Opposition Brief — Campbell v. Dondero
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No. 91-1145 Bupreme Court, U.S.
— a ee
In The ! KAR 19 1992
Supreme Court of the United 5 ke ROR we cone
October Term, 1991
4
RON CAMPBELL,
Petitioner,
vs.
THALIA DONDERO; MANNY CORTEZ; R. J.
RONZONE; and W. WILSON, individually and as
CLARK COUNTY COMMISSIONERS; CLARK
COUNTY LIQUOR CONTROL BOARD; M.
FITZPATRICK, individually and as Director of
CLARK COUNTY LICENSE DEPARTMENT; Officer
WELLINGTON, individually and as a member of the
LAS VEGAS METROPOLITAN POLICE DEPARTMENT;
MAHLON EDWARDS, individually and as a Deputy
District Attorney of the CLARK COUNTY DISTRICT
ATTORNEY’S OFFICE; the CLARK COUNTY LIQUOR
CONTROL BOARD; the CLARK COUNTY LICENSE
DEPARTMENT; the LAS VEGAS METROPOLITAN
POLICE DEPARTMENT, and the CLARK COUNTY
DISTRICT ATTORNEY’S OFFICE, political subdivisions
of the County of Clark, State of Nevada; and
JOHN DOES I through XX, inclusive,
Respondents.
+
Petition For Writ Of Certiorari
To The Nevada Supreme Court
.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
*
RAWLINGS, OLSON & CANNON
Dana JONATHON Nitz, Esq.
301 East Clark Avenue, #1000
Las Vegas, Nevada 89101
(702) 384-4012
Attorney for Respondents
COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964
OR CALL COLLECT (4(2) 342-2831
QUESTIONS PRESENTED
1. Did the Supreme Court of Nevada properly
dismiss Appellant’s Appeal for lack of jurisdic-
tion?
2. Did the Supreme Court of Nevada properly
dismiss the Petitioner’s appeal with prejudice,
when the lower state court order was final as to
all parties?
3. Do the rules of the Supreme Court of Nev-
ada, restricting a pro se litigant’s right to argue
his appeal comport with Constitutional require-
ments?
il
LIST OF ALL PARTIES TO THE PROCEEDING
PLAINTIFF:
RON CAMPBELL
FOR THE ANSWERING DEFENDANTS:
DANA JONATHON NITZ, ESQ.
RAWLINGS, OLSON & CANNON
301 East Clark Avenue
Suite 1000
Las Vegas, Nevada 89101
Telephone: (702) 384-4012
Attorney for all Defendants as Listed on Cover
cere er =
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..............0..00000005 i
LIST OF ALL PARTIES TO THE PROCEEDING...._ ii
Soo 8s eee eee eee ee 1
GROUNDS FOR JURISDICTION ................... 1
STATUTES AND RULES APPLICABLE TO THE
rE 2
Ce) ere ee Gums RULES... cc ccc cen eecce 2
Rule 13, Review on Certiorari; Time for Peti-
ROGGE ree ee ae 2
CE inc cee ct dss eee sctsweyeees 2
EE, SEE erred eee ee ee 2
cc. Se ae ee a ae ee 3
28 U.S.C. §2101 Supreme Court; time for
appeal or certiorari; docketing; stay ............ 3
i es he eines hase ewan One hee enns 3
(1) Nevada Rule of Appellate Procedure Rule
© Appeal — WHEN tAKeN ... 2.0 cee ceases 3
(a) Appeals in civil cases ............... 3
(2) Nevada Supreme Court Rule 44. Person may
appear in his own behalf................... 4
ee ae es gh a 4
ee yg 2 FS ee 6
eel oe hk naa skate baw n sedan se 8
EN oo ib aviwn cheese kv eeena seen tye 8
iV
TABLE OF CONTENTS -— Continued
Page
Il. THE DISMISSAL WITH PREJUDICE OF PETI-
TIONER’S APPEAL TO THE NEVADA
SUPREME COURT WAS PROPER............. 9
I1l. THE QUESTIONS PRESENTED BY PETI-
TIONER ARE TIME-BARRED FROM CONSID-
ERATION BY UNITED STATES SUPREME
600) a 8 Seer rere eet 12
IV. THE NEVADA SUPREME COURT RULE
REQUIRING AN ATTORNEY LICENSED IN
THE STATE OF NEVADA TO ARGUE AN
APPEAL 1S CONSTITUTIONAL. .............. 14
EES CnC oR WARE ee ee een eS 17
APPENDICES
Per NI Os a a hh VS Ach oe Se ek tee App. 1
Po 4) I rr ne eer ers ey App. 4
a I kas on op RES Awe OH a eee 3 4544 Ones App. 7
EN OP os ih caren eek ea ced es quae enews App. 11
Pg gy 2° ee See ery Perera yyy ar rere App. 14
TABLE OF AUTHORITIES
Page
Cases
Cobbledick v. United States, 309 U.S. 323, 60 S.Ct.
