The Nevada Supreme Court

1994 and 1995 Terms

  by Chuck Gardner, Esq.

I.  Introduction

    Since Nevada has no law school, it has no law professors to analyze the terms of the state's high court. We all have some vague idea of the predilections of the five members of the Nevada Supreme Court, but only the few attorneys who regularly appear before them know them well. Even these tend to know them either in civil cases or criminal cases, but not both. I have therefore endeavored to analyze the last two years of our state high court, civil and criminal. I have limited this review to the relatively few decisions that merited dissenting opinions. I have done this for two reasons. Analyzing the per curiam decisions would have been a much larger task, but would not likely have added much to our understanding of the individuals on the court. Also, the Justices tell us who they are most clearly in their dissents, for it is there that they speak as individuals. Since it is also significant from whom the Justice is dissenting, the dissents are secondarily arranged here by majority authors. To leave as much as possible to the reader, I will first present the last two years of authored decisions case-by-case.(1)

    The court published 176 decisions in 1994 and 185 in 1995. Of the 361 cases, 280 were per curiam. Of the 81 authored decisions, 63 carried dissents, about 17% of the published decisions. In 1994, the court decided 971 cases without published decisions, for a total of 1,147 cases. Only 36 of the 1994 cases saw dissents with named authors, although 3 per curiam decisions also sported dissents. Only about 3% of the cases, therefore, are disputed. This 3% is the subject of this analysis.

    The variety of dispositions on the Nevada Supreme Court should be the envy of courts everywhere. There are no two alike. For the most part I will leave it to the reader to form generalizations, but each Justice has at least one predilection that stands out so clearly that it can be safely stated. Springer stands up for the little guy. Steffen upholds criminal convictions. Young stands by the letter of the law. Shearing is the woman's advocate. Rose simply can't be pinned down. There are some natural alliances. In criminal procedure cases, Rose and Springer form the "liberal" wing, while Steffen and Shearing will frequently side together with the prosecutor, with Young providing the "conservative" balance of the court. Springer is the most likely to write a lone dissent; Rose the least likely to dissent at all. Young wrote more dissents in the past two years than majority opinions. No member of the court is necessarily at odds with any other member with one exception: Shearing frequently dissents when Springer authors the decision. Even when Shearing finds herself agreeing with Springer in the minority, she has a tendency to pen a separate dissent. The converse is not true.

II. The Dissents

1.  Justice Rose dissents

    Justice Rose rarely authors a dissenting opinion and more frequently joins the dissents of others. Whether as author or joiner, he is the least frequent dissenter.

    a.  from Shearing

    Rose has rarely dissented from Shearing-authored opinions, twice in 1995 and not once in 1994. He found himself alone when he dissented from Shearing's decision allowing a compromise of paternity to be set aside in the wake of modern, more certain, testing methods. The majority decision favored the mother.(2) Rose was then joined by Springer when he dissented against Shearing's majority decision which cured an illegal sentence by eliminating the conflicting portion which was most lenient on the defendant, probation. Rose argued that the result was "far more punitive" and not in accord with the sentencing judge's intent.(3)

    b. from Steffen

    Rose was joined by Springer again when he dissented against Justice Steffen's decision to adopt the majority rule that medical expenses are not incurred, and therefore covered by an insurance policy about to run out, when a physician directs the course of conduct, but are incurred only when an enforceable contract is executed. Joined by Springer, Rose would adopt the minority rule that the expense is incurred if the physician directs the course of conduct during the limitation period even though the treatment cannot be successfully completed during that time.(4)

    c. from Young

    Rose did not author a dissent against Young during the two years, but joined once with Springer who wished to allow a change of plea and once with Shearing who wished to uphold a lewdness conviction. These will be covered later.

    d. from Springer

    Usually when Rose dissented from a Springer-authored decision, he was joined by Shearing. He dissented when the majority affirmed the lower court's summary judgment that handcuffing a prisoner in the back rather than the front is purely discretionary and protected by statutory governmental immunity, even after the prisoner had informed the officers that he was scheduled for back surgery and in serious pain.(5) Rose was joined by Shearing again when he dissented from Springer's decision to affirm a child support order that favored the non-custodial father by deducting visitation expenses after applying the $500 per child maximum cap. Deducting these expenses before applying the cap would have favored the custodial mother; under the lower court's ruling, the expenses were deducted from the $500, rather than the higher 25% of income.(6) Finally, Rose dissented when Springer held that the statute allowing an attorney to file a lien on the settlement of a non-paying client (NRS 18.015) does not authorize a lien by local counsel to recover his portion against the out-of-state attorney handling the case. Springer held that an attorney may not "bootstrap" a breach of contract action against another attorney into an attorney's lien on the client's funds. Rose and Shearing argued that this would leave local counsel without adequate protection.(7)

