Michael Douglas
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Michael Douglas is a justice on the Nevada Supreme Court. Justice Douglas, the first African American justice in Nevada’s history, was appointed to the Court in March 2004 to fill the vacancy that resulted from the death of Justice Myron E. Leavitt.[1]
Biographical
Douglas and his wife, Martha, have been married for 18 years, and he is the father of one daughter, Christine.[2]
Prior to his appointment as district court judge, Douglas was deputy district attorney for Clark County in Nevada. He is a graduate of California State University at Long Beach, the University of California Hastings College of the Law and the University of Reno, Nevada, National Judicial College.[3]
Associations
Douglas is a member of the Las Vegas chapter of the National Bar Association; the Nevada Bar Association; Alpha Phi Alpha Fraternity and the NAACP.[4]
Campaign contributions
For Judge Douglas' contributions, expenses and financial disclosure reports, visit The Nevada Secretary of State Web Site. In his 2006 race for the Supreme Court, Douglas raised $419,425 total.[5] The top three contributions by economic interest are:
- Lawyers and Lobbyists, $115995
- General Business, $92,775
- Finance, Insurance and Real Estate, $32,000
For a full summary of Douglas' campaigns, visit Follow the Money.
Reconsideration of tax ruling
Nevada Attorney General Catherine Cortez Masto has asked the court to reconsider a 6-1 ruling that food provided for free to casino patrons and some employees is tax exempt. "The ruling has the potential to not only apply to the payment of use tax on meals, but also to the payment of sales tax. The potential fiscal impact of this decision could be devastating to the state", Masto wrote.
In the case, the high court sided with John Ascuaga's Nugget, a casino resort in Sparks, which requested a $1.3 million refund from the state for taxes it paid on complimentary meals between April 1999 and February 2002. Masto and leaders in the state Capitol have said that the court's ruling in favor of the Nugget will worsen the state's budget shortfall, expected to reach $900 million by mid-2009. The court's majority opinion, signed by Chief Justice Mark Gibbons and five other justices, said "no taxable event occurred when the Nugget provided complimentary meals to its patrons and employees." The ruling also said the state constitution exempts most "food for human consumption" from both sales and use taxes. "Whether this exemption is the best approach is not for us to decide," the justices wrote. "We are bound to follow the constitution's plain language even though a different result might be desirable in some circumstances."
Douglas dissented from the decision, arguing that the state Legislature intended the tax exemption to apply to the purchase of food for preparation and consumption at home, not meals provided free of charge or otherwise by a restaurant. "Thus Nevada law unequivocally requires a tax to be paid on meals that are provided free of charge to patrons and employees," Douglas wrote.[6]
TASC petition
On Friday, September 8, 2006 the Nevada Supreme Court voted unanimously to keep TASC (Tax and Spending Control for Nevada) off the November ballot. Joel Hansen, Attorney for TASC, called the small discrepancy in dates in the petition on which the decision was based a typographical error--a technicality. The District Court had agreed with Hansen, siding in favor of allowing TASC on the ballot for the people to vote. TASC had gathered more than 156,000 signatures to be placed on the ballot. TASC would have limited tax increases and government spending to increases in inflation and growth. The insatiable appetite of government for our money will leave us slaves in our own country.
The TASC decision is the second in a series of decisions by the Nevada Supreme Court denying the will of the people. In the 2003 case, Guinn vs Legislature, Governor Guinn seeking the largest tax increase in history took the Nevada Legislature to the Nevada Supreme Court. The Court sided with the Governor under suspicion of collusion, forcing the gargantuan increase in taxes through the Nevada Legislature. It was so unneeded that in 2005 Guinn got a "rebate" passed using the DMV registration. The Court then used the TASC decision to reverse itself on Guinn v. Legislature. The Supreme Court decision on TASC states: "we take this opportunity to clarify Governor v. Nevada State Legislature, wherein this court, in construing the Nevada Constitution, distinguished between "procedural" and "substantive" requirements, concluding that procedure must yield to substance if the requirements conflict. We expressly overrule that portion of the opinion. The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision." For the full decision, visit The Nevada Supreme Court.
