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Pile of files

Businesses Must Maintain Proper Records or Risk Discovery Sanctions for Missing Documents

Once a lawsuit is filed, all parties involved have an obligation to diligently search through their records and disclose to the other parties any and all relevant documents and witnesses. If you own a business and get sued, you have an obligation to go through your records and find anything that is relevant to the suit. If you do not, you risk being sanctioned for failure to participate in meaningful discovery. But how far this duty goes varies from case to case. For instance, it does not seem reasonable to hold a company liable for maintaining 15 years’ worth of paper files, but what if the lawsuit centers around the identity of a beneficiary of a 20 year old insurance policy? Situations have arisen where companies have taken old paper files, had employees make electronic records, and then shredded the paper files. But what if there is reason to believe that the named beneficiary was electronically inputted inaccurately? Did the company have a duty to maintain the records for something as important as the naming of a beneficiary 20 years ago? The answer is: Perhaps.

A scenario that could also cause problems for disclosing relevant documents is when companies have disorganized files. What if someone’s health insurance application gets misfiled and they are later accused of not disclosing their true health conditions? If a company is accused of negligently failing to disclose the relevant documents, they may have to pay the wronged party’s attorneys’ fees and costs caused by their actions.

 

A discovery example from California

In the California case of Finley v. the Hartford Life and Accident Insurance Company, the Hartford failed to disclose a highly relevant surveillance tape until very late in the discovery process. 1)249 F.R.D. 329 [N.D. Cal. 2008]. The Hartford claimed that they had diligently searched their files but did not initially find the tape. The Court agreed with Hartford that the failure to find the tape was an administrative oversight and not a malicious act but still sanctioned the company for not locating and turning over the tape earlier on. Although it was an accidental misplacement of the tape, the policy iterated by the court is that it is not an excuse to keep disorganized files and not promptly find relevant items and documents. The Court found that if something should show up in a routine search of the files, then it is not excusable when it does not turn up. This case is just one example of how important it is to maintain accurate and up-to-date files in the event that litigation arises. In the Finley case, if the videotape was disclosed earlier, the entire lawsuit could have been disposed of. The court did not look fondly upon an administrative error, and in turn, it cost the guilty party a lot of time, money, and stress.

If there were never the threat of sanctions, then parties would be incentivized to “misplace” documents, undermining the transparency/effectiveness of the judicial process. If you have reason to know a dispute is looming, it would be best to ensure that your files are properly preserved so anything relevant will be accessible during a routine search. Also always make sure to maintain accurate electronic records because courts expect this in the modern technology-driven world. Before you find yourself in a discovery mess, consult one of our attorneys for guidance through each and every step of the litigation process.

Footnotes   [ + ]

1. 249 F.R.D. 329 [N.D. Cal. 2008]
play with fireworks

How to Play with Fireworks in Nevada and Avoid the Slammer

Welcome to Part III of our combustible1)sorry, the puns end here series on fireworks.  In Part I we learned that, contrary to popular sentiment, the fireworks stand are regulated fairly well as Clark County enforces a good amount of code to ensure the public is safe2)a lot of effort especially given that sales go on only seven days a year.

In Part II we untangled the mess that is our Home Rule local law, discovering that our local municipalities regulate fireworks3)with permission of the state legislature and that the fireworks regulations are not uniform across the Las Vegas Valley4)silly Vegas.

To wrap up our series on fireworks, and hopefully not throwing a damp cloth on everyone’s 4 July fun, we will discuss the possible consequences for “when the fun stops.”5)insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]

For teenagers and parents alike, it is good to know that keeping things a bit too real6)the most unartful Chappelle Show reference ever (a la play with fireworks) can go seriously wrong.

 

How About We Play with Fireworks but Avoid that Serious Felony Charge

In short, be careful and mindful of others7)I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it..  As I am sure you can intuit, purposely using fireworks to harm other people or property is a serious crime.

Considering fireworks are just low-grade explosives, the law makes sense in this regard. The controlling law for this scenario is NRS 202.830:

NRS 202.830  Use of explosives to damage or destroy property prohibited; penalties.

      1.  Unless a greater penalty is provided pursuant to subsection 2, a person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State:

      (a) If no substantial bodily harm results, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not less than $2,000 nor more than $10,000, or by both fine and imprisonment.

      (b) If substantial bodily harm results, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years, or by a fine of not less than $2,000 nor more than $20,000, or by both fine and imprisonment.

      2.  A person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State, knowing or having reason to believe that a human being is therein at the time, is guilty of a category A felony8)unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life without the possibility of parole;

      (b) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (c) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served, in the discretion of the jury, or of the court upon a plea of guilty or guilty but mentally ill.

      (Added to NRS by 1971, 1282; A 1973, 1807; 1995, 12102009, 21)

Yikes.  You went out to play with some friends on what seemed to be a normal Saturday night, then bam! 25 years to life.  Remember kids, the line between a bomb and fireworks is only a matter of degree. I want to call your attention to the clause from subsection 2 that states that the accused committed the crime “knowing or having reason to believe that a human being is therein at the time.”

You can be charged with murder even if you did not know for certain there was a person there.  I am not going to propose hypothetical, depraved heart crimes for your 4 July celebration.  All that is necessary is a “reason to believe” that a person would be hurt through the property destruction.

Purposely destroying property is bad, doing so in an area likely to be occupied by innocent bystanders could turn out to be much, much worse.

 

But It Was an Accident, I Swear!

No matter my brother; you are still in serious trouble.  The statute discussed above covers crimes that the perpetrator committed intentionally.  Now we turn to scenarios that, although accidental, will still incur a criminal penalty. NRS 202.595 provides the relevant law:

NRS 202.595  Performance of act or neglect of duty in willful or wanton disregard of safety of persons or property; penalty.  Unless a greater penalty is otherwise provided by statute and except under the circumstances described in NRS 484B.653, a person who performs any act or neglects any duty imposed by law in willful or wanton disregard of the safety of persons or property shall be punished:

      1.  If the act or neglect does not result in the substantial bodily harm or death of a person, for a gross misdemeanor.

      2.  If the act or neglect results in the substantial bodily harm or death of a person, for a category C felony as provided in NRS 193.130.

      (Added to NRS by 1995, 466; A 1995, 1332)

Given that it is illegal to play with fireworks in the street, it is safe to assume that this statute will take effect if you happen to (accidently or not) destroy property or injure another9)not to mention to possible civil liability.  You can go ahead and take the prohibition against playing with fireworks in the street as duty made expressly by municipal codes.