    Rose dissented alone when a Springer majority rejected the findings and recommendations of the Nevada Bar Counsel that an attorney be suspended, for lack of clear and convincing evidence that the attorney unlawfully shared attorney's fees with an orthopedic clinic bill collector who referred cases, although the court assessed all costs of the proceedings against the attorney, since his failure to keep adequate records led to the action against him. Rose found the evidence clear and convincing. He suggested that the court change its rules to grant greater deference to the disciplinary board, "the body best able to view the testimony of the various witnesses and assess their credibility.(8)

2. Shearing dissents

    a. from Rose

    Justice Shearing infrequently dissents against Rose, but less frequently votes to reverse a conviction. In her only authored dissent from a Rose decision, she was joined by Steffen when the majority reversed a sexual assault conviction. Shearing argued that defense counsel consented to a mistrial when he stated that he did not oppose it, although he argued against it. The majority found that the alleged grounds for the mistrial - misconduct by defense counsel - were erroneous, and that defense counsel's equivocation was the result of accusations of misconduct and threats of contempt.(9)

    b. from Springer

    Although she authored only one dissent each from decisions of Steffen and Young and two from Rose, Shearing authored four dissents from decisions by Springer. Joined by Young, she dissented when the majority reversed an embezzlement conviction for the failure to hold a hearing on the record regarding the admission of prior bad act evidence. Shearing would not reverse where the reasons for the admission of the evidence could otherwise be found in the record.(10) She dissented alone when the majority, per Springer, reversed a denial of post-conviction relief (murder), finding that defense counsel was ineffective for failing to present evidence that the defendant was retarded with organic brain damage and incapable of premeditation. Shearing argued that the district court was not clearly erroneous when it found the psychological evidence unpersuasive and that there may have been tactical reasons for not presenting it.(11)

    In a civil case, Shearing wrote a ringing dissent in favor of recognizing the so-called "wrongful life" cause of action. Answering a question certified from a federal District Court in Maryland, the majority held that Nevada would not allow a newborn to sue for the physicians' failure to diagnose fetal defects, foreclosing the mother's option to terminate the pregnancy. Although the mother has a cause of action for negligence, the newborn has no separate action for "wrongful life." Joined by Rose, Shearing argued for the minority rule that allows the impaired child to better bear the expenses and burdens of the impairment. Injured parties should be compensated, wrongful conduct should be deterred, and logic or philosophy should not be instruments of injustice.(12)

    In another civil case, Shearing was joined by Rose when she dissented from Springer's reversal of a judgment of tortious discharge. An at-will employee alleged that he was fired for objecting to alleged racially discriminatory rental policies after making his objections known to other employees. The majority held that merely expressing disapproval to third persons is not the kind of policy-related confrontation that gives rise to a tortious discharge action, which can be supported only where the employee is fired for refusing to carry out a racially discriminatory directive. Shearing argued that objecting to company actions which violate public policy should be protected and that requiring an employee to disobey an order is unduly restrictive.(13)

    c. from Steffen

    Shearing dissented alone from Steffen's decision to reverse a DUI conviction for failing to instruct the jury on reckless driving as a lesser included offense. Shearing argues that driving under the influence and reckless driving are not closely related, since one focuses on impaired condition, while the other on improper operation, and a person can be guilty of both.(14)

    d. from Young

    In another prior bad acts decision, Shearing dissented from Justice Young's reversal of a lewdness conviction. The majority held that testimony that the defendant once attempted to kiss and fondle his daughter-in-law and made vulgar remarks was not similar, but prejudicial, to the charge of putting his hands down another's pants and fondling the breasts and vaginal area. Shearing thought the acts similar enough.(15)

    e. from per curiam

    Dissenting from a "per curiam" decision reversing a robbery conviction for failure to excuse a juror for cause, Shearing argued that the juror was only perhaps being frank when he stated during voir dire that the defendants looked guilty and would start off with a strike against them, and that he frequently judges people by how they look until he learns more about them. Shearing would have had the court defer to the trial judge's better vantage point of being able to observe the juror's demeanor.(16)