S40, 64 L.Ed. 703 C194O) «csc cic cicns csc enesvens 12
Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)........... 11
Haines v. Kerner, former governor, State of Illinois, et
al., 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 652
Less EeePC Cer eee eer re 15
Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101
L26.20 245 CUOGE). «cin skccisvanee Aveeen eee 11
Mirin v. Justices of Supreme Court, 415 F.Supp. 1178
Up | Cee ee PPT Teper reverie rr lc res 15, 16
Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109
L.Ed:2d 31 CGR). . 2 nnn cccc win tad ges eeenee sr erses 13
Paradise Palms Community Association v. Paradise
Homes, 568 P.2d 577 at 578 (Nev. 1977), cert. den.
435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978) .... 11
Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92
Bk Bk Bi +) eee eee er 15, 16
Schacht v. United States, 398 U.S. 58, 65, 90 S.Ct.
1555,.26 L.Ed. 2d 446 (1970)... .0dccs dn eiewes cde 13
Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36
hc | ere rn rr per are rrr y 2 3 16
Torres v. Oakland Scavanger Co., 487 U.S. 312, 108
Sct. 2405, 101 L.2d.20 205 (1906) .........-.05555. 11
United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29
eS Ee, ag) Been reer ee er 12
|
vi
TABLE OF AUTHORITIES —- Continued
Page |
RULES AND STATUTES
BO UDA. BRE c00k.on reer RRR Kae es eee ae 1
Be UGA. GWG issicscsciviicvasen st eis 4,5
20 USA. BIGGPD os cccnccovdeingedeigesseescer esses 5
28 U.S.C. §2101 Supreme Court; time for appeal or
certiorari; GOCKOUIAE; GURY «isis cine iviieccewas ae 4
Federal Rule of Civil Procedure 12(b)(6)............. 15
Senelicies Ge GE TF ey sn n.c ib kskadsesens beisawes 8, 9, 15, 16
Nevada Rule of Appellate Procedure Rule 4.......3, 10
Nevada Rule of Civil Procedure 12(a)................ 5
Nevada Supreme Court Rules Rule 44............ 4, 14
United States Supreme Court Rule 13......... 2, 12, 13
United States Supreme Court Rule 10................ 8
United States Supreme Court Rule 10(c).............. 8
OPINIONS BELOW
The Order of the Nevada Supreme Court, issued and
filed on August 12, 1991, held that Petitioner’s appeal to
that court was premature because his Notice of Appeal
was filed on March 14, 1991, yet the district court’s Order
was not entered until March 22, 1991. Further, that Order
granted Petitioner 20 days from August 12, 1991, to show
cause why the appeal should not be dismissed with prej-
udice.
The succeeding Order, dated September 30, 1991, dis-
missed with prejudice the appeal of the Petitioner for
failure to show cause why the premature appeal should
not be dismissed. Also in that Order, the Nevada
Supreme Court, after examining the record on appeal,
held that they could find no parties as to whom the
March 22, 1991 was not final. Thus, the court dismissed
Petitioner’s appeal both for lack of jurisdiction as prema-
ture and for lack of good cause shown.
