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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.

Dem Bones: Murray v. BEJ Minerals

In 2006, on a hot day in Hell Creek, Montana, the Dinosaur Cowboy stumbled upon the remains of a theropod (maybe a T. Rex) and a ceratopsian (maybe a triceratops) engaged in mortal combat.  While it cannot be known for certain which may have had the upper hand, both lost as they are now dead and preserved in mortal combat for time immemorial. 

            Aside from being one of the largest scientific discoveries in modern times, the Dueling Dinosaurs also raised an interesting legal question:  Who owns them? According to the Ninth Circuit, whoever owns the mineral rights to the land.  Murray v. BEJ Minerals, LLC, 908 F.3d 437 (9th Cir. 2018). 

FOSSILS FOUND ON PRIVATE LAND

The answer to the Dueling Dinosaur’s ownership should be simple because fossils found on private land typically belong to the landowner.  When the Dueling Dinosaurs were discovered, Hell Creek was owned by Lige and Mary Ann Murray.  Id. at 439.

The issue regarding the Dueling Dinosaurs arose because the Murrays had purchased Hell Creek one year earlier from Jerry and Robert Severson.  The Seversons sold the Murrays Hell Creek (a ranch), and one-third of the mineral rights in Hell Creek, but reserved the remaining two-thirds mineral rights in themselves.  Id.

Mineral rights and land rights work like this:  If you own the land, you can do whatever you want with it (within the bounds of the law).  If you find gold on your land, you presumably own that too unless someone else owns the “mineral” rights, i.e., the right to extract and sell gold from your land. 

So, the question of who owns the Dueling Dinosaurs boiled down to one simple question:  Are dinosaur fossils “minerals?”

ACCORDING TO THE NINTH CIRCUIT, DINOSAUR FOSSILS ARE MINERALS

The district court found that dinosaur fossils are not “minerals” because dinosaurs were once living, breathing animals and their fossils are not mined or subject to traditional methods of extraction as most other traditional minerals.  Id. at 441.  However, the Seversons argued, and the Ninth Circuit agreed, that all minerals are the product of decomposed plant matter.  Id. at 443.  Furthermore, most fossils are sold for economic gain, the same as traditional minerals like gold, silver and oil.  Id. at 443-44.  The Ninth Circuit also found that prior editions of Black’s Law Dictionary defined “minerals” to include fossils.  Id. at 444.

Reasoning that reliance on dictionary definitions, alone, of the phrase “mineral” would be insufficient since everything on the earth could plausibly fall within those definitions, the Ninth Circuit looked to Montana precedent on how Montana defines a mineral.  Id. It found that Montana determines whether something qualifies a “mineral” under Montana law by asking whether it is “rare and exceptional in character or possesses a peculiar property giving it special value.”  Id.  

The Ninth Circuit found that the Dueling Dinosaurs are unquestionably “minerals” under this definition because they were worth millions, and are among one of the largest scientific fossil finds in recent history.  We all know dinosaurs must have fought, but these are the first fossils to preserve a fight in the fossil record.  Id. at 445-47.

Therefore, according to the Ninth Circuit, the Seversons own 2/3 of the Dueling Dinosaurs and the Murrays own 1/3.   

Now, if we could just find fossil evidence of dinosaur’s skin, because I have not completely ruled out the possibility that they might have been covered in blue hair. 

Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

Cursing Congressmen: Student Activism and the First Amendment

A local high school student has captured the media’s attention by claiming his First Amendment rights were violated after the school suspended him for cursing at a congressman.  The student participated in the March 14, 2017 walkout to protest gun laws.  During the protest, he admits that he called his congressman’s office and demanded that politicians get off their “f-ing lazy a – -” and do something about gun law reform.

The student contends that the school violated the student’s First Amendment rights to engage in “political speech.”  The school district argues that the suspension was not in retaliation for participation on the protest, but because the student used profanity.   Who is right?

The First Amendment protects “political speech,” i.e., speech that expresses opinions or views on current political issues or candidates.  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014).  In fact, political speech has been regarded as the “essence” of the First Amendment.  McIntyre, 514 U.S. at 347.  Courts are required “to err on the side of protecting political speech rather than suppressing it.”  McCutcheon, 134 S. Ct. at 1451.

In contrast, profanity is not always protected under the First Amendment.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).  The United States Supreme Court has consistently held that a school district may prohibit “inappropriate” speech.  Id. at 683.  This includes profanity used during protests that is aimed at “making a political point.” Id. at 682.

According to the United States Supreme Court:

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized order.  Consciously or otherwise, teachers – and indeed the older students – demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.  Inescapably, like parents, they are role models.  The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct . . .”

Id. at 683.

 

In sum, a school may prohibit the use of profanity, even during a political protest.  Id. at 685.

In this particular case, it is unclear whether the speech will be protected.  The speech occurred during the walk out, which was not a school-sanctioned activity.  It occurred during a political protest, it was aimed at a politician, and it requested political action.  On the other hand, the speech occurred on a school campus.  The other participants were students, and these students likely overheard this speech.  The school has a policy prohibiting inappropriate speech and conduct on school grounds.

To mount a First Amendment challenge, the student will also need to show that the suspension was in direct retaliation for his “political speech.”  The school has been very clear that its punishment was not due to the student’s political views or participation in the walkout, but because he violated a school code of conduct. To win, the student will need to prove that the school’s explanation is false or pretextual, and/or that the administrators in charge of the suspension had expressed opposition to the student’s allegedly protected speech.  Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).   Keep in mind, however, that schools can prohibit political protests on campus if those protests “undermine the school routine.”  Tate v. Bd. of Ed. Of Jonesboro, Ark., Special Sch. Dist., 453 F.2d 975, 978-79 (8th Cir. 1972).