The court was the last block to allowing TASC on the ballot so the people could vote. A poll conducted August 8, 2006 by Mason Dixon Polling & Research, as reported in the Las Vegas Review Journal, showed TASC winning among likely voters at 54%, with 20% opposed and 26% undecided. TASC would limit excessive and crushing growth of taxes and government spending. TASC would have required that the people vote on any new taxes. Current Supreme Court incumbents at the time, Nancy Becker and Michael Douglas, voted against TASC.[7]
On the Issues
On Freedom of Expression
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Douglas 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.”
On Contract Enforcement
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Douglas 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.”
On Criminal Justice
Before the Court En Banc, and over the dissents of Justices James Hardesty and Maupin, Justice Michael Douglas authored the majority opinion, which ruled that an inmate’s parole hearing was a quasi judicial proceeding, and therefore, was not subject to Nevada’s Open Meeting Law.
While Justices James Hardesty and Maupin agreed that parole hearings are exempt from Nevada’s Open Meeting Law, the two justices partially dissented on the grounds that determining whether a hearing was a quasi-judicial proceeding based on “minimum” due process safeguards would “eviscerate the purpose of the Nevada Open Meeting Law. Instead, the dissent argues that quasi judicial proceedings should be based on the Judicial Function Test.
- ON THE LEGISLATURE’S INTENT IN ADOPTING THE OPEN MEETING LAW: “[i]n enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”
- ON THE REQUIREMENTS OF THE OPEN MEETING LAW: “To ensure that public bodies take actions and deliberate openly, the Open Meeting Law requires that public bodies ‘give the public clear notice of the topics to be discussed at public meetings so that the public can attend a meeting when an issue of interest will be discussed.” In addition, “the notice must include an agenda that denotes a period of public comment.”
- ON THE MINIMUM REQUIREMENTS OF A QUASI-JUDICIAL PROCEEDING: “We explained that ‘[a]t minimum, a quasi-judicial proceeding must afford each party (1) the ability to present and object to evidence, (2)the ability to cross-examine witnesses, (3) a written decision from the public body, and (4) an opportunity to appeal to a higher authority.”
- ON WHY PAROLE HEARINGS ARE QUASI-JUDICIAL AND ARE NOT COVERED BY THE OPEN MEETING LAW: “Because the Legislature intended that parole hearings are quasi-judicial proceedings, and, as of October 1, 2007, that NRS 213.130 and related statues provide the exclusive rights to ‘any person” with respect to parole hearings, any rights flowing form the Open Meeting Law do not extend to parole hearings.”
- ON THE ADVERSE CONSEQUENCES OF DETERMINING QUASI JUDICIAL PROCEEDINGS BASED MINIMUM DUE PROCESS SAFEGUARDS: "Pursuant to Stockmeier, any public body may implement modest due process protections to qualify as quasi-judicial and thereby exempt itself from the requirements of the Open Meeting Law.
- ON THE JUDICIAL FUNCTION TEST: "The majority concludes that parole hearings are quasi-judicial because the Board performs a quasi-judicial function. The majority's holding is thus compatible with the well-recognized judicial function test adopted by many other jurisdictions. I believe that we should adopt this test and overrule Stockmeier, to the extent that it relies solely on the existence of minimum due process safeguards to determine whether an entity performs a quasi-judicial function.
On Elections Law
Before the Court En Banc, Justice Douglas authored the majority opinion over the dissents of justices Hardesty and Maupin, that ruled that an initiative petition entitled “Nevada Property Owners’ Bill of Rights,” should not be completely removed from the ballot, even if the initiative violates the single subject requirement and violates the threshold perquisite that initiatives propose policy. Instead, the Court severed the portion of the initiative that pertains to secondary subjects and struck the provisions that dictate administrative details. The court held: (1) the single subject rule does not violate the Nevada Constitution (2) the single subject rule does not violate the first Amendment of the U.S. Constitution (3) section 1 and 8 of the initiative violates the single subject rule (4) the remainder of the initiative is amendable to severance (4) three of the initiative’s provisions--sections 3,9, and 10—dictate administrative details in contravention of the policy proposal requirement
In contrast, the dissent argues that the initiative should be completely removed from the ballot because (1) applying a “severe and strike remedy” would contradict the plain and ordinary meaning of the “Requirements for Petition” statute, (2) complete removal would require the least amount of judicial discretion, and (3)provide the most certainty for future initiative proponents.