¢
GROUNDS FOR JURISDICTION
Petitioner attempts to invoke the jurisdiction of this
Court under the United States Supreme Court Rule 10(c)
and 28 U.S.C. §1257. Jurisdiction of this court over this
Petition is challenged for the reason that no treaty or
statute of the United States is drawn in question; no state
statute is challenged as being unconstitutional or repug-
nant to federal treaties or laws, and no title, right, privi-
lege, or immunity is specially set up or claimed under the
Constitution, federal treaties, or statutes. It is agreed the
Order of the Supreme Court of the State of Nevada,
issued on September 30, 1991, dismissing Petitioner’s
appeal with prejudice based on a lack of jurisdiction and
a lack of good cause shown, was final, and the issuing
court is the highest court in the State of Nevada. The final
Order of the Eighth Judicial District Court of the State of
Nevada, which Petitioner appealed to the Nevada
Supreme Court, became final and was entered on March
22, 1991.
¢
S:ATUTES AND RULES APPLICABLE TO THE CASE
(A) SUPREME COURT RULES:
Rule 13, Review on Certiorari; Time for Petitioning.
Subsection .1: A Petition for Writ of Certiorari to
review a judgment in any case, civil or criminal, entered
by a state court of last resort . . . shall be deemed in time
when it is filed with the Clerk of this Court within 90
days after the entry of the judgment. A petition for a writ
of certiorari seeking review of a judgment of a lower state
court which is subject to discretionary review by the state
court of last resort shall be deemed in time when it is
filed with the Clerk within 90 days after the entry of the
order denying discretionary review.
Subsection .4: The time for filing a petition for a writ
of certiorari runs from the date the judgment or decree
sought to be reviewed is rendered and not from the date
of the issuance of the mandate (or its equivalent under
local practice).
(B) STATUTES:
28 U.S.C. §2101 Supreme Court; time for appeal or
certiorari; docketing; stay:
Any other appeal or any writ of certiorari intended to
bring any judgment or decree in a civil action, suit, or
proceeding before the Supreme Court for review shall be
taken or applied for within 90 days after the entry of
judgment or decree. The justice of the Supreme Court, for
good cause shown, may extend the time for applying for
a Writ of Certiorari for a period not exceeding 60 days.
(C) OTHER RULES:
(1) Nevada Rule of Appellate Procedure Rule 4.
Appeal — When taken.
(a) Appeals in civil cases.
1. In a civil case in which an appeal is permit-
ted by law from a district court to the Supreme
Court, the notice of appeal required by Rule 3
shall be filed with the clerk of the district court.
The notice of appeal filed after the oral pro-
nouncement of decision or order, but before the
entry of a written judgment or order, shall have
no effect. A notice of appeal must be filed after
the entry of a written judgment or order, and no
later than thirty (30) days after the date of ser-
vice of written notice of the entry of the judg-
- ment or order appealed from... .
A notice of appeal filed before the formal dispo-
sition of any timely post-judgment motion enu-
merated in this subdivision shall have no effect.
A notice of appeal must be filed after the entry
of a written order of the district court resolving
any of the post-judgment motions enumerated
in this subdivision, and no later than thirty (30)
days from the date of service of written notice of
entry of that order.
3. A judgment or order is entered within the
meaning of this rule when it is signed by the
judge or by the clerk, as the case may be, and
filed with the clerk... .
(2) Nevada Supreme Court Rules Rule 44. Person
may appear in his own behalf.
Nothing in these rules shall be so construed as
to prevent any person from appearing in his
own behalf in any court in this state except the
supreme court.
STATEMENT OF THE CASE
This case stems from a civil claim for damages by the
Petitioner as a result of acts of the Defendants alleged to
have violated State and Federal Racketeer Influenced and
Corrupted Organizations acts (RICQ). Plaintiff’s course of
proceedings in this case is also fraught with procedural
mistakes and frivolous pleading.
Petitioner first initiated these RICO actions in the
Eighth Judicial District Court for the State of Nevada, and
subsequently attempted to remove that case to the juris-
diction of the United States District Court for the District
of Nevada. However, the federal court remanded the case
back to state court pursuant to 28 U.S.C. §1446, on the
basis that the case was improvidently and improperly
removed by a plaintiff because such remedy only exists
for defendants. Petitioner then appealed this remand
decision to the United States Court of Appeals for the
Ninth Circuit, which determined that the district court’s
remand was proper, as that court lacked jurisdiction
under 28 U.S.C. §1446, and that under 28 U.S.C. §1447(c),
removal is immune from appellate review. See, Ninth
Circuit Court Order, dated November 20, 1990, attached
hereto and incorporated herein as Appendix “A”.
