Skip to Content

2020 Survivor’s Guide: What is Poll Watching?

The first (and perhaps only) presidential debate was a dumpster fire that spawned a lot more questions than it provided answers.  One of the questions circling the media since that debate is the legitimacy of President Trump’s request to his his voters to “watch the polls” on election day.

This not a post about voter fraud. 

This is a post that explains poll watching.  What it is, what it is not, and why you might get into some serious trouble if you intend to show up armed with your guns at the polls this November. 

IS POLL WATCHING A THING?

Yes, poll watching is an actual thing.  Under NRS 293.274(1), the county clerk must “allow members of the general public to observe the conduct of voting at a polling place.”  

There are, however, restrictions. 

In order to be a poll watcher, you must sign an acknowledgement form which states that you will not:

  • Talk to the voters within the polling place;
  • Use a phone or computer in the polling place;
  • Advocate for or against a candidate, party or ballot question (which includes speaking, displaying, disseminating material, or wearing clothing, buttons or other paraphernalia);
  • Argue for or against the decisions of the election personnel present in the polling place; or
  • Interfere in any way with people trying to vote. 

NAC 293.245(2)(a), (9).   You also have to wear a nametag displaying your full name.  NAC 293.245(7).  Oh, and since it is 2020, you also have to wear a face mask.  If you violate these rules, you may be removed.  NAC 293.245(2)(b).

WHAT POLL WATCHING IS NOT

Poll watching is not showing up with your assault rifle, wearing camouflage and going to battle with voters who may vote differently than you.  That is illegal.   Under the Voter’s Bill of Rights, Nevadans have right to “vote without being intimidated, threatened or coerced.”  NRS 293.2546(3).  Federal law also prohibits any person from intimidating, threatening, coercing, or attempting to intimidate, threaten or coerce any person from voting.  52 U.S.C. § 10307(b). 

To alleviate any confusion on this topic, I’ll explain it simply. 

Showing up with your guns and weapons at the polls is an act intended to intimidate, threaten or coerce someone from voting and is a Category E felony in Nevada.  NRS 293.710.  Harassing people in line, physically or verbally, outside the polling place, or who are within the polling place is also a Category E felony.  NRS 293.703(1).  Stealing ballots? Category E felony. Id.  Showing your ballots to someone else?  Felony.  Id. Asking someone inside the polling place who they voted for or what political party they belong to?  Felony.  Id.  Attempting to solicit votes in favor of your candidate either inside or within 100 feet from the entrance of a polling place? Felony.  NRS 293.740(1).  Chanting political chants, distributing literature, trying to sell buttons or hats, or attempting in any way to campaign either inside or within 100 feet of the entrance?  Felony.  NRS 293.740(1). 

So, basically, all of the things you hear people discussing in the media about what they intend to do as ‘poll watchers’ is illegal and you should just not do it. 

YOUR 2020 SURVIVAL TIP

Vote peacefully, and respect the rights of others to do so.  Leave your guns at home.  America is the country that it is because we are allowed to have differing opinions and views.  It is our differences as citizens that make America great, not any one individual leader. 

And, just in case you still have any confusion, here is a simple rule you can follow: If what you want to do at the polls on election day is something you would do at either a political rally or a shooting range . . . don’t do it.   

2020 Survivor’s Guide: Postponing the Election is Not a Thing

Let’s talk about holding an election during a pandemic involving an airborne virus.  It is clearly not an ideal thing to do.   But, postponing the election is also not a thing that the President can actually do either. 

Let me break it down. 

THE DATE OF THE ELECTION

Article II, section 1 of the United States Constitution gives Congress the right to set the date for the Presidential election. 

Fun fact: The election used to take place at different times in different states.  Most people agreed November was an ideal time because it was after the harvest.  And most people liked the idea of having it on a Tuesday because Sunday was a day for church, Monday was a day to tie up the horse and ride to the polls, and Tuesdays were apparently a day where people did not do anything.  But other than that, the States held their elections when it worked for them. 

When the telegraph was invented and communication became much faster, however, Congress decided the elections should be held on the same day to avoid states with earlier elections influencing the outcome of states with later elections. 

So, in 1845, Congress passed a law designating the first Tuesday of November as Election Day.  That law remains unchanged to this day.

BUT WAIT, CAN’T THE PRESIDENT CHANGE THE LAW?

No. 

You are thinking of a thing called an “executive order.”  Executive orders are orders issued by the President on specific national issues which direct how that issue is to be handled. 

A President’s power to issue executive orders must come from either Congress or the Constitution itself.  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).  If Congress has not passed a statute that allows the President to change the election date, he can only issue an executive order postponing it if the Constitution allows him to do so.  But, the Constitution only allows Congress and not the President to set the date of the election.  U.S. Const., Art. II, cl. 1. 

SO, THE ELECTION COULD NEVER BE POSTPONED?

The election could be postponed if Congress agreed to change the election date.  However, Congress is currently divided and it is unlikely that a proposal to change an election date that is backed by a Republican administration would ever get approved by the Democratic majority of the House of Representatives. 

2020 SURVIVOR’S TIP

The election is happening November 3, 2020.  Vote early or by mail if you can.  If not, wear a mask, wash your hands and be kind to one another. 

2020 Survivor’s Guide: The Constitutionality of Face Masks

Let’s talk about face masks.  Public dress codes have been a part of American society since its inception.  They are the reason why everyone puts on clothes to go out in public.  Most of us do not question the government’s right to make us wear pants when we leave our homes.  It just makes sense.  If we are okay with the government telling us to cover our butthole, why are we so upset when it tells us to cover our face-hole?    

This post looks at the two constitutional rights that come into play when the public is required to wear a face mask:  (1) your liberty interest in your personal appearance under the Due Process Clauses of the Fifth and Fourteenth Amendments, and (2) your freedom of expression.  Spoiler alert:  Neither give you the right to refuse to wear a mask.