I think it would be difficult to contend that to play with fireworks in a neighborhood surrounded by homes, cars, and children is not a “willful or wanton disregard of the safety of persons or property.”10)willful or wanton can be understood to mean very negligent

It is not like we are not surrounded with acres of empty desert where it is much safer to play with fireworks. I advocate being cautious as you play with fireworks this 4 July not only because you are legally required to, but because morally, it is the right thing to do.  We might be more transient than other communities, but that does not mean we cannot love each other just as much.

Happy 4 July!

God Save the United States of America.

Footnotes   [ + ]

1. sorry, the puns end here
2. a lot of effort especially given that sales go on only seven days a year
3. with permission of the state legislature
4. silly Vegas
5. insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]
6. the most unartful Chappelle Show reference ever
7. I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it.
8. unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony
9. not to mention to possible civil liability
10. willful or wanton can be understood to mean very negligent
fireworks over United States flag

Fireworks Part II: What May I Blow up?

**2016 Update** For your information, according to Section 5609.6.1 of the Clark County Code:

“Fireworks stands shall be operated from June 28 to July 4 of every calendar year.”

 

Welcome to Part II of our discussion of fireworks laws in Southern Nevada, in which we clarify what the law is and leave all that hearsay we have been using in the dust.  In Part I, we reviewed the how localities are granted the authority to regulate, and the ordinances passed by Clark County governing sellers.

Now we get to the meat and potatoes: what kind of fireworks are you permitted to blow up this 4 July, and what will happen if you are caught with illegal ones?

 

Fireworks Laws in Unincorporated Clark County/Henderson

Before we continue, you are going to want to know where you live1)do not despair, this is not about to get too existential.  If your mailing address is in “Henderson,” then the inquiry ends there.  But if you have a mailing address in “Las Vegas,” you could live in either the City of Las Vegas or unincorporated Clark County2)the county made a deal with Las Vegas a while back allowing residents/business of the unincorporated townships [Paradise, Winchester for example] to list Las Vegas as their mailing addresses, even though they are not in the city limits.

Generally, if you live north of Sahara, you are in Las Vegas.  If you are south of Sahara, but not in Henderson, you are probably in unincorporated Clark County3)check your address on Google Maps to know for sure; the city limits are not neatly drawn.

Why does it matter where you live? Because the regulations differ depending on municipality.  Luckily, Henderson and Clark County’s regulations are nearly identical.

They are so similar that we will examine the Clark County Code and you can safely assume the regulations apply to Henderson as well4)See Chapter 8.32.10 of the Henderson Code. Note the difference between the Henderson law and Clark County is that the County (literally) numbers the illicit fireworks, while Henderson uses letters.

Clark County Code section 5609 declares what are illegal, dangerous fireworks:

5609.5 Dangerous fireworks. It shall be unlawful for any person to possess, store, to offer for sale, expose for sale, sell at wholesale or retail, or use or explode any dangerous fireworks in the unincorporated towns of Clark County, Nevada. “Dangerous fireworks” include, but are not limited to, the following:

1.  Fireworks that contain prohibited chemicals per NFPA 11245)NRPA 1124 As you can see, the National Fire Protection Association [NFPA] has withdrawn Section 1124 to be updated; subsection 1 has no effect, in actuality;

2.  Firecrackers, salutes and other articles which explode;

3.  Fireworks that fire an aerial display;

4.  Skyrockets and rockets, including all devices which employ any combustible or explosive material and which rise in the air during discharge;

5.  Roman candles, including all devices which discharge balls of fire into the air;

6.  Sparklers more than ten inches in length or one-fourth inch in diameter;

7.  All fireworks designed and intended by the manufacturer to create the element of surprise upon the user. These items include but are not limited to auto foolers, cigarette loads, exploding balls, trick matches;

8.  Fireworks known as devil-on-the-walk, or any other fireworks which explode through means of friction;

9.  Torpedoes6)oh geez of all kinds which explode on impact;

10.  Fireworks kits;

11.  Devices that travel a distance exceeding a 10 feet radius.

12.  Such other fireworks examined and tested by the chief and determined to possess characteristics of design or construction which make such fireworks unsafe for use by any person not specially qualified or trained in the use of fireworks.

Note that this is not an exhaustive list, although sufficiently terrifying.

The County/Henderson will likely consider any fireworks similar in character to those listed above in the class of “dangerous fireworks,” and through subsection 12, will deem them illegal.

 

Las Vegas Tries to Regulate Fireworks Another Way

Instead of defining what are illegal like her sister municipalities above, Las Vegas took a different approach by declaring what are legal:

9.28.060 – Approved fireworks.

Subject to the limitations imposed by Section 9.28.0907)that states fireworks may not be lit on public sidewalks or streets, the sale, use, manufacture, and possession of the following articles of fireworks is approved within the City except that prohibited items may be used for public display purposes as provided by a special permit, and except possession of prohibited items by jobbers, wholesalers, and manufacturers for shipment to other states. All other items not herein approved are prohibited. The following items are approved:

(A) Cylindrical fountains without report (includes handle, spike and base fountain), total pyrotechnic composition not to exceed seventy-five grams each in weight; the inside tube diameter shall not exceed three-fourths inch;

(B) Cone fountains and whistling fountains without report, total pyrotechnic composition not to exceed fifty grams each in weight;

(C) Wheels, total pyrotechnic composition not to exceed sixty grams in weight, for each driver unit, but there may be any number of drivers on any one wheel; the inside bore of driver tubes shall not be over one-half inch;

(D) Railway fuses without spikes, truck flares, hand ship distress signals and illuminating torches, but excluding those containing magnesium; total pyrotechnic composition of illuminating torches not to exceed one hundred grams each in weight;

(E) Sparklers and dipped sticks, total pyrotechnic composition not to exceed one hundred grams each in weight; pyrotechnic composition containing any chlorate or perchlorate shall not exceed five grams;

(F) Colored box, cone fire and smoke pots8)contain yourself, total pyrotechnic composition not to exceed one hundred grams each in weight (does not include magnesium flares or smoke grenades);

(G) Fireworks pieces that are a combination of the above approved items, and which are mounted on one base; total number of items on one base shall not exceed nine;

(H) Nonpoisonous snake9)I thought we were talking about fireworks? and items of similar composition.

(Ord. 1816 § 1 (part), 1976: Ord. 1814 § 1 (part), 1976: prior code § 6-1-16(4))

 

So what is the difference between the County and Las Vegas? Time to get our logic hats on! Although it is possible, in practice, the regulations are the same10)especially since Metro polices Las Vegas and the unincorporated county, on its face, the Las Vegas law is much tougher.