    f. Separately dissenting with Springer

    Rarely does a decision earn separate dissents, a natural consequence of a five-member court. Shearing and Springer dissented separately from a decision authored by Justice Rose that denied a retaliatory discharge claim. An airport authority employee claimed that a reorganization plan that eliminated his position was a subterfuge aimed at retaliating for his reporting of improper activity by the airport authority. The majority found that the employee was a department head who could be eliminated for no reason. It also held that it could not review the matter since the agency grievance panel had not reviewed it. Springer noted that the employee was not fired, but "laid off," and the at-will theory wouldn't apply. He also noted that the authority director had taken it upon himself to reverse the decision of the grievance panel reviewing the director's own actions and that the agency should not be allowed to preclude appellate review by refusing itself to review the charges. Springer: "Where else can Douglas turn to redress his right not to lose his job simply because he tried to do the right thing?" Shearing also alluded to the conflict of interest and an inappropriate deference to the agency's decision: "The deferential standard of review is inappropriate to a finding by an alleged wrongdoer that he did not wrong."(17)

    Shearing and Springer also separately dissented from a decision by Young reversing a sexual assault conviction. The majority found ineffective assistance of counsel who failed to cross-examine witnesses until surrebuttal, misapprehending the procedures, and failed to present witnesses or mitigating evidence at sentencing. Springer found there was ample reason not to cross-examine, which would have only strengthened the case against the defendant, but agreed that counsel was ineffective at sentencing and would remand for sentencing only. Shearing argued that the trial judge's conclusions that failure to cross-examine was tactical and that the sentencing would not have been any different was supported by substantial evidence.(18)

    Shearing's dissents mostly involve cases where the majority has found reason to reverse a criminal conviction. Whether civil or criminal, Springer is usually the author. She even dissented on the rare occasion when Springer held against an employee's wrongful discharge claim.

3. Springer dissents

    a. from Rose

    Springer authored at least three dissents from each of the other Justices. Steffen earned the most Springer dissents at 5, as many dissents as Rose authored altogether. More often than not a lone dissenter, he was joined once each by Shearing, Steffen, and Young, and twice by Rose. Springer dissented alone when Rose authored the majority opinion "reinstating" an opinion by the Nevada Commission on Ethics that a contract between an architectural firm and the university to design an architectural school building was unenforceable because a member of the firm, who was on the faculty, was on the university committee that framed the proposal. Springer argued that there was nothing to reinstate, since the Ethics Commission cannot invalidate a contract and can only formulate advisory opinions. He also noted that the ethics statute literally says only what is not precluded, that the architect had asked for an advisory opinion and had been cleared before his firm submitted its proposals, that the architect had nothing to do with the forbidden preparation of "contract plans and specifications." Finally, Springer tells us: "Because of the political overtones that surround this case, I find myself having some real qualms about this court's rejecting the judgment of the trial court...."(19)

    Springer dissented alone when the majority, per Rose, affirmed a summary judgment dismissal of a wrongful termination complaint. The majority held that uncorroborated assertions of oral promises are insufficient to overcome the presumption of employment at will. Springer argued that corroboration was an unprecedented and brand new requirement and that it was harsh and discriminatory, especially when applied to affirm a summary judgment dismissal. At the very least, he said, the case should be remanded to allow the employee an opportunity to present corroboration. The employee could not have known that he needed corroboration at the level of summary judgment since this has never been required before in any state in the nation in a contract action. "Workers have a new burden that other litigants do not have to carry," and the decision "gives undue advantage to employers and treats employees in an unfair and discriminatory way." The majority conceded that it was a case of first impression.(21)

    b. from Shearing

    Springer dissented alone when Shearing authored the majority opinion rejecting statistical proof that Washoe County has sought the death penalty 80% of the time against black defendants with no prior felonies and 20% of the time against white defendants with no prior felonies. The majority followed the lead of the U.S. Supreme Court in requiring a showing of discriminatory purpose in the case at hand. Springer saw a colorable claim of a racially-based discriminatory policy by the Washoe County District Attorney.(22)

    Springer dissented alone when Shearing held that a settlement of an SIIS claim could not be set aside for lack of capacity by the injured worker, where it is shown only that the worker actually failed to understand the consequences of the settlement and not that she did not have the capacity to understand them. Springer argued that when a proposed agreement is explained in legalese which is not understood, there is no agreement, and that the dispute never had anything to do with the concept of "legal capacity."(23)