LIBERTY INTEREST IN APPEARANCE

The Fifth Amendment of the United States Constitution prohibits federal government interference with your “liberty,” i.e., your person.  U.S. Const., am. V.  Through the Fourteenth Amendment, the Fifth Amendment’s prohibitions on interferences with your person are extended to the States.  U.S. Const., am. XIV. 

In 1976, SCOTUS appeared to recognize that a person may have a protectable liberty interest in their personal appearance.  Kelley v. Johnson, 425 U.S. 238, 244 (1976).  In Kelley, SCOTUS upheld a county regulation limiting the length of county policemen’s hair.  Id. Because it rejected the constitutional challenge on other grounds, SCOTUS never actually confirmed whether we have a liberty interest in our personal appearance.  Id.

Since Kelley, however, courts across the country have recognized liberty interests in a person’s  appearance.  For example, federal courts of appeals have tackled the question of whether states can prohibit police officers from wearing earrings, Rathert v. Village of Peotone, 903 F.2d 510, 514 (7th Cir. 1990), denied the right of states to prohibit men from jogging shirtless, DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987), and taken on prohibitions against beards on teachers in public schools.  Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982). 

But, unlike the liberty interests protected in other seminal cases like Roe v. Wade, 410 U.S. 113 (1973) (procreation), Griswold v. Connecticut, 381 U.S. 479 (1965) (family life), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry), your liberty interest in your appearance is not a “fundamental” right.  Kelley, 425 U.S. at 244.  When the right which you claim the government is infringing is not a “fundamental right,” the law will be upheld if it is rationally related to a legitimate government interest.  Mass Bd.  of Ret. v. Murgia, 427 U.S. 307, 314-15 (1976).   

Now that you understand your basic right, I’m going to cut to the chase:  You do not have a protectable liberty interest in your decision not to wear a mask during a pandemic because a law requiring you to wear a mask is rationally related to a legitimate government interest in public health. 

Just in case you don’t believe me, I’m going to take you back in time 115 years to meet my friend Mr. Jacobson, a man with a vendetta against small pox and the state of Massachusetts.

JACOBSON V. COMMONWEALTH OF MASSACHUSETTS

So, Mr. Jacobson lived in Massachusetts at the turn of the twentieth century. Before that, he lived in Europe where he had been inoculated with small pox.  Inoculation works like this: you find someone with small pox, you pop the blister, you smear the small pox pus on your arm and hope you don’t die.  It was effective at inducing immunity to the disease, but it sucked.

Jacobson survived it, obviously, which is why he was super bummed to discover that Massachusetts was going to require him to also be vaccinated against small pox, even though he had been inoculated years earlier.  He sued Massachusetts, claiming that its mandatory small pox vaccination  unconstitutionally infringed upon his liberty interest.  Jacobson v. Commonwealth of Mass., 197 U.S. 11, 26 (1905).  SCOTUS rejected his challenge and held that “the police of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  Id. at 24. SCOTUS explained that our constitutional liberty interest is not absolute and can only exist to the extent it is safe for others  Id.  at 25. 

I don’t know if Jacobson, the person, survived the small pox outbreak in Massachusetts in 1905.  I’m assuming he did since he had to get the vaccine.  But I do know that Jacobson, the case, has survived 115 years as good law and is currently being upheld by courts across the country to address challenges to COVID-19 laws.  See In re Abbott, 954 F. Supp. 3d 775 (5th Cir. 2020) (striking down a COVID-19 law prohibiting abortion); Carmichael v. Hawaii, 2020 WL 3630738, *5 (D. Haw. July 2, 2020) (upholding Hawaii’s mandatory 14-day quarantine upon entry into the state). 

What does this mean for masks?  If SCOTUS says that it is not an invasion of your liberty interest to physically inject your body with something in order to protect the public health during an epidemic, I really do not think you are going to win on a claim that simply placing a mask on your body, temporarily, during a global pandemic of an airborne virus somehow violates your liberty interest. 

But wait, there’s more.

FREEDOM OF EXPRESSION

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., am. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

SCOTUS has applied the freedom of expression to protect people’s choice in their personal dress and appearance.  For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

Freedom of expression, however, has its limits.  A law impacting freedom of expression will still be upheld if it is (1) within the constitutional power of the government, (2) furthers an important or substantial interest, (3) the governmental interest underlying the law is unrelated to the suppression of free expression, and (4) “if the incidental restriction on the alleged First Amendment freedoms is no greater than essential to the furtherance of that interest.”  U.S. v. O’Brien, 391 U.S. 367, 377 (1968). 

As we saw in Jacobson¸ requiring you to wear a mask is definitely within the constitutional power of the government.  States unquestionably have “the power . . . to enact and enforce quarantine laws for the safety and protection of the health of their inhabitants[.]”  Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380, 387 (1899).

And protecting public health is clearly an important and substantial interest. 

Plus, the underlying interest of public health is unrelated to freedom of expression.  You can say whatever you want behind that mask.  You can even wear a mask that states: “masks don’t work” or “I don’t believe in science.”  Your beliefs regarding whether masks work, whether COVID-19 is real, or whether this is all a conspiracy theory are not being regulated. 

Finally, again, the restriction is de minimis.  You are being asked to wear a mask for a short period of time.  It is temporary.  You do not have to wear it in your own home. 

To sum it all up, your refusal to wear a mask is not protected by your freedom of expression. 

2020 SURVIVOR’S TIP

Wear the mask.  Just wear it.  And for the love of Jacobson, stop claiming you have a constitutional right to free your face hole.

