Nancy Saitta
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Nancy M. Saitta is a justice on the Nevada Supreme Court. She was elected to the Supreme Court in 2006, making her one of the two newest members (the other is Justice Michael Cherry). Justice Saitta began her judicial career a decade earlier when she was appointed as a Las Vegas Municipal Court Judge in October, 1996. Two years later, she was elected a judge at the Eighth Judicial District Court. [1] Her term ends in 2013.
Justice Saitta was born April 29, 1951, in Detroit, Michigan. She was adopted at birth by Virginia M. Meyer and Alfred V. Meyer, a former bank vice president at Detroit Bank and Trust. Nancy’s adoption set her on a path she still travels today as a national advocate for adoption and child placement. She met Joe Saitta, a career Secret Service agent, and the couple married in 1987. Nancy practiced law in Michigan prior to moving to Nevada in 1990, when Joe’s transfer brought him to Nevada.[2]
Legal experience
Saitta graduated with a Bachelor of Science Degree, Magna Cum Laude in 1983 from Wayne State University where she earned her law degree in 1986. Initially, she worked as a criminal defense attorney in Detroit, Michigan. She eventually moved to Las Vegas, where she was employed as an attorney with the law firm of Pearson and Patton and later became an associate at the law firm of Gentile and Porter.
Saitta taught at Wayne State University in the Department of Criminal Justice and taught litigation courses at the American Institute for Paralegal Studies. Most recently, she taught in the criminal justice department of the University of Phoenix and has been a keynote speaker and faculty member at several national conferences.[3]
Awards and Associations
Judge Saitta is a member of the Clark County Public Education Foundation and Clark County Bar Association Executive Committee.[4] She is active in professional associations such as the National Association of Women Judges, and the “Trial by Peers” Program. She serves on the Public Education Foundation Executive Board; the Adoption Exchange Advisory Committee, which she chairs; and, until recently, she served on the Board of Directors of the CASA Foundation.[5]
Low performance evaluation
Saitta received a significantly lower retention rating than any of her peers in the 2008 Judicial Performance Evaluation survey, winning the approval of only 45 percent of respondents. The next lowest retention rating belonged to Justice James W. Hardesty, who scored 26 points higher than Saitta. All the justices but Saitta got retention scores in the 70s and 80s. The average retention score for the seven justices, including Saitta, was 74 percent. Lawyers were asked to rate justices "more than adequate," "adequate," or "less than adequate" on nine job-related attributes ranging from application of the law to courteousness. For every justice except Saitta, the lawyers' ratings averaged more than 50 percent "more than adequate." But in Saitta's case, the average score was only 32 percent "more than adequate," and 33 percent "less than adequate."
Saitta saw a decline in her results compared to two years ago, when she was a Clark County district judge. In 2006, 70 percent of respondents favored retaining her. Later that year, she won a six-year term to the Supreme Court, ousting then-Chief Justice Nancy Becker in a bitter and expensive race. Of more than 300 attorneys who evaluated Saitta, the largest number rated her most deficient in the area of properly applying the law. Five out of seven justices got their lowest marks in this category, while two were criticized most often for having a perceived bias toward parties or attorneys in a case. Saitta, the only woman on the state's highest court, was scolded by some attorneys for recent extra-judicial missteps. In written comments, several attorneys chastised Saitta for inflating her academic credentials on an election Web site. Saitta listed herself as having been an associate professor in political science at the University of Nevada, Las Vegas when, in reality, she was a part-time instructor at the university. "When her résumé is stripped of falsehoods, there is nothing left but her robe," one lawyer wrote. Some lawyers questioned Saitta's legal competence, but none cited specific rulings that bothered them.[6]
Bribery investigation involves Saitta family friend
Former cop, Ronald L. Mortensen had been sentenced to 99 years without possibility of parole after being convicted of a fatal shooting that occurred during a shooting spree with his partner in 1996. Ten years later, in 2006, Mortensen was preparing for a new trial. According to FBI investigators, his new plan involved a judicial "campaign contribution" of $100,000. Fellow police officer, Long, had visited Mortensen in jail, and offered a possibility--Nancy M. Saitta. Long’s friend Joe Saitta, retired chief of the U.S. Secret Service office in Las Vegas, was married to Nancy Saitta. In the fall of 2006, Judge Saitta was to hear Mortensen’s appeal. His hopes for freedom rested on her response to his wrongful-conviction claim and his argument that new evidence cast doubt on his accusers. Later, in a secretly recorded conversation, Long described a lunch with Joe Saitta: "I told him what I thought was bull– about (Mortensen’s case). The question is what kind of influence does Joe Saitta have over Nancy. I don’t know."