During the period of removal, the state granted
Respondents’ Motion to Dismiss, and once the action was
remanded to state court, the state court allowed Peti-
tioner 20 days to respond to that Motion. That Order also
admonished the Petitioner that a frivolous opposition
would result in an award of attorneys’ fees and costs as a
sanction, and informed him he must comply with the
rules of the Court or proceed at his own peril. See, Eighth
Judicial Court Order, dated January 24, 1991, attached
hereto and incorporated herein as Appendix “B”.
That opposition was determined to be frivolous and
without merit, and the state court, once again, granted
Respondents’ Motion to Dismiss, and ordered Petitioner
to pay attorneys’ fees as a sanction. See, the Eighth Judi-
cial Court Order, dated March 22, 1991, attached hereto
and incorporated herein as Appendix “C”. Such sanction
was not for Petitioner’s failure to retain an attorney. In
that same Order, the state court found that the Answer
filed on November 14, 1988, on behalf of Defendants,
Commissioner Dondero, Las Vegas Metropolitan Police
Department, and Officer Wellington, and the joinder in
the Answer, filed September 20, 1989, on behalf of all
other named Defendants, was a responsive pleading as
pursuant to Nevada Rule of Civil Procedure 12(a).
Petitioner appealed that Order to the Nevada_
Supreme Court, filed on March 14, 1991. Because the state
court’s Order was not entered until March 22, 1991, the
Nevada Supreme Court deemed it did not have jurisdic-
tion over the appeal and granted Petitioner 20 days from
the date of that Order to show cause why the appeal
should not be dismissed with prejudice. See, the Nevada
Supreme Court Order, filed August 12, 1991, attached
hereto and incorporated herein as Appendix “D”. Upon
Petitioner’s failure to show cause and after the parties
had stipulated to dismiss the appeal, the Nevada
Supreme Court dismissed the appeal with prejudice. See,
the Nevada Supreme Court Order, filed September 30,
1991, attached hereto and incorporated herein as Appen-
dix “E”.
Petitioner now attempts to incorporate these lower
court actions and responses to Petitioner’s procedural
non-compliance, non-conformity and meritless documen-
tation into his appeal to this Court.
4
ARGUMENT SUMMARY
I.
The Nevada Supreme Court’s dismissal of Peti-
tioner’s appeal for lack of jurisdiction predicated upon
such appeal being premature was proper. Without the
proper showing of cause as to why this Court should
grant jurisdiction, the Court had no choice but to dismiss
the appeal.
II.
All but two of the questions presented by Petitioner
for consideration by this Court are time-barred as they
are presented and filed with the Clerk of this Court in
excess of 90 days after the Order deciding those issues
was entered by the state court on March 22, 1991. Due to
the dismissal of Petitioner’s with prejudice by the Nev-
ada Supreme Court, the two issues timely filed are
whether the Nevada Supreme Court acted properly in
dismissing Petitioner’s appeal for lack of jurisdiction, and
whether the Nevada Supreme Court’s Rule requiring a
licensed attorney to argue an appeal is Constitutional.
The other issues presented by Petitioner are time-barred
from consideration because of the dismissal of appeal by
the Nevada Supreme Court rendering such an appeal as a
nullity. The time used for computing the time period of
petitioning this Court for Writ of Certiorari began on
those issues when the decision by the Eighth Judicial
District Court was rendered. Because Petitioner did not
refile his issues for appeal with the Nevada Supreme
Court, those issues are now time-barred for presentation
to this Court for consideration for Writ of Certiorari.
IIT.
An individual has no absolute right to argue his own
appeal, a sharp contrast with his recognized privilege of
conducting his own defense at trial. The criminal defen-
dant has a right to handle his trial, but this right is
limited on appeal by the discretion of the court hearing
that appeal and allowing him to represent himself. The
right to argue, personally, an appeal does not rise to the
Constitutional dimensions as Petitioner would have this
Court believe, nor does it violate the Judicial Act of 1789.
Oral argument on appeal is not an essential ingredient of
due process, and it may be circumscribed where reason-
able necessities so dictate.