So, who is right?  I don’t know.  The First Amendment is a gray area of the law, particularly when it comes to schools.

I do know that I am proud of our next generation.  While I do not condone this particular student’s choice of words, I commend him for trying to make a difference on an issue he feels strongly about.  If these students continue to be passionate about the shape of this country’s future, 2020 is going to be a very interesting election year.

Viva Las Vegas: What Laws Protect Us From Mass Shootings?

People have probably been praying for Las Vegas for centuries, but recent events have given those prayers an entirely new and horrifying purpose. The mass shooting in Las Vegas is the deadliest mass shooting in U.S. history, and Nevadans are left wondering what, if anything, could have been done to prevent it.  Mass shootings the size of the one that occurred in Las Vegas do not fit any specific mold.  The assailants vary in age, background, and apparent motivation.  The weapons, locations, and methods are different.  All that citizens can do to protect against further acts of senseless mass violence is to focus on the W’s:  Why, Where, Who, and What. 

Focusing on the why will not solve the issue.  Most assailants, including the one in Las Vegas, take their own lives and leave law enforcement to speculate as to their motives.  One of the more common theories regarding motivation is that these assailants desire to live in infamy by having their name connected to a historical act of mass violence.  Because the media gives so much attention to mass shootings, this theory might be right.

The obvious solution would be to enact a law that prohibits the media from using the assailant’s name or photo.   However, the First Amendment’s guarantee to freedom of the press prohibits Congress or the states from enacting these laws. Prohibiting the press from reporting on something ahead of time is referred to as a “prior restraint on speech.”  Recognizing that a free press is a symbol of a free country, the United States Supreme Court has limited prior restraints to a very narrow category of “exceptional cases.”  CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994).  A prior restraint is only constitutionally permissible “where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.”  Id.  That type of evil is not present in mass shootings.  They are rare, and therefore, not great.  We are left to guess at the assailant’s motives, so the evil is not certain.  And gun control is arguably the less intrusive measure to combat mass shootings.

Gun control focuses on the Where, Who and What. But laws preventing where a gun may be discharged are clearly not the answer to preventing mass shootings.  It is illegal to discharge a firearm in a hotel or public resort.  NRS 202.280(1).  Yet, Las Vegas happened.  All states, including Nevada, prohibit possession of a firearm on school premises.  See NRS 202.265(1).  Yet, Columbine and Sandy Hook happened.   

Laws preventing who can possess a gun also do not seem to be the answer.  Nevada has some of the most lenient gun control laws in the country, and does not require its citizens to obtain a permit before owing a firearm.  However, Nevada has enacted laws preventing those who are statistically likely to engage in gun violence from possessing a firearm.  It is illegal for a person with a domestic violence record to own or possess a firearm in Nevada.  NRS 202.360(1).  Felons and fugitives from justice also may not own or possess firearms in Nevada.  NRS 202.360(1).   And, a person who has been found to be mentally ill by a court, who has entered a plea of guilty but mentally ill, or who has been acquitted from a crime due to insanity cannot own a firearm in Nevada.  NRS 202.360(2).

The problem is that most mass shooting assailants pass background checks.  They are not felons.  While they may have histories of domestic violence, they do not have domestic violence police records.  While they may be mentally ill, they have not been found by a court to be mentally ill.  To illustrate, the Las Vegas assailant legally owned upwards of 50 firearms which may have been used in the attack.

Perhaps the key to preventing mass shootings lies in what guns are accessible to the general public.  Although the weapon of choice varies in mass shootings, automatic and semiautomatic rifles are commonly used.  Under federal law, only automatic weapons made or registered before May 19, 1986 may be owned by a citizen provided the weapon is registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives and the owner has passed an extensive background check.  Despite this federal restriction, some states, like California, completely prohibit possession of automatic weapons regardless of when they were made or registered.  Many states place significant restrictions on the possession of semiautomatic weapons.  Nevada does not have any laws that restrict what type of firearm may be owned.

Enacting such a law might be a simple solution, were it not for a little thing called the Second Amendment. Prohibitions on the types of firearms that may be owned by a citizen raise significant Second Amendment concerns.  For example, in District of Columbia v. Heller, the United States Supreme Court held that a District of Columbia ban on the possession of handguns by any citizen violated the Second Amendment because it infringed the individual’s right to bear arms.   554 U.S. 570, 628-29 (2008).   Reasoning that the primary purpose of the Second Amendment was to allow a citizen to bear arms in self-defense, the United States Supreme Court struck down the D.C. law because handguns are the preferred firearm for self-protection. Id.

However, Heller left open the question of whether bans on semiautomatic and automatic weapons would be constitutionally permissible under the Second Amendment since these weapons are not typically used for self-defense.  The federal courts generally agree that the Second Amendment does not guarantee the right to possession of a certain type of firearm, provided the individual’s right to bear arms in self-defense is not otherwise unconstitutionally infringed.  See Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 538 (6th Cir. 1998) (“Moreover, we note that the Federal Constitution does not provide a right to possess an assault weapon.”).

A ban on automatic weapons and semiautomatic rifles may also be constitutionally permissible under Nevada’s Constitution.  Although Nevada constitutionally guarantees its citizens the right to bear arms for hunting, there is no reason to use an automatic or semiautomatic weapon to hunt.  See Nev. Const., art. 1, § 11.  No hunter is going to mass shoot a herd of deer.   

So what should Nevadans do?  The reality is that no law can eradicate evil from this world.   No law can bring back the 59 lives that were taken too soon.  We must, as Elvis would want us to, move forward into the future with a strong heart and a nerve of steel.  Viva Las Vegas.