Nevada Supreme Court’s pending case backlog at lowest level in years

Front view of the Nevada State Court building

In July 2019, eight state Senate Republicans filed a lawsuit against the Legislature challenging bills that they claimed were unconstitutionally passed without a two-thirds majority.

More than a year and a half later, those same state senators are preparing to return to the 2021 Legislature with the case still pending before the Nevada Supreme Court.

It’s a high-profile example of the roughly 1,500 to 2,000 cases pending at any given time in the high court’s backlog of unresolved cases, a product of Nevada’s universal right to appeal (meaning the court has to consider appeals from murder convictions to driver license revocations) and a gradual trend of more appeals each year.

But through the 2020 fiscal year, the court has taken significant steps to cut down its substantial and well-documented backlog of pending cases. According to the Nevada Judiciary’s 2020 annual report, the court’s backlog of cases fell to 1,688 at the end of the fiscal year, the lowest level in the last five years and down from the more than 2,000 pending cases reported at the end of the 2019 fiscal year. 

The 17 percent backlog reduction was aided in part by fewer cases being filed — 2,474 in the 2020 fiscal year, down from 2,982 filed in 2019. But Supreme Court Chief Justice Kristina Pickering said in an interview that the seven members of the high court and three members of the Court of Appeals had combined to dispose (meaning resolve through opinion or order) more than 2,800 cases throughout the fiscal year, likely the second-highest total ever in a single year.

“Trying to rewrite rules and orders, and adapt existing rules and orders for this new environment that has taken probably some case processing time,” she said. “That's part of why I am so proud of my colleagues and our staff with the 2,824 dispositions. That's an incredibly strong number given the demands and challenges we face.”

Of those 2,824 resolved cases, the seven-member court disposed of 1,740 cases, while the three-member Court of Appeals disposed of 1,084 cases. The Court of Appeals was created through a ballot question approved in 2014, in part because of arguments that it would help alleviate the backlog of cases facing 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.

Nevada’s Supreme Court has grown in tandem with the state’s population growth over the past century; the court originally had three justices, but increased to five in 1967 and to seven in 1999. But the court’s number of filed cases also has increased exponentially; it took 113 years for the first 10,000 cases to be filed with the court (1864 to 1977), another 30 years to reach 40,000 cases (2007) and it hit a milestone of 80,000 cases by 2019.

Pickering said that creation of the Court of Appeals had been a “lifesaver” and “absolutely essential” to helping deal with the backlog, and had freed up the Supreme Court to have more time to devote to complex litigation. 

“Not all cases are created equal, some are less weighty than others,” she said. “Some can be weighty, but they all don't have equal lifespans. Having the Court of Appeals take a significant share of the case numerically, I think gives the Supreme Court more time to devote to harder, or more time consuming cases.”

The seven-member court has implemented several policies designed to cut down wait times between initial appeals and decisions. Justices split into a pair of three-member panels (a practice that began in 1999) to dispose of cases more rapidly, and have more recently decided cases through orders, not written opinions (which are typically longer and deal with cases setting legal precedent).

Pickering said that the high court also has more recently adopted a change setting a 30-day maximum time limit for cases in the screening process (essentially a corralling process where the cases have been briefed but the court needs to decide whether to assign them to a three-justice panel or the full court, or kick it down to the Court of Appeals). 

“That’s dead time in the case,” she said of long screening times. “If the case is fully briefed and it's in screening, we want to get it through to the court that's going to decide it, or the panel is going to decide it, as quickly as you can, because nothing's happening when it's sitting in screening.”

As with most government institutions, the state Supreme Court has been affected by the COVID-19 pandemic. Pickering said that the entirety of the state’s judicial system faced a “down month of two” during the first weeks and months of the pandemic, and that some of the time that would have gone to deciding cases was instead devoted to the administrative challenges of shifting court operations online.

She said the seven justices — who are split between Carson City and Las Vegas — had largely shifted to videoconferencing discussions and deliberations in their normal day-to-day work.

“The casual conversation in the hallway, the face to face meeting with all seven present doesn't happen,” she said. “But I have to say that everybody has been really adaptable and worked as hard as they can.”

Pickering said that the full effect of the COVID-19 pandemic on the volume of court filings won’t be seen until next year’s annual report on the judiciary, given that reports cover fiscal years and thus only include the first few months of the pandemic (the court’s fiscal year ends in June). 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.