ARGUMENT
i
INTRODUCTION
The Rules of the Supreme Court, and specifically,
Rule 10, provide the guidelines under which this Court
will generally exercise its discretion and grant a peti-
tioner a Writ of Certiorari. “Only when there are special
and important reasons therefor,” will a petition be
granted. The issue of whether the Nevada Supreme Court
acted improperly when it dismissed Petitioner’s appeal
for lack of jurisdiction, based upon a premature filing, is
neither “special,” nor “important,” nor is the issue of
whether a pro se litigant may argue his own appeal. The
issues presented are well-settled and have been decided
previously by this Court.
The guidelines set forth in United States Supreme
Court Rule 10(c), under which Petitioner deems this
Court has jurisdiction, provides when a Writ of Certiorari
may be issued:
When a state court or United States Court of
Appeals has decided an important question of
federal law which has not been, but should be,
settled by this court, or has decided a federal
question in a way that conflicts with applicable
decisions of this court.
One question to be answered by this Court is
whether the Nevada Supreme Court, in rendering its
decision to dismiss Petitioner’s appeal with prejudice,
did so in a manner which conflicts with the applicable
decisions of this Court. Also, this Court must decide
whether the Nevada Supreme Court Rule requiring an in
propria persona litigant to obtain an attorney for an appel-
late argument is Constitutional or in violation of the
Judicial Act of 1789, not, as Petitioner would have this
Court believe, whether such an action by the Nevada
Supreme Court constitutes a federal question decided ina
manner which conflicts with previous decisions of this
Court, or has not yet been settled by this Court.
As demonstrated in the following argument, the
Nevada Supreme Court’s decisions on these issues have
been decided by the Supreme Court itself. Those deci-
sions hold that a prematurely filed appeal is interlocu-
tory, and the Supreme Court of the State of Nevada lacks
jurisdiction until the decision of the Eighth Judicial Dis-
trict Court becomes final as to all parties and is properly
rendered, recorded, and filed. Further, this Court has
held that an individual has no absolute right to argue his
own appeal.
Il.
THE DISMISSAL WITH PREJUDICE OF PETI-
TIONER’S APPEAL TO THE NEVADA SUPREME
COURT WAS PROPER
The Nevada Rules of Appellate Procedure clearly
dictate the necessary procedure for filing a timely appeal
10
to the Supreme Court of the State of Nevada. Rule 4 reads
in pertinent part:
Appeal — when taken.
(a) Appeals in civil cases.
1. Ina civil case in which an appeal is permit-
ted by law from a district court to the Supreme
Court, the notice of appeal required by Rule 3
shall be filed with the clerk of the district court.
The notice of appeal filed after the oral pro-
nouncement of decision or order, but before the
entry of a written judgment or order, shall have
no effect. A notice of appeal must be filed after
the entry of a written judgment or order, and no
later than thirty (30) days after the date of ser-
vice of written notice of the entry of the judg-
ment or order appealed from... .
A notice of appeal filed before the formal dispo-
sition of any timely post-judgment motion enu-
merated in this subdivision shall have no effect.
A notice of appeal must be filed after the entry
of a written order of the district court resolving
any of the post-judgment motions enumerated
in this subdivision, and no later than thirty (30)
days from the date of service of written notice of
entry of that order.
3. A judgment or order is entered within the
meaning of this rule when it is signed by the
judge or by the clerk, as the case may be, and
filed with the clerk... .
This Rule clearly points out, as the Petitioner should have
been aware, that a Notice of Appeal filed before the entry
11
of a written judgment or order, after the oral pronounce-
ment of a decision, shall have no effect. Thus, because
Petitioner’s appeal was premature, filed with the Nevada
Supreme Court on March 14, 1991, before the district
court’s written Order was entered on March 22, 1991, the
appeal has no effect and was properly dismissed. See,
Appendices “D” and “E”. Petitioner was notified that the
Court lacked jurisdiction because the appeal was prema-
ture. Moreover, that Order demonstrates the Court’s flex-
ibility in allowing this particular Petitioner 20 extra days
to show cause why the appeal should not be dismissed
for such a want of jurisdiction. Petitioner attempted to
Show cause by stating that the Order of the state court
was not final as to all parties. He failed. The Nevada
Supreme Court disagreed and dismissed his appeal.