    Springer dissented alone when Shearing found substantial evidence to support termination of a father's parental rights on grounds of abandonment. Shearing deferred to the decision of the trial court which "had the opportunity to observe the witnesses and judge their credibility." Springer found only the typical conflicts where the father refuses to pay support because the mother refused visitation. He referred to the high standard required for this "capital punishment of welfare" that should not be used as punishment for failure to pay support, but as a last resort for the best interests of the child.(24)

    c. from Steffen

    Joined by Rose, Springer dissented when Steffen wrote the majority decision refusing to allow mistake of age as a defense to statutory sexual seduction. Springer pointed out that the only proof of age was an estimate on adoption records, that the "victim" herself did not know her own age and lied, if she did. Springer pleaded for adoption of the model penal code that allows reasonable mistake of fact, that there can be no criminal intent under these circumstances, and that the "result is counter-intuitive and contrary to moral common sense."(25)

    Springer disagreed with Steffen's decision that the criminalization of a parent's "persistent" failure to provide support and maintenance is not unconstitutionally vague. Springer found the term "persistent" unconstitutionally vague. Young agreed with Springer, but separately dissented to state that the court cannot define the term without legislating. Young also pointed to Nevada's high incarceration rate and that the taxpayers are the ones ultimately punished for the benefit of the legal profession.(26)

    Springer dissented alone when Steffen upheld the revocation of a driver's license after the driver refused to have a physician fill out a health questionnaire. Springer argued that it's not relevant that this might be less burdensome than submitting to an examination, which the DMV can lawfully require, since the DMV cannot "be permitted to make up its own rules as it goes along."(27)

    When Steffen affirmed a denial of a wrongful termination claim, Springer once again argued for the employee. The majority held that an at-will employment contract cannot ripen over time into a contract for continued employment by conduct inconsistent with at-will status. Springer decried what he saw as the majority's "abrupt change of position in employment law" and wrote that "no one knows what our employment law stands for or what it means." He also decried what he saw as Rose's change of position and the majority's failure to expressly overrule its prior decisions on the subject.(28)

    When the majority, per Steffen, reversed the lower court's finding that termination of employment was excessive punishment, Springer agreed with the lower court. A Metro Police Department officer had been found naked in the hotel room closet of a prostitute after having advised the prostitute on methods of avoiding detection. The lower court found the situation "unbecoming," but held that there had been no neglect of duty.(29)

    d. from Young

    Springer was never alone when dissenting from Young; each of his three Young dissents found Shearing, Steffen, or Rose on his side. Shearing separately dissented as noted above. Steffen joined Springer's objection to the majority's reversal of a murder conviction for failure to instruct the jury that the defendant wife had "no duty to retreat" from her husband. Springer thought the instruction inconsistent with the wife's testimony that it was an accident.. He noted that the wife pursued neither a self defense nor a battered wife syndrome defense.(30)

    Springer was joined by Rose when he objected to the Young majority's refusal to allow a change of plea, upholding sentence of death. Springer argued that the original plea amounted to state-assisted suicide and that the defendant may have been mentally incapable of rationally entering a plea.(31)

    That Springer would be joined by Shearing in arguing to uphold a sexual assault conviction, joined by Steffen in arguing to uphold a murder conviction, and joined by Rose in arguing to reverse a death sentence, is not unexpected.

    e. from per curiam

    Three times in 1994 Springer published dissents to "per curiam" decisions. He dissented when the majority held that federal park rangers are "police officers" within the meaning of Nevada's implied consent laws,(32) when the majority affirmed a murder conviction, although the jury was not instructed that it must acquit if it finds "justifiable homicide,"(33) and when it allowed full faith and credit to be granted to a California order for attorney's fees, although not a final order.(34)

    Springer's dissents clearly place him on the "liberal" end of the court's spectrum, arguing for
fairness whenever the state seeks to deprive a person of a right to life, liberty, or property.

4. Steffen dissents

    Justice Steffen dissents from the other four about equally, although Springer earned the most Steffen dissents at 5.

    a. from Rose

    Steffen was joined by Springer in objecting to a decision, per Rose, to reverse a murder conviction for failure to instruct the jury that assault with a deadly weapon is a lesser included offense of attempted murder with a deadly weapon. Steffen argued that a person can intend to assault and injure without intending to assault and kill. [The question, though, appears to be whether a person can intend to assault and kill without intending to assault and injure.](35) Steffen "dissented" alone when the Rose majority affirmed a robbery conviction, but only to say that the prosecutor did not impermissibly comment on post-arrest, pre-Miranda-warning silence, while the majority held that the error was harmless.(36) A dissent in name only, this was more in the way of a concurrence.