2020 Survivor’s Guide: The Constitutionality of Quarantine Business Closures

A lifetime ago (120 days to be exact), I witnessed Disneyland go dark the day after we arrived to celebrate my daughter’s fifth birthday.  Within a week, businesses were shuttered, schools were closed, millions were out of work, and the entire world was united in a fight against an invisible enemy:  COVID-19. 

When governors across the country shuttered businesses overnight, people immediately questioned: Is that constitutional? The answer: Probably-ish.

EARLY QUARANTINE LAW OPINIONS

120 years ago, quarantines were a fact of life in America. Without modern medicine at our disposal, the only option localities had when faced with outbreaks of measles, rubella, cholera and typhoid (etc.) was to shutter businesses, close schools and order Americans to stay home. While these were primarily occurring only on small, local levels by town, province or city, the Spanish Flu pandemic saw a nation-wide quarantine similar to what we are experiencing today.

These quarantine laws, which directly affected businesses, were upheld as constitutional. In Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiania, the 1899 U.S. Supreme Court upheld Louisiana’s ban on the entry of a vessel into New Orleans while the city was declared under quarantine despite the fact that ban directly affected interstate commerce.  186 U.S. 380, 387 (1899).  The Court held:

That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.  That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purposes of preventing, eradicating, or controlling the spread of contagious or infectious diseases are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.

Id

Thus, states could (and did) regularly enact quarantine laws.

COVID-19 AND MODERN QUARANTINE

Under the Compagnie Francaise line of authority, the question as to whether a state government can constitutionally impose quarantine depends on how the governor went about doing it. Compagnie Francaise makes it clear that states can enact and enforce reasonable quarantine laws under their police power.

The police power of a state is reserved to its Legislature, not its executive branch.  However, the Legislature has the power to delegate its authority to the executive branch. In Nevada, the Legislature did that in NRS 414.070.   Governor Sisolak relied upon NRS 414.070 to issue his COVID-19 directives in Nevada. As long as the governor acts within the bounds of the authority delegated to them by the legislature, their acts are presumably constitutional.

So, if your argument is that the governor, in general, cannot impose these laws, you lose. Under Compagnie Francaise and its progeny, these laws are generally constitutional (or, as we lawyers say, “facially valid”).

But if your argument is that the quarantine laws, as they apply specifically to you, are unconstitutional, you might have a valid argument. Referred to by lawyers as an “as applied” challenge, these type of claims look at otherwise constitutional laws and find that the manner in which they are applied is nevertheless discriminatory or unconstitutional. For example, when Nevada initially entered Phase 2, you could get your nails or hair done, but you could not get a facial. Yet, hair salons, nail salons and aesthetic salons operate in virtually identical manners with the same or similar amounts of exposure or contact with others. There was no reason why a facial salon should remain shuttered when a hair salon could open. This is an example of a case that may have had a valid “as applied” challenge. These types of claims arise on a case-by-case basis, and are heavily fact specific. If you think your grievance falls within this category, you should consult an attorney.

2020 SURVIVAL TIP

Stop arguing that quarantine laws closing businesses are, in general, unconstitutional. That is a dumb argument. However, if you believe that these laws, as applied to your business, might unfairly impact or discriminate against you, consult an attorney.

Bikinis, Coffee and Strippers: Just Another Day in the Ninth Circuit

What do bikinis, coffee and strippers have in common?  Nothing except for the fact that they all play a role in the Ninth Circuit’s opinion in Edge v. City of Everett, 929 P.3d 657(2019).  Edge takes us to Washington, the land of bikini barista coffee stands, where women wear next to nothing (and sometimes nothing) while serving coffee at road side stands.   After the City of Everett enacted ordinances requiring the baristas to wear a few more inches of fabric, several of the baristas complained that the City of Everett had unconstitutionally infringed on their freedom of expression under the First Amendment.  The Ninth Circuit disagreed.

THIS JUST IN: STRIPPING IS PROTECTED BY THE FIRST AMENDMENT

That actually is not just in, but it is new information to me.  Since the 1970’s, SCOTUS has protected stripping as a freedom of expression under the First Amendment. 

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., amd. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

In California v. LaRue, 409 U.S. 109 (1972), SCOTUS applied this logic to uphold California’s legislation barring liquor in strip clubs.  Noting that the First Amendment freedom of expression had been extended to motion pictures and theatre performances, and that stripping was, in some cases, basically a really erotic theatre performance, SCOTUS found that strippers do have some limited First Amendment rights.  Id. But, because California sought to regulate liquor sales rather than the actual um, performance, the California law was upheld.  Id.

In Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981), SCOTUS again noted that nudity does not exclude conduct from the protection of the First Amendment.  Id. In Schad, SCOTUS found that a local ordinance attempting to ban an adult bookstore from allowing a live nude dancer was unconstitutional.  Id.

This does not mean that strippers have a carte blanche right to roam about dancing in the nude.  As SCOTUS explained in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the states still have the right to enact laws limiting when and where public nudity may occur and/or requiring strippers to wear “scant clothing” while dancing.  Id. at 571.  Barnes concerned an Indiana law banning all nudity in strip clubs, but allowing dancers to wear pasties and a g-string.  Id.  Reasoning that states can regulate morality provided that the state’s interpretation of “moral” conduct does not completely prohibit protected expressive conduct, SCOTUS upheld the state law. Id.  Since the dancers could still dance, and since the clothing required gave the audience the basic gist of nudity, the Indiana law was fine. 

These were family establishments after all.  We must have some standards. 

(Kidding. These were actually just strip clubs with no minors allowed). 

BUT, “BIKINI BARISTAS ARE NOT STRIPPERS”

According to the Bikini Baristas, they are not strippers.  Strippers wear little to no clothing in exchange for tips.  Bikini Baristas, in contrast, wear little to no clothing in exchange for tips. 

Wait a minute. 

I think we need to start from the beginning with this one. 

