Adelsons pour $500K into group backing Republican-aligned state Supreme Court candidate, other judicial candidates

The front of the Nevada Supreme Court Building

Billionaire casino owner Sheldon Adelson and his physician wife Miriam have contributed a combined half a million dollars to a new political action committee involved in several judicial races, including a contentious fight for a state Supreme Court seat.

According to a campaign finance report filed last week, the Adelsons — who made news last week amid disclosure that they poured $75 million into a pro-President Trump Super PAC — each contributed $250,000 in mid-September to a new political action committee called “Judge the Judges.”

So far, the PAC has started a TV advertising campaign aimed at boosting the candidacy of state Supreme Court candidate Douglas Herndon, an Eighth Judicial District Court judge running against Democratic Assemblyman and attorney Ozzie Fumo for the open seat on the seven-member court. Herndon’s political affiliation is described as “Republican” by the Reno Gazette-Journal.

But a spokesman for the PAC says it has plans beyond just the involvement in the state Supreme Court race. He said it’s already created a website with basic information on judicial races in Clark County, and has endorsed and begun running radio ads on behalf of four additional judicial candidates (of both major political parties) running for seats on the Clark County District Court.

“The PAC has a growing coalition that includes Dr. Miriam and Sheldon Adelson, the Nevada Builders Alliance, the Franchised Auto Dealers and additional companies to be named soon,” spokesman Mike Draper said in an email. “While the PAC is engaged in a handful of select races this cycle, the goal is for it to be an ongoing resource in future election cycles to provide more information about our elected judges.”

According to the new PAC’s campaign finance report, the Adelsons contributed the lion’s share of the $507,000 in reported contributions, with $2,000 coming from the Nevada Builders Alliance and $5,000 coming from the state auto dealers association. It reported spending just over $21,000 through the end of September. 

Nevada caps political contribution amounts from a single individual or entity at $10,000 per election cycle, but there are no contribution limits related to political action committees. A spokesperson for the Las Vegas Sands said the Adelsons declined to comment.

The PAC’s main advertising thrust thus far has focused on the state Supreme Court race. Though judicial races in Nevada are nonpartisan, meaning candidates don’t list party affiliation on the ballot, Herndon’s campaign has been backed by numerous Republican-aligined groups and individuals, while Fumo has been endorsed by a slew of liberal and progressive groups and served two terms in the Assembly as a Democrat. 

The PAC began running a television ad last week that hits Fumo for a “lack of experience on the bench,” saying that “The Nevada Supreme Court is no place for beginners.” It also highlights a promise made by Fumo during the summer special legislative sessions to recuse himself on certain issues that might come before the court, and says he’s “distorting” Herndon’s record.

Races for seats on the Nevada Supreme Court have in the past included some partisan tinges — Justice Elissa Cadish won endorsements from multiple union groups in her 2018 race, while her opponent, Court of Appeals Justice Jerome Tao, was endorsed by Republican figures and groups, including the National Rifle Association.

Though the court rarely rules along party lines, the Las Vegas Review-Journal reported in 2018 that at least four of the court’s seven members — Justices Mark Gibbons, Abbi Silver, Kris Pickering and Ron Parraguirre — are either registered Republicans or “lean” Republican. Justices James Hardesty, Lidia Stiglich and Cadish are Democrats.

Herndon — a sitting judge on the Eighth Judicial District Court in Clark County — has outraised Fumo throughout the campaign. He reported raising more than $340,000 over the last three months and spending more than $207,000 over that time frame — compared to $110,000 raised and $137,000 spent by Fumo in that same time period.

Herdon’s campaign has also spent more on television advertising, according to a tally by Kantar Media/CMAG. Fumo’s campaign has spent an estimated $91,000 on television advertising as of Oct. 19, compared to $150,000 spent by Herdon’s campaign and $15,000 by the “Judge the Judges” PAC.