    b. from Shearing

    Steffen was joined by Young when he objected to a Shearing authored majority decision to allow an injured employee to continue the SIIS benefits of a rehabilitation program that was authorized, though not begun, before a second physician found the employee eligible to return to work.(37) He was joined by Rose in dissent when the majority, per Shearing, reversed a judgment upon a jury verdict finding an attorney liable for malicious prosecution. The majority held the issue of probable cause to sue is a question of law for the court, that the standard is the objective standard of the "reasonable attorney," and that an attorney may reasonably rely on the client's representations without getting an expert opinion before filing suit. Steffen argued that this sets a far more lenient standard for attorneys than for medical professionals and for "an accountability for derelict lawyers that is equal to the level of accountability we impose on derelict physicians and other professionals."(38)

    Steffen alone dissented when the Shearing majority reversed a sentence requiring restitution of drug "buy money" since the police are not the "victim of the offense" when they spend money actively and voluntarily to procure evidence. Steffen argued that the state should not be providing a source of profits for drug dealers and urged the legislature to fill this void in sentencing law. All agreed that restitution of buy money may be placed as a condition on probation.(39) Steffen was alone again when he objected to the Shearing majority's decision that a plaintiff who has incorrectly named a defendant may add the correct defendant to the complaint, even though no "doe" defendants are named, so long as the defendant is served within the time provided by NRCP 4(I). Steffen objected to this new rule that, as he put it, a plaintiff who comes somewhat close gets an automatic extension of 120 days. The plaintiff, he said, "has suffered from the derelictions of an insolvent attorney that supply a genuine basis for both sympathy and the making of bad law."(40)

    c. from Springer

    Steffen objected alone when the Springer majority reversed a Board of Bar Examiners decision and allowed a former marijuana smuggler to practice law. Although he conceded that the applicant may not be a threat to the public, he dissented "solely upon the ground that [the applicant's] admission will discretely add to a significant and enduring increase in public distrust of the legal profession."(41) Steffen again dissented alone when Springer held that an insurance company can be said to waive the terms of a contract by unilaterally accepting lower commissions.(42) He was joined by Shearing when he objected to the reversal of sexual assault convictions because the prosecutor shielded the child-victim from the defendant with his body during direct examination. The majority held that the confrontation clause requires a face-to-face encounter. In a long dissent, Steffen spoke of the "extremely challenging and tragic child sexual abuse cases" and the "multiple traumas and ordeals inflicted on the children by the criminal justice system over the course of trying to bring the tormentors to justice."(43)

    Steffen was joined by Young in dissenting from Springer's decision holding that unemployment benefits could not be denied when an employee misses work because she couldn't make bail after an arrest for cruelty to animals. Steffen would hold that willful criminal behavior equals willful disregard of one's duty and obligation to be on the job, although this would mean that all criminal acts are done "in connection with employment."(44) He was joined by Shearing in wanting to uphold convictions of battery, mayhem, and sexual assault, when the Springer majority found that defense counsel totally failed to prepare the case. Steffen's 16 page dissent spoke of the majority's "delirium."(45)

    These five dissents demonstrate possibly the widest gulf between the five Justices. Springer is the most likely to require criminal defendants to get their full day in court and to side with the little guy, especially in employment matters, while Steffen is the most likely to uphold criminal convictions and protect the public treasury against wayward employees. That Steffen was alone in wanting to deny a license to practice law, joined by Shearing in wanting to protect child victims and keep a sexual miscreant in prison, and joined by Young in voting to deny unemployment benefits, is fairly reflective of the other Justices.

    d. from Young

    While Rose and Shearing separately concurred, Steffen was joined by Springer in objecting to Young's decision that a tavern owner is not liable for serving alcohol to an underage driver who then drives drunk and causes an injury. Steffen spoke of the growing menace of drunk drivers and the "fantasy" that the Nevada legislature would adopt a dramshop law. "Once again," he wrote, "the majority places greater emphasis on economic concerns than on human life."(46) Steffen was alone in dissenting from Young's reversal of sexual assault and lewdness with a minor convictions for failing to allow the child victim to be examined by the defendant's mental health expert and failing to put compelling reasons on the record. Steffen would place the burden on the defendant to show the necessity for the examination.(47) He was alone in dissenting when the Young majority reversed a drug conviction, since the imposition of a tax and penalty implicated double jeopardy. Steffen argued that, since the tax was void ab initio, the defendant was entitled to a refund along with his bed in prison.(48) He was also alone when he dissented from Young's reversal of a murder conviction for insufficient evidence. Steffen found the circumstantial evidence, especially the evidence that the defendant kept the rotting corpse in his closet, "extremely compelling." Young begins the decision with a quote from Dickens ("take nothing on looks; take everything on evidence."); Steffen counters with a passage from Shakespeare ("Something is rotten in the state of Denmark.")(49)

    Finally, Steffen was joined by Springer in objecting when the Young majority upheld the lower court's dismissal of a legal malpractice action over a negligently drafted instrument, for failing to file within the 4-year statute of limitations, even though the suit over the validity of the instrument was not concluded within that time.(50)

    This series of dissents clearly places Steffen on the far conservative end of the court's spectrum. Springer joined him in two of these four dissents where they coincidentally favored the little guy. Steffen can certainly not be accused of favoritism toward attorneys.