THERE’S CORRUPTION IN THIS COFFEE STANDS

If you are like me, you may not have ever heard of a bikini barista.  Seriously, I’ve learned so much today.  A bikini barista wears a “bikini” while serving coffee at a road side coffee stand. 

In Washington.  Which is not exactly known for balmy weather. 

If that sounds like a recipe for prostitution and trafficking . . . well, it is.  After receiving complaints that the baristas had a pretty fast and loose term for the phrase “bikini” and that patrons observed physical contact with customers occurring, the City of Everett mounted an undercover police investigation.  Edge, 929 F.3d at 660-61.  The police discovered that many of these road side coffee stands were fronts for prostitution and trafficking, that many of the baristas were paid solely in tips and encouraged to wear little or no clothing for larger tips, and that assaults frequently occurred.  Id. at 661. This undercover operation lasted for five years, and after five years, the Everett police were unable to solve the problems the coffee stands presented with the means available to them.  Id. Partially because they discovered that a sheriff deputy was involved in covering up one of the coffee prostitution rings (he’s been convicted, it’s all fine now). 

Anyway, after five years, the Everett police told the City that the bikini baristas were the City’s problem to solve.  And the City responded by, among other things, creating a dress code ordinance for the stands that required the baristas to wear more.  Id. at 662. 

THE BIKINI BARISTAS SUE FOR THEIR RIGHT TO BARE IT ALL

After the City’s enactment of the new dress code ordinance, several bikini baristas (and an owner of a stand) sued the City and argued, among other things, that the City’s dress code ordinance unconstitutionally infringed on their freedom of expression.  According to the baristas, the bikini (or whatever they were or were not wearing) was a symbol of “female empowerment” because it celebrated the female body and made women seem “approachable.”  Id. at 662-64.  The trial court agreed with the bikini baristas that the dress code ordinance might infringe their freedom of expression, and entered an order temporarily enjoining the City from enforcing the dress code while the lawsuit was pending. Id. at 664. The Ninth Circuit disagreed.

The  Ninth Circuit explained that protected freedom of expression requires that the “expressive conduct” convey a specific message for which there is a great likelihood that it will be understood by those to whom it is being conveyed.  Id. at 668. For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

In contrast to the situations in which SCOTUS has protected freedom of expression, the bikini barista’s claim arose in a commercial setting.  The Ninth Circuit found that “the commercial setting and close proximity to the baristas’ customers makes the difference” because the “baristas’ act of wearing pasties and g-strings in close proximity to paying customers” where the “baristas indisputably solicit tips . .. creates a high likelihood  that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from” the messages of “female empowerment” the baristas claimed to be sending.  Edge, 929 F.3d a 669.  In other words, the message conveyed may have been one of empowerment, but the message received was most likely “give me more money.”  And, given the high rates of prostitution, trafficking and assault found by the City’s police department, the “empowerment” part of the message was clearly lost in translation. Id.

IT MIGHT BE DIFFERENT IF THEY WERE STRIPPERS

Although the Ninth Circuit found that the bikini baristas will have a hard time prevailing on their freedom of expression claim, it did throw them a bone.  To paraphrase the gist of what Judge Christen was hinting at in the opinion:

Hey, bikini baristas, you keep claiming that you are not strippers, and therefore, we cannot find a constitutional basis to protect your claimed freedom of expression.  But if you were to say that you are strippers – you know, those other women who take their clothes off for tips just like you – maybe we could talk. 

Clearly the moral of this story is to claim you are a stripper, even if it subjects your employer to all kinds of zoning violations. 

WHO WILL HEAR MY APPEAL?

One of the most common questions I am asked as an appellate attorney is “which judge or justice is going to hear my appeal?”  The only answer that question is “I don’t know.”  This post takes a look at how the Nevada Supreme Court and the Ninth Circuit operate internally in choosing the panels of judges or justices who are going to hear your case.

COURT COMPOSITIONS IN GENERAL

In both Nevada and the Ninth Circuit, the decisions are written by one judge or justice, but are actually determined by at least three judges or justices. 

The Nevada Supreme Court consists of 7 justices.  The Ninth Circuit currently has 49 judges, 29 of whom are active.  Both the Nevada Supreme Court and the Ninth Circuit work on a panel system.  In a panel system, the majority of cases are assigned to a panel consisting of three justices (Nevada) or judges (Ninth Circuit).  One of those judges or justices will ultimately be responsible for writing the order or opinion, but all three will decide how the case should be resolved. 

PANEL VERSUS EN BANC

In Nevada, a hearing before the en banc court means that all seven justices participate in the decision of the case.  A case is automatically sent to the entire en banc court if it raises substantial precedential, constitutional or public policy issues.  Cases are also sent to the en banc court if en banc consideration is necessary to secure or maintain uniformity of the court’s decisions.  A case may also reach the en banc court through a request for en banc reconsideration under NRAP 40A. 

In contrast, a case is assigned to a panel where the legal issues have either limited precedential value, or will not impact any others beyond the litigants. 

In the Ninth Circuit, there are 29 active judges.  An en banc hearing in the Ninth Circuit only consists of 11 judges, one of whom must be the chief judge, and ten of whom must be active judges. 

En banc determinations are not favored in the Ninth Circuit.  FRAP 35(a).  Cases only proceed to an en banc court if they, as in Nevada, involve “a question of exceptional importance” or “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions.”  Id.  Otherwise, the case is presumptively assigned to a panel. 

HOW THE JUDGES AND JUSTICES ARE CHOSEN IN PANEL CASES

Technically, the selection of who resolves your case is random.  Seasoned appellate practitioners, however, will tell you that the selection of who ultimately determines your case is not as random as it seems.  Whether that is true is not something any court has ever confirmed.