- ON WHY THE SINGLE SUBJECT RULE DOES NOT VIOLATE THE NEVADA’S CONSTITUTION: “The Nevada Constitution explicitly authorizes the Legislature to enact laws regulating the initiative process, so long as those laws facilitate the provisions of Article 19.” In addition, “by limiting petitions to a single subject, NRS 295.009 facilitates the initiative process by preventing petition drafters from circulating confusing petitions that address multiple subjects.”
- ON WHY THE SINGLE SUBJECT RUlE DOES NOT VIOLATE THE U.S. CONSTIUTION: : “Like the provision at issue in Campbell, Nevada's single-subject requirement does not prevent petitioners from addressing multiple subjects and thereby restrict the quantum of speech. It simply requires petitioners to address separate subjects in separate petitions. Moreover, the rule is nondiscriminatory, as it does not limit the subject matter of petitions in general; it merely limits petitioners to addressing one subject per petition. Thus, the application of the single-subject requirement does not discriminate against the proponents based on the content of their initiative. Nevada also has a number of important interests in the single-subject rule. These interests mirror the interests cited in Campbell, including preventing the public from being confronted with confusing or misleading petitions and preventing proposals that would not otherwise become law from being passed solely because they are attached to more popular measures.”
- ON THE STANDARD FOR DETERMINING WHEHTER A PETITION ENCOMPASSES MORE THAN ONE SUBJECT: “NRS 295.009 plainly sets forth the standard to be applied in determining whether an initiative petition encompasses more than one subject. Specifically, each petition must embrace only one subject and matters necessarily connected with and pertaining to that subject, so that “the parts of the proposed initiative ... are functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by, the proposed initiative or referendum.”
ON WHY SECTION 1 IS NOT SUFFICIENTLY CONNECTED TO EMMINENT DOMAIN: “Under section 1, ‘[a]ll property rights are hereby declared to be fundamental constitutional rights and each and every right provided herein shall be self-executing.’ Although the proponents insist that this section is “functionally related” and “germane” to the subject of eminent domain because it would require the application of a strict scrutiny standard when property is taken, we disagree. This section is about making all property rights fundamental rights, and thereby creating a broad new class of fundamental rights. It does not deal with the subject of eminent domain. Further, this section's inclusion in an initiative dealing with eminent domain does not provide sufficient notice of the subject addressed in section 1 or the interests likely to be affected by this section.”
ON WHY SECTION 8 IS NOT SUFFICIENTLY CONNECTEDTO EMMINENT DOMAIN: “Section 8 addresses government actions that cause substantial economic loss to property rights. Specifically, section 8 provides that “government actions which result in substantial economic loss to private property shall require the payment of just compensation.” This section further provides that ‘[e]xamples of such substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limiting the use of private air space.’ As a result, this section is extremely broad and concerns any government action that causes substantial economic loss. Although this section would, as the proponents contend, apply to many inverse condemnation cases, which this court has held to be the “constitutional equivalent to eminent domain,” it would also apply to myriad other government actions that do not fall even within the most broad definition of eminent domain.”
ON THE STANDARD FOR SEVERANCE: “Thus, the only evidence of legislative intent regarding a remedy for violations of the single-subject requirement is that violations do not automatically render an initiative void. We therefore exercise our power to sever the initiative's provisions that concern secondary subjects, since the remaining provisions pertaining to the primary subject (eminent domain) satisfy the following conditions: ‘(1) the provisions have legal effect, and (2) it appears the [voters] intended the provisions to stand alone even if another section in the same [initiative] is held invalid.’”
ON WHY THE INITIATIVE IS AMENDABLE TO SEVERANCE: “First, and foremost, under the unique circumstances of this case, the initiative, even though it violates the single-subject requirement, is severable, as its primary subject is readily discernable. As discussed above, the vast majority of the initiative's provisions-twelve of fourteen-address eminent domain. Additionally, the proponents have repeatedly stated that the initiative concerns eminent domain. Thus, because the initiative has a single primary subject, it is amenable to severance; the two unrelated sections, 1 and 8, can simply be omitted from the rest of the initiative, so that it may proceed as an eminent domain initiative.” In addition, “the initiative's section 14 contains a severability clause, which provides that ‘[a]ny provision contained in this section shall be deemed a separate and freestanding right and shall remain in full force and effect should any other provision contained in this section be stricken for any reason.” Thus, the initiative petition's signers have expressed a desire to allow the initiative to proceed even without some sections, and, in severing, this court need not speculate whether the signatories would have signed the petition in its severed form.”