In the state’s June primary election, Herdon won about 45 percent of votes cast, coming ahead of Fumo — who won about 35.6 percent — and ahead of former Republican Assemblyman Erv Nelson, who brought in about 10.3 percent of the vote. For judicial races, a candidate who wins more than 50 percent of the vote in the primary election automatically wins the seat, but if no candidate cracks that threshold, then the top two vote-getters proceed to the general election.

The PAC is also running radio ads in support of Herndon and four other endorsed candidates for District Court seats in Clark County, including:

Nevada Supreme Court says state cannot change water rights for 'public trust,' a loss for environmentalists, county seeking to bring more water to Walker Lake

A photo of the Walker River

The Nevada Supreme Court ruled Thursday that the state cannot reshuffle existing water rights to prevent environmental damage, despite recognizing a legal principle that requires the government to preserve natural resources for future generations.

Instead, the court ruled that principle, known as the public trust doctrine, is recognized in existing law. The Nevada court, in a 4-2 decision, separated itself from the California Supreme Court, which reached the opposite conclusion in a landmark 1980s case.

Effectively, the court found that the system that underpins Nevada’s water law, known as the doctrine of prior appropriation, is meant to take the public interest into account by defining how water can be used and by placing guardrails to prevent waste or overuse in times of scarcity. Allowing reallocation, the court said, “would create uncertainties for future development.”

The decision deals with litigation on the Walker River, which rises in eastern California and flows into western Nevada, ending at Walker Lake, a terminal desert lake in Mineral County. Along the way, water is removed from the river for farming and ranching operations. As more and more water was used over the past century, the lake shrunk and its water chemistry changed. 

Walker Lake became increasingly inhospitable for fishing, boating and recreation, harming the local economy of Hawthorne, the small Mineral County town located near the lake. In 1994, the county took the issue to court. It intervened in an ongoing case to assert a “public trust” claim, asking the court to do what existing water law had not: require that a minimum flow reach the lake.

“The public trust doctrine is something that transcends statutory law,” said Simeon Herskovits, an attorney for the Walker Lake Working Group, an organization of Mineral County residents.

Although the opinion recognizes that the public trust doctrine applies “to all waters of the state, whether navigable or non-navigable,” it says the state cannot reshuffle existing water rights to meet its responsibilities. Those responsibilities are instead met through existing statute.

“We recognize the tragic decline of Walker Lake,” Justice Lidia Stiglich wrote. “But while we are sympathetic to the plight of Walker Lake and the resulting negative impacts on the wildlife, resources, and economy in Mineral County, we cannot use the public trust doctrine as a tool to uproot an entire water system, particularly where finality is firmly rooted in our statutes.”

Justices Elissa Cadish, Mark Gibbons and James Hardesty joined the majority opinion. Justice Ron Parraguirre voluntarily recused himself from the decision. 

The ruling marks a significant loss for environmentalists who view the public trust doctrine as a pathway for carving out greater protections for the environment and recreation in a legal system where water is often appropriated to private interests with little left to spare for anything else.

“This says we’ve got a public trust doctrine and it applies everywhere,” said Bret Birdsong, an environmental law professor at UNLV who filed a brief in the case. “Only it means nothing.”

The decision, Birdsong argued, relegated the public trust doctrine, what is meant to be a broad legal principle, to a set of statutory tools that have not always protected resources long-term. 

“It’s a bad decision for the environment,” he added.

In a dissent, Chief Justice Kristina Pickering criticized the majority interpretation, writing that it could mean “there is no remedy or action to be taken to protect from the irreversible depletion of this state’s most precious natural resource,” as long as the state engineer fulfills his statutory role.

Justice Abbi Silver joined Pickering in the dissent.

The issue came before the Nevada Supreme Court after the 9th Circuit Court of Appeals was weighing Mineral County’s public trust claim. In 2018, the appellate court asked the Nevada Supreme Court to define the scope of the public trust doctrine as it is applied to the state’s water rights system. The case then became about much more than Walker Lake.

Water users across the state — cities, counties and tribes — became involved, filing briefs with the Supreme Court. Industry groups for miners, ranchers and farmers similarly filed briefs. Most argued against the reallocation of existing water rights, considered a property right.