Outgoing Supreme Court Justice Mark Gibbons said in an interview last year that the court was considering asking the Legislature for the funding to expand the Court of Appeals, but Pickering said that request was off the table given the state’s ongoing financial difficulties in the midst of the COVID-19 pandemic.

Nevada Supreme Court accepts the results of the 2020 general election in the Silver State

The Nevada Supreme Court accepted the results of the 2020 general election on Tuesday, making official the results of a contentious election that has sparked numerous legal challenges seeking to cast doubt on the integrity of the electoral process in the Silver State.

The seven Supreme Court justices, who met in both Las Vegas and Carson City, formally signed the canvass of votes after a brief presentation from Secretary of State Barbara Cegavske. Several of the justices lauded Cegavske, a Republican, and her staff for running a fair and transparent election despite significant challenges amid the ongoing coronavirus pandemic.

“I just want to commend the secretary of state and her office for the extraordinary work they did under very difficult circumstances,” Justice James Hardesty said during the canvass of votes. “They’re to be congratulated for carrying out his extraordinarily successful election.”

Associate Chief Justice Mark Gibbons described the election as “incredibly trying” and said the fact that it ran “as smooth as it did” was “incredible.” Justice Elissa Cadish thanked Cegavske and her office for running the election “properly, reliably and with integrity.”

Cegavske, presenting the results of the election to the Supreme Court, acknowledged the challenges the state faced in running elections in the middle of a pandemic, from conducting an all-mail primary election in June to a “hybrid” general election in November. All active registered voters in Nevada were mailed a ballot this fall and given the opportunity to either fill it out and send it back or participate in person, either early or on Election Day, as usual.

Cegavske said the state saw a record 1,407,754 ballots cast this year, meaning that 77.3 percent of all active registered voters participated in the electoral process. Of those ballots, 49.2 percent were cast by mail, 41 percent during early voting and 9.7 percent on Election Day.

“I'd like to thank all of Nevada's election officials for their dedication and commitment to providing a transparent legal and fair election,” Cegavske said.

Per state law, Gov. Steve Sisolak is now required to issue certificates of election to the winners of the election and issue proclamations declaring the election of each individual. Sisolak, in a statement Tuesday afternoon, said he will be submitting a certification of ascertainment to the federal government in the coming days certifying that Joe Biden’s presidential electors received the highest number of votes in Nevada and will be issuing certificates of election to the winning candidates in the coming weeks.

“The process for the Governor to issue the certificates of the election and commissions to the winners — as declared by the justices of the Supreme Court — will likely take a significant period of time following today’s Supreme Court canvass,” he said.

The canvass of the votes comes amid ongoing legal challenges in Nevada and other battleground states over the results of the 2020 general election, all of which have so far been unsuccessful. 

Multiple legal challenges in Nevada were on court calendars on Tuesday, including a lawsuit by President Donald Trump’s campaign seeking to overturn the results of the election in Nevada, which he lost by about 34,000 votes, or 2.39 percentage points. The next hearing is scheduled for Dec. 3.

The Trump campaign has claimed without direct evidence that identified irregularities in the electoral process will be enough to overturn Joe Biden’s victory in Nevada.

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.

Nevada Supreme Court rules in favor of former hair stylist sued for defamation by Steve Wynn over sexual misconduct allegations

The Nevada Supreme Court has ruled in favor of a former Wynn Resorts hair stylist attempting to dismiss a defamation lawsuit filed by former casino mogul Steve Wynn for his role in a Wall Street Journal story alleging a decades-long pattern of sexual misconduct allegations.

In a three-justice opinion issued Tuesday, members of the court reversed a lower court’s decision and ruled in favor of Jorgen Nielsen in an anti-SLAPP motion to dismiss a defamation claim filed by Wynn in April 2018. The lawsuit was filed after the former hair stylist went on the record for a Wall Street Journal investigation into Wynn’s alleged sexual harassment against employees that ultimately contributed to his departure from the publicly traded casino company.

Nevada and many other states have anti-SLAPP laws in place designed to protect free speech by allowing defendants to file a special motion to dismiss lawsuits brought by people “using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights,” according to the Reporters Committee for Freedom of the Press.

Under Nevada’s anti-SLAPP law, a court is required to determine two “prongs” before granting the special motion to dismiss. In this case, District Court Judge Tierra Jones denied Nielsen’s anti-SLAPP motion under the first prong, saying he failed to establish the defamation claim was “based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.” 