Because the Notice of Appeal was filed too soon, the
district court had not yet divested itself of jurisdiction,
and the Nevada Supreme Court had not yet acquired it.
Paradise Palms Community Association v. Paradise Homes,
568 P.2d 577 at 578 (Nev. 1977), cert. den. 435 U.S. 997, 98
S.Ct. 1650, 56 L.Ed.2d 86 (1978). There are sound reasons
for this rule. First, the proper and timely filing of a notice
of appeal is mandatory and jurisdictional. Torres v. Oak-
land Scavanger Co., 487 U.S. 312, 108 S.Ct. 2405, 101
L.Ed.2d 285 (1988); Houston v. Lack, 487 U.S. 266, 108 S.Ct.
2379, 101 L.Ed.2d 245 (1988); Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225
(1982).
Jurisdictional rules go to the very power of a court to
act. They must, accordingly, be clear and absolute in
order to give all fair notice of what is required to prop-
erly bring a matter before the Nevada Supreme Court.
12
Prior to the entry of a final judgment, a district court
remains free to reconsider the issue of a written judgment
different from its oral pronouncement. The point at which
jurisdiction is transferred must, therefore, be sharply
delineated. This rationale has been applied to appeals
and the time for filing by this Court when holding that a
premature appeal must be dismissed as an interlocutory
order. See, United States v. Ryan, 402 U.S. 530, 91 S.Ct.
1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309
U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). Respondents
respectfully request this Court to use that same rationale
to reach the conclusion, in considering this Petition, that
the Nevada Supreme Court’s decision to dismiss Peti-
tioner’s appeal to it for lack of jurisdiction was proper.
Petitioner had the ability to refile an appeal after the
district court entered its final judgment on March 22,
1991. He neglected to do so, and as a result, the issues
presented to this Court that were not ruled upon by the
Nevada Supreme Court are time-barred as in excess of 90
days from their final determination by the Eighth Judicial
District Court on March 22, 1991.
ITI.
THE QUESTIONS PRESENTED BY PETITIONER ARE
TIME-BARRED FROM CONSIDERATION BY UNITED
STATES SUPREME COURT RULE 13
The United States Supreme Court Rule addressing
the review on Certiorari; Time for Petitioning, demon-
strates to this Court that Petitioner’s claims are time
barred from consideration, requiring this Court to deny
—
ee
13
this Petition for Writ of Certiorari. Rule 13.1 reads in
pertinent part as follows:
A petition for a writ of certiorari to review a
judgment in any case, civil or criminal, entered
by a state court of last resort . . . shall be deemed
in time when it is filed with the clerk of this
court within 90 days after the entry of the judg-
ment. A Petition for a writ of certiorari seeking
review of a judgment of a lower state court
which is subject to discretionary review by the
state court of last resort shall be deemed in time
when it is filed within 90 days after entry of the
order denying discretionary review.
As this Rule clearly dictates, the time frame is 90 days for
which to file with the Clerk of the United States Supreme
Court a petition for writ of certiorari after entry of the
judgment sought to be appealed. Additionally, Congress
established in 28 U.S.C. §2101 the time for filing a peti-
tion, and such mandate must be followed by the Peti-
tioner as a prerequisite to this Court’s jurisdiction.
Schacht v. United States, 398 U.S. 58, 65, 90 S.Ct. 1555, 26
L.Ed.2d 44 (1970). As held by this Court, the statutory
requirement that the petition for writ of certiorari in civil
cases be filed within 90 days of entry of judgment in
lower courts is mandatory and jurisdictional, giving this
Court no authority to extend that period for filing, except
as Congress permits. See, Missouri v. Jenkins, 495 U.S. 33,
110 S.Ct. 1651, 109 L.Ed.2d 31 (1990).
Because the Nevada Supreme Court denied Peti-
tioner’s appeal as premature, it never had jurisdiction of
the case and did not deny appeal of the issues presented.
It simply never reviewed those issues. Therefore, the
Eighth Judicial District Court retained jurisdiction, and
14
the Nevada Supreme Court’s decision to dismiss with
prejudice Petitioner’s appeal as premature was proper.