Any fireworks not on the list above are illegal; whereas, with the county, although I do not know enough about fireworks to provide examples, it is very possible that there are more than eight11)A through H different classes of fireworks that would not meet the criterion of “dangerous.”

Which method of regulation is more efficacious? I cannot say for certain, but my instincts say that declaring what is illegal is the better way to go. Just imagine how long and arduous any regulations would be that had to define all legal activity.

On the other hand, at least it is clear in Las Vegas what fireworks are legal.  Note subsection 12 of the County Code 5609.5 includes a catch-all for the county to declare any additional fireworks illegal if need be.  Unfortunately, there is not enough empirical evidence to determine which municipality method is more effective12)not that we could control for all the necessary variables to make said determination anyway.

Stay tuned to find out how a bad decision this 4 July could land you in some serious hot water.  Until then, there are some helpful tips for how to play safe this 4 July on the Clark County Website.

 

Footnotes   [ + ]

1. do not despair, this is not about to get too existential
2. the county made a deal with Las Vegas a while back allowing residents/business of the unincorporated townships [Paradise, Winchester for example] to list Las Vegas as their mailing addresses, even though they are not in the city limits
3. check your address on Google Maps to know for sure; the city limits are not neatly drawn
4. See Chapter 8.32.10 of the Henderson Code. Note the difference between the Henderson law and Clark County is that the County (literally) numbers the illicit fireworks, while Henderson uses letters
5. NRPA 1124 As you can see, the National Fire Protection Association [NFPA] has withdrawn Section 1124 to be updated; subsection 1 has no effect, in actuality
6. oh geez
7. that states fireworks may not be lit on public sidewalks or streets
8. contain yourself
9. I thought we were talking about fireworks?
10. especially since Metro polices Las Vegas and the unincorporated county
11. A through H
12. not that we could control for all the necessary variables to make said determination anyway
shopping cart sparkler

Regulating Fireworks Sellers

 

Ah, it is that time of year again where half of the Las Vegas Valley 1)approximate estimates based on perceived, albeit inaccurate, volume from previous years blows up as many powerful fireworks as they can while the rest of us hope and pray that there is not any serious damage done to our community2)and/or my poor dog.

Instead of relying on the usual hearsay in understanding what is legal with regard to fireworks sellers, allow me to provide a quick summary of the Nevada law describing what governmental body determines the legality of fireworks sellers where you live, and the important regulations governing fireworks sellers.

 

Who Has the (Fire)power?

The Nevada state legislature writes most of the laws for the communities of the state that are not a part of an incorporated city/town/county. Unsure where you live? Google Maps will help.  Nevada Revised Statute (NRS) 473.090 regulates the use of fireworks in these unincorporated communities:

NRS 473.090  Unlawful burning, blasting or use of fireworks, welding torch or other devices in district; permits; exceptions; penalty.

1.  Except as otherwise provided in this section and NRS 527.126, it is unlawful within the boundaries of any fire protection district organized under this chapter for any person, firm, association, corporation or agency to burn, or cause to be burned, any brush, grass, logs or any other inflammable material, or blast with dynamite, powder or other explosive, or set off fireworks, or operate a welding torch, tarpot3)a pot for carrying tar, for those of us not living in the 19th century or any other device that may cause a fire in forest, grass or brush, either on the land of the person, firm, association, corporation or agency or on the land of another, or on public land, unless such burning or act is done under a written permit from the State Forester Firewarden or the State Forester Firewarden’s duly authorized agent and in strict accordance with the terms of the permit.

5.  The provisions of this section apply only to such portions of the fire protection district as are outside incorporated cities and towns.

6.  Any person, firm, association, corporation or agency violating any of the provisions of this section is guilty of a misdemeanor.

 

Bet you did not see that coming.

As you see “any person” may not “set off fireworks” in unincorporated areas of the state unless there is written permission from the state Firewarden.

Subsection 1 provides an exception as stated in NRS 527.126, which address  the terms that a “controlled fire” may set ablaze 4)The text is as follows, note the requirement for “direct supervision”: NRS 527.126  Requirements to conduct fire; governmental immunity1. The authority may authorize an agency of this state or any political subdivision of this state to commence a controlled fire. 2. A controlled fire must be conducted: (a) Pursuant to a written plan which has been submitted to and authorized by the authority; and (b) Under the direct supervision of at least one person who is qualified to oversee such fires and who remains on-site for the duration of the fire. 3. A controlled fire which is commenced pursuant to this section and which complies with laws relating to air pollution shall be deemed in the best interest of the public and not to constitute a public or private nuisance. 4. The State of Nevada, an agency of this state or any political subdivision or local government of this state, or any officer or employee thereof, is not liable for any damage or injury to property or persons, including death, which is caused by a controlled fire that is authorized pursuant to this section, unless the fire was conducted in a grossly negligent manner.

 

But what about for the majority us who live in municipalities? Chapter 244 of the NRS regulates those fireworks sellers:

NRS 244.367  Fireworks: Regulation and control.

1.  The board of county commissioners shall have power and jurisdiction in their respective counties to pass ordinances prohibiting, restricting, suppressing or otherwise regulating the sale, use, storage and possession of fireworks, and providing penalties for the violation thereof.

2.  An ordinance passed pursuant to subsection 1 must provide that any license or permit that may be required for the sale of fireworks must be issued by the licensing authority for:

(a) The county, if the fireworks are sold within the unincorporated areas of the county; or

(b) A city located within the county, if the fireworks are sold within the jurisdiction of that city.

(Added to NRS by 1957, 231; A 1999, 808)

 

If you recall our previous discussion on the new Nevada gun law, we learned that Nevada is a Dillon’s Rule state whereby the localities only have the authority to legislate when expressly granted permission by the state legislature.

The legislature granted said authority in subsection 1, above. It is fairly intuitive that the need for firework regulation differs from Clark County (which includes the Strip, among other populated areas) relative to the more rural areas of Nevada.

Now that we know which governmental body regulates fireworks sellers, we will look at the Clark County Code to see the pertinent laws.

 

Clark County’s Fireworks Sellers Laws

Before we get to the law, a little more background on local municipality law. Clark County exclusively regulates the areas of the Las Vegas Valley that are unincorporated5)these include the Paradise [the Strip] and Winchester townships [just east of the strip].

Henderson, Las Vegas, and North Las Vegas, as incorporated municipalities, set their own codes in reference to fireworks.

