Skip to Content

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. 

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.

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.   

Anatomy of an Opening Brief

A

One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 

CORPORATE DISCLOSURE STATEMENT

After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 

IN NEVADA, YOU ALSO NEED A ROUTING STATEMENT

Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id

JURISDICTIONAL STATEMENTS

The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 

STATEMENT OF THE ISSUES

The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.

STATEMENT OF THE CASE

Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 

STATEMENT OF THE FACTS

The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.

SUMMARY OF THE ARGUMENT

The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”

THE ARGUMENT

The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.

THE CONCLUSION

Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 

RULE 28.2 CERTIFICATE

Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate. 

Paying for the Other Guy: How to Appeal Attorney Fee Awards

Losing hurts, and it hurts even worse when you get saddled with the other guy’s attorney’s bill.  Here’s how and when you can appeal attorney fee awards.

APPEALING INTERLOCUTORY AWARDS

If the lower court awards the other side attorney fees before entry of a final judgment, the order is interlocutory.  This means it cannot be appealed until the entry of a final judgment in the case.  See Allen v. Nelson, 126 Nev. 688, 367 P.3d 744 (2010) (dismissing an appeal of an interlocutory award of attorney fees, taken prior to entry of a final judgment).  To determine when a judgment is considered final, please read this.

Once a final judgment has been entered, the attorney fee award can be contested on appeal along with any other issues.

ATTORNEY FEE AWARDS AFTER JUDGMENT

Attorney fee awards after entry of a final judgment are independently appealable as a “special order after judgment.”  NRAP 3A(b)(8); see also Lytle v. Rosemere Estates Prop. Owners, 129 Nev. 923, 925-26, 314 P.3d 946, 948 (2013).  This means that appeals from these awards must be filed within thirty (30) days of the notice of entry of order awarding attorney fees.  Winston Prods. Co. v. DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006).

Like final judgments, the time period to file these appeals can be tolled by a “tolling motion” filed under NRAP 4.  A “tolling motion” includes motions for reconsideration of the attorney fee award.  Id.

AMENDED NOTICES OF APPEAL, AMENDED JUDGMENTS, AND SEPARATE APPEALS

If you receive a final judgment while a motion for attorney fees is still pending, that motion for fees does not toll your time to file an appeal of the final judgment.  You must file within thirty (30) days.

What happens if you appeal a final judgment, only to be hit later with an attorney fee award that you also want to appeal?  It depends on what the district court does.

If the district court amends the final judgment you have already appealed, you must file an amended notice of appeal noting the amended judgment.  But, if the district court simply enters an order awarding attorney fees, or enters a separate judgment, you must file a separate appeal of these awards.  Campos-Garcia v. Johnson, 130 Nev. 610, 611-12, 331 P.3d 890, 891 (2014).  You will be asked to notify the Court of related appeals in both the case appeal statement and the docketing statement, and the Supreme Court Clerk will consolidate these appeals.

DENIAL OF ATTORNEY FEE MOTIONS

The flip side of this coin are those aggrieved by a district court’s denial of a motion for attorney fees.  The rules set forth above generally apply.  If a final judgment has not been entered, you cannot appeal the order denying your request until a final judgment is entered. If you are the respondent, you can file a cross-appeal after final judgment to address the denial of your fees.  If you are the appellant, you simply take the issue up with your other issues on appeal.

If the order is entered after a final judgment, you must file a separate notice of appeal unless you can timely file a cross-appeal.

At the end of the day, you have to pay a lawyer if you want to litigate.  Hopefully, the lawyer you pay is your own.

Protecting Your Pocket: When Attorney Fees and Costs are Recoverable on Appeal

Getting saddled with an appeal after you have won a case  can be a bitter pill to swallow.  Continuing to pay an attorney who you thought you were done paying only rubs into the wound.  Here’s how you might be able to recover attorney fees on appeal.

ATTORNEY FEES ON APPEAL ARE ONLY AWARDED FOR “FRIVOLOUS” APPEALS

A Nevada appellate court will only award attorney fees on appeal if:

  • “an appeal has been frivolously taken or processed in a frivolous manner;”
  • The appeal was filed solely to delay; or
  •  a party abuses and misuses the appellate process for some purpose other than resolving an appeal.

NRAP 38(b).  The Nevada Supreme Court can also award monetary sanctions if it finds that an appeal is frivolous. NRAP 38(a).

Awards of attorney fees on appeal under NRAP 38 are rare.  The appellate courts have substantial discretion to award these fees, and they rarely exercise that discretion.  Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288 n.2, 994 P.2d 1149, 1150 n.2 (2000).

