Michael Cherry
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Michael Cherry is a Justice on the Nevada Supreme Court. Justice Cherry has been an attorney in Nevada since 1970 and was elected to the Supreme Court in 2006, making him one of its two newest members (the other is Justice Nancy Saitta). His term ends in 2013.
Cherry is affiliated with the Democratic Party.[1]
A native of St. Louis, Justice Cherry earned his bachelor’s degree from the University of Missouri in 1966 and a J.D. from the Washington University School of Law in 1969.
Legal experience
Justice Cherry has been an attorney in Nevada since 1970 and was elected to the Nevada Supreme Court in 2006. He began his career as a Deputy Clark County Public Defender before becoming a partner in the law firms of Manos & Cherry and later Cherry, Bailus & Kelesis. In 1981 Justice Cherry was named as Special Master of the MGM Grand Hotel Fire Litigation and in 1983 he assumed the duties of Special Master of the Las Vegas Hilton Fire Litigation. As Special Master, Judge Cherry served as liaison between plaintiffs’ attorneys, defense attorneys and the court during these multi-million dollar cases. His work as Special Master gained him nationwide recognition and the procedures he established are now a part of most mass disaster litigation.
Justice Cherry served as an Alternate Municipal Judge for the cities of Las Vegas and Henderson, as well as Justice of the Peace Pro Tem and Small Claims Referee for Clark County. In 1994 he became an instructor for the University of Phoenix, teaching business law and history. Then in 1997 Justice Cherry was named to lead the newly created Clark County Special Public Defender’s Office to handle major homicide cases and conflict cases from the county public defender’s office. He led a staff of six attorneys and served in that capacity until being elected to Department 17 of the Eighth Judicial District Court in November 1998.[2]
Election campaigns
In the 2006, Cherry ran unopposed for a six-year term on the court. His campaign raised $517,584. Cherry won 75% of the vote while the option "None of these candidates" won 25%.[3],[4],[5]
First Amendment rights
The Review-Journal successfully petitioned a District Court judge to lift an order preventing the media from identifying women who have accused Las Vegan Steven Newberg of rape. Judge Cherry overturned a gag order that Justice of the Peace Ann Zimmerman had placed on the press, prohibiting the publication or broadcast of the names of three alleged rape victims who had appeared in open court and whose names are contained in the public record.[6] Cherry ruled that the decision on whether to identify alleged rape victims who testify in court should be left to Las Vegas Valley media outlets. "I'm going to leave it to the (Las Vegas) Sun and the Review-Journal as to how they are going to handle it," he said.[7]
On the Issues
On Freedom of Expression
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Cherry concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
- 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.”
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.”
On Criminal Justice
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Michael Cherry concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
- 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.”
Before the Court En Banc, Justice Cherry consented to the unanimous decision that ruled that a father, who was found to be an unfit parent because of gang affiliations, was not entitled to regain sole legal and physical custody of his child ten years later, even if the father turned his life around and was now a productive member of society. The Court held (1) the father was no longer entitled to a parental preference because parental preference applies only to initial custody orders, not modifications (2) in order for the father to regain sole legal and physical custody, the father was required to show that either his or the custody holder’s circumstances have been materially altered and that the child’s welfare would be substantially enhanced by change in custody.
- ON THE PARENTAL PREFERENCE DOCTRINE: “A fit parent is to be preferred over non-parents with respect to child custody.”
- ON A PARENT’S PROTECTED LIBERTY INTEREST IN A CHILD: “The so-called parental preference doctrine recognizes that a parent has a constitutionally protected liberty interest in the care, custody, and control of his or her child.”
- ON THE STANDARD FOR AWARDING CUSTODY FOR NON-PARENTS WITHOUT CONSENT: “Based upon this liberty interest, NRS 125.500(1) requires that the court “make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child” before the district court awards custody to a nonparent without the consent of the parents.”
