The new southpaws: the turning of the Nevada Supreme Court's criminal decisions.

• Author: Colombo, Elizabeth F.
• Position: High Court Studies

1. INTRODUCTION

   This high court study examines the Nevada Supreme Court's criminal rulings from 1997 to 2002. The Court's criminal rulings during this period provide over forty majority opinions that were concurrently published with separate opinions. These separate opinions allow for analysis of the individual justices' stances on the issues that are relevant to them.

   The Nevada Supreme Court has undergone major changes in recent years with the addition of new seats, a new chief justice, and with other changes to increase efficiency, such as mandatory settlement procedures. (1) The court swelled from five to seven members in 1997 through a legislative amendment, with the new justices taking office in 1999. (2) The members of the court are also elected every six years, requiring incumbent members to run for reelection. (3) The elections are staggered, which is proscribed by the Nevada State Constitution, so that the number of justices running for re-election every two years is roughly equal. (4) Since the additional justices were added to the bench, cases are now generally heard by three-member panels instead of en banc as was previously the custom, although occasionally, cases are still heard by the court as whole. (5) Further, the court has a backlog of well over a thousand cases, which the justices are constantly struggling to overcome. (6) Developing strategies to overcome this backlog is a common platform in re-election campaigns. (7)

   While the Supreme Court is Nevada's highest court of record, the court also has "appellate jurisdiction in all civil cases arising in district courts" and over questions of law in criminal cases in which "the offense charged is within the original jurisdiction of the district courts." (8) Since there is no intermediate appellate court in Nevada, petitioners have an automatic right to appeal directly to the Supreme Court, which must review all cases filed. (9) Many of the cases, however, are disposed of without an opinion. In the years 2000-2001, of the 2,008 cases disposed of, 112 were disposed of with an opinion, and 1,896 were disposed of via an order. (10) Given the Court's backlog of cases, however, 1,628 appeals were still pending before the Court at the close of 2001. (11)

   It is worthwhile to examine the current climate of the court given its recent history and the numerous changes in the make-up of the Court, all acting in concert to bring the Nevada Supreme Court into the new millennium.

2. THE JUSTICES

   The Chief Justice of the Nevada Supreme Court serves a two-year rotation; a justice is eligible for the position when he or she has the least amount of service remaining on his or her term on the Court, typically meaning when the remaining term is two years from completion. (12)

   Robert E. Rose occupies "Seat C" (13) and is the most outspoken of the current members of the court, often dissenting. His term expires in 2006. (14) Justice Rose has crusaded for a strong chief-justice system in Nevada's district courts, for more efficiency in the court system, particularly with record keeping, and implementation of a state intermediate appeals court. (15) It was under Justice Rose's leadership that the court's backlog topped 2,500 cases in 1997, a possible source for his continued interest in the Court's efficiency. (16) Although the Supreme Court has been effective in reducing both the case backlog and the amount of time that it takes for an appeal to be heard, Justice Rose nonetheless asserted the need for an intermediate appellate court to ease the case load. (17) Voters, however, have twice defeated this proposal. (18)

   Cliff Young, who occupied "Seat D" on the Court, left the Court at the end of 2002. (19) He has the distinction of being both the oldest Nevada Supreme Court justice and the oldest living former Nevada Congressman. (20) Justice Young was elected to the Nevada Supreme Court in 1984 after unseating Justice Noel Manoukian, who had been feuding with other members of the court. (21) He was born in Nevada, attended the University of Nevada, Reno and earned a bachelor's degree in economics before entering Harvard Law School, where he earned his J.D. in 1949. (22) He suffered a stroke in October of 1998, but he recovered quickly and continued to hold his seat. (23)

   William Maupin occupies "Seat B" and served as Chief Justice until the end of 2001. (24) Elected to the Supreme Court in 1996, Chief Justice Maupin ran for re-election at the end of 2002. (25) Justice Maupin graduated from the University of Nevada, Reno and earned his law degree at the University of Arizona Law School. (26) Prior to running for the Nevada Supreme Court, former Governor Miller appointed him as District Court Judge for Clark County in 1993, and he subsequently won election to that court in 1994 and served for a total of three years. (27) Chief Justice Maupin also practiced as a trial attorney for more than twenty years prior to his election to the district court. (28)