In Nevada, the Chief Justice does not reside on any panel.   Instead, the remaining six justices are divided to sit on the panels, and the Chief Justice will only reside on a panel if another justice is disqualified or recuses themselves.  There are two panels – a Southern panel for cases originating from Clark County, and a Northern Panel for cases originating from anywhere else in the state.  The appointment of a particular justice to a panel is random, and switches every 12 months.  Each new panel cannot mirror the prior panel’s compositions, meaning that each justice has to eventually sit on a panel with every other justice.  If a justice is repeatedly assigned to the same panel (North or South) for more than four years, the justice can choose to be on the other panel. 

Panel membership rotates on January 1 every year.  This does not, however, mean that your case will bounce around a bunch of justices.  If your case has reached a dispositional phase, meaning that the justices have heard oral argument, have deliberated or have otherwise considered the merits of your case, those three justices will be the three justices who ultimately determine your case even if they are no longer serving on a panel together.  If your case is in its infancy come January 1, there is a possibility that your panel will change. 

In the Ninth Circuit, your case is assigned to three judges who are randomly chosen.  Like Nevada’s panel system, the three judge panels are not supposed to mirror prior panels, so that each judge eventually sits on a panel with every other judge. Unlike Nevada’s panel system, the three judge panels are chosen for limited time periods, meaning your case will be heard by a panel sitting in one location on “XYZ dates” only.  The next week, those judges may be on different panels.  Once your case is assigned to a panel, that is the panel which will determine your case. 

HOW TO GET THE BEST OUTCOME FOR YOUR CLIENT

Although lawyers would like to, we cannot cheat the panel system.  Do not place the outcome of your client’s case on who you think might decide the case.  The only way to guarantee the best outcome for your client is to do good work.  Write a good brief.  Be prepared for your argument.  Protect your record, and know what is and is not present in that record.  And, above all, follow the rules of practice of the court in front of which you are appearing.

Scotti Doesn’t Know: When Judicial Misconduct Warrants a New Trial

 In Azucena v. State of Nevada, the Nevada Supreme Court held that a judge committed judicial misconduct warranting a new trial after the judge, literally, threw a book at a potential juror during voir dire.  135 Nev., Adv. Op. 35, 448 P.3d 534 (Nev. 2019).  

 If you have ever seen the movie Eurotrip, you understand why I had to write this post, because the judge’s name is Scotti.   

If you haven’t, google it. 

But even without Eurotrip, Azucena answers a very common question that frequently comes up:  When does judicial misconduct warrant a new trial? 

AZUCENA

During voir dire in a criminal case where the defendant was charged with multiple sex offenses against children, “the trial judge throw a book against the wall, and berated, yelled at, and threatened a prospective juror for expressing the belief that she could not be impartial.”  Azucena, 448 P.3d at 536. 

Voir dire is the legal term used to describe “picking an impartial jury.”  Under the United States Constitution and the Nevada Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers.  Nev. Const., art. 1, § 3; U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”).  Voir dire, or questioning of the potential jurors, is how lawyers determine whether a juror may possess a bias which would violate the defendant’s right to an impartial jury. 

Because selecting an impartial jury is so important, voir dire can sometimes take days.  In Acezuna, when the potential jurors came back for the second day of voir dire, one juror noted that she might have bias towards the defendant because she was a nurse who was frequently exposed to child abuse.  448 P.3d at 536.   This is what happened next: 

The Court:  So you didn’t say that yesterday.  All right.

Prospective Juror No. 177: Well, I said I had other issues.

The Court:  No, listen – what – what we’re not going to have in this jury is people coming in overnight and thinking up shit and try to make shit up now so they can get out of the jury. That’s not going to happen.  All right.  All right.  Because if I find that someone said something yesterday under oath and changes it because they’re trying to fabricate something to get out of serving on this jury, there’s going to be repercussions.  All right. 

Id.  As he was yelling at the juror, the judge threw a book against the wall.  Id

After the juror was excused, the next prospective juror stated “that she had been sexually abused as a child but stated that she would not be biased.”  Id. at 536-37. Unsurprisingly, every other juror stated that they definitely, probably, did not have any potential bias.  

The Nevada Supreme Court held that this exchange was “inappropriate and constituted judicial misconduct” in light of the judge’s role as the keeper of civility in a courtroom.  Id. at 538.  The Nevada Supreme Court further found that this judicial misconduct warranted a new trial because voir dire, one of the most important processes in a jury trial, is only effective “if the prospective jurors answer candidly.”  Id. When “jurors are given reason to fear reprisals for truthful responses,” it is presumed that jurors are not answering voir dire questions candidly.  Id. at 538-39.   Given the judge’s reaction to the juror at issue, the Nevada Supreme Court found that other prospective jurors may have been discouraged “from responding honestly about their own biases out of fear of repercussions.”  Id.

Out of fairness to the judge, lawyers and judges hear the craziest excuses from prospective jurors who are trying to get out of jury duty.  I once had a juror write on their jury questionnaire that they could not serve impartially because they are prejudiced against people of color.  (Unfortunately for that juror, it was a trial involving wealthy, white people.)

The import of the Azucena case is not what actually happened in the courtroom; rather, it is the fact that this is one of the few cases where an appellate court has found that judicial misconduct warrants a new trial.  Judges are people too, and they have good and bad days like the rest of us.  Sometimes those bad days occur during trial.  But not all bad days are misconduct, and not all judicial misconduct is grounds for a new trial.  Litigants should be aware of when they should and should not argue it on appeal. 

WHEN JUDICIAL CONDUCT DOES NOT WARRANT A NEW TRIAL.     

The fact that the judge clearly did not like you or your attorney is not judicial misconduct warranting a new trial.   See, e.g. Coddington v. State, 415 P.3d 12 (Nev. 2018) (finding that a judge rolling his eyes and appearing frustrated during closing arguments was not judicial misconduct).  In Horton v. Fritz, the Nevada Supreme Court reprimanded the trial judge for threatening the appellant’s counsel with sanctions if the case was lost and commenting that “he was fed up with spurious lawsuits,” but nevertheless found that the appellant received a fair and impartial trial.   113 Nev. 824, 830, 942 P.2d 134, 138 (1997).  Another trial judge was reprimanded for commenting on credibility of one party’s witnesses, expressing impatience, rebuffing trial counsel for trial tactics, and asking a juror “isn’t this the most boring case you have ever heard?” in an elevator outside of the courtroom.  Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140-41 (1970).  However, the Nevada Supreme Court concluded that this misconduct did not deprive the appellant of the right to a fair trial, and did not warrant reversal.  Id

The fact that the judge clearly thinks your witness is lying is not judicial misconduct warranting a new trial.  Ginnis, 86 Nev. at 416-17, 470 P.2d at 140-41; see also Garnica-rojo v. State, 387 P.3d 880 (Nev. 2016) (holding that a judge’s alleged questioning of “a witness in such a way that implied disbelief concerning a witness’s testimony” was not judicial misconduct warranting a new trial). 

Similarly, the fact that a judge clearly likes a witness of the opposing party is not judicial misconduct warranting a new trial.  Brant v. State, 130 Nev. 980, 988, 340 P.3d 576, 582 (2014) (holding that a judge defending a witness’s decision not to answer a certain line of questioning and thanking the witness for his patience was not judicial misconduct warranting a new trial). 

Overruling objections to evidence is generally not judicial misconduct warranting a new trial.  Cager v. State, 124 Nev. 1455, 238 P.3d 799 (2008) (holding that a judge’s overruling objections with “curt, dismissive instructions to sit down” and stating “we have two of you now objecting?” when second defense counsel attempted to object was not judicial misconduct warranting a new trial). 

WHEN JUDICIAL MISCONDUCT MAY WARRANT A NEW TRIAL

Judicial misconduct may warrant a new trial when it interferes with the voir dire process.  In contrast to the conduct discussed in Azucena, the Nevada Supreme Court has also found judicial misconduct to warrant a new trial when “the judge’s unfortunate, yet well-intentioned conduct injected an unwarranted levity into the proceedings that may have adversely influenced the [juror’s] perceptions of the significance of the trial.” Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995).  In Parodi, the judge turned voir dire into a literal parody by, among other things, leading the “prospective jurors in a standing ovation when appellants’ counsel returned a few minutes late from recess,” informing a tardy juror that “she was ‘eligible for this fun, too,’” joked about the solemn oath jurors must swear, “directed light-hearted comments to a prospective juror, whom he knew from college, regarding the judge’s fitness to serve on the bench,” and “endorsed one prospective juror’s business.”  Id. at n.1.  The Nevada Supreme Court held that this conduct was both inappropriate and potentially prejudicial, as it led the jurors to make light of the serious situation of a trial.  Id. at 370, 892 P.2d at 589. 

Interjecting levity into the later stages of the trial may also warrant judicial misconduct, particularly where the levity is aimed at one party’s counsel while excluding the other.  In Haluck v. Ricoh Electronics, Inc., the California Court of Appeal held that the judge’s conduct warranted a new trial where the judge “helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at the will and at the expense of the plaintiffs and their lawyer.”  60 Cal. Rptr. 3d 542, 548 (2007).  The misconduct included, among other things, jokes between the judge and defense counsel about being in the “Twilight Zone,” the judge’s use of a written sign that said “overruled” on almost all of plaintiff’s objections but none of defendant’s, and used a “soccer style” “red card” to stop plaintiff’s counsel from speaking.  Id. at 550.  The result of this was to make the “plaintiffs’ lawyer the butt of [the judge’s and defense counsel’s] jokes . . . in a way that could only convey to the jury that they were a team and the plaintiff’s counsel was an outsider.”  Id

Judicial conduct that implies favoritism to any party in one manner or another may warrant a new trial.  For example, in Oade v. State, the Nevada Supreme Court held that a new trial was warranted due to the judge’s treatment of the “California” attorneys in the courtroom, which included levying fines or issuing warnings for minor transgressions, and “repeatedly express[ing] impatience with Oade’s counsel in the presence of the jury,” expressing an opinion that the evidence presented by Oade’s counsel was not credible and implying that a defense was not tenable.  114 Nev. 619, 623-24, 960 P.2d 336, 339 (1998).  While these errors on their own were not sufficient to warrant misconduct, in the cumulative they worked to “lessen[] the defense’s credibility and prevent[] the defense from obtaining full and fair consideration from the jury.”  Id. at 624, 960 P.2d at 339. 

Similarly, in Holderer v. Aetna Casualty & Surety Co., the Nevada Supreme Court held that a new trial was warranted where the trial judge “expressed his negative feelings toward personal injury attorneys” and “facetiously comment[ed] that he could be writing his ‘grocery list’ during trial.”  114 Nev. 845, 850, 963 P.2d 459, 463 (1998).  The Nevada Supreme Court held that this conduct put the appellant’s “counsel in a poor light and trivialized the proceedings.”  Id.  at 851, 963 P.2d at 463.

Judicial misconduct warranting a new trial may also occur when the trial judge makes comments that appear to be giving legal advice to one party’s counsel, as this may also imply favoritism for one party to the jury.  Bank of Am., N.A. v. Atkin, No. 3D18-1840, 2018 WL 6595138, at *4 (Fla. Dist. Ct. App. Dec. 14, 2018). 

Finally, conduct that interferes with the jury verdict may warrant a new trial.  See Taylor Morrison of Texas, Inc., No. 02-13-00364-CV, 2014 WL 487221, at *5 (Tex. App. Feb. 6, 2014) (holding that judicial misconduct occurred when the judge’s communications cause the jurors to “not complete their deliberations, vote on some questions, or render a verdict on all questions because the trial judge instructed them not to answer Question 10 and to stop their deliberations”). 