An appeal is not frivolous merely because the party lost.  See, e.g., Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1356-57, 971 P.2d 383, 388 (1998); Edington v. Edington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003).

NRAP 38 truly comes into play when the opposing party’s conduct has been dishonest, disruptive, and fails to comply with the rules of appellate procedure.

For example, in Varnum v. Grady, the Nevada Supreme Court imposed monetary sanctions because the appellant failed to abide by five procedural requirements relating to transcripts, record designation and filing fees.  90 Nev. 374, 375-77, 528 P.2d 1027, 1028 (1974).  After the respondent moved to dismiss the appeal, the appellant argued that its counsel should be excused for not following the rules because he was involved in a trial and working on other briefs.  Id.  Needless to say, the Nevada Supreme Court completely rejected the argument, refused to accept counsel’s preoccupation with other cases as a valid excuse, and found that the appellant’s prosecution of its appeal was dilatory and warranted monetary sanctions.  Id.

Sanctions can also be issued against respondents.  In Sobol v. Capital Management Consultants, Inc., the Nevada Supreme Court issued sanctions against the respondent because of its “blatant misrepresentation of the stipulated facts” in its brief, and because it quoted language from a dissent in a case as if it were “the holding of the case.”  102 Nev. 444, 446-47, 726 P.2d 335, 337 (1986).  The Nevada Supreme Court not-so-gently reminded the respondent that it “expect[s] and require[s] that all appeals . . . will be pursued in a manner meeting high standards of diligence, professionalism, and competence.”  Id. (Internal quotations omitted).

The Nevada Supreme Court has also made it clear that a voluntarily dismissed appeal is not automatically “frivolous” so as to warrant an award of attorney fees.  Breeden v. Eighth Judicial Dist. Ct., 131 Nev., Adv. Op. 12, 343 P.3d 1242, 1243 (Nev. 2015).  In Breeden, the Nevada Supreme Court rejected the argument that fees should be awarded under NRCP 42(b) and NRAP 38 for voluntary dismissal of appeals because “courts encourage rather than discourage voluntary, self-determined case resolutions.”  Id.

COSTS ON APPEAL ARE A DIFFERENT STORY

Unlike attorney fees, costs are frequently recoverable on appeal under NRAP 39.

How an appeal is resolved determines who has to pay the costs.  Here’s how Rule 39 works:

  • If the appeal is dismissed, the appellant has to pay the costs unless the parties agree otherwise.
  • If the judgment is affirmed, the appellant has to pay the costs (because they lost).
  • If the judgment is reversed, the respondent has to pay the costs (because they lost).
  • If the judgment is affirmed in part and reversed in part, then costs are only recoverable if the appellate court orders (because everybody won but also lost).

NRAP 39(a).

The costs that you can recover include:

  • Costs of copying for “necessary” copies of briefs and appendixes
  • Costs of roundtrip transportation for oral argument. These are limited to the distance between the district court and the appellate court (i.e., your New York lawyer can’t charge for flying from New York to Vegas).  The costs are further limited to 15 cents per automobile mile or the cost of commercial airfare, whichever is lowest.
  • Preparation and transmission of the record
  • Reporter’s transcript
  • Preparation of appendix
  • Premiums paid for supersedeas or other bonds filed upon appeal
  • The filing fee for the appeal

NRAP 39(c), (e). Costs for copies and transportation are capped at $500.  NRAP 39(c)(5).  For estimation of other appeal costs, read this post.

To recover these costs, you must file an itemized and verified bill of costs with the appellate court within 14 days after the order or opinion is issued.  NRAP 39(c)(3).    The costs are actually awarded in the remittitur.  NRAP 39(d).  If remittitur issues before costs are determined, then the district court adds the statement of costs to the remittitur.  Id. And if you have no clue what “remittitur” is, read this post.

DON’T FORGET OFFERS OF JUDGMENT

If you had fees awarded pursuant to an offer of judgment in the district court, you may be able to recover fees incurred upon appeal under that same offer of judgment.   NRCP 68 “extend[s] to fees incurred on and after appeal.”  In re Estate & Living Tr. of Miller, 125 Nev. 550, 555, 216 P.3d 239, 243 (2009).  Keep in mind, however, that the appellate court’s ruling regarding the offer of judgment on appeal will govern whether you can recover fees because the appellate court’s ruling is the law of the case.  Bd. of Gallery of History, Inc., 116 Nev. at 289, 994 P.2d at 1150.  This means that an order or opinion affirming the award under the offer of judgment only leaves the question of whether your fees incurred on appeal were reasonable.  Likewise, an order reversing the judgment may result in a finding that your offer was unreasonable, and you are not entitled to any fees.