   Miriam Shearing now occupies "Seat A" on the Court after successfully campaigning in 1992 to become the first woman justice to sit on the Nevada Supreme Court. (29) Not only did she pave the way for future female justices, Justice Shearing also became the first female Chief Justice in 1997. (30) Justice Shearing has stated that she believes that her gender has influenced the Court in its decisions on child abuse and sexual assault cases. (31) A graduate of Boston College Law School, she has been a member of the Nevada judiciary since 1977. (32)

   Deborah A. Agosti, rumored to be on the short list of nominees to the U.S. Court of Appeals, 9th Circuit, occupies "Seat E". (33) Prior to becoming a Supreme Court justice in 1999, Justice Agosti served as a District Court Judge. (34) Justice Agosti graduated from the University of Toledo School of Law and joined the Nevada Supreme Court as the successor to Justice Springer following his retirement. (35)

   Myron E. Leavitt occupies "Seat F" and ran against Justice Rose twice before finally winning the 1998 election and taking office in 1999. (36) Justice Leavitt's long and distinguished career in Nevada politics includes such positions as Lieutenant Governor, the Commissioner of Clark County, City Council member of Las Vegas, and a district judge. (37) Although he made an unsuccessful bid for governor in 1982, members of the bar have consistently held him in high regard. (38)

   The Honorable Nancy A. Becker occupies "Seat G" and joined the court in 1999 as one of two additional justices added by the legislature. (39) She won re-election in 2000 in a highly contested race. (40) Some criticized her election tactics, stating that efforts-such as traveling the state campaigning, making appearances, and running advertisements--were unnecessary because the polls had long ago declared her the winner, (41) while others praised her efforts as making a connection with voters. (42)

   Justice Charles E. Springer served on the Nevada Supreme Court for 18 years, and many viewed him as a divisive force. (43) He wrote separate opinions in both of the fabled Whitehead cases, which involved petitions that sought to remove various justices for bias against litigants before the court. (44) Justice Springer retired in 1999 after serving three terms and was succeeded by Deborah Agosti. (45)

3. METHODOLOGY

   For this high court study, the voting records for published decisions in the years 1997-2002 were researched. While this provides only a limited snapshot of the court system, it captures several important moments in the court's history: the fallout from the Whitehead disputes, the retirement of Justice Springer, the addition of two new justices, and the emergence of a nearly equal gender balance on the court. This latter event is truly a feat considering that when she took office in 1992, Justice Miriam Shearing was the first woman ever elected, and now, three female justices sit on the Court. Since this is an almost entirely new court, which deals with new issues and new methods in meting out justice in Nevada, this is an appropriate time to pause and examine the Court's recent actions and to attempt to predict where the justices might lead the state's jurisprudence in the years to come. The cases examined--while not exhaustive of the decisions handed down during those years--contain the differing viewpoints of the Court's members, as evidenced by separate concurrences and dissents. By searching for cases with dissenting and concurring opinions using online databases such as Westlaw and LexisNexis, a large pool of cases was drawn, which provided a starting point for preliminary research.

   Once all the cases were assembled in the above manner, it became clear that the pool would have to be further narrowed to provide meaningful treatment of an issue. Criminal cases immediately seemed to present interesting differences among the members of the Court. These cases involve fundamental liberties that carry the same weight--all receive equal protection and importance. In a criminal case, the choice of penalties can reside between life and death, and this grave matter puts extra pressure on justices to correctly and fairly interpret the law.

   In looking at the cases assembled, forty-one criminal cases provided at least one opinion differing from the majority in some fashion. The cases were then sorted by dissent to get a sense of who the strong voices on the Court were. Next, the cases were examined more carefully, looking at the holding of the case, who wrote the majority, and who wrote the concurrence or dissent and why. This last step brought into focus the Court's most divisive issues. The preliminary indicator in the criminal cases proved to be whether the judge sided with the prosecution or the defense. While this is an unfair abstraction, for the purposes of this paper the label "liberal" will be used to describe decisions which favor the defendant in a criminal case and the label "conservative"...