Essentially, that translates to the court deciding that Nielsen failed to make statements that were either truthful or made without knowledge of them being false.

But the Supreme Court reversed that decision, finding that Nielsen’s remarks challenged as defamatory were “fairly accurate and truthful,” and corroborated by the testimony of an anonymous Wynn Resorts employee who said she experienced harassment. 

Citing a previous anti-SLAPP precedent the court made in a libel case filed by perennial political candidate Danny Tarkanian, the court ruled that “Nielsen demonstrated that the gist of his communication was truthful or made without knowledge of its falsehood.”

“Because Nielsen showed that his communication was made in direct connection with an issue of public interest in a public forum, and was truthful or made without knowledge of its falsehood, we hold that he met his burden under the first prong of the anti-SLAPP analysis,” Justice Mark Gibbons wrote in the court’s order.

The case, which Wynn filed in April 2018, now returns to District Court, where Judge Tierra Jones will be required to assess the second prong of the anti-SLAPP test — whether the plaintiff (Wynn) has “demonstrated with prima facie evidence a probability of prevailing” on the claim.

Attorneys for Wynn and Neilsen did not return emailed requests for comments on Thursday.

Wynn, 78, resigned from his casino company in February 2018 following the publication of the sexual harassment allegations, while denying all allegations against him. Wynn Resorts was fined a record-setting $20 million by the state Gaming Commission in 2019 over the company’s failure to investigate those sexual misconduct claims.

Nielsen filed a lawsuit against Wynn Resorts and top company executives in October 2019, alleging that they engaged in a secret surveillance operation targeting him two months after Steve Wynn had relinquished his position as head of his casino company. That case is still pending and has a jury trial scheduled for next year.

Wynn NV Supreme Court Anti-SLAPP Order by Riley Snyder on Scribd

Wynn NV Supreme Court Anti-SLAPP Order by Riley Snyder on Scribd

More than 15,000 marijuana convictions forgiven, but much work remains to clean offenses from people’s records

A table of packaged marijuana for sale

State officials on Wednesday formally forgave more than 15,000 misdemeanor marijuana possession convictions notched during the three decades before recreational cannabis was legalized in Nevada, although there’s still much for people to do to fully clear their slates.

The Nevada Board of Pardons Commissioners, chaired by Gov. Steve Sisolak, voted unanimously to approve a resolution pardoning the decriminalized offense. Records show that 15,592 were convicted of the misdemeanor from 1986 through the end of 2016, and there were 31,124 arrested for the offense. Recreational use became legal in 2017.

“Today is an historic day for those who were convicted of what has long been considered a trivial crime, and is now legal under Nevada law,” Sisolak said in a statement. “Many Nevadans have had these minor offenses remain on their records, in some cases as a felony. This resolution aims to correct that and fully restore any rights lost as a result of these convictions.” 

But the pardon is only a first step to removing the consequences of a conviction. People who want to get formal documentation that they have been pardoned must obtain a copy of their judgment of conviction from a court, or a copy of their criminal history — a request they must mail in along with a $27 check or money order. Requestors are told to allow 45 days for processing.

Then, that information and an application for the pardon must be mailed to the pardons board, which includes the governor, attorney general and members of the Nevada Supreme Court. The secretary of the board processes the information and if approved, the petition will be signed by the pardons board.

The applicant will then receive the document certifying the pardon and a certified copy will be sent to the court where the person was convicted.

Record sealing, which would block the pardoned conviction from showing up on a background check, is an entirely different process outside the scope of the pardons board.

Attorney Kristina Wildeveld testified that the process is “extremely tedious” and some lawyers charge up to $2,500 for the service, which sometimes requires an applicant to show up in person to a court. She requested that action be taken to ensure the process is more automatic.

Justice Mark Gibbons noted there was an applicant recently who was pardoned for a petty theft from years ago and needed her records sealed to get a nursing certificate. He said he was “shocked” at the hurdles she had to go through, and that she nearly lost a job offer that was on the table in the meantime.

"We absolutely need this court to adopt a uniform rule that cuts this red tape, because this is a critical part of your suggestion here to grant these pardons,” he said. “And to get bogged down in record sealing — what have we accomplished?”

Attorney General Aaron Ford indicated it would be more expedient if the court adopted a rule than if the Legislature worked on the issue of making the process simpler.