 

 

This Just In: Monkeys Cannot Sue Humans

You might want to sit down for what I am about to write: According to the Ninth Circuit, monkeys cannot sue humans for copyright infringement.  Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

A “copyright” protects printed work (photos, books, etc.).  Even though monkeys have opposable thumbs and can, arguably, create printed work capable of being copyrighted, they can’t sue humans for copyright infringement.  Id. at 426.

TECHNICALLY, ANIMALS MIGHT BE ABLE TO SUE HUMANS

In 2004, the Ninth Circuit issued the opinion Cetacean Community v. Bush, 386 F.3d 1169, and has regretted it ever since.

In Cetacean, an attorney appointed himself to represent “all of the world’s whales, porpoises, dolphins (the “Cetaceans”)” for injuries they allegedly sustained from the Navy’s sonar systems.  Id. at 1171.  To sue anyone in federal court, you need what we call “Article III” standing.  “Article III” standing comes from the United States Constitution, and requires you to prove that you have actually been injured, either physically, or by having some judicially recognizable right impaired. Because the Cetaceans were, maybe, actually physically injured by sonar systems, the Ninth Circuit reluctantly agreed that these poor dolphins might have Article III standing.  But they still couldn’t sue humans under the statutory scheme their claims were brought under.  Id.

ENTER NARUTO, A TALENTED PHOTOGRAPHER WHO HAPPENS TO BE A MONKEY

Naruto is monkey who (probably) still lives on a reserve in Indonesia.  He became famous for taking “selfies” of himself on a camera that a wildlife photographer, David Slater, left unattended.  Slater published the Monkey Selfies in a book.

So, obviously, PETA sued Slater.

PETA sued Slater for copyright infringement since Slater admitted that Naruto took the photos.  PETA brought the lawsuit as a “next friend” of Naruto’s, which is fancy legal term for someone who asserts another’s legal rights for them because they cannot assert the rights themselves.  See Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002).

NINTH CIRCUIT TO NARUTO:  “PETA IS NOT YOUR FRIEND”

The Ninth Circuit immediately rejected PETA’s attempt to stand as “next friend” to Naruto.  A “next friend” has to show the existence of some “significant relationship” between the two.  Naruto, 888 F.3d at 421.  PETA failed to show that it had even met Naruto, and, even if could have, there is no statute which allows “next friends” to represent animals in federal court.  Id. at 422-23.

But PETA’s failure as a “friend” does not end there.  The Ninth Circuit was not amused by PETA’s attempt to “settle” the case without dismissing Naruto’s claims but still requiring Slater pay a portion of the proceeds from his book to miscellaneous charities:

But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed ‘friend’ having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests.  Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.  Puzzlingly, while representing to the world that ‘animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,’ see PETA, https://peta.org . . . PETA seems to employ Naruto as an unwitting pawn in its ideological goals.

Id. at 421, n.3.

The concurring opinion by Judge Smith further elaborated on the issues inherent with “next friend” representation of animals.  As Judge Smith notes, this would allow various parties “to bring suit on behalf of those animals  or objects with no means or manner to ensure that the animals’ interests are truly being expressed or advanced.”  Animals do not speak our language; therefore, how can a “next friend” truly know “whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”  Id.  at 432.

Even more alarming is the natural consequence of allowing animals to sue:  If they can hold humans accountable for civil wrongs, can we hold them accountable for other civil infractions?  “Are animals capable of shouldering the burden of paying taxes? . . . Should animals be liable for intentional torts as well?”  Id. at 432, n.6.

AND, JUST TO BE CLEAR, MONKEYS CANNOT SUE HUMANS FOR COPYRIGHT INFRINGEMENT

Having disposed of PETA and its “next friend” status, the Ninth Circuit tackled the next possible approach a self-serving animal “friend” could take:  Self-appointing themselves as the lawyer and representing Naruto directly as the “client.”  This is what happened in Cetaceans. The dolphins did not have a “next friend.”  They just had some attorney with too much time on his hands.

Federal jurisdiction is limited, which means that federal courts only get to hear the specific cases from the specific plaintiffs that Congress specifically allows them to consider in a statute.  So, the Ninth Circuit looked to the Copyright Act to see if monkeys can use humans.

Shockingly, Congress has not specifically stated that monkeys can sue humans for copyright infringement.  (I KNOW.  What’s the point of opposable thumbs if you can’t protect what you create with them?!).