- ON THE STANDARD FOR MODIFICATION OF COURT AWARDED CUSTODY BETWEEN A PARENT AND A NON-PARENT: “We also held, in Murphy v. Murphy, that as between two fit parents, the moving parent bears the burden of proving that a change of custody is warranted by establishing that “(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change.” We conclude that the two-prong analysis enunciated in Murphy also governs a custody modification between a parent and a nonparent.”
- ON VOLUNTARILY RELINQUISHING CUSTODY: “As we noted in Litz, we do ‘not want to discourage parents from willingly granting temporary guardianships, while working through problems in their own lives, if that is in the child's best interest.’ The natural parent, by voluntarily establishing the guardianship, does not waive their right to the parental preference at a subsequent proceeding to reevaluate the custody arrangement.”
- ON THE COURT’S REASONING FOR SIDING AGAINST A PARENT’S CONSTITUTIOANL RIGHT TO CUSTODY: “[h]aving once protected the parent's right to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case.”
On Government Accountability
Justice Cherry 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 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 Gun Rights
Sitting En Banc (Justice Saitta voluntarily recused herself), Justice Cherry consented with the majority opinion, over the dissent of Justice Parraguirre, which reversed the Plaintiff’s conviction for unlawful possession of a firearm by a fugitive from justice in violation of NRS 202.360(1)(b). The Court held that the statute was unconstitutionally vague because (1) the phrase “fugitive from justice,” undefined, gives inadequate notice of who the legislature intended to prohibit from possessing a firearm, (2)"fugitive from justice" does not have an ordinary and well-established meaning (3) the statute does not establish a clear standard as to whether a violation has occurred and thereby allows arbitrary and discriminating enforcement.
In contrast, the dissent, authored by Justice Parraguirre, argued that because "the term 'fugitive from justice' has a well-settled meaning in Nevada and does not appear to promote" arbitrary enforcement, the Plaintiff's conviction should not be reversed.
- ON THE GOVERNING STATUTE: “[a] person shall not own or have in his possession or under his custody or control any firearm if he***[i]s a fugitive from justice.”
- ON THE NECESSARY NOTICE REQUIREMENT: “We conclude that NRS 202.360(1)(b) does not survive the first prong of the vagueness test because the Legislature did not define the term “fugitive from justice.” “By failing to adopt the federal definition of ‘fugitive from justice’ or include any definition of that phrase in NRS 202.360(1)(b), the Legislature failed to provide the public with statutory notice of what that term means. It could arguably encompass a wide variety of circumstances. NRS 202.360(1)(b) does not state whether the underlying act that triggers its application has to be a felony, a misdemeanor, or a mere violation of a municipal ordinance. As NRS 202.360(1)(b) is written, citizens have to guess as to whether even an unpaid parking or traffic ticket subjects them to the ambit of the statute.” Furthermore, “We cannot determine from the statute's provisions whether the person has to have been formally charged with a crime, be wanted as a suspect but not yet indicted, be guilty of a crime but not yet discovered, be wanted for general questioning relating to a crime, or whether the person even has to know he has committed a crime."
- ON THE LACK OF AN ORDINARY AND WELL-ESTABLSIHED MEANING OF "FUGITIVE FROM JUSTICE": “If the term “fugitive from justice” had an ordinary and well-established meaning, that would mitigate the Legislature's failure to define that term. We have examined several sources, including federal law, our jurisprudence, and nonlegal sources. We conclude, based on our research, that “fugitive from justice” has no well-established and ordinary meaning.”
- ON ARBITRARY AND DISCRIMINTORY ENFORCEMENT: “NRS 202.360(1)(b) is susceptible to arbitrary and discriminatory enforcement because it does not specify the circumstances under which a person can be arrested and prosecuted as a fugitive from justice in possession of a firearm. It therefore establishes no clear standards to guide law enforcement officers, prosecutors, district courts, and, ultimately, jurors as to whether a violation has occurred.” “Without a clear definition of the term ‘fugitive from justice,’ NRS 202.360(1)(b) impermissibly encourages, authorizes, or at least fails to prevent its own arbitrary and discriminatory enforcement.”