Lucky for us, the municipal laws are fairly uniform6)in practice less than form, as you will see in part II of our discussion so we will examine the Clark County Code (CCC) regulating the sale of consumer fireworks.  Section 5609 of the CCC regulates consumer fireworks.  I excerpted the pertinent parts:

 

5609.1.2 Seizure of fireworks. It shall be unlawful to possess, use, explode, offer, display for sale, hold or store any and all fireworks in violation of this section. Upon finding unlawful fireworks, the fire chief, building official, or police chief or their representative shall seize, take, remove or cause to be removed such unlawful fireworks and destroy said unlawful fireworks at the expense of the owner.

5609.1.3 Penalty for violation. Any person operating or maintaining any occupancy, premises or vehicle subject to this regulation who shall permit any hazard to exist on premises under his control or who shall fail to take immediate action to abate a hazard when ordered or notified to do so by the building official or his duly authorized representative shall be guilty of a misdemeanor, and upon conviction thereof, be punished by a fine of not more than one thousand dollars and/or imprisonment in the county jail for not more than six months, or any combination of such fine and imprisonment. Every day of such violation shall constitute a separate offense.

5609.3.1 Labels. All fireworks for consumer sales shall bear the California State Fire Marshal’s Safe and Sane seal7)Can something be safe and not sane?. Each item or case of small items or item box shall bear the seal.

5609.3.2 Packaging. Retailers shall display and sell consumer fireworks in their original packages only.

5609.6.1 Operations: Fireworks stands shall be operated from June 28 to July 4 of every calendar year.

5609.6.2 Certificate of Insurance: The permittee shall furnish a certificate of insurance for hazard coverage of up to $1,000,000 or greater as specified by the Fire Prevention Bureau.

5609.6.3 Personnel: Fireworks stands shall be operated by at least one adult, 18 years or older, and not be occupied by anyone under the age of 14.

5609.6.5 Fire safety features. Each fireworks stand shall have the following fire safety features;

     1.  A fully-charged mounted fire extinguisher rated at least 2A 10BC. The fire extinguisher shall be tagged by a contractor licensed by the State Fire Marshal.

     2.  “No Smoking” signs with 3-inch tall letters posted on all four sides of the stand as required by 5609.2.3.  (Underlining added)

 

Wow! I do not know about you, but given how shabby some8)not all..specifically yours, the reader’s. I think you have a lovely stand. of the fireworks stands look, I was under the impression that regulations governing these sellers was haphazard at best.  I could not have been more wrong.

The county has done a nice, quite thorough job of protecting her citizens from business that is about as transient as it gets.

So what are the takeaways from the CCC above? Well, if you possess illegal fireworks9)which will be defined in part II, even if purchased legally in Moapa or Nye County, law enforcement will take them away10)if you were to purchase a recreational substance in Colorado/Washington/Alaska and bring it to Nevada, the same principle would apply. There exists the possibility of jail time and/or a fine for possession as well.

Also, fireworks sellers only have a seven-day window to sell beginning 28 June, must have at least one adult working at all times, must have insurance against fire damage, and a fire extinguisher.

Lastly, selling fireworks that are altered (as in not in the original packaging from the manufacturer) is expressly prohibited.

But what kind of fireworks are you permitted to blow up come 4 July?? You will have to stay tuned for Part II of our discussion on fireworks; it promises to be explosive.11)sorry

Read the Clark County fireworks sellers regulations here

 

Footnotes   [ + ]

1. approximate estimates based on perceived, albeit inaccurate, volume from previous years
2. and/or my poor dog
3. a pot for carrying tar, for those of us not living in the 19th century
4. The text is as follows, note the requirement for “direct supervision”: NRS 527.126  Requirements to conduct fire; governmental immunity1. The authority may authorize an agency of this state or any political subdivision of this state to commence a controlled fire. 2. A controlled fire must be conducted: (a) Pursuant to a written plan which has been submitted to and authorized by the authority; and (b) Under the direct supervision of at least one person who is qualified to oversee such fires and who remains on-site for the duration of the fire. 3. A controlled fire which is commenced pursuant to this section and which complies with laws relating to air pollution shall be deemed in the best interest of the public and not to constitute a public or private nuisance. 4. The State of Nevada, an agency of this state or any political subdivision or local government of this state, or any officer or employee thereof, is not liable for any damage or injury to property or persons, including death, which is caused by a controlled fire that is authorized pursuant to this section, unless the fire was conducted in a grossly negligent manner.
5. these include the Paradise [the Strip] and Winchester townships [just east of the strip]
6. in practice less than form, as you will see in part II of our discussion
7. Can something be safe and not sane?
8. not all..specifically yours, the reader’s. I think you have a lovely stand.
9. which will be defined in part II
10. if you were to purchase a recreational substance in Colorado/Washington/Alaska and bring it to Nevada, the same principle would apply
11. sorry
Cost of health care

Medicaid Liens on Personal Injury Settlements and Awards

Anyone who practices in personal injury for very long faces issues with Medicaid liens.  As a basic framework, Medicaid is a state health insurance program that receives federal funding and is subject to federal law. In Nevada, Medicaid is administered through the Nevada Department of Health and Human Services.  The DHHS allows third party HMOs to manage the healthcare for some Medicaid recipients.  These third-party organizations are known as Medicaid Managed-Care Organizations (MCOs).  Nevada currently contracts with two national for-profit MCOs: Amerigroup Community Care and Health Plan of Nevada, owned by UnitedHealthcare.

Medicaid, and by extensions, MCOs, have a statutory lien on personal injury settlements.  Pursuant to NRS 422.293, Medicaid has a lien against “the right of the recipient [injured victim] to the extent of all such medical costs [paid by Medicaid].”  Under NRS 422.293(4), Medicaid may reduce its lien in consideration of an attorney’s services.  This is a statutory acknowledgment of the Common Fund Doctrine, though it couches the doctrine with the term “may”.  As a practical matter, attorneys would not collect funds if subrogating third parties would routinely ignore the Common Fund Doctrine’s principles.

On its face, NRS 422.293 seems to be a lien against the entirety of the settlement, up to the amount paid by Medicaid.  However, in 2006 and again in 2013, the United States Supreme Court held that a state’s Medicaid lien must be limited in proportion to the ratio of medical bills to the total value of the claim if unlimited funds were available.