At the time, Saitta was amassing a campaign war chest to challenge an incumbent on the Nevada Supreme Court. Individual donations were limited to $2,000, but Mortensen expressed confidence that she "wants to rule for me" and joked on one surveillance tape that "another hundred grand really gets [her] predilections going." The bribery investigation was shut down after the local police foiled the FBI investigation by informing Long of their suspicions. There is no evidence that Judge Saitta or her husband ever heard about the scheme before it was disclosed earlier this year by the Las Vegas Review-Journal.[7]
Saitta's rulings come after her recusal
Former Las Vegas City Councilman Steve Miller writes an article on the consistent involvement in Rizzolo's case leads into speculating then-District Court Judge Nancy Saitta. The fact that Judge Nancy Saitta was presiding over five concurrent cases all involving Rick Rizzolo raised suspicion at a local weekly newspaper. An editorial entitled "Here comes the same judge" was published, and shortly thereafter, Judge Saitta on May 29, 2002, suddenly reassigned four of her five Rizzolo cases to other randomly selected district court judges. However, Judge Saitta kept the most important case, the civil wrongful death action brought by the widow and children of Scott David Fau. Mr. Fau was found dead behind the Crazy Horse in 1995 after being beaten by club bouncers two hours earlier. In each of these cases, judges are selected to preside over local cases in a random manner. As each case is presented to the court clerk, it is supposed to be given to the next judge in chronological order. There are 19 District Court judges. It's suspected that the court clerk sometimes sets aside special cases that certain judges desire, and waits until that judge's name is about to appear in numerical order, then pulls out the set-aside case to be assigned to that judge.[8] For copies of court documents and excerpts from the Las Vegas Review-Journal, click here.
Political Affiliation
Democrat.[9]
Election campaigns
2006
In her 2006 run for Nevada's highest court, Saitta raised $646,131 total.[10]
Saitta beat incumbent Nancy Becker. The vote was:
- Becker: 205,831.
- Saitta: 253,187.
- None of these candidates: 84,883.[11]
On the Issues
On Contract Enforcement
Before the court En Banc, Justice Saitta authored the unanimous opinion (Justice Hardesty recused himself), which ruled that that a county, under its governmental police powers, was authorized to enact an ordinance granting an exclusive franchise for construction waste collection and disposal within the county. The court held that (1) construction waste poses public health and safety concerns (2) the county has the authority to grant an exclusive franchise over waste collection and disposal (3) the exclusive franchise agreement does not violate the dormant Commerce Clause (4) the exclusive franchise agreement did not unduly burden interstate commerce.
ON WHY THE MAJORITY BELIEVES CONSTRUCTION WASTE POSES PUBLIC HEALTH AND SAFETY CONCERNS: “We reject the district court's determination that construction waste does not pose public health and safety concerns. To the contrary, in addition to the possibility that such waste could contain materials adverse to human health, including asbestos exposure, construction waste poses other safety hazards by potentially creating conditions that may cause fire, or may cause the collapse of the debris and materials, may create animal habitats, or may create other safety hazards. Certainly, excessive quantities of construction debris can create a public nuisance, subjecting it to county regulation. Accordingly, as set forth below, regulation of construction waste falls within the County's police power.”
ON WHY THE POLICE POWERS MAY INTERFERE WITH PRIVATE PROPERTY RIGHTS: "Police power confers upon the states the ability to enact laws in order to protect the safety, health, morals, and general welfare of society. Municipalities have the right to exercise their police powers and enact ordinances related to the protection of the public health, even if their ordinances interfere with private property rights."
ON WHY THE COUNTY HAS THE AUTHORITY TO GRANT AN EXCLUSIVE FRANCHISE OVER WASTE COLLECTION AND DISPOSAL: "The Nevada Legislature enacted NRS Chapter 444 to protect the public health and welfare, to prevent water and air pollution, the spread of disease, and the creation of nuisances, to conserve natural resources, and to enhance the beauty and quality of the environment. To that end, NRS 444.510(1) imposes on local governments the obligation to 'develop a plan to provide for a solid waste management system' that adequately provides for the management and disposal of solid waste within counties, cities, and towns, including 'construction waste.' Additionally, NRS 244.187(3) and NRS 244.188(1)(b) authorize counties to grant exclusive franchises to any person or entity to provide services for the '[c]ollection and disposal of garbage and other waste.'"
