# Dinitz v. Christensen > Nevada Supreme Court · April 25, 1978 · 94 Nev. 230 URL: https://www.frixlaw.com/law-library/cases/9572273 ## Case - **Full name:** LINDA DINITZ, Petitioner, v. THE HONORABLE CARL CHRISTENSEN, DISTRICT JUDGE, EIGHTH JUDICIAL DISTRICT COURT, Respondent - **Court:** Nevada Supreme Court - **Decided:** April 25, 1978 - **Citations:** 94 Nev. 230; 577 P.2d 873; 1978 Nev. LEXIS 527 - **Precedential status:** Published - **Opinion:** Dissent by Gunderson - **Judges:** Manoukian, Gunderson, Batjer, Mowbray, Thompson - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9572273 ## Opinion text Gunderson, J., dissenting: This case is one of several primarily assigned to our colleague Manoukian, for which he recently has circulated somewhat extended "authored" opixlions-after having the cases removed from our argument calendar, and submitted without a hearing. Heretofore, we have reserved such drastically attenuated procedures for matters which were rather clearly subject to summary disposition, and in which oral argument was unlikely to aid other Inembers of the court. In the past, we have not considered it appropriate to foreclose oral argument in cases worthy of "authored" opinions, ostensibly issued as precedent. Most respectfully, I submit we should adhere to our established practice. If a case indeed may be disposed of summarily, through a brief "memorandum" or a "per curiam" opinion, sound judicial administration dictates that we do so, thereby avoiding the confusion which unnecessary verbiage commonly causes-and thereby conserving judicial time, and space in our legal volumes, to consider issues of novelty and moment. As stated by three of America's most respected legal scholars, in discussing the appellate process: The Memorandum Decision. A short form of opinion can, in many cases, serve both of the interests involved [in a written opinion]: It can give reasons sufficient to explain the decision, while at the same time avoiding the expenditure of undue energy or time in trying to lay out a full exposition of the facts and the analysis in deathless legal *235 prose for posterity — and pride. Thus we recommend much more use of the short form. 1 On the other hand, if a matter indeed has value as precedent — which presumably it must, if it truly warrants a full “authored” opinion — then I believe that the Justice primarily responsible for the case should continue to see that a bench memorandum is prepared, and should permit the rest of the court to hear oral argument from counsel. In a court as pressed as ours, I deem this essential to preserve some semblance of collegiate review, so that our decisions will retain some value as precedent, rather than becoming totally “one-man opinions.” If I understand them correctly, my other colleagues, who have elected to sign the opinion submitted by our colleage Manou-kian, do not disagree with these views. However, they agreed to and did sign the above opinion, even though they acknowledged they had reviewed neither the briefs nor the record. Nor had they reviewed the memorandum which our colleague Manoukian acknowledged he had his law clerk prepare for his private use. 2 I do not wish to belabor what I hope the future will prove to be a passing aberration in the procedures of this court. However, I now feel constrained at least to note my opposition to such practices, which if need be I will hereafter document to be unacceptable appellate methodology, by reference to scholarly *236 authorities. For example, in a section of their joint work, Justice on Appeal, entitled “Curtailing Oral Argument: A MisStep,” Professors Carrington, Meador and Rosenberg have said: As we have noted, oral argument gives important service to the imperatives of appellate justice. Specifically, it heightens the judges’ sense of personal responsibility. It provides them with an opportunity to test their own thinking in a direct way with counsel available to correct error. Some judges assimilate ideas more readily by oral than by written transmission; and some ideas are more readily transmitted by oral means. Thus, the quality of decisions is likely to be enhanced. Ibid, at 17. The. need to cope with burgeoning caseload is forcing America’s courts not only to undertake many worthwhile innovations, but also to adopt a variety of expedients many lawyers and judges find regrettable. However, for a collegiate appellate court to reach the point where it is deciding cases for precedent on the authority of one judge — without its other members reading the briefs or record, and without oral argument — I consider close to the ultimate compromise. As burdened as we may think ourselves, we should not resort to this practice. Being conscientiously of the view that the procedures employed to reach an apparent consensus are inconsistent with sound judicial administration, I cannot endorse the above opinion. Moreover, having read the briefs and the record, it does not appear to me that the above opinion clearly meets petitioner’s principal issue. 