 

Ahlborn and Medicaid Liens

In 2006, the United States Supreme Court decided the case of Arkansas Dep’t of Health & Human Servs. v. Ahlborn1)547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 [2006].  Ahlborn had been in a car accident and sustained injuries for which Medicaid paid providers $215,645.30.  Ahlborn sued in state court and later settled all claims for $550,000.00, presumably, for all insurance limits available.  The settlement did not apportion the settlement between categories of damages, such as past medical payments, future medical payments, pain and suffering, lost income, and so forth.  Medicaid did not participate in the litigation. Medicaid attempted to exert a lien against $215,645.30 of the settlement, but acknowledged that the pro-rata value of the medical expenses to the unreduced value of the claim would have been 1/6th, or $35,581.47.  Medicaid and Ahlborn fought over whether Medicaid’s lien should be for the full amount paid or for medical specials proportion of the settlement

The Supreme Court held that, pursuant to Medicaid’s anti-lien provision of 42 U.S.C. § 1396p(a)(1), Medicaid’s lien is limited to the portion of the settlement designated for medical payments.  Thus, if the parties designate that the value of the medical expenses are 1/6th of the settlement, then Medicaid’s lien is limited to 1/6th of the settlement.

The Supreme Court recognized that there was some danger of manipulation of settlement apportionment, but did not view it as an overriding concern.  Naturally, parties should not abuse apportionment.

 

Wos and Medicaid Liens

In 2013, the United States Supreme Court reaffirmed Ahlborn in Wos v. E.M.A. ex rel. Johnson2)133 S. Ct. 1391, 1393, 185 L. Ed. 2d 471 [2013].  In Wos, the Court addressed what happens when the parties to a settlement do not apportion the settlement.  Presumably in response to Ahlborn, North Carolina had implemented a presumption that, unless otherwise specified, a settlement consisted of 1/3rd medical expenses and 2/3rd other categories of injuries.  Thus, Medicaid would exert its lien against 1/3rd of the settlement.  The Wos court held that such a presumption was not definitive, and that a Medicaid recipient must have an ability to challenge the presumption.

 

Application of Ahlborn and Wos in Nevada to Medicaid Liens

Under Ahlborn and Wos, it is clear that a Medicaid lien is limited to the medical portion of the settlement.  Interestingly, there have been no reported cases in the Nevada Supreme Court, the Federal District Court of Nevada or the Ninth Circuit Court addressing either Ahlborn or Wos.  Naturally, the courts would have to accept controlling law, but it is unclear whether any of these courts would interpret these cases in an unexpected way.

The next question is how Ahlborn and Wos interplay with the collateral source doctrine3)the collateral source doctrine, as defined by Black”s Law Dictionary, is known as the principle in which “compensation paid by some source to an injured plaintiff cannot be deducted from the damages a defendant has to pay. The source, such as an insurance firm, cannot be a party to the litigation”. Is a Medicaid lien exerted against the entire medical specials portion of the settlement/judgment, or is the lien limited to the ratio of the actual Medicaid payments to the unreduced value of the case?  At least one federal district court has held that the lien is limited.

 

The Fairness of Ahlborn and Wos

Ahlborn and Wos make sense from a basic fairness principle.  Case valuations involve many different factors, and always involve pain and suffering.  In significant cases, pain and suffering is the largest part of a settlement.  Why should Medicaid, which has an obligation to pay for medical expenses anyway, be able to collect against an injury victim’s settlement for lost income, for property damage, or for pain and suffering?  Ahlborn and Wos provide an equitable result.

 

The Bipartisan Budget Act of 2013 and Protecting Access to Medicare Act of 2014

In 2013, President Obama signed into law an amendment to the Medicaid anti-lien provision that would allow Medicaid to exert a lien against the entire settlement through the Bipartisan Budget Act of 2013.  Needless to say, this amendment is grossly unfair.  As stated above, why should Medicaid be reimbursed out of an injury victim’s recovery of lost income?  It makes no equitable sense.  Nevertheless, the amendment passed and the law changed.  The amendment was originally slated to go into effect October 1, 2014.  In April 2014, Congress passed the Protecting Access to Medicare Act of 2014, which postponed the implementation of the new Medicaid super lien until October 1, 2016.  I have not yet done an analysis on whether the new super lien will apply retroactively to injuries that occurred prior to October 1, 2016.  I sincerely hope that Congress reevaluates the Medicaid super lien and returns to the more equitable and fair application of Ahlborn and Woz.  In the meantime, Ahlborn and Wos apply until October 1, 2016.

Footnotes   [ + ]

1. 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 [2006]
2. 133 S. Ct. 1391, 1393, 185 L. Ed. 2d 471 [2013]
3. the collateral source doctrine, as defined by Black”s Law Dictionary, is known as the principle in which “compensation paid by some source to an injured plaintiff cannot be deducted from the damages a defendant has to pay. The source, such as an insurance firm, cannot be a party to the litigation”
settlement offers, negotiation, confidentiality, lawyers, privacy, nevada

Confidentiality vs. Confidential Settlement Negotiations to Further Your Case

As a general premise, private settlements of lawsuits are encouraged and often regarded as the quickest and most efficient way to either avoid or end a lawsuit. Typically, if settlement negotiations break down, they are considered confidential and cannot later be used during litigation of the matter. This prevents parties from alleging that the other side admitted liability by offering to pay a settlement. If offering to pay a settlement could be used against someone during litigation, then parties would be discouraged from making settlement offers, and the courts would be even more overwhelmed with cases than they are now.

By way of example, if you are involved in a car accident and you offer to pay the other driver a small sum of money to avoid making an insurance claim, that gesture cannot later be used against you as evidence that the accident was your fault. If it could, why would anyone ever try and be the nice guy?

 

When settlement negotiations might be used against you

However, as with all areas of law, there are certain exceptions to this rule. These exceptions apply if you want to use evidence of settlement negotiations to prove or show something other than the liability or fault of the party who made the offer.

For instance, you can use evidence of settlement negotiations to show that a party was aware of a dispute if they try to deny it. A situation like this may arise when a business owner and an injured patron fail to reach a settlement but then the business owner later claims they were not ever made aware of a dangerous condition.

Another proper instance to cite a settlement negotiation in court is for an insurance company negotiating in bad faith. If an insurer makes an offer to settle a claim that the injured party does not accept, evidence of the insurer’s offer pre-litigation may be used as evidence of bad faith if they try to deny the claim post litigation.

Another use in the bad faith context would be an insurance company using pre-litigation settlement offers to prove they did negotiate in good faith with an injured party when they are accused of stonewalling. The Ninth Circuit has noted that sometimes parties try to couch correspondence as a “settlement offer” to keep it confidential even through the true nature of the document was not really a settlement offer, and in this situation, the evidence will be admitted. 1)See Cassino v. Rechhold Chemicals, 817 F.2d 1338 [9th 1987]. In that case, an employer tried to condition payment of a severance package on an employee’s signing a release of all potential claims against that employer. The Court held that evidence surrounding that exchange could validly be presented because a wrongful conditioning of payment was not a good faith “settlement offer.”

Although a true settlement offer is generally kept confidential, there can be instances that evidence of the offer may be exposed. For that reason, circumstances may arise where it is best to make a verbal offer or not document a settlement offer if you think your actions surrounding the offer could be used in some way to your detriment. With that in mind, settlement offers are more often than not a very useful tool in avoiding costly litigation. Each and every scenario is unique, so if you find yourself faced with a legal dispute of any sort, contact our attorneys at Clear Counsel Law Group for a free consultation.

Footnotes   [ + ]

1. See Cassino v. Rechhold Chemicals, 817 F.2d 1338 [9th 1987]
product liability, consumer rights, nevada, discovery, joint and several liability

Vetoed Changes to Nevada’s Product Liability Laws

The governor recently vetoed changes to a statute that would have implemented a major change to Nevada’s product liability law making it more difficult for consumers to sue retailers in certain cases. Traditionally, when a person is injured from a defective or dangerously designed product, that person can sue the retailer, distributor, manufacturer, and any other party in the supply chain who took part in making that product and getting it out to the consumer. Usually, though, unless the end seller has altered the product in some way, it is only the manufacturer and designer who ultimately have responsibility to the injured consumer. For that reason, many states have now altered the common law to allow for sellers and distributors to be sued only in cases where for some reason the manufacturer was not available to compensate the injured person. As of May 2015, the Nevada lawmakers were poised to pass regulation that would have added this hurdle for injured consumers in Nevada.

 

What the proposed product liability law says

The proposed NRS 41 would have read that only a manufacturer can be sued for product liability unless certain exceptions apply including :

  • when a seller has control over the design and making of a product,
  • when the seller alters the product,
  • when the product was re-sold in a modified condition,
  • when the seller failed to exercise reasonable care which caused the harm,
  • when the seller knew of a defect in the product,
  • when the seller created certain warranties which the product did not meet,
  • when the manufacturer cannot be sued within Nevada,
  • when the manufacturer cannot be found,
  • when the manufacturer is bankrupt.

In essence, unless there is some basis for independent liability against a seller, sellers would no longer be sued simply for being part of the supply chain. Often, the only result of suing a seller was to cause an innocent seller to incur attorneys’ fees when ultimately, the manufacturer was liable for causing the defect to exist.

Consumer concerns

However, the governor appears to have sympathized with consumer friendly concerns raised during senate hearings. Injured parties may not know whether a seller altered a product, and for that reason, they need to sue before the statute of limitations runs out, allowing discovery to begin and the culpable party to come to light. The new law would have made it more costly for consumers to bring lawsuits by requiring them to sue manufacturers, conduct discovery to see if the product was altered, and then go back and amend their complaints if the retailers could properly be added. As the law stands now, the seller can be named from the outset, and if they did not alter the product or do anything other than just sell it, they will get dismissed and the manufacturer will bear liability. Assuming the manufacturer can be found and has funds to pay the injured party, it is much simpler to dismiss a seller then to add them to a suit, begin new phases of discovery, push back deadlines, and create a complicated mess of a lawsuit.

So, Nevada continues to be a consumer friendly state wherein the hurdles that some states are implementing to protect sellers will not exist. Hopefully this is a trend we will continue to see so injured consumers can continue to get fair compensation and not be deterred complicated legal hurdles.

proper forum, Nevada, lawsuit,

Is the Nevada the Proper Forum for your Lawsuit?

With society as mobile as it is, incidents that give rise to lawsuits1)and forum disputes often occur across state lines. What happens if a Nevada resident gets hit by another driver while driving in California? Do you have to sue in California? May you sue in Nevada? The answer is, it depends. Many issues can become relevant to the decision of where to properly bring a lawsuit. If the lawsuit is not brought in the proper forum, a party may be faced with a motion to dismiss or to transfer the suit to the place where the defendant thinks the suit belongs.

 

How a court determines proper forum

Generally, a court will defer to the plaintiff’s choice in reference to forum, but there has to be a reasonable basis for that choice. In the example above, although the accident may have occurred in California, it may be the case that all of the Plaintiff’s doctors are located in Nevada, but the police officer who cited the other driver is in California. In a case where the witnesses are spread out, as long as there are ties to Nevada, a suit can be filed in Nevada. But it is not a guarantee that a court will agree to take jurisdiction over the matter if the court is convinced that California courts would be a better fit. Although the Plaintiff’s decision is strong a factor in where the case will be heard, the court will analyze which state has the highest stake in the outcome of the matter, where it will be most efficient to hold a trial in light of the location of all witnesses, and where the involved insurance companies are located.

Additionally, there may be insurance policies that dictate where suits may be filed and which state’s laws should apply. Even if an insurance policy dictates that Nevada law will apply to any suits involving that policy, it does not mean that a Nevada court must hear the case because California courts can apply Nevada laws.

If you get sued and believe the lawsuit was not filed in the proper place, you need to act right away. For instance, if you cause an accident while driving through Nevada but you live elsewhere, you will need a Nevada attorney to defend you. If you believe Nevada is not the proper state for the suit, you will need to object to the choice of forum right away, or you may end up waiving your right to argue that the suit was filed in the wrong place. If the accident occurred in Nevada, the doctors are in Nevada, the police officers involved are in Nevada, and there are no ties to your state except you, the Court may require you to appear and defend yourself in Nevada. The Court may find that you implicitly agreed to be sued in Nevada when you chose to drive on a Nevada road. But every case has different facts and could lead to a different result.

Because the factors and issues in deciding where to file a lawsuit are unique, it is always best to consult with an attorney. Clear Counsel Law Group can provide you with a free consultation, so contact us anytime.

Footnotes   [ + ]

1. and forum disputes
bullying, Nevada law, kids, school

Bullying and Nevada Law

Although unclear if bullying is a recent phenomenon, or if it has just become more talked about in the public in recent years, is a real problem for kids across Nevada and the country.

The harrowing tragedy of a White Middle School student led to outrage in the Las Vegas Valley over the policies in place to protect kids from bullying by the Clark County School District.

The legislature and the governor, to their credit, stepped up and passed significant legislation in hope of curtailing the widespread bullying across the state.

 

What is Significant in the New Bullying Law?

Governor Sandoval signed Nevada Senate Bill (SB) 504 on 20 May 2015, with the new law going into effect 1 July 2015.