ON THE DORMANT COMMERCE CLAUSE: “The Commerce Clause of the United States Constitution gives Congress the power to regulate interstate commerce. In addition to granting regulatory power to Congress, the Commerce Clause ‘has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.’ This ‘negative’ or ‘dormant’ aspect of the Commerce Clause prohibits States from advancing their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.”
ON OVERTURNING A STATUTE THROUGH THE DORMANT COMMERCE CLAUSE: “A statute or ordinance may be struck down under the dormant aspect of the Commerce Clause if it discriminates ‘on its face[,] in practical effect,’ or through its purpose. Thus, two levels of analysis are used to determine whether such a violation has occurred. First, a court must consider whether the statutes or government contracts facially discriminate against interstate commerce.FN29 If they do not facially discriminate against interstate commerce, the court must determine whether, in application, they unduly burden interstate commerce."
ON THE STANDARD FOR DETERMINING WHETHER A STATUTE IMPOSES AN UNDUE BURDEN ON INTERSTATE COMMERCE: “The Pike Court set forth three criteria to consider when determining whether a statute imposes an undue burden on interstate commerce: (1) the nature of the state's or municipality's interest in enacting the legislation, (2) the extent of the burden on interstate commerce created by the legislation, and (3) whether the interest in enacting the legislation could have been served by other legislation that does not impact interstate commerce as much.”
ON WHY THE COUNTY HAS AN INTERST IN ENACTING THE LEGISLATION: “Because waste management, including the collection and disposal of construction waste, undoubtedly concerns the health and safety of a community, the laws that regulate these matters may place somewhat greater burdens on interstate commerce than might otherwise be acceptable. Accordingly, we conclude that the County has a legitimate if not compelling interest in regulating construction waste through an exclusive franchise.”
ON WHY THE FRANCHISE AGREEMENT DOES NOT PUT A DISPROPORTIONATE BURDEN ON INTERSTATE COMMERCE: “Here, no unequal burden on interstate commerce has been created. The County properly granted an exclusive franchise to Disposal and thereby prohibited any other in-state or out-of-state garbage collector from collecting and disposing of waste, including construction waste, within the township. Thus, Wee Haul and NJ Enterprises are no more affected by the agreement than any other intrastate or interstate firms. Thus, the exclusive franchise agreement here does not place any additional burden on interstate commerce than it does on intrastate commerce.”
ON ALTERNATIVES THAT DO NOT IMPACT INTERSTATE COMMERCE AS MUCH: “This criterion focuses not on whether the franchise agreement is the least burdensome alternative, but on whether the total effect of the statute or ordinance was so slight as to not outweigh the national interest in interstate commerce. In examining this factor, we do not determine which feasible alternative is the best means to achieve a state's legitimate objective.”
On Criminal Justice
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Saitta 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 Freedom of Expression
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Saitta 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 Economic Liberty
Before the court En Banc, Justice Saitta authored the unanimous opinion (Justice Hardesty recused himself), which ruled that that a county, under its governmental police powers, was authorized to enact an ordinance granting an exclusive franchise for construction waste collection and disposal within the county. The court held that (1) construction waste poses public health and safety concerns (2) the county has the authority to grant an exclusive franchise over waste collection and disposal (3) the exclusive franchise agreement does not violate the dormant Commerce Clause (4) the exclusive franchise agreement did not unduly burden interstate commerce.
- ON WHY THE MAJORITY BELIEVES CONSTRUCTION WASTE POSES PUBLIC HEALTH AND SAFETY CONCERNS: “We reject the district court's determination that construction waste does not pose public health and safety concerns. To the contrary, in addition to the possibility that such waste could contain materials adverse to human health, including asbestos exposure, construction waste poses other safety hazards by potentially creating conditions that may cause fire, or may cause the collapse of the debris and materials, may create animal habitats, or may create other safety hazards. Certainly, excessive quantities of construction debris can create a public nuisance, subjecting it to county regulation. Accordingly, as set forth below, regulation of construction waste falls within the County's police power.”