5. Young dissents

    a. from Rose

    With Springer separately dissenting, Young disagreed when Rose allowed the admission of evidence in a drug case. Young argued that the State waived its right to appeal the lower court's dismissal when it failed to oppose the defendant's motion to dismiss and refused to proceed with other evidence. Springer agreed that the State threw in the towel and should not be allowed to retry the case under these circumstances.(51)

    b. from Shearing

    Young was joined by Rose in dissenting from Shearing's decision allowing a landlord to collect the cost of replacing the entire floor when the tenant damaged only 20 out of 1,250 tiles. Shearing said that the trial court's decision was not clearly erroneous. [Zenoff replaced Springer, who might have otherwise balanced the court in the other direction.](52)

    c. from Springer

    Young was joined by Steffen in his dissent from Springer's reversal of summary judgment for a drug company against the family of a child allegedly made blind, deaf, and retarded by a vaccine made mandatory of public school children by the health department. The Springer majority held that the very purpose of strict products liability is to spread the risk where a product cannot be made perfectly safe, even though the risk of an ill effect is extremely slight. Rose concurred on the ground that the drug company failed to warn of the slight danger. Young argued that the majority decided the case on emotion, not the law, since the mother had signed a detailed fact sheet. He also found that it would be better not to inhibit rational vaccination programs and to allow the drug company to rely on the governmental approval.(53)

    Young was joined by Shearing in objecting to the Springer majority decision to reverse a felony conviction of sexual assault because the 16-year-old male defendant, who had been certified to be tried as an adult, was denied the lesser-included statutory sexual seduction, a gross misdemeanor, on the ground that the latter applied only to defendants 18 years or older. Springer thought it unfair to charge the teenager as an adult, but not give him the benefit of the lesser included because he was not literally 18 or older. Otherwise, the certified teenager would be treated more harshly than a true adult. Young argued that it is "not the business of courts to look beyond the plain and unwavering meaning of statutory language," logically inconsistent to convict a 16-year-old of sexually seducing one of his peers, and that the argument is with the legislature, not the courts. "Perhaps he should now be eligible to vote," Young mocked. Steffen, usually the first to vote to uphold a criminal conviction, sided this time with the liberal wing of Springer and Rose.(54)

    Young was again joined by Shearing in dissenting from the majority decision, per Springer, to reverse a conviction of forgery, for the trial court's failure to compel the production of an out-of-state incarcerated witness. Young argued only that the trial court did not abuse its discretion.(55) Joined by Rose, Young argued against the reversal of the dismissal of a claim for breach of the implied covenant of good faith and fair dealing by an individual against a bank. The Springer majority found that the claim was sufficiently plead since it identified the contract and the conduct claimed to be the breach. The Springer majority found the pleading to be less than ideal, but construed it liberally. It also noted that the attorney's advocacy on appeal was "mostly meaningless, conclusory drivel" and "close to useless." Young argued that it is not the court's job to save a case because of counsel's derelictions and that the remedy was an action against the attorney.(56)

    d. from Steffen

    Young dissented from nine Steffen majorities, joined twice by Shearing, twice by Springer, twice by Rose, once by Steffen, twice by no one, and once separately with Springer. He was joined by Shearing to oppose allowing an attorney to renew a default judgment more than six years later,(57) and to oppose the reversal of an order suppressing drug evidence. In the latter instance the question was whether a l2-year-old babysitter could consent to a search of the homeowners' bedroom. Young: "Surely, any time a private citizen fortuitously discovers evidence of contraband at another's home, they are not free to invite police in for a romp around the connubial bed."(58)

    Young was joined by Springer in his dissent to Steffen's decision to reverse a grant of a writ of habeas corpus, where the police witness had failed to show up at the evidentiary hearing to determine why he didn't show up at the preliminary hearing,(59) and in his dissent to Steffen's affirmance of robbery and murder convictions. In the latter case, Young found insufficient corroborating evidence of accomplice testimony. "Lengthy association," he said, is still "mere association."(60)