Allow me to quote the Legislative Counsel’s Digest that describes the two most significant elements of the new law:

Section 4 of this bill creates the Office for a Safe and Respectful Learning Environment within the Department of Education. The Office must maintain a 24- 14 hour, toll-free hotline and an Internet website by which a person may report an incident of bullying or cyber-bullying or receive information regarding anti-bullying efforts and organizations. The Office must also provide outreach and anti-bullying education and training

Section 12 of this bill changes requirements regarding the reporting and investigation of an incidence of bullying or cyber-bullying. Under section 12, a principal, or his or her designee, who receives a report of bullying or cyber-bullying must immediately take any necessary action to stop the bullying or cyber-bullying and ensure the safety and well-being of any reported victims. Before the end of that or the next school day, the principal or designee must notify the parents or guardians of every pupil reported to be involved in the bullying or cyber-bullying, as applicable. The principal or designee must interview all of the pupils reported to be involved and the parents or guardians of those pupils, and the investigation must be completed within 48 hours after receiving the report of the bullying or cyber-bullying. After completing the investigation, the principal or designee must complete a written report of the investigation. Subject to applicable federal privacy laws, the report must be made available to the parents or guardians of all the pupils who were reported to be involved in the bullying or cyber-bullying, as applicable.

As stated in the Section 12 summary, the principal of a Nevada school “must immediately take any necessary action to stop bullying” and has 48 hours1)under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened to complete an investigation of the incident and to inform the parents of the complaint.

Section 12 also requires the principal to keep written documentation of these incidents.

In addition to the two sections highlighted above, NRS 388.1212)the state statute that declares bullying to be illegal has been amended to disallow bullying based on gender or sexual orientation.

This makes Nevada the 20th state3)the District of Columbia also to include protections against bullying for LBGTQ students.

It is pretty clear from the new law that the state legislature has codified a duty for school district employees to do what is necessary, within reason, to prevent bullying.

If the school district employees do not abide by their duty to protect the kids under their care, civil liability may certainly arise.

But is it possible that the bully’s parent could also be liable for the harm caused?

 

May You Sue the Bully’s Parents?

The answer to this question, like so many issues in law, is unresolved and unclear. Nevada does have a statute that assigns liability of a minor to his or her parent for willful misconduct:

 NRS 41.470  Imposition of liability for minor’s willful misconduct.

      1.  Except as otherwise provided in NRS 424.085, any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.

      2.  The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.

      3.  The liability imposed by this section is in addition to any other liability imposed by law.

      (Added to NRS by 1957, 8; A 1967, 419; 1975, 652; 1979, 461; 1999, 897)

 

So the question is: will bullying by a school-age child be considered willful misconduct under NRS 41.470? The answer is possibly.

Like so many other tort issues, an answer will likely only be determined based on the specific facts of a bullying case.

Relevant inquiries might be: How old is the bully/victim? What is the character of the bullying? Did the bully’s parents know about the behavior in question, and if they were aware of the behavior, did the parents take actions to prevent the bully from committing further harm? What type of harm did the victim suffer? Etc.

States with similar statutes assigning liability to the parents for a minor’s willful misconduct have construed bullying to be willful misconduct.4)See these articles describing bullying law in Texas and New Jersey for more information

In closing, one should not discount the possibility that the bully’s parents may be included in a bullying lawsuit.

 

Footnotes   [ + ]

1. under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened
2. the state statute that declares bullying to be illegal
3. the District of Columbia also
4. See these articles describing bullying law in Texas and New Jersey for more information
nevada gun law blue card

The New Nevada Gun Law, Part IV: The Blue Card

We made it to part IV of our series on the new gun legislation here in Nevada, and what a journey it has been!

Part I described how the “Castle Doctrine” has been expanded to include car theft.

Part II showed how the new law prevents domestic abusers from owning guns legally; part III discussed the expansion of civil liability protection for those who choose to use force to protect their homes and vehicles.

Part IV is where we bring it all home with the much anticipated (and desired by gun owners) abolition of Clark County’s Blue Card law1)seems the legislature finally got tired of waiting for the County Commissioners.

I opened each of the first three posts with the statement of intent of the law by State Senator Mark Roberson; I will do so again now:

To keep guns out of the hands of those who have proven their propensity to commit violence against those they supposedly love and should protect;

To allow law abiding gun owners to appropriately defend themselves in their vehicles as they currently can in their homes; and

To ensure that our Second Amendment rights are administered in a fair and uniform way across the State, and to provide a means of redress when that is not the case.

 

Part IV concerns that last statement by Sen. Roberson.  I will present the law and allow you to determine how specious a claim that really is.

To begin, in case you are not a Southern Nevada gun owner, you may be unfamiliar with the blue card law.

 

Clark County’s Blue Card Law

It is unclear how long the blue card law2)it acquired the nickname from the blue card issued by the Sheriff upon registration of the firearm has been effect. The County Code lists the origin as 1967, but multiple secondary sources claim the blue card law goes back to 1948.

Supposedly, the hope of the County Commission was to contain the gangster violence from the mobsters drawn here from the opening of the downtown casinos.  It states:

12.04.110 Registration of pistols within seventy-two hours.

Any resident of the county receiving title to a pistol, whether by purchase, gift, or any other transfer, and whether from a dealer or from any other person, shall, within seventy-two hours of such receipt, personally appear at the county sheriff’s office, together with the pistol, for the purpose of registering the same with the sheriff. It shall be the duty of the sheriff to register the pistol, and he may, and is hereby authorized to cooperate in any manner he sees fit with other law enforcement agencies, and with licensed dealers, relative to registration of pistols, so that efficient registration shall be secured at minimum cost and duplication.

While the blue card law is certainly tough, there is not an available, useful metric to determine how and if it is effective in controlling gun crime. Many gun owners contend, and have been contending, that the law is unnecessary with the background check requirements now in effect.

Other larger, more crime-ridden cities3)New York, Chicago, Washington D.C. to name a few have much stricter gun control legislation and still have significant gun violence. Would there be even more violence without the legislation? There is no way to know for sure how effective a blue card law is.

Although the legislation may be necessary, it most certainly is not sufficient to curtailing gun violence. As you will see in Section 8 of SB 175, a majority of the legislature feels the blue card law is neither necessary nor sufficient.

 

Section 8 of the Nevada Gun Law Regarding the Blue Card

Sections 8, 9, and 10 of SB 175 are very similar in nature; in fact, the portions reproduced below are identical except for whom the amendments are addressed to.

Section 8 concerns county commissions4)Here’s lookin’ at you, Clark, Section 9 refers to city councils, and Section 10 to town boards. In hopes of this article not mutating into a New Yorker feature-piece length, I will discuss only Section 8, but the analysis applies to 9 and 10 as well.

