Harmful Error

This is the ninth in a series of posts looking at proposed changes to the Nevada Rules of Appellate Procedure. The Nevada Supreme Court will hear public comment on October 6. The Court welcomes written comments about the proposed amendments.

Previous posts on this topic:
Proposed changes to NRAP 1, 2 and 3
Proposed changes to NRAP 3A, 3B and 3C
Proposed changes to NRAP 3D, 3E and 4
Proposed changes to NRAP 5, 7 and 8
Proposed changes to NRAP 9
Proposed changes to NRAP 10, 11, 12 and 13
Proposed changes to NRAP 14, 21 and 22
Proposed changes to NRAP 23, 24, 25 and 25A

NRAP 26 Computing and Extending Time (page 62 of the pdf).
Subsection (a) Computing Time
Most changes are stylistic. Under the proposed rules, Saturdays, Sundays and non-judicial days would not be included in calculating time for periods less than 11 days. Under the existing rule this period is 7 days. The proposed rule would also add a provision that if weather or other conditions make the clerk's office inaccessible, the period will be extended until the end of the next day that is not a Saturday, Sunday or nonjudicial day.

Subsection (b) Extending Time
The new rule would add a requirement of good cause for requests for extension of time. It would also recognize proposed new rule 4(c), concerning Lozada appeals, by adding a caveat to the existing rule that the Court may not extend the time to file a notice of appeal.
A new subsection (b)(1)(B) would be added. It would provide that "except as otherwise provided in these rules, counsel may request by telephone a 5-day extension of time for performing any act except the filing of a notice of appeal. If good cause is shown, the clerk of the Supreme Court may grant such a request by telephone or by written order of the clerk. Subsequent extensions of time shall be granted only upon motion to the Supreme Court under Rule 27 and subsequent extensions of time for filing briefs will be subject to Rule 31.
A new subsection (b)(2) would be added. It would provide that "except as otherwise provided in these rules, or when not otherwise controlled by statute, the time prescribed by these rules to perform any act may be extended by stipulation of the parties. No stipulation extending time is effective unless approved by the court or a justice thereof; and such stipulations must be filed before expiration of the time period that is sought to be extended.

Subsection (c) Additional Time After Service.
Most changes are stylistic, but a new provision would be added which provides that "a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service." I interpret this to mean that you add 3 days for electronic delivery, just as you do for delivery by mail.

Subsection (d) Shortening Time
The changes appear to be stylistic.

Rule 27 Motions (page 64 of the pdf)
Subsection (a) In General
Most changes appear to be stylistic.
A new subsection (a)(3)(B) would allow for a request of affirmative relief in a response to a motion. The title of the response must alert the Court to the request for relief.
Under the existing rule, a party could not file a reply to a response to a motion unless leave to do so was granted by the Court. Under the new rule, a reply to response may be filed within 5 days after service of the response. The reply shall not present matters that do not relate to the response.

Subsection (b) Disposition of a Motion for a Procedural Order.
Most changes to the existing rule are stylistic. A new provision would be added: "Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed."

Subsection (c) Power of a Single Justice to Entertain Motions
Most changes appear to be stylistic.
A new rule (c)(2)(B) would provide: "The Supreme Court may delegate to the clerk authority to enter orders of dismissal in civil cases where the appellant has filed a motion or parties to an appeal or other proceeding have signed and filed a stipulation that the proceeding be dismissed, specifying terms as to the payment of costs."

Subsection (d) Form of Papers; Number of Copies.
The existing rule provides that all papers relating to motions may be typewritten and that one copy shall be filed with the original, unless otherwise ordered. The proposed rule would provide that "all papers relating to motions may be reproduced by any process that yields a clear black image of letter quality. The paper must be opaque and unglazed. Only one side of the paper may be used." Additional rules concerning formatting are also proposed:
-- A cover is not required, but there must be a caption, including a brief descriptive title indicating the purpose of the motion and identifying the party for whom it is filed. If a cover is used, it shall be white.
-- The document must be bound in a manner that is secure, does not obscure the test, and permits the document to lie reasonably flat when open.
-- The document must be on 8.5 by 11 inch paper, text must be double-spaced (except for quotations longer than two lines, headings and footnotes), margins must be at least one inch on all four sides, and the pages shall be consecutively numbered at the bottom.
-- The typeface requirements of Rule 32(a)(5) and the typestule of Rule 32(a)(6) would apply.
-- Motions and responses would be limited to 10 pages, unless otherwise permitted by the Court. A reply would be limited to 5 pages.
-- The rule would remain the same as to number of copies: original +1 unless otherwise ordered.

Subsection (e) Emergency Motions
This new provision would provide that ifa movant certifies that to avoid irreparable harm relief is needed in less than 14 days, the motion shall be governed by certain requirements --
-- Before filing the motion, the movant shall make every practicable effort to notify the clerk of the Supreme Court and opposing counsel and to serve the motion at the earliest possible time. If not, the Court may summarily deny the motion.
-- The title shall state "Emergency Motion Under NRAP 27(e)" immediately below the caption. It shall also include a statement immediately below the title of the motion that states the date or event by which action is necessary.
-- A motion filed under this rule would require a certificate of counsel entitled "NRAP 27(e) Certificate" which contains information specified in the rule.