    Young was joined by Rose in arguing against the creation of joint tenancy by adding a roommate's name to a bank signature card,(61) and in dissenting from a decision to vacate the decree dividing marital property when the default decree of divorce is set aside. The latter dissent is notable for three anti-lawyer sentiments. First, it is "easier to open an oyster without a knife than a lawyer's moth without a fee." Then we hear that "Lord Brougham, who once defined lawyers as those who rescue your estate from your enemies and then keep it for themselves." Finally, we are treated to Ben Franklin's limerick:

Blind Plaintiff, lame Defendant, share
The Friendly Laws impartial care,
A shell for him, a shell for thee,
The Middle is the Lawyer's Fee.(62)

    Young dissented alone when Steffen wrote a majority decision which Young described as "an additur of $350,000" to a real estate commission,(63) and when a Steffen majority held that the trial court abused its discretion in a spousal support case and modified the award by adding an additional ten years to the court's $1,000 per year award, which Young described as a "perilous precedent," since the appellate court is "not a secondary trial court formed to retry the facts of a case and supersede the decision of the district court."(64)

III. The Alliances

    Most likely dissenting was Springer (26), followed by Shearing (23), Steffen and Young (18 each), and finally Rose (16). Most likely combination of dissenters was Rose/Shearing (7), mostly from Springer decisions (5), followed by Young/Springer, Rose/Young, Rose/Springer, Steffen/Springer, and Shearing/Young (4 each), then Young/Steffen, Steffen/Shearing and Shearing/Springer (3 each). Least likely combination was Steffen/Rose (2).

    Most likely dissenting from decisions authored by Young were Springer (6), followed by Steffen (5), Shearing (2) and Rose (2). Most likely combination was Steffen/Springer (3).

    Most likely dissenting from Springer was Shearing (11) (50% of Springer's decisions), followed by Rose (7), Young (6) and Steffen (6). Most likely combination disagreeing with Springer: Rose/Shearing (5), followed by Shearing/Young (3), Steffen/Young (2), Steffen/Shearing (2), and Steffen/Rose (1).

    Most likely dissenting from Steffen was Young (9) (53%), followed by Springer (7), Rose (4) and Shearing (3). Most likely combination was Young with just about anybody. Least likely combination was Rose/Shearing, which didn't occur.

    Most likely dissenting from Rose was Springer (6), followed by Steffen (3). Least likely were Young (1) and Shearing (2). No combination was any more likely than another.

    Dissenting from Shearing were Rose, Springer, and Steffen equally (4), although Springer was usually alone, while Rose teamed up with all three of the other Justices. Least likely to dissent from Shearing was Young (2).

    Least likely to find themselves on opposite sides were Rose/Young (3) and Young/Shearing (4). Most likely to find themselves on opposite sides were Shearing/Springer (15), Young/Steffen (14) and Rose/Springer (13).

    Most likely to stand alone from the pack was Springer (12), followed by Steffen (6) and Shearing (5). Least likely were Rose (1) and Young (2). Young's two lone dissents were both from majority opinions authored by Steffen.

    Being most likely on opposite sides and least likely as a dissenting duo, Shearing and Springer win the most likely to disagree prize, although the dissents came mostly from Shearing, by almost 3-1.


1. Because of my involvement with the Whitehead case and because most of the various Whitehead decisions were decided by substitute Justices Zenoff and Guy, I have left these decisions out of this analysis.