WHAT TO DO IF YOU SUSPECT JUDICIAL MISCONDUCT

Judicial misconduct may arise from one isolated incident, as seen in Azucena, or from multiple incidents which cumulatively taint the trial.  See Holderer, 114 Nev. at 850-51, 963 P.2d at 463; Parodi, 111 Nev. at 367, 892 P.2d at 589. 

If the judicial misconduct is an overt, isolated incident, you should object at trial to preserve the issue for review on appeal.  Ginnis, 86 Nev. at 417, 470 P.2d at 141.  If the judicial misconduct is more subtle and cumulative, you have a choice.  As explained by the Nevada Supreme Court in Parodi, judicial misconduct is reviewed for plain error.  111 Nev. at 367, 892 P.2d at 589.  This means that the Nevada Supreme Court will consider the argument even if not objected to below, provided that the error is plain enough that the record demonstrates an injustice has been done.  Id.  In cases of cumulative error, multiple objections may not be appropriate as it places the party in “the untenable position of silently accepting the judge’s trivialization of the proceedings, or risking the prospect of alienating the judge or the jury by interjecting a discordant and somber note to the good-spirited trial atmosphere created by the judge.”  Id.  

THE MORAL OF THIS STORY IS

Do not literally throw books at jurors.  And watch Eurotrip, if you have not seen it. 

DISSECTING CROSS-APPEALS

WHAT IS A CROSS-APPEAL?

A cross appeal is an appeal filed by a respondent.  Normally, when you are the respondent (or appellee) on appeal, you have won and your focus is on defending what the lower court did.  But, sometimes, neither side wins. 

When neither side wins, the first party to file an appeal becomes the appellant. If you want to challenge the district court’s findings as well, you do not have to file a separate appeal.  You can file a cross-appeal.

WHEN SHOULD YOU FILE A CROSS APPEAL?

You should file a cross-appeal “when acceptance of the argument [you] wish[ ] to advance would result in reversal or modification of the judgment rather than an affirmance.”  Hamilton Beach Brands, Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1337 (Fed. Cir. 2018) (internal quotations omitted).  Cross-appeals must be filed if you “seek to alter the judgment below.”  Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364, 114 S. Ct. 855, 862, 127 L.Ed.2d 183 (1994). 

A common example of a cross-appeal is a party who prevails on summary judgment, but then is denied their requested attorney fees.  That party wants the summary judgment ruling to be upheld, but the attorney fee denial reversed.  They can cross-appeal the denial of fees. 

A cross-appeal cannot be filed when you generally agree with the outcome the court reached, but not with the court’s reasoning behind it.  “[A] party that is not adversely affected by a judgment lacks standing to cross-appeal.”  Vanda Pharm. Inc. v. W.Ward Pharm. Int’l, Ltd., 887 F.3d 1117, 1140 (Fed. Cir. 2018).  Instead, a responding party on appeal “may urge in support of a decree in any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L.Ed.2d 662 (2015) (internal quotations omitted).  And, “[a] prevailing party need not cross-[appeal] to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not change, the judgment.”  Nw. Airlines, Inc., 510 U.S. at 364, 114 S. Ct. at 862. 

HOW DO YOU FILE A CROSS APPEAL?

You file a notice of cross appeal.  NRAP 28.1(b); FRAP 28.1(b).  After the appellant files their opening brief, you file a combined answering brief and opening brief on cross-appeal.  NRAP 28.1(c)(2); FRAP 28.1(c)(2).  You do not need to include a statement of the case or a statement of the facts in this brief, but it must comply with Rule 28’s requirements for opening briefs (not answering briefs) in all other respects. Id.

The appellant then gets to file a answering brief to the cross-appeal opening brief, and can combine that answering brief with their reply brief.  NRAP 28.1(c)(3).  You get to file a reply brief in support of your opening brief on cross-appeal.  NRAP 28.1(c)(4).  This must be limited to the issues presented in the cross-appeal. 

Page limits are different for briefs in a cross-appeal.  Usually, opening and answering briefs are limited to 30 pages.  On cross-appeal, the appellant’s opening brief is limited to 30 pages, but the combined answering and opening brief on cross-appeal is expanded to 40 pages.  Usually, reply briefs are limited to 15 pages, but the appellant’s combined reply and answering brief on cross-appeal is expanded to 30 pages.  The respondent’s reply brief on cross-appeal is still limited to 15 pages.  NRAP 28.1(e); FRAP 28.1(e). 

The time limits to file a brief in a cross-appeal generally remain the same.  In Nevada, opening briefs are due 120 days after the date the appeal is docketing or briefing is reinstated following the settlement program.  NRAP 28.1(f)(1)(A).  Combined answering and opening briefs on cross-appeal are due 30 days after the initial brief.  NRAP 28.1(f)(1)(B).  The reply brief and combined answering brief is due 30 days after that, and the final reply brief on the cross-appeal is due 14 days after that.  NRAP 28.1(f)(1)(C)-(D). 

In the Ninth Circuit, the opening brief is due 40 days after the record is filed, the combined answering and opening on cross-appeal is due 30 days after that, the combined reply and answering brief on cross-appeal is due 30 days after that, and the final reply brief is due 21 days after that (unless oral argument will occur prior to that, then it is due no later than 7 days before oral argument).  FRAP 28.1(f).

FOOD FOR THOUGHT

Cross-appeals are a highly strategical decision.  If you won a favorable substantive decision, you might not want to file a cross-appeal. As I repeatedly say, it is not persuasive to argue “The judge is an absolute idiot who really screwed up… so you should totally affirm them.”

Hovercraft Moose Hunting: Never Mind, It’s Fine.

I previously wrote about the saga of John Sturgeon, the hunter from Alaska who was told to literally pound sand after he attempted to access moose hunting grounds on his hovercraft. You can read that post HERE.

To recap, the saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska under the Alaska National Interest Lands Conservation Act (“ANILCA”). ANILCA is also discussed in depth in my previous post and I cannot promise my summary of it is entirely accurate. Even SCOTUS has difficulty understanding that law.

After the National Park Service ejected John from the Nation River for purportedly violating the National Park Service’s ban on hovercrafts, John began his twelve (12) year legal battle to vindicate the rights of hovercrafting Moose hunters in Alaska. And he won. Sturgeon v. Frost, 587. U.S. ___, 139 S. Ct. 1066 (March 26, 2019).

THE NATION RIVER IS NOT A “PUBLIC LAND” UNDER ANILCA

When we last left John, the Ninth Circuit had determined that the Nation River qualified as a “public land” under ANILCA because the federal government had an “interest” in the running water under the “reserved water rights” doctrine. Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017). SCOTUS disagreed.

SCOTUS found that reserved water rights do not give “title” to water rights. Sturgeon, 139 S. Ct. at 1079. Because the reserved water doctrine does not grant the federal government “title,” the federal government does not own an interest in the waters of the Nation River. Id.

Even if it did, SCOTUS pointed out that a reserved water right is a limited right that only allows the federal government to “take or maintain a specific amount of water” necessary to fulfill the purpose for which the government is regulating the adjacent land. Id. It does not give the federal government the right to enact laws regulating the use of that water in general. Id. This means that the federal government can take water from the Nation River to support the adjacent wildlife preserve, but it cannot enforce its general hovercraft ban on the Nation River.

Which means John is now, finally, free to hovercraft to moose-land.

THE MORAL OF THIS STORY IS…

The moral of the saga of John Sturgeon is that if at first you don’t succeed, sue everybody for twelve years.

Just kidding. That is a terrible moral. The actual moral is to never stop fighting for what you believe in, even if it really, really annoys the Ninth Circuit.

Remittitur, Lawyers, and Malpractice, Oh My!: Branch Banking v. Gerrard

Unsurprisingly, lawyers really hate it when they get sued.  But, fortunately for one lawyer, the NVSC recently ruled that his former client’s legal malpractice claim against him was time-barred In Branch Banking & Trust Company v. Gerard, 134 Nev., Adv. Op. 106, 432 P.3d 736 (Nev. 2018).  In Nevada, when your case involves an appeal, the two year statute of limitations to sue your lawyer for legal malpractice in handling the case does not run until your “damages are no longer contingent on the outcome of the appeal.”  Branch Banking, 432 P.3d at 738.  The question answered by the NVSC in Branch Banking is when that moment occurs.

BRANCH BANKING WAS APPARENTLY UNHAPPY WITH ITS FORMER LAWYER

 In Branch Banking, Branch Banking & Trust hired attorney Gerrard to represent it in litigation.  432 P.3d at 738.  The lawsuit wound up on appeal with the NVSC, and Branch Banking ultimately lost.  Id.  Branch Banking filed a writ of certiorari to the United States Supreme Court, and the United States Supreme Court denied certiorari on October 6, 2014. Id

While the writ of certiorari was pending, the Nevada Supreme Court issued remittitur in March 2014.  Id. Remittitur means that “the appeal [has] conclude[d] and appellate jurisdiction [has] end[ed].”  Id. at 739.

Sometime while all of this was happening, Branch Banking and Gerrard fell out of love.  I don’t know why.  It’s not in the opinion.  All I know is that Branch Banking ultimately wound up suing Gerrard. 

Branch Banking filed its legal malpractice lawsuit against Gerrard on October 5, 2016, just under two years from the date SCOTUS denied the writ of certiorari, and two years and seven months after the NVSC issued remittitur.  Id. at 738.  Gerrard argued that the bank’s lawsuit was time-barred because it was filed seven months after the two year anniversary of the NVSC’s issuance of remittitur.  Id. The NVSC agreed. 

THE LIMITATION PERIOD TO SUE THE LAWYER RUNS FROM THE DATE OF REMITTITUR UNLESS REMITTITUR IS STAYED

According to the NVSC, the purpose of statutes of limitation are to give people some certainty as to when they can no longer be sued.  Id. at 740.  This certainty would not arise if statute of limitations were tolled pending writs of certiorari to SCOTUS.  Id. These writs do not have to be filed until 90 days (3 months) after the opinion or order, and can take months to resolve.  Id. Considering that the majority of these are largely denied, the uncertainty associated with tolling the period during this time is great. 

In contrast, remittitur is a set date.  Id. at 740.  It issues 25 days after the final decision by the NVSC.  NRAP 41(a)(1). 

The NVSC further noted that remittitur can be stayed pending a writ of certiorari to SCOTUS under NRAP 41(b)(3).  Branch Banking, 432 P.3d at 740-41.  To stay remittitur, you simply have to file a motion to stay while the writ of certiorari is pending.  NRAP 41(b).  Remittitur will be stayed for 120 days (4 months).  You can extend the period of time for good cause (i.e., “SCOTUS hasn’t rejected or accepted our writ yet”).  See id. The 120 day period will be indefinitely extended if your writ is accepted, and remittitur will remain stayed until SCOTUS files its disposition of your appeal.  See id.

Branch Banking and Trust never sought to stay remittitur.  432 P.3d at 741.  Once remittitur issued, the limitations period began running for its lawsuit against its former attorney.  Because Branch Banking and Trust filed its legal malpractice action outside of the two-year limitation period, the district court properly dismissed its action.  Id

AND THE MORAL OF THIS STORY IS…

Don’t sue your lawyer.   

Just kidding. Sort of. 

But if you are going to sue your lawyer, pay attention to when that clock starts ticking on the limitations period.