Other resources are available to help people clear their record of the decriminalized offense. Lawyer Dayvid Figler said Legal Aid of Southern Nevada has a packet with forms for record sealing that could help people through the process without hiring a lawyer, and that includes forms so people could apply to have filing fees waived.

Sisolak urged the legal community that had celebrated the broad pardon to “spring into action” to help people complete the steps needed to realize the full benefits of the pardon.

“There’s a lot of individuals here that are going to need your help. They’re not proficient at maneuvering through this legal system,” he said. “And when I hear 15,000 applications coming forward, I do not want them to fall victim to somebody who wants to charge them a whole bunch of money to do this.”

What to watch in Nevada’s 2020 primary election

The first results from Nevada’s unique, mostly mail primary election will finally be released on Tuesday after more than a month of voting, but calling some of the state’s top races could take up to 10 days. 

A substantial number of high-profile races will eventually be decided out of Tuesday’s election, including Republican challengers to Democratic Reps. Susie Lee and Steven Horsford, both who represent swing districts and have attracted a broad field of GOP candidates.

But congressional races aside, several major legislative races will be decided in the primary election, and two state Supreme Court seats could also be decided if candidates achieve more than 50 percent of the vote. Other major races include contests for seats on the Clark County Commission and a hotly contested Reno City Council race.

Polls will close at 7 p.m. on Election Night, with counties expected to turn in their initial vote totals to the state by about 8:30 p.m.

As of Monday, more than 343,000 people had cast a ballot for the primary election, or about 18.7 percent of all registered voters. The vast majority of ballots have been cast by mail (339,853), while around 2,971 people have cast a ballot through in-person early voting.

The change in process is likely to help contribute to a higher turnout than most primary elections. The 2018 primary election saw about 22.9 percent of registered voters cast a ballot, for a total turnout of 329,863. 

But the switch to a primarily mail-only election has a drawback: potential delays in determining the winners of close election contests. Ballots postmarked by Election Day and received by election officials within seven days will be counted, and county election officials have 10 days to certify the results of an election and declare a winner.

Below, check out The Nevada Independent’s preview of the major races up on Election Night. Editors Jon Ralston and Elizabeth Thompson will host a live election show beginning at 7:30 p.m., which can be viewed here.

The Washoe County Registrar of Voters on June 8, 2020. Photo by David Calvert.

NEVADA SUPREME COURT: Two seats are on the ballot: Chief Justice Kristina Pickering is defending her seat amid challenges from lawyers Esther Rodriguez and Thomas Christensen. And in the open seat held by Mark Gibbons, Judge Douglas Herndon faces off against lawyers Erv Nelson and Ozzie Fumo, the latter of whom is a sitting Assembly member.

CONGRESSIONAL DISTRICT 2: Several Democrats including Clint Koble, who ran unsuccessfully in 2018, are vying for the nomination and chance to face off with Republican Rep. Mark Amodei. The district is safely Republican, meaning even the winner of the Democratic primary enters a long-shot general election contest. Read our preview here.

CONGRESSIONAL DISTRICT 3: A feisty Republican primary is playing out in this swingy Southern Nevada district held by Democratic Rep. Susie Lee. The GOP field includes former wrestler Dan Rodimer, former state Treasurer Dan Schwartz and pro-Trump actress Mindy Robinson. Read our preview here.

CONGRESSIONAL DISTRICT 4: A parade of Republicans is vying to face off with Democratic Rep. Steven Horsford in a district that includes North Las Vegas and rural, central Nevada. GOP contenders include businesswoman Lisa Song Sutton, former Assemblyman Jim Marchant and Nye County Commissioner Leonardo Blundo, among others. Read our preview here.

REGENTS: Four of the 13 nonpartisan seats on the board overseeing the Nevada System of Higher Education are up for grabs, and the primary will narrow the field of candidates to two. One district features former Assemblyman Stephen Silberkraus and former state Senate candidate Byron Brooks; another pits former regent Bret Whipple against former Las Vegas City Councilwoman Lois Tarkanian. Read our preview here.

ASSEMBLY: Democrats are all but guaranteed to retain their majority heading into the 2021 legislative session, but the question is whether Republicans can score enough seats to get out of a weak “superminority” status, in which Democrats can pass taxes without a single GOP vote. The most interesting contests include primaries in swingy suburban districts. Read our preview here.