- ON WHY THE POLICE POWERS MAY INTERFERE WITH PRIVATE PROPERTY RIGHTS: "Police power confers upon the states the ability to enact laws in order to protect the safety, health, morals, and general welfare of society. Municipalities have the right to exercise their police powers and enact ordinances related to the protection of the public health, even if their ordinances interfere with private property rights."
- ON WHY THE COUNTY HAS THE AUTHORITY TO GRANT AN EXCLUSIVE FRANCHISE OVER WASTE COLLECTION AND DISPOSAL: "The Nevada Legislature enacted NRS Chapter 444 to protect the public health and welfare, to prevent water and air pollution, the spread of disease, and the creation of nuisances, to conserve natural resources, and to enhance the beauty and quality of the environment. To that end, NRS 444.510(1) imposes on local governments the obligation to 'develop a plan to provide for a solid waste management system' that adequately provides for the management and disposal of solid waste within counties, cities, and towns, including 'construction waste.' Additionally, NRS 244.187(3) and NRS 244.188(1)(b) authorize counties to grant exclusive franchises to any person or entity to provide services for the '[c]ollection and disposal of garbage and other waste.'"
- ON THE DORMANT COMMERCE CLAUSE: “The Commerce Clause of the United States Constitution gives Congress the power to regulate interstate commerce. In addition to granting regulatory power to Congress, the Commerce Clause ‘has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.’ This ‘negative’ or ‘dormant’ aspect of the Commerce Clause prohibits States from advancing their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.”
- ON OVERTURNING A STATUTE THROUGH THE DORMANT COMMERCE CLAUSE “A statute or ordinance may be struck down under the dormant aspect of the Commerce Clause if it discriminates ‘on its face[,] in practical effect,’ or through its purpose. Thus, two levels of analysis are used to determine whether such a violation has occurred. First, a court must consider whether the statutes or government contracts facially discriminate against interstate commerce.FN29 If they do not facially discriminate against interstate commerce, the court must determine whether, in application, they unduly burden interstate commerce."
- ON THE STANDARD FOR DETERMINING WHETHER A STATUTE IMPOSES AN UNDUE BURDEN ON INTERSTATE COMMERCE “The Pike Court set forth three criteria to consider when determining whether a statute imposes an undue burden on interstate commerce: (1) the nature of the state's or municipality's interest in enacting the legislation, (2) the extent of the burden on interstate commerce created by the legislation, and (3) whether the interest in enacting the legislation could have been served by other legislation that does not impact interstate commerce as much.”
- ON WHY THE COUNTY HAS AN INTERST IN ENACTING THE LEGISLATION: “Because waste management, including the collection and disposal of construction waste, undoubtedly concerns the health and safety of a community, the laws that regulate these matters may place somewhat greater burdens on interstate commerce than might otherwise be acceptable. Accordingly, we conclude that the County has a legitimate if not compelling interest in regulating construction waste through an exclusive franchise.”
- ON WHY THE FRANCHISE AGREEMENT DOES NOT PUT A DISPROPORTIONATE BURDEN ON INTERSTATE COMMERCE: “Here, no unequal burden on interstate commerce has been created. The County properly granted an exclusive franchise to Disposal and thereby prohibited any other in-state or out-of-state garbage collector from collecting and disposing of waste, including construction waste, within the township. Thus, Wee Haul and NJ Enterprises are no more affected by the agreement than any other intrastate or interstate firms. Thus, the exclusive franchise agreement here does not place any additional burden on interstate commerce than it does on intrastate commerce.”
- ON ALTERNATIVES THAT DO NOT IMPACT INTERSTATE COMMERCE AS MUCH: “This criterion focuses not on whether the franchise agreement is the least burdensome alternative, but on whether the total effect of the statute or ordinance was so slight as to not outweigh the national interest in interstate commerce. In examining this factor, we do not determine which feasible alternative is the best means to achieve a state's legitimate objective.”
On Government Accountability
Justice Saitta 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 Negligence
In a 4-3 decision, Justice Saitta concurred with the majority opinion, authored by Justice Parraguire, over the dissents of Justices Gibbons, Douglas, and Cherry, which concluded that a professional baseball team, which printed injury disclaimers on tickers, posted warning signs and made announcements concerning the danger of foul balls hit into the crowd, was not liable for the severe injuries caused by a foul ball that struck a patron sitting in a Beer Garden without protective screening as a matter of law. The majority expressly held that stadium owners have a limited duty to protect against injuries sustained from foul balls, and that once this duty is satisfied by providing sufficient protected seating, stadium owners have “no remaining duty to protect spectators from foul balls, which are a known, obvious, and unavoidable part of all baseball games.”