Sec. 8. NRS 244.364 is hereby amended to read as follows:

The Legislature hereby declares that:

(a) The purpose of this section is to establish state control over the regulation of and policies concerning firearms, firearm accessories and ammunition to ensure that such regulation and policies are uniform throughout this State and to ensure the protection of the right to keep and bear arms, which is recognized by the United States Constitution and the Nevada Constitution.

(b) The regulation of the transfer, sale, purchase, possession, carrying, ownership, transportation, storage, registration and licensing of firearms, firearm accessories and ammunition in this State and the ability to define such terms is within the exclusive domain of the Legislature, and any other law, regulation, rule or ordinance to the contrary is null and void.

(c) This section must be liberally construed to effectuate its purpose.

              2. Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, carrying, ownership, transportation storage, registration and licensing of firearms, firearm accessories and ammunition5)I know I cannot think of any more relevant gun nouns; quite the comprehensive list in Nevada and to define such terms. No county may infringe upon those rights and powers.

              3. A board of county commissioners may proscribe by ordinance or regulation the unsafe discharge of firearms.

              4. Any ordinance or regulation which is inconsistent with this section or which is designed to restrict or prohibit the sale, purchase, transfer, manufacture or display of firearms, firearm accessories or ammunition that is otherwise lawful under the laws of this State is null and void, and any official action taken by an employee or agent of a county in violation of this section is void.

              5. A board of county commissioners shall repeal any ordinance or regulation described in subsection 4, and any such ordinance or regulation that is posted within the county must be removed.

              6. A board of county commissioners shall cause to be destroyed any ownership records of firearms owned by private persons which are kept or maintained by the county or any county agency, board or commission, including, without limitation, any law enforcement agency, for the purposes of compliance with any ordinance or regulation that is inconsistent with this section. The provisions of this subsection do not apply to the ownership records of firearms purchased and owned by any political subdivision of this State.

 

Nevada is what is called a “home rule” state, meaning the counties/municipalities only have the authority to pass laws when explicitly given permission to by the state legislature6)for the three people out there who get all hot and bothered over a home rule vs. Dillon’s Rule debate, stay tuned! The Clear Counsel law blog will satiate you soon enough.

Apparently the state government has had just about enough of Clark County Commission governing its own gun laws.  Subsection 3 does permit the smallest amount of regulation for “unsafe discharge” of firearms; we cannot have gun play on the Strip, which would be bad for business7)want to guess where the majority of the state’s tax revenue comes from?.

Beyond invalidating most gun regulation, the county even has to destroy any ownership records8)now is the time to get your “Don’t tread on me” serpentine out.

Subsection 1(c)’s reference to “liberal construction” is a gentle reminder to those ‘activist’ judges of ours to watch themselves; the legislature means business.

You Localities Best Do What We Say…

Now back to SB 175:

7. Any person who is adversely affected by the enforcement of an ordinance or regulation that violates this section on or after October 1, 2015, may file suit in the appropriate court for declarative and injunctive relief and damages attributable to the violation. Notwithstanding any other provision of law, such a person is entitled to:

(a) Reimbursement of actual damages, reasonable attorney’s fees and costs which the person has incurred if, within 30 days after the person commenced the action but before a final determination has been issued by the court, the board of county commissioners repeals the ordinance or regulation that violates this section.

(b) Liquidated damages in an amount equal to two times the actual damages, reasonable attorney’s fees and costs incurred by the person if, more than 30 days after the person commenced the action but before a final determination has been issued by the court, the board of county commissioners repeals the ordinance or regulation that violates this section.

(c) Liquidated damages in an amount equal to three times the actual damages, reasonable attorney’s fees and costs incurred by the person if the court makes a final determination in favor of the person.

 

In case the County Commission is entertaining any thoughts of disobeying their overlords in Carson City, they are being informed that there will be consequences. Starting 1 October, gun owners may use the court system to ensure SB 175 comes into effect in a timely manner.

Often legislatures will use damages multipliers to incentivize attorneys to take on cases of social significance9)most famously, the treble damages available through federal civil rights lawsuits, called “1983 actions” from the location of the laws in the U.S. code..

The same theory is applied here in subsection 7(c).  Note in subsection 7(b), that if a locality can reduce treble damages to double the damages if they revise/repeal the laws subject of the lawsuit before a judgment is handed down.10)Cass Sunstein and his behavioral economics pals must love and hate this; if only we could get a comment

 

Wittgenstein Would Be Proud (But Would He Carry a Blue Card?)

I11)a word’s function vs. essence, a Wiki summary.  Beyond the primary material, see also David Markson’s Wittgenstein’s Mistress and David Foster Wallace’s The Broom of the System do not know about you, but I for one, cannot wait for the legislative history for the 2015 session to come out12)the event of summer, right after EDC!. In particular, I want to know how the following definition worked its way into sections 8,9, and 10 of SB 175:

(d) “Person” includes, without limitation:

(3) A membership organization whose members include a person described in subparagraphs13)which describe actual people (1) and (2) and which is dedicated in whole or in part to protecting the legal, civil or constitutional rights of its members.

Why do citizens need “membership organization[s]” to sue on their behalf? The only speculation I have is too snarky to be constructive. But “personhood” in America continues to develop in strange and mysterious ways.

Are you curious why the legislature did not wait for the 1 October deadline to pass to see if the municipalities will follow the law in good faith and/or if citizen-plaintiffs could successfully sue their way into compliance? Me too.

Well, there you have it.  What will the Clark County Commission do with  in response? We will keep an eye on it, and through us, so can you.

Footnotes   [ + ]

1. seems the legislature finally got tired of waiting for the County Commissioners
2. it acquired the nickname from the blue card issued by the Sheriff upon registration of the firearm
3. New York, Chicago, Washington D.C. to name a few
4. Here’s lookin’ at you, Clark
5. I know I cannot think of any more relevant gun nouns; quite the comprehensive list
6. for the three people out there who get all hot and bothered over a home rule vs. Dillon’s Rule debate, stay tuned! The Clear Counsel law blog will satiate you soon enough
7. want to guess where the majority of the state’s tax revenue comes from?
8. now is the time to get your “Don’t tread on me” serpentine out
9. most famously, the treble damages available through federal civil rights lawsuits, called “1983 actions” from the location of the laws in the U.S. code.
10. Cass Sunstein and his behavioral economics pals must love and hate this; if only we could get a comment
11. a word’s function vs. essence, a Wiki summary.  Beyond the primary material, see also David Markson’s Wittgenstein’s Mistress and David Foster Wallace’s The Broom of the System
12. the event of summer, right after EDC!
13. which describe actual people
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