2. Willerton v. Bassham, 111 Nev.Adv.Op. 2 (1995).

3. Wicker v. State, 111 Nev.Adv.Op. 6, (1995).

4. United Services Auto Ass'n v. Schlang, 111 Nev.Adv.Op. 44 (1995).

5. Maturi v. Las Vegas Metro. Police Dep't., 110 Nev. 307, 871 P.2d 932 (1994).

6. Garrett v. Garrett, 111 Nev.Adv.Op. 102 (1995).

7. Harvey L. Lerer, Inc. v. District Court, 111 Nev.Adv.Op. 128 (1995).

8. In re Drakulich, 111 Nev.Adv.Op. 184 (1995).

9. Benson v. State, 111 Nev.Adv.Op. 68 (1995).

10. Armstrong v. State, 110 Nev. 1322, 885 P.2d 600 (1994).

11. Dumas v. State, 111 Nev.Adv.Op. 139 (1995).

12. Greco v. United States, 111 Nev.Adv.Op. 32 (1995).

13. Bigelow v. Bullard, 111 Nev.Adv.Op. 130 (1995).

14. Johnson v. State, 111 Nev.Adv.Op. 133 (1995).

15. Cipriano v. State, 111 Nev.Adv.Op. 50 (1995).

16. Thompson v. State, 111 Nev.Adv.Op. 37 (1995).

17. Clements v. Airport Authority, 111 Nev.Adv.Op. 70 (1995).

18. Brown v. State, 110 Nev. 846, 877 P.2d 1071 (1994).

19. State, Comm'n on Ethics v. JMA/Lucchesi, 110 Nev. 1, 866 P.2d 297 (1994).

20. SNEA v. Lau, 110 Nev. 715, 877 P.2d 531 (1994).

21. Yeager v. Harrah's Club, Inc., 111 Nev.Adv.Op. 86 (1995).

22. Lane v. State, 110 Nev. 1156, 881 P.2d 1358 (1994).

23. General Motors v. Jackson, 111 Nev.Adv.Op. 111 (1995).

24. Greeson v. Barnes, 111 Nev.Adv.Op. 132 (1995).

25. Jenkins v. State, 110 Nev. 865, 877 P.2d 1063 (1994).

26. Sheriff v. Vlasik, 111 Nev.Adv.Op. 9 (1995).

27. State, Dep't of Mtr. Vehicles v. Miles, 111 Nev.Adv.Op. 66 (1995).

28. Martin v. Sears, Roebuck and Co., 111 Nev.Adv.Op. 97 (1995).

29. Las Vegas Metro. Police Dep't v. Berni, 111 Nev.Adv.Op. 100 (1995).

30. Earl v. State, 111 Nev.Adv.Op. 148 (1995).

31. Riker v. State, 111 Nev.Adv.Op. 149 (1995).

32. State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 874 P.2d 1247 (1994).

33. Stroup v. State, 110 Nev. 525, 874 P.2d 769 (1994).

34. Karow v. Mitchell, 110 Nev. 958, 878 P.2d 978 (1994).

35. Walker v. State, 110 Nev. 571, 876 P.2d 646 (1994).

36. Coleman v. State, 111 Nev.Adv.Op. 64 (1995).

37. SIIS v. Romero, 110 Nev. 739, 877 P.2d 541 (1994).

38. Dutt v. Kremp, 111 Nev.Adv.Op. 56 (1995).

39. Igbinovia v. State, 111 Nev.Adv.Op. 69 (1995).

40. Bender v. State, 111 Nev.Adv.Op. 69 (1995).

41. In re Birmingham, 110 Nev. 70, 866 P.2d 1150 (1994).

42. MacKenzie Insurance v. National Insurance, 110 Nev. 503, 874 P.2d 758 (1994).

43. Smith v. State, 111 Nev.Adv.Op. 46 (1995).

44. State, Emp. Sec. Dep't v. Evans, 111 Nev.Adv.Op. 123 (1995).

45. Buffalo v. State, 111 Nev.Adv.Op. 127 (1995).

46. Snyder v. Viani, 110 Nev. 1339, 885 P.2d 610 (1994).

47. Griego v. State, 111 Nev.Adv.Op. 38 (1995).

48. Desimone v. State, 111 Nev.Adv.Op. 135 (1995).

49. Frutiger v. State, 111 Nev.Adv.Op. 159 (1995).

50. Gonzales v. Stewart Title, 111 Nev.Adv.Op. 153 (1995).

51. State v. Shade, 111 Nev.Adv.Op. 94 (1995).

52. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 866 P.2d 1138 (1994).

53. Allison v. Merck and Company, 110 Nev. 762, 878 P.2d 948 (1994).

54. Robinson v. State, 110 Nev. 1137, 881 P.2d 667 (1994).

55. Bell v. State, 110 Nev. 1210, 885 P.2d 1311 (1994).

56. Morris v. Bank of America Nevada, 110 Nev. 1274, 886 P.2d 454 (1994).

57. O'Lane v. Spinney, 110 Nev. 496, 874 P.2d 754 (1994).

58. State v. Miller, 110 Nev. 690, 877 P.2d 1044 (1994).

59. Sheriff v. Roylance, 110 Nev. 334, 871 P.2d 359 (1994).

60. Hegelmeier v. State, 110 Nev. 806, 878 P.2d 294 (1994).

61. Starr v. Rousselet, 110 Nev. 706, 877 P.2d 525 (1994).

62. Millender v. Marcum, 110 Nev. 972, 879 P.2d 748 (1994).

63. Flamingo Realty v. Midwest Development, 110 Nev. 984, 879 P.2d 69 (1994).

64. Gardner v. Gardner, 110 Nev. 1053, 881 P.2d 645 (1994).