ON WHY THE COURT MUST MAKE EVERY EFFORT TO PRESEVERE THE PEOPLE’S RIGHT TO AMEND THEIR CONSTITUTION THROUGH THE INITIATIVE PROCESS: “Although the Legislature has the power to enact laws to facilitate the operation of the initiative process, which includes enacting a single-subject requirement for initiative petitions, this court, in interpreting and applying such laws, must make every effort to sustain and preserve the people's constitutional right to amend their constitution through the initiative process. In this instance, because the Legislature has provided no specific remedy, striking the entire initiative, instead of severing the offending sections and allowing the remaining initiative to be placed on the November ballot, would run counter to the people's right to express their will through the initiative process. We have recognized that ‘the right to initiate change in this state's laws through ballot proposals is one of the basic powers enumerated in this state's constitution.’”
ON WHY SECT6IONS 3, 9, AND 10 DO NOT PROPOSE POLICY: “These provisions concern the day-to-day operations of Nevada's court system and therefore direct decisions that have been delegated to the judiciary. They do not propose policy but instead are distinctly administrative; consequently, they must be stricken."
ON WHY THE SEVERE AND STRIKE REMEDY ALLOWS COURTS TO CONDUCT JUDICIAL SURGERY: “The majority, by creating this remedy of severing and striking portions of an initiative, has set a dangerous precedent for the future review of initiative petitions. Nevada courts are now empowered to sever and strike provisions that violate the single-subject requirement, not because those provisions are unconstitutional or unenforceable, but simply because the court determines that the offending provisions fall outside the court's conjecture of what single-subject the petition is [primarily] attempting to promote.... Such discretion, ... allows the courts to employ pure “judicial surgery” in severing a petition, creates an unworkable test for future cases and gives the courts unfettered freedom to tamper with the people's constitutional prerogative.”
ON WHY THE MAJORITY’S DECISION WILL REQUIRE BIANNUAL JUDICIAL INTERFERENCE IN THE INIATIVE PROCESS: “The majority ruling today mandates, without any definitive standard, biannual judicial interference in the initiative process. Our solution limits the use of judicial discretion such as applied here, which can never truly and accurately reflect the will of petition signators and, ultimately, the voters. In short, the majority holding today requires ad hoc decision making by judges concerning the subjective intent of initiative proponents”
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.”
Before the Court En Banc, and over the dissents of Justices Hardesty and Maupin, Justice Douglas authored the majority opinion, which ruled that an inmate’s parole hearing was a quasi judicial proceeding, and therefore, was not subject to Nevada’s Open Meeting Law.
While Justice Hardesty and Maupin agreed that parole hearings are exempt from Nevada’s Open Meeting Law, the two justices partially dissented on the grounds that determining whether a hearing was a quasi-judicial proceeding based on “minimum” due process safeguards would “eviscerate the purpose of the Nevada Open Meeting Law. Instead, the dissent argues that quasi judicial proceedings should be based on the Judicial Function Test.
- ON THE LEGISLATURE’S INTENT IN ADOPTING THE OPEN MEETING LAW: “[i]n enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”
- ON THE REQUIREMENTS OF THE OPEN MEETING LAW: “To ensure that public bodies take actions and deliberate openly, the Open Meeting Law requires that public bodies ‘give the public clear notice of the topics to be discussed at public meetings so that the public can attend a meeting when an issue of interest will be discussed.” In addition, “the notice must include an agenda that denotes a period of public comment.”
- ON THE MINIMUM REQUIREMENTS OF A QUASI-JUDICIAL PROCEEDING: “We explained that ‘[a]t minimum, a quasi-judicial proceeding must afford each party (1) the ability to present and object to evidence, (2)the ability to cross-examine witnesses, (3) a written decision from the public body, and (4) an opportunity to appeal to a higher authority.”
- ON WHY PAROLE HEARINGS ARE QUASI-JUDICIAL AND ARE NOT COVERED BY THE OPEN MEETING LAW: “Because the Legislature intended that parole hearings are quasi-judicial proceedings, and, as of October 1, 2007, that NRS 213.130 and related statues provide the exclusive rights to ‘any person” with respect to parole hearings, any rights flowing form the Open Meeting Law do not extend to parole hearings.”