On Thursday, the court ruled that water rights cannot be reallocated unless provided by statute. 

Rod Walston, an attorney for Lyon County and Centennial Livestock, applauded the ruling and noted that it could have broader implications for other Western states, where courts are still weighing the scope of the public trust doctrine in the context of existing water allocations. 

“Until this decision today, only one [state] Supreme Court had dealt with this,” Walston said. 

In a 1983 case involving the Los Angeles Department of Water and Power’s diversion of water away from Mono Lake, the California Supreme Court affirmed that the public trust doctrine can affect existing water rights. Nevada’s recent decision marks a stark contrast to that ruling.

Pickering’s dissent, which cited the Mono Lake case, argued that the public trust doctrine was a distinct element of law that evolved separate from statute and should be considered in balance.

The statutory framework, Pickering said, does not always fully account for public trust values.

“For example, while it could theoretically be in the public interest to allocate water rights to facilitate cattle grazing, increase herd size, and ultimately reduce the price of beef for dinner, if done without regard to the deleterious impacts of unsustainable water and grazing on Nevada's natural resources, such action could also be entirely inconsistent with public trust principles,” she wrote.

She added that Mineral County’s public trust claim might not necessarily affect existing rights. The county sought “a range of relief” that could “take a number of different forms,” including irrigation efficiency, a state-led plan and changing how water is managed in wet years.

“Crediting Mineral County’s position with respect to the public trust doctrine does not require that the decree court revoke senior adjudicated Walker Basin water rights,” Pickering wrote.

In a footnote, the majority disagreed with this interpretation of the case. The footnote argued that “the underlying dispute involves demands for over-appropriated resources that require determining whether water rights may be reallocated from current rights holders.”

Herskovits said the decision could make it harder to bring a public trust claim in the future.

"The majority opinion creates a precedent that will make it extremely difficult for any individual citizens or citizens organizations to bring an action challenging whether or not the public trust duty or obligation has been fulfilled by the state," Herskovits said in a phone interview. 

“It is very significant and it has tremendous implications for the state,” he added.

Supreme Court: Inmates must get credit for time served prior to sentencing

Lady Justice perched atop the Nevada Supreme Court building

The Nevada Supreme Court has opted not to overturn a precedent-setting 1996 case and will continue to require lower courts to grant convicted individuals credit for time served prior to sentencing.

In a unanimous order issued in late November, the seven-member court ruled in favor of a Reno woman who appealed a lower court’s decision to not credit her more than three months of time served during sentencing, thus keeping in place a 23-year-old precedent to credit inmates for time served prior to sentencing.

Justice Abbi Silver, who authored the opinion, wrote that the Washoe County District Court erred in forfeiting the time served and that the court saw “no compelling reason” to overturn its decision in the 1996 case of Kuykendall v. State, where it had ruled sentencing courts “must award credit for time served in presentence confinement.”

“When it comes to Kuykendall, we have no disagreement with it, let alone believe it to be clearly erroneous,” Silver wrote in the order. “In particular, the reasoning in Kuykendall is consistent with a general rule this court has long followed: ‘[I]n construing statutes, 'may is construed as permissive . . . unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature.”

The case involved a Reno woman named Uputaua Diana Poasa, who was charged and pled guilty to a felony charge of automobile grand larceny and a misdemeanor charge of unlawful taking of an automobile. After agreeing to a plea deal involving $800 in restitution and substance abuse counseling, Poasa was released on her own recognizance but failed to appear at sentencing and was ultimately arrested and extradited back to Washoe County and placed in custody.

At a subsequent sentencing hearing, Poasa was sentenced to a suspended prison term of 12 to 34 months and put on probation for a period to not exceed five years. The probation also required Poasa to complete drug court and serve an additional 29 days in jail, but also did not credit the 99 days Poasa already served while awaiting sentencing.

In the order, Silver wrote that the lower court’s decision violated the Supreme Court’s interpretation of a state law that states a court “may order that credit be allowed against the duration of the sentence” in cases of pretrial detainment.