Therefore, the Ninth Circuit held that monkeys can’t sue humans for copyright infringement.  Id. at 425-26.

WHAT YOU NEED TO REMEMBER ABOUT THIS CASE. 

Nothing.  This case will probably never have any relevancy to your life, unless you have a habit of encountering litigious wildlife.

However, the Ninth Circuit is desperately hoping that someone, somewhere, will take the issue of animal standing to sue humans up to the Supreme Court so that they can finally stop having to admit that, yes, they issued Cetaceans, yes, the “plaintiff” was every whale and dolphin in the entire world, and yes, maybe they did, sort of, somewhat say that every whale and dolphin has Article III standing to possibly sue a human.

 

Havensight v. Nike: Just Do . . . Not Do What Havensight Did.

I wrote last week about the general requirements for a notice of appeal here.  This week, I’m discussing the oversights of Havensight Capital, LLC in its notice of appeal from its lawsuit against Nike, Inc.

HAVENSIGHT HATES NIKE (AND THE FEELING IS PROBABLY MUTUAL)

Havensight is a competitor of Nike who sued Nike for infringement on Havensight’s soccer brand and lost.  Havensight Capital v. Nike, 891 F.3d 1167, 1169 (9th Cir. 2018).  The day after Havensight lost, it filed a new lawsuit against Nike.  Id.

Havensight then engaged in a bunch of procedural shenanigans that would only confuse you if I tried to relay them here.  Basically, Nike was litigating against the equivalent of an angry toddler armed with permanent markers and rocks.  This resulted in the judge dismissing Havensight’s lawsuit, awarding attorney fees and sanctions against Havensight’s lawyer under Rule 11, and denying Havensight’s motion to reconsider these orders.  Id. at 1169-70.

Undeterred, Havensight continued its ineffective barrage of dull objects at Nike, resulting in the court entering an order declaring Havensight a “vexatious litigant,” and awarding Nike more attorney fees.  Havensight then filed an appeal with the Ninth Circuit.  Id. at 1170-71.

HAVENSIGHT’S DEFECTIVE NOTICE OF APPEAL

As I stated here, you must include all orders you intend to challenge on appeal in your notice of appeal.  In Havensight’s notice, it only mentioned the orders dismissing its complaint, and imposing the Rule 11 sanctions.  It did not mention the later orders denying Havensight’s request for reconsideration, imposing additional sanctions, and declaring Havensight a vexatious litigant.  Id. at 1171.

Under FRAP 3, you must state the orders you are challenging on appeal.  FRAP 3(c)(1)(B).  Appellate courts are courts of limited jurisdiction, and they do not have jurisdiction over orders that are not included in the notice of appeal.  Smith v. Barry, 502 U.S. 244, 248 (1992).

Your failure to designate the order might not be fatal to your appeal, if it is clear from the notice of appeal that you intend to challenge the order and you will be prejudiced by your mistake.  West v. United States, 853 F.3d 520, 523 (9th Cir. 2017).

The Ninth Circuit found that it could not infer any intent from Havensight’s notice of appeal to challenge the subsequent orders, and dismissed Havensight’s appeal to the extent it challenged those rulings.  Havensight, 891 F.3d at 1171.

HAVENSIGHT’S UNTIMELY APPEAL

Once judgment is entered, you must file your notice of appeal within thirty days.  FRAP 4(a).  The time to file the appeal can be extended if a post-judgment tolling motion is filed.  FRAP 4(a)(4)(A)(iv).  Motions to alter or amend a judgment under Rule 59 are considered “tolling motions,” and the time to appeal does not run until 30 days after the grant or denial of those motions.  Id.  A motion to reconsider is generally viewed as a Rule 59 motion for purposes of appeal.

In this case, the district court dismissed Havensight’s complaint on February 18, 2015.  Havensight filed a motion for reconsideration the next day, on February 19, 2015.  The court denied that motion on April 22, 2015.  Judgment was entered on July 18, 2015.  Havensight, 891 F.3d at 1172.   Havensight filed its appeal on October 15, 2015.

Apparently, Havensight argued that because it filed a “tolling” motion, it was entitled to an additional sixty-two days to file its appeal after judgment was entered.  The Ninth Circuit rejected this argument because Havensight’s motion for reconsideration was both filed and resolved before judgment was entered.  Id. at 1173.  Because Havensight did not file its appeal by August 17, 2015, the Ninth Circuit dismissed Havensight’s appeal of the order dismissing its complaint as being untimely.  Id. at 1174.

If you still have any doubt as to whether you should specify every order you intend to appeal in your notice of appeal, follow Nike’s lead and JUST DO IT.