This leaves Petitioner appealing the decision of the
district court as to the issues presented to this Court for
review. Because the final Order issued by the district
court was on March 22, 1991, those issues are now time-
barred for reconsideration by this Court, as clearly in
excess of the 90 day mandate of the Supreme Court Rules
and the Statutes of the United States. Petitioner’s dead-
line for filing ended, at the very latest, in June of 1991.
The Petition for Writ of Certiorari was not filed with this
Court until December 30, 1991, almost 120 days in excess
of the 90 day period. Thus, this Court must deny Peti-
tioner’s Writ for Certiorari on these issues.
IV.
THE NEVADA SUPREME COURT RULE REQUIRING
AN ATTORNEY LICENSED IN THE STATE OF NEV-
ADA TO ARGUE AN APPEAL IS CONSTITUTIONAL
The Petitioner claims the limitation of the Nevada
Supreme Court requiring an attorney licensed in the State
of Nevada to proceed with the appeal constitutes a Con-
stitutional violation. Nevada Supreme Court Rule 44,
which Petitioner alleges violated his Constitutional
rights, reads as follows:
Person may appear in his own behalf.
Nothing in these rules shall be so construed as
to prevent any person from appearing in his
own behalf in any court in this state except the
supreme court.
15
Petitioner claims that this is a violation of the Judicial Act
of 1789 of the First Congress, Session 1, Chapters 20(XX),
Sections 32 and 35, and is in conflict with the policies of
this Court in the case of Haines v. Kerner, former governor,
State of Illinois, et al., 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d
652 (1972). However, that case arises out of a district
court granting a respondent’s motion to dismiss, under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
failure to state a claim upon which relief can be granted.
The ultimate issue brought before the Supreme Court in
that case was whether a district court erred in dismissing
a pro se complaint without allowing him to present evi-
dence of his claims of a deprivation of a federally pro-
tected right. More specifically, the Court delved into the
sufficiency of the pleadings and how they were drawn,
not whether the pro se petitioner could represent himself
on appeal in front of the court of appeals. Therefore, such
case is inapplicable to the Petition currently before this
Court.
The United States District Court of Nevada has
upheld this Nevada Supreme Court rule in a previous
challenge, in the cases of Mirin v. Justices of Supreme
Court, 415 FSupp. 1178 (1976) and Price v. Johnston, 334
U.S. 266, 68 S.Ct. 1049, 92 L.Ed.2d 1356, (1947), where this
Court had elaborated on the distinction between trials
and appeals, with the criminal defendant having a right
to handle his trial, but being limited on appeal by the
discretion of the United States Court of Appeals in allow-
ing or disallowing him to represent himself. In studying
the discretionary nature of appearing without representa-
tion on appeal, the Court in Price, 334 U.S. at 285-286, 68
S.Ct. at 1060, 92 L.Ed.2d at 1369, held:
16
The discretionary nature of the power in ques-
tion grows out of the fact that a prisoner has no
absolute right to argue his own appeal or even
to be present at the proceedings in an appellate
court. Schwab v. Berggren, [143 U.S. 442, 12 S.Ct.
525, 36 L.Ed.2d 218] supra. The absence of that
right is in sharp contrast to the Constitutional
prerogative of being present in person at each
significant stage in a felony conviction, [cita-
tions omitted] and to his recognized privilege of
conducting his own defense at trial. . . . Oral
argument on appeal is not an essential ingre-
dient of due process, and it may be circum-
scribed as to prisoners where reasonable
necessity so dictates. 7
A prisoner’s right to participate in oral argu-
ment on appeal is accordingly to be determined
by the exercise of the discretionary power of the
circuit court of appeals under §262.
The court in Mirin then concluded that because the
court, in Price, made it clear that the right to argue,
personally, a criminal appeal, does not rise to federal
Constitutional dimensions, it necessarily follows that the
civil defendant’s right to orally argue a civil appeal can
be no greater.
As the District Court of Nevada applied Price to its
civil action in Mirin, supra, these Respondents ask this
Court to apply Price to the situation presented in the
Petition herein. Then, the refusal to allow the Petitioner’s
appearance in propria persona before the Nevada Supreme
Court does not violate the Judicial Act of 1789 of the First
Congress, Session 1, Chapter 20(XX), Sections 32 and 35.
For that reason, this Court must deny Petitioner’s Writ of
Certiorari on this issue.
V.
CONCLUSION
As demonstrated by the arguments above, the sole
question presented to this Court within the mandatory 90
day period for a petition for writ of certiorari, is whether
the Supreme Court of Nevada properly dismissed Peti-
tioner’s appeal for a lack of jurisdiction. All other issues
adjudicated by the Eighth Judicial District Court, cul-
minating in a final Order of March 22, 1991, were not
presented to the Nevada Supreme Court and are now
time-barred for reconsideration by this Court. United
States Supreme Court Ruie 13; and 28 U.S.C. §2101.
Accordingly, the decision of the Nevada Supreme Court
dismissing Petitioner’s appeal as premature for lack of
jurisdiction must be affirmed, and the Petition for Writ of
Certiorari must be denied.
Further, if denying a pro se criminal defense, a right
to participate in oral argument on appeal does not rise to
federal Constitutional dimensions, neither can denying a
pro se civil defendant. For that additional reason, Peti-
tioner’s Writ for Certiorari must be denied.
Respectfully submitted,
RawLINcs, OLson & CANNON
DANA JONATHON Nizz, Esq.
301 East Clark Avenue, #1000
Las Vegas, Nevada 89101
(702) 384-4012
Attorney for Respondents
App. 1
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RON CAMPBELL,
i No. 89-15493
Plaintiff-Appellant, D. C. No.
CV-88-0770-LDG
MEMORANDUM*
(Filed Nov. 20, 1990)
VS.
THALIA DONDERO, et al.,
Defendants-Appellees.
Nee ee eee eee ee”
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted November 16, 1990**
Before: FLETCHER, WIGGINS, and RYMER, Circuit
Judges.
Ron Campbell appeals pro se the district court’s
remand of his civil RICO action which Campbell had
removed to federal court. We dismiss the appeal pursuant
to 28 U.S.C. § 1447(d) for lack of jurisdiction.
On September 26, 1988, Campbell filed his complaint
in Nevada state court alleging federal and state RICO
* This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except as
provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for dis-
position without oral argument. Fed. R. App. P. 34(a); 9th Cir.
R. 34-4.
App. 2
violations by the defendants. The next day, Campbell
removed his action to federal district court for the District
of Nevada. On March 17, 1989, the district court denied
the petition for removal and remanded Campbell’s action
to state court because it could only properly be removed
by the defendants pursuant to 28 U.S.C. § 1446. Campbell
filed a timely notice of appeal with this court.
28 U.S.C. § 1447(c) requires a district court to remand
a case to state court when it determines the case was
removed without jurisdiction. Whitman v. Raley’s, Inc., 886
F.2d 1177, 1180 (9th Cir. 1989). Remand orders based on
the grounds specified in section 1447(c), i.e., that removal
was “improvident and without jurisdiction,” are immune
from appellate review. Thermtron Prods., Inc. v. Her-
mansdorfer, 423 U.S. 336, 343 (1976); Hansen v. Blue Cross,
891 F.2d 1384, 1387 (9th Cir. 1989) (citing 28 U.S.C.
§ 1447(d); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723,
723 (1977) (per curiam)). When a district court’s remand
order is based on a nonjurisdictional ground, however,
section 1447(d) does not bar appellate review. Hansen, 891
F.2d at 1387 (citations omitted).
Here, the district court remanded Campbell's action
to district court because Campbell, and not the defen-
dants, had removed the case to federal court. Removal is
available only to defendants. 28 U.S.C. §§ 1441(c), 1442,
1443, 1446(c); Okot v. Callahan, 788 F.2d 631, 633 (9th Cir.
1986). The district court, therefore, determined that it
lacked jurisdiction to review Campbell’s action due to a
“defect in removal procedure.” See 28 U.S.C. § 1447(c).
Because the district court’s decision to remand was based
on a jurisdictional ground, section 1447(d) precludes our
App. 3
review of the remand order. See id.; Hansen, 891 F.2d at
1387.
Appellees’ request for attorneys fees on appeal pur-
suant to Fed. R. Civ. P. 11 is denied.
DISMISSED.
App. 4
APPENDIX B
DANA JONATHON NITZ, ESQ.
RAWLINGS, OLSON & CANNON
State Bar No. 000050
301 E. Clark #1000
Las Vