an emergency. Any pre-emergency acts that are not related to such preparation are not immunized under the statute.”
On Negligence
In a 4-3 decision, Justice Maupin concurred with the majority opinion, authored by Justice Parraguirre, over the dissents of Justices Gibbons, Douglas, and Cherry, which concluded that a professional baseball team, which printed injury disclaimers on tickers, posted warning signs and made announcements concerning the danger of foul balls hit into the crowd, was not liable for the severe injuries caused by a foul ball that struck a patron sitting in a Beer Garden without protective screening as a matter of law. The majority expressly held that stadium owners have a limited duty to protect against injuries sustained from foul balls, and that once this duty is satisfied by providing sufficient protected seating, stadium owners have “no remaining duty to protect spectators from foul balls, which are a known, obvious, and unavoidable part of all baseball games.”
In contrast, the dissent, authored by Justice Gibbons, argued that the negligence claim should not be dismissed as a matter of law because the patron was sitting in the Beer Garden, and the Limited Duty Rule should not be applied to areas outside of the stands because the Limited Duty Rule is a very specific exception to the general standard of care principles under Nevada’s comparative negligence system.
- ON LIMITING THE ROLE OF THE JURY THROUGH THE ADOPITION OF THE LIMITED DUTY RULE: “Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule.” “The limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect spectators from foul balls within the confines of the stadium.”
- ON THE ROLE OF PROXIMATE CAUSE IN FOUL BALL INJURY CASES: “Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of ‘duty,’ it provides little guidance here.”
- ON THE REQUIREMENTS OF THE LIMITED DUTY RULE: “First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
- ON THE REASONING OF THE LIMITED DUTY RULE: “By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability. In addition, “[it] serves the important purpose of limiting expensive and protracted litigation that “might signal the demise or substantial alteration of the game of baseball as a spectator sport.”
- ON THE HIGH RISK OF DANGER REQUIREMENT: “The risk of an occasional foul ball, however, does not amount to ‘an unduly high risk of injury.’ Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s' negligence, and the 51s were entitled to judgment as a matter of law.”
- ON THE SCOPE OF THE LIMITED DUTY RULE AND PERSONAL RESPONSIBILTY: "The dissent reasons that summary judgment is inappropriate because the limited duty rule does not extend to areas outside of the stands, such as the Beer Garden. In reaching this determination, the dissent applies the limited duty rule to the stands but then concludes that traditional negligence principles apply to other areas of the ballpark. In doing so, the dissent creates a ‘shifting or moveable duty of care,’ which is triggered by the plaintiff's unilateral and volitional decision to move between parts of the stadium. In our view, the defendant's duty should not change at the plaintiff's impulse, and only one duty of care should apply with respect to the general ‘peril of objects leaving the playing field.’”
- THE ROLE OF THE JURY IN DETERMINING DUTY AND ASSUMPTION OF RISK: "Several other courts that have recognized duty as a legal question also have recognized that the primary implied assumption of risk doctrine merely ‘goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.’ These courts treat the doctrine as a part of the initial duty analysis, rather than as an affirmative defense to be decided by a jury. In our opinion, this is a better application of the doctrine, and one that makes it compatible with our comparative negligence statute. Accordingly, we overrule Mizushima to the extent that it held that the primary implied assumption of risk doctrine was abolished by our comparative negligence statute. Whether that doctrine bars a plaintiff's claim should be incorporated into the district court's initial duty analysis, and therefore it should not be treated as an affirmative defense to be decided by a jury.”
- PUBLIC POLICY REASONING FOR NOT EXPANDING LIMITED DUTY RULE: “Since Mrs. Turner was sitting in the Beer Garden and not in the stands at the time of her injury, the limited duty rule should not apply. As the New Jersey Supreme Court recognized, to apply the limited duty rule ‘to [an] entire stadium would convert reasonable protection for owners to immunity by virtually eliminating their liability for foreseeable, preventable injuries to their patrons even when the fans are no longer engaged with the game.’ Thus, ‘[b]ecause principles of fairness, and by implication public policy, support the application of traditional tort concepts to areas outside of the stands,’ we should not expand the scope of the limited duty rule past the stands. Instead, the limited duty rule is a very specific, historically based exception to the general rule that traditional negligence standard of care principles apply under Nevada's comparative negligence system.”
On Personal Responsibility
On Property Rights
On Taxes
Sitting En Banc, Justice Maupin concurred with a unanimous opinion (Justices Cherry and Saitta did not participate), authored by Justice Mark Gibbons, which upheld a Nevada Department of Taxation regulation that requires a person, before seeking judicial review of a final tax determination, to pay the amount of the determination or enter into a written agreement with the Tax Department to do so. The Court held that the regulation did not deprive the Plaintiff of its right to equal protection or exceed its statutory authority by requiring written agreements to pay taxes in installments be personally guaranteed by a responsible person.”
- ON THE REQUIREMENTS OF SEEKING JUDICIAL REVIEW ON TAX DETERMINATIONS: "NRS 360.395 provides, (1) Before a person may seek judicial review pursuant to NRS 233B.130 from a final order of the Nevada Tax Commission upon a petition for redetermination, he must:(a) Pay the amount of the determination; or(b) Enter into a written agreement with the Department establishing a later date by which he must pay the amount of the determination. (2) If a court determines that the amount of the final order should be reduced or that the person does not owe any taxes, the Department shall credit or refund any amount paid by the person that exceeds the amount owed, with interest determined in accordance with NRS 360.2935."
- ON EQUAL PROTECTION: “When a party contends that a statute violates its equal protection rights but does not allege the involvement of a suspect class or fundamental right, the statute is constitutional if the classification scheme created by that statute is rationally related to furthering a legitimate state interest. NRS 360.395 protects the state's legitimate interest in securing the payment of taxes. As these taxes fund public services, the payment requirement rationally relates to furthering the state's ability to do so. For these reasons, we conclude that NRS 360.395 does not deprive Silver State of its right to equal protection; before seeking judicial review, its terms must be complied with.”
- 0N DEFERENCE T0 THE TAX COMMISSION’S INTERPRETATION: “The Tax Commission has authority to adopt regulations to carry out the mandates of NRS 360.395. Accordingly, the Tax Commission implemented NAC 360.452 to regulate the type of ‘written agreement’ that the statute allows the Tax Department to enter into. In so doing, it was required to interpret the statute. We will defer to the Tax Commission's interpretation of NRS 360.395 if that interpretation is within the provision's statutory language. We note that the Legislature's acquiescence to the Tax Commission's reasonable statutory interpretation by not modifying the statute indicates that the interpretation accords with legislative intent.”
- ON EXCEEDING STATUTORY AUTHORITY: “NAC 360.452 does not exceed statutory authority. The Legislature granted the Tax Department the authority to collect taxes by written agreements, and NAC 360.452 directly relates to such written agreements. Also, the Legislature has not modified the statutory provision allowing for written agreements since the Tax Commission adopted the regulation. Consequently, Silver State was required to comply with this regulation in entering into any NRS 360.395 agreement with the Department, and its failure to do so properly resulted in the district court's dismissal of its petition for judicial review.”