On Negligence
In a 4-3 decision, Justice Cherry dissented, along with Justices Douglas and Gibbons, from the majority opinion, authored by Justice Parraguirre, 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 ADOPTION OF THE LIMITED DUTY RULE: “Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule.” “The limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect spectators from foul balls within the confines of the stadium.”
- ON THE ROLE OF PROXIMATE CAUSE IN FOUL BALL INJURY CASES: “Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of ‘duty,’ it provides little guidance here.”
- ON THE REQUIREMENTS OF THE LIMITED DUTY RULE: “First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
- ON THE REASONING OF THE LIMITED DUTY RULE: “By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability. In addition, “[it] serves the important purpose of limiting expensive and protracted litigation that “might signal the demise or substantial alteration of the game of baseball as a spectator sport.”
- ON THE HIGH RISK OF DANGER REQUIREMENT: “The risk of an occasional foul ball, however, does not amount to ‘an unduly high risk of injury.’ Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s' negligence, and the 51s were entitled to judgment as a matter of law.”
- ON THE SCOPE OF THE LIMITED DUTY RULE AND PERSONAL 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 Property Rights
Before the Court En Banc, Justice Cherry consented to 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 Taxes
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, and over the dissent of Justice Douglas, Justice Cherry joined the Per Curiam opinion, which ruled that a casino did not have to pay “sales” and “use” taxes on complimentary patron and employee meals. The court held that (1) the uncooked food used to prepare those meals was exempted from sales taxation by the Nevada constitution (2) the “later use of the food was not subject to use taxation since the casino’s “use” did not follow an otherwise taxable purchase that had ‘escaped’ sales tax liability’.”
In contrast, the dissent, authored by Justice Douglas, argues that because tax exemptions are strictly construed in favor of taxability, and because the Nevada constitution does not exempt “[p]repared food intended for immediate consumption,” “Nevada law unequivocally requires a tax to be paid on meals that are provided free of charge to patrons and employees.”
- ON NEVADA’S SALES TAX: “Nevada imposes an excise tax, known as a sales tax, on the retail sale of tangible personal property in this state.”
- ON NEVADA’S USE TAX: : “The use tax is complementary to the sales tax in that it guarantees that any nonexempt retail sales of personal property that have escaped sales tax liability are nonetheless taxed when the property is utilized in the state.”
- ON NEVEDA’S BROAD TAX FOOD EXEMPTION: “Nevada's food exemption could have been written in a more limited fashion. Instead, however, the constitution's plain language clearly and broadly exempts all food for human consumption (unless that food is “prepared food intended for immediate consumption” at the time it is sold). Whether this exemption is the best approach is not for us to decide; we are bound to follow the constitution's plain language even though a different result might be desirable in some circumstances.”
- ON WHY FOOD WAS EXEMPTED FROM SALES TAXATION: “Nevada's constitutionally mandated food exemption applies to all 'food for human consumption,' unless that food is 'prepared food intended for immediate consumption.' Because the food at issue in this case was not 'prepared food intended for immediate consumption' at the time it was purchased by the Nugget, the Nugget's initial purchase was exempt from sales taxation."
- ON WHY FOOD WAS EXEMPTED FROM USE TAXATION: “we conclude that the Nugget's complimentary patron and employee meals are use tax exempt in Nevada since the way in which the Nugget uses its tax exempt “food for human consumption” is irrelevant for purposes of applying the use tax."
- ON TAX EXEMPTIONS BEING STRICTLY CONSTRUED AGAINST THE TAX PAYERS: “[t]ax exemptions are strictly construed in favor of finding taxability and that any reasonable doubt about whether an exemption applies must be construed against the taxpayer.”
- ON THE MAJORITY’S FAULTY REASONING: “the majority creates a loophole within Nevada's tax law that is contrary to the plain language of the Nevada Constitution, the pertinent statutes, and the food exemption's purpose.”
On TIF
Justice Cherry 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.”