Although the statute says “may,” Silver wrote that the court had determined in the 1996 case that courts did not have much discretion and that the “purpose of the statute is to ensure that all time served is credited towards a defendant's ultimate sentence.”

“The Kuykendall court did not ignore the word "may" in the statute or that it generally conveys discretion; rather, the court determined that the statutes’ purpose demanded a different construction of ‘may’—that it imposed a mandate,” she wrote in the order.

Silver added that although the state and Washoe County District Attorney’s office had asked the court to overrule the 1996 decision based on “the statute’s plain language,” the Legislature’s “silence” in the subsequent two decades following the initial decision implied its “agreement with the court’s construction of the statute.” She also wrote that by taking away the discretion implied through the word “may,” the court was helping to avoid a host of other problems that could arise if pre-sentence time served wasn’t credited. 

“The mandatory construction also comports with notions of fundamental fairness, prevents arbitrary application of the statute, and avoids constitutional concerns with discrimination based on indigent status,” she wrote.

Generally, federal law requires individuals to be given credit towards their sentence if they are imprisoned prior to sentencing. The decision is the latest in a series of high-profile criminal justice matters that have appeared before the state’s highest court in 2019. A major, precedent-setting decision requiring jury trials for misdemeanor domestic violence cases has caused major ripple effects in Southern Nevada and throughout the state, and the court will soon rule on another major case challenging the state’s current use of cash bail for pretrial release.

Tarkanian libel lawsuit against Jacky Rosen, 2016 opponent, blocked by Nevada Supreme Court

Danny Tarkanian and an attorney sitting together

Perennial Republican candidate Danny Tarkanian will not be allowed to proceed with a libel case against his 2016 opponent, now-Sen. Jacky Rosen, after a three-year court battle that ended with the state Supreme Court order dismissing the case.

The order issued Thursday by the Nevada Supreme Court reverses a Clark County District Court’s decision and ends the possibility that Tarkanian, the son of legendary UNLV basketball coach Jerry Tarkanian, could again win damages from a political opponent over ads accusing him of setting up “13 fake charities that preyed on vulnerable seniors.”

The case decided by the Supreme Court was not over whether Rosen’s 2016 congressional campaign committed libel or defamation against Tarkanian, but instead was over a motion filed by attorneys for Rosen to preliminarily dismiss the lawsuit through the state’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) laws — designed to defend free speech that may be the target of censorship by long and costly litigation.

In the order, which was authored by Justice James Hardesty, the court found that the language in the advertisements produced by Rosen’s campaign had the ‘gist or sting’ of truthfulness, and that Tarkanian’s issue with her ad accusing him of “setting up” the fraudulent charities were “substantially true.”

“Under this standard, it is clear from the evidence in the record that Rosen sufficiently demonstrated that the statements were made in "good faith" under the anti-SLAPP statute because the "gist or sting of the statements was substantively true,” Hardesty wrote in the order.

The court also found that Tarkanian was unlikely to prove actual malice — acting with a reckless disregard for the truth, a standard established by the landmark New York Times v. Sullivan case — in order to prevail in any defamation lawsuit, given his status as a public figure.

“Even if there is a material difference between stating that Tarkanian ‘set up’ the fraudulent telemarketing corporations and stating that he ‘worked for those corporations,’ Tarkanian cannot prove that Rosen made her statements with reckless disregard for their truth,” the order stated.

Tarkanian launched the lawsuit after the election in November 2016, accusing Rosen’s campaign of disseminating political advertising that contained false and defamatory statements about Tarkanian’s legal work for telemarketing companies later found to be fraudulent. Tarkanian has acknowledged his role in setting up the companies but said he did not know of their operations or any illegal activity.

Similar accusations around his work with those companies have dogged Tarkanian’s repeated political bids, though he successfully sued and won $150,000 in damages from then-state Sen. Mike Schneider for using the claims in their 2004 race. 