3 P. Carrington, D. Meador and M. Rosenberg, Justice on Appeal, 33 (1976). Paul Carrington is Professor of Law at the University of Michigan; Daniel M. Meador is James Monroe Professor of Law at the University of Virginia; Maurice Rosenberg is Harold Medina Professor of Law at Colunbia University. All are highly respected authors and authorities on judicial administration, and their joint work, just cited, was accomplished with a grant from the National Institute of Law Enforcement and Criminal Justice. Professor Meador currently is on leave, serving as “Assistant United States Attorney General for Improvement of the Administration of Justice.” Among his other writings on the appellate process is the country’s leading work on use of staff in appellate courts, i.e., Appellate Courts: Staff and Process in the Crisis of Volume (1974), written as an appellate justice project for the National Center for State Courts. According to Meador and his colleagues: “The essential characteristics of the memorandum decision are that it is not signed by a single author; it is addressed to the parties, not to the public at large; and it is.as short as possible, consistent with the imperatives.” Justice on Appeal, 33. In Appendix B of their joint work, Professors Carrington, Meador and Rosenberg set forth a number of illustrations which establish that, for routine cases, “memorandum” or “per curiam” opinions are more efficient and informative, and much less costly for many reasons, than so-called “authored” opinions. According to our colleague Manoukian, in at least one of the cases to which he denied oral argument, the draft he ultimately prepared did not even reach the same result as his law clerk’s privately submitted memorandum. This surely indicates how dangerous it is to establish precedent in total reliance on any one Justice. Although the above opinion labors at some length to establish the point, petitioner has expressly conceded that acts such as lewdness and prostitution may be made the subject of punishment. The thrust of petitioner’s central argument is: “ Per se criminal acts have been lumped together with non-criminal acts.” In my view, if this case warrants an “authored” opinion, this is so only because of petitioner’s “overbreadth” argument, which proceeds in part: The statute before the Court criminalizes activities which by modern standards are innocent. Being idle without visible means of support is one. 405 U.S. 163 . Loitering or wandering upon public streets “without the permission of the owner is still another. The qualification in section (h) (“without visible or lawful business . . .”) is a trap for otherwise innocent acts. 405 U.S. 164 . “Nightwalkers” could be condemned under NRS 207.030 for no other reason that the walker refused to “identify himself and to account for his presence when requested by any peace officer so to do.” In Lazarus v. Faircloth, 301 F.Supp. 266 (1969), a three-judge federal court declared the Florida “vagrancy” statute to be void for overbreadth. Certain language of the Court is particularly apropos to the facts herein: *237 “In many respects, the statute reflects the historic verbiage of vagrancy laws which date back 620 years to the English Statutes of Laborers. More importantly, it mirrors the ancient philosophy of the ‘poor laws.’ And so, in a day when terms such as ‘serfdom’ and ‘feudalism’ are proper subjects for grade school ancient history classes, we face a penal statute which historically was designed as a substitute for serfdom.” The Lazarus court then declared: “An adjunct of the vagueness argument and an additional vice of this statute is its obvious overbroadness. Because of its vague language, it may be used to ‘criminalize’ conduct which is beyond the legitimate reach of the state’s police power. That is, it punishes conduct of an individual which in no way impinges on the rights or interests of others.” 301 F.Supp. at 272 . Because of its overbreadth, the entire statute was declared unconstitutional: “While there may be some valid segments to this statute, . . . they are so inextricably intertwined with the invalid that it is impossible to separate the wheat from the chaff and to sever that which could remain.” 301 F.Supp. at 273 . As in Lazarus , there can be no saving NRS 207.030 from the constitutional hatchet. The vice of overbreadth inherent in this statute demands that it be declared invalid. If this “overbreadth” argument can be considered addressed at all by the above opinion, I respectfully submit the treatment is so subtle that its significance may evade many, as it does the undersigned. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9572273. Public record. Not legal advice.