SENATE: One race for state Senate will be decided in the primary — Senate District 7, a seat held by termed-out Democrat David Parks. The Democratic primary pits two Assembly members — Ellen Spiegel and Richard Carrillo — against former Nevada State Democratic Party Chair Roberta Lange, who has the endorsement of state Senate Democrats. Read our preview here.

CLARK COUNTY COMMISSION: Four seats are up for grabs on the powerful Clark County Commission, including incumbents Marilyn Kirkpatrick and Michael Naft running for additional terms. Crowded Democratic primaries in seats held by termed-out Commissioners Lawrence Weekly and Larry Brown have drawn some familiar names, including former Secretary of State Ross Miller (District C) and Assemblyman William McCurdy, state Sen. Mo Denis and North Las Vegas City Councilman Isaac Barron (District D). Read our preview here.

RENO CITY COUNCIL: Four councilmembers are running for re-election in 2020, including Councilwoman Jenny Brekhus who is in a bitter fight with two well-funded opponents, including one endorsed by Mayor Hillary Schieve. Council members Devon Reese, Neoma Jardon and Oscar Delgado are also running for re-election. Read our preview here.

SPARKS CITY COUNCIL: Three seats on the Sparks City Council have attracted 10 candidates, with each race seeing well-funded incumbents try to fend off multiple opponents. Read our preview here.

CARSON CITY MAYOR & SUPERVISORS: Longtime Mayor Bob Crowell is termed out, and with two incumbents not running for re-election, the Carson City Board of Supervisors will have three new faces come 2021. Read our preview here.

DOUGLAS COUNTY COMMISSION: Three of the five seats on the Douglas County Commission are on the ballot, and they’ll be all but decided in the primary because no Democrats filed for the seats. One race features Danny Tarkanian, who has run unsuccessfully for major offices in Southern Nevada before moving north, against incumbent Dave Nelson. Read our preview here

WASHOE COUNTY SCHOOL DISTRICT: Fifteen candidates have filed to run in the four seats up for election for the board overseeing the state’s second-largest school district, including incumbents Scott Kelley and Angela Taylor. Read our preview here.

CLARK COUNTY SCHOOL DISTRICT: Thirty candidates are competing for four nonpartisan seats on the board that governs the nation’s fifth largest school district. Three seats are open after trustees termed out; in a fourth, Trustee Lola Brooks is seeking reelection. The primary will narrow the field to the top two, although a candidate who wins more than 50 percent of the vote wins outright. Read our preview here.

NEVADA STATE BOARD OF EDUCATION: The four elected positions on the 11-member board that works in tandem with the state Department of Education are up for grabs. Felicia Ortiz and Mark Newburn are defending their seats, while five candidates are vying for a spot representing a Las Vegas district and a lone candidate — Katie Coombs — is seeking a seat in a Northern Nevada district. Read our preview here.

JUDGES: Numerous judge positions are on the ballot, including District Court and Family Court hopefuls. Read our guide on Clark County judge races here.

Nevada 2020 election season begins with judicial candidate filing period

Front view of the Nevada State Court building

Multiple judicial candidates filed to run in the 2020 election cycle on Monday, the first day of Nevada’s 10-day filing period, including the current chief justice of the Supreme Court who is seeking re-election.

The judicial filing period began Jan. 6 and concludes on Jan. 17 at 5 p.m. During this period, all candidates seeking to run in the state and district elections for Nevada’s supreme and lower courts must submit their declaration of candidacy to either their city or county clerk or directly to the secretary of state’s office.

There were a total of 189 judges statewide in Nevada in fiscal year 2019, but not all of these positions will be up for re-election in the coming cycle. 

This year, two of the seven Supreme Court seats in Nevada are up for nonpartisan election — those of Justice Mark Gibbons and Chief Justice Kris Pickering. Gibbons, who served as chief justice in 2008, 2014 and 2019, has announced that he will be retiring from the bench and will not seek re-election this year. 

Pickering took over the chief justice position from Gibbons beginning Monday. She previously held the position in 2013. 

Pickering is among the judges who have already filed as candidates. 

Judge Douglas Herndon, who currently serves on the Eighth Judicial District Court in Clark County, and Assemblyman Ozzie Fumo, who currently represents Nevada State Assembly District 21, have also filed as a Supreme Court candidates, for the seat Gibbons will leave vacant at the end of this term.

This period is the first of several important dates for those seeking election this year in Nevada  leading up to the primary on June 9 and general election on Nov. 3. The filing period for non-judicial candidates will take place from March 2-13. 

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?”