Tarkanian lost the 2016 race for the state’s 3rd Congressional District by fewer than 5,000 votes, and lost another bid for the seat in 2018 to Democrat Susie Lee by a wider margin — nearly 26,000 votes. Tarkanian also ran unsuccessfully for state Senate in 2004, for secretary of state in 2006, for a U.S. Senate seat in 2010 and for the state’s Fourth Congressional District in 2012. 

In oral arguments from March, attorneys for Rosen acknowledged that even though political ads could be “slanted and hyperbolic,” the remedy was not in defamation or libel lawsuits but in “more speech.” Marc Elias, a prominent attorney for Democrats nationwide, told the court that denying the anti-SLAPP motion would open the floodgates by allowing much more political speech to be subjected to lawsuits.

A dissenting opinion, authored by Justices Mark Gibbons and Kristina Pickering, took issue with the fact that Rosen herself did not submit an affidavit stating she believed the claims in the ads were true, and said that the court discounted Tarkanian’s past success in a defamation lawsuit on the same topic in assessing his chances to prevail.

“Without a supporting affidavit, Rosen failed to demonstrate by a preponderance of the evidence that she made the statements in good faith,” the dissent states. “Even if she had met her burden, considering Tarkanian's evidence in a light most favorable to him, he made a prima facie showing of his claims.”

Two members of the court — Justices Elissa Cadish and Abbi Silver — voluntarily recused themselves from the case (Cadish because of her friendship with Rosen). They were replaced by Churchill County District Court Judge Thomas Stockard and Washoe County District Court Judge Barry Breslow.

Rosen Tark Order by Riley Snyder on Scribd

Nevada Supreme Court backlog of cases remains high; Court may ask for expanded appeals court in 2021

The front of the Nevada Supreme Court Building

In spite of a higher number of resolved cases, the Nevada Supreme Court and Court of Appeals still have a backlog of more than 2,000 unresolved cases — the second-highest total of this decade.

According to the Nevada Judiciary’s 2019 annual report, which was released Thursday, the state’s two highest courts had 2,042 appealed cases pending at the end of the 2019 fiscal year — a slight decrease from last year’s record-high backlog of 2,201 pending cases.

Supreme Court Chief Justice Mark Gibbons said that although the court has increased its clearance rate — more than 3,100 cases disposed of through orders, opinions and denials in 2019 — the growing number of appealed cases may make it necessary to request an increase in size to the three-member Court of Appeals in the 2021 legislative session.

“By the number of cases we have, we are the busiest appellate court in the United States,” he said. “Iowa was a state we modeled our Court of Appeals after, they have (9) Court of Appeals judges. We have three. So the workload per appellate judge is massive.”

Voters in 2014 approved the addition of a statewide Court of Appeals in the Constitution, in part because of arguments that it would help alleviate the then-overwhelming backlog of cases facing the seven state Supreme Court Justices. The appeals court operates on a “push-down” model, where all cases are first screened by the Supreme Court and then transferred to the appellate court if warranted. 

Although the appellate court helped drop the number of pending cases from 1,985 in 2014 to a little more than 1,600 in 2016, the backlog has continued to creep up — sitting at 1,822 in the Supreme Court and 220 cases in the Court of Appeals for a total of 2,201 unresolved cases at the end of the 2019 fiscal year.

Although the three-member appellate court has taken on a substantial part of the court’s workload (nearly 1,100 cases were assigned to the court in 2019), the backlog of unresolved cases has continued to rise, in part because of a growing number of cases filed.

In 2019, more than 2,980 cases were filed before the Supreme Court, including more than 1,200 civil appeals, roughly 1,100 criminal appeals and hundreds of other proceedings, bar matters and other petitions for review. The 2,982 cases filed in the 2019 fiscal year was slightly higher than the mark set last year, 2,935, and remains hundreds of cases larger than the totals filed in 2016 and earlier years.

As Gibbons said in an interview last year, the backlog was a combination of structural issues including the state’s universal right to appeal, a growing population and more cases being appealed from lower courts. He said it was unlikely that the transition of two new members of the appeals court (Justices Elissa Cadish and Abbi Silver) to the high court had contributed to the backlog, given that both had extensive past judicial experience.