In contrast, the dissent, authored by Justice Gibbons, argued that the negligence claim should not be dismissed as a matter of law because the patron was sitting in the Beer Garden, and the Limited Duty Rule should not be applied to areas outside of the stands because the Limited Duty Rule is a very specific exception to the general standard of care principles under Nevada’s comparative negligence system.
- ON LIMITING THE ROLE OF THE JURY THROUGH THE ADOPITION OF THE LIMITED DUTY RULE: “Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule.” “The limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect spectators from foul balls within the confines of the stadium.”
- ON THE ROLE OF PROXIMATE CAUSE IN FOUL BALL INJURY CASES: “Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of ‘duty,’ it provides little guidance here.”
- ON THE REQUIREMENTS OF THE LIMITED DUTY RULE: “First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
- ON THE REASONING OF THE LIMITED DUTY RULE: “By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability. In addition, “[it] serves the important purpose of limiting expensive and protracted litigation that “might signal the demise or substantial alteration of the game of baseball as a spectator sport.”
- ON THE HIGH RISK OF DANGER REQUIREMENT: “The risk of an occasional foul ball, however, does not amount to ‘an unduly high risk of injury.’ Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s' negligence, and the 51s were entitled to judgment as a matter of law.”
- ON THE SCOPE OF THE LIMITED DUTY RULE AND PERSONAL RESPONSIBILTY: "The dissent reasons that summary judgment is inappropriate because the limited duty rule does not extend to areas outside of the stands, such as the Beer Garden. In reaching this determination, the dissent applies the limited duty rule to the stands but then concludes that traditional negligence principles apply to other areas of the ballpark. In doing so, the dissent creates a ‘shifting or moveable duty of care,’ which is triggered by the plaintiff's unilateral and volitional decision to move between parts of the stadium. In our view, the defendant's duty should not change at the plaintiff's impulse, and only one duty of care should apply with respect to the general ‘peril of objects leaving the playing field.’”
- THE ROLE OF THE JURY IN DETERMINING DUTY AND ASSUMPTION OF RISK: "Several other courts that have recognized duty as a legal question also have recognized that the primary implied assumption of risk doctrine merely ‘goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.’ These courts treat the doctrine as a part of the initial duty analysis, rather than as an affirmative defense to be decided by a jury. In our opinion, this is a better application of the doctrine, and one that makes it compatible with our comparative negligence statute. Accordingly, we overrule Mizushima to the extent that it held that the primary implied assumption of risk doctrine was abolished by our comparative negligence statute. Whether that doctrine bars a plaintiff's claim should be incorporated into the district court's initial duty analysis, and therefore it should not be treated as an affirmative defense to be decided by a jury.”
- PUBLIC POLICY REASONING FOR NOT EXPANDING LIMITED DUTY RULE: “Since Mrs. Turner was sitting in the Beer Garden and not in the stands at the time of her injury, the limited duty rule should not apply. As the New Jersey Supreme Court recognized, to apply the limited duty rule ‘to [an] entire stadium would convert reasonable protection for owners to immunity by virtually eliminating their liability for foreseeable, preventable injuries to their patrons even when the fans are no longer engaged with the game.’ Thus, ‘[b]ecause principles of fairness, and by implication public policy, support the application of traditional tort concepts to areas outside of the stands,’ we should not expand the scope of the limited duty rule past the stands. Instead, the limited duty rule is a very specific, historically based exception to the general rule that traditional negligence standard of care principles apply under Nevada's comparative negligence system.”
External links
- Nevada Supreme Court: Nancy M. Saitta
- Los Angeles Times: May 17, 2008
- Follow the Money: Nancy M. Saitta
- KTNV Channel 13:Lawsuit Filed In Judge Bribery Plot
References
- ↑ Saitta Bio from Nevada Court website
- ↑ Reno Gazette-Journal 2006 Voter Guide
- ↑ Nevada Supreme Court
- ↑ Nevada Supreme Court
- ↑ Who to Vote for Nevada: Nancy Saitta
- ↑ Las Vegas Review Journal
- ↑ Los Angeles Times: May 17, 2008
- ↑ AmericanMafia.com
- ↑ Clark County Democrats
- ↑ Follow the Money: Nancy Saitta
- ↑ 2006 election results, Nevada