- ON THE ADVERSE CONSEQUENCES OF DETERMINING QUASI JUDICIAL PROCEEDINGS BASED MINIMUM DUE PROCESS SAFEGUARDS: "Pursuant to Stockmeier, any public body may implement modest due process protections to qualify as quasi-judicial and thereby exempt itself from the requirements of the Open Meeting Law.
- ON THE JUDICIAL FUNCTION TEST: "The majority concludes that parole hearings are quasi-judicial because the Board performs a quasi-judicial function. The majority's holding is thus compatible with the well-recognized judicial function test adopted by many other jurisdictions. I believe that we should adopt this test and overrule Stockmeier, to the extent that it relies solely on the existence of minimum due process safeguards to determine whether an entity performs a quasi-judicial function.
On Government Accountability
Justice Douglas 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.”
Before the Court En Banc, and over the dissents of Justices Hardesty and Maupin, Justice Douglas authored the majority opinion, which ruled that an inmate’s parole hearing was a quasi judicial proceeding, and therefore, was not subject to Nevada’s Open Meeting Law.
While Justice Hardesty and Maupin agreed that parole hearings are exempt from Nevada’s Open Meeting Law, the two justices partially dissented on the grounds that determining whether a hearing was a quasi-judicial proceeding based on “minimum” due process safeguards would “eviscerate the purpose of the Nevada Open Meeting Law. Instead, the dissent argues that quasi judicial proceedings should be based on the Judicial Function Test.
- ON THE LEGISLATURE’S INTENT IN ADOPTING THE OPEN MEETING LAW: “[i]n enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”
- ON THE REQUIREMENTS OF THE OPEN MEETING LAW: “To ensure that public bodies take actions and deliberate openly, the Open Meeting Law requires that public bodies ‘give the public clear notice of the topics to be discussed at public meetings so that the public can attend a meeting when an issue of interest will be discussed.” In addition, “the notice must include an agenda that denotes a period of public comment.”
- ON THE MINIMUM REQUIREMENTS OF A QUASI-JUDICIAL PROCEEDING: “We explained that ‘[a]t minimum, a quasi-judicial proceeding must afford each party (1) the ability to present and object to evidence, (2)the ability to cross-examine witnesses, (3) a written decision from the public body, and (4) an opportunity to appeal to a higher authority.”
- ON WHY PAROLE HEARINGS ARE QUASI-JUDICIAL AND ARE NOT COVERED BY THE OPEN MEETING LAW: “Because the Legislature intended that parole hearings are quasi-judicial proceedings, and, as of October 1, 2007, that NRS 213.130 and related statues provide the exclusive rights to ‘any person” with respect to parole hearings, any rights flowing form the Open Meeting Law do not extend to parole hearings.”
- ON THE ADVERSE CONSEQUENCES OF DETERMINING QUASI JUDICIAL PROCEEDINGS BASED MINIMUM DUE PROCESS SAFEGUARDS: "Pursuant to Stockmeier, any public body may implement modest due process protections to qualify as quasi-judicial and thereby exempt itself from the requirements of the Open Meeting Law.
- ON THE JUDICIAL FUNCTION TEST: "The majority concludes that parole hearings are quasi-judicial because the Board performs a quasi-judicial function. The majority's holding is thus compatible with the well-recognized judicial function test adopted by many other jurisdictions. I believe that we should adopt this test and overrule Stockmeier, to the extent that it relies solely on the existence of minimum due process safeguards to determine whether an entity performs a quasi-judicial function.
On Negligence
In a 4-3 decision, Justice Douglas dissented, along with Justices Cherry 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 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 Taxes
Sitting En Banc, Justice Douglas concurred with a unanimous opinion (Justices Cherry and Saitta did not participate), authored by Justice Gibbons, which upheld a Nevada Department of Taxation regulation that requires a person, before seeking judicial review of a final tax determination, to pay the amount of the determination or enter into a written agreement with the Tax Department to do so. The Court held that the regulation did not deprive the Plaintiff of its right to equal protection or exceed its statutory authority by requiring written agreements to pay taxes in installments be personally guaranteed by a responsible person.”
- 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.”
External links
- Nevada Supreme Court
- Follow the Money: Michael Douglas
- Las Vegas Review Journal: NV Supreme Court throws out spending control initiative--allows eminent domain to go before voters