Although the backlog remains high, the courts actually saw an increase in the total number of cleared cases: “disposed” cases dealt with by order or opinion rose to more than 3,150 in 2019, or nearly more than 460 cases cleared than in the previous fiscal year.

That jump is largely because of the court filing a larger number of orders, which are shorter, typically authored by three-judge panels and typically don’t set the kind of legal precedent of longer opinions, which tend to be decided by all seven members of the court. Between the Supreme Court and Court of Appeals, close to 3,000 cases were decided by order in the 2019 fiscal year, compared to just 81 cases decided by written opinion.

Gibbons said the reason the court is relying more heavily on orders as opposed to written opinions is twofold: a change made several years ago allowing Supreme Court orders, not just opinions, to be cited as precedent in lower court cases, and a desire to quickly resolve sensitive cases dealing with custody or other time-sensitive matters.

“The sooner we get it out, it's better, so that parties can get along with their life and deal with that,” he said.

He emphasized that the state’s universal right to appeal meant that the court didn’t have much say in what cases it ended up before it, so the number of “opinion-worthy” cases can ebb and flow every year.

“We get whatever comes in here, then we have to decide (between) opinions versus unpublished orders that are citable but aren't published,” he said. “And it changes year to year. Next year, maybe those double. I don't know. We'll just see what happens.”

Gibbons said he didn’t foresee the Legislature increasing the size of the seven-member Supreme Court, but was still weighing whether to ask for the funding and creation of additional members to Nevada’s Court of Appeals. 

Although Nevada is tied with Alaska and North Dakota for the smallest number of justices (3) of any of the 41 states with intermediate appellate courts, Gibbons said any request to expand the Court of Appeals would depend on the status of the pending case backlog at the end of the 2020 fiscal year and on whether funding for a new position was available in the consistently cash-hungry state budget.

“The money's limited,” he said. “It's available for expansion of the court and for different issues. So we have to weigh what's the fiscal situation as a state, what are the priorities?”

Nine attorneys, including some judges, file for vacant seat on Court of Appeals

Photo of the top front of the building with the words Supreme Court of Nevada

Nine attorneys, including a handful of judges, have submitted applications to replace outgoing Justice Abbi Silver on the three-member state Court of Appeals.

The applicants submitted their names to the court on Friday, and a replacement for Silver — elected to the state’s Supreme Court in November — will be chosen by Governor-elect Steve Sisolak sometime in January.

Sisolak will make the appointment from three finalists picked by the Nevada Commission on Judicial Selection, which is composed of the Supreme Court Chief Justice, three non-attorneys appointed by the governor and three attorneys appointed by the state bar. The commission is charged with interviewing the nominees, doing background checks and delivering a list of finalists to the governor.

Approved by voters in 2014, the Nevada Court of Appeals is a three-member panel of judges which hears cases “pushed down” by the state’s seven-member Supreme Court. In 2018, the court disposed of 1,104 cases out of 1,322 assigned. Nearly 60 percent of the appeals court cases were criminal appeals, according to the Nevada Judiciary’s 2018 annual report.

Interviews with the commission, which are open to the public, are scheduled for the week of Jan. 14.

The applicants include:

• Bonnie A. Bulla, 56, Las Vegas, Eighth Judicial District Court, Office of the Discovery Commissioner

• Shawn M. Elicegui, 48, Reno, NV Energy

• Charles Hoskin, 55, Las Vegas, Eighth Judicial District Court, Family Division, Dept. E

• John Hunt, 64, Las Vegas, Clark Hill PLLC

• Clark G. Leslie, Jr, 68, Minden, Nevada Attorney for Injured Workers

• Tracie K. Lindeman, 56, Carson City, Attorney

• Vincent Ochoa, 66, Las Vegas, Eighth Judicial District Court, Family Division, Dept. S

• Kevin Speed, 44, Las Vegas, Office of the Clark County Public Defender

• Jerry Wiese, 52, Las Vegas, Eighth Judicial District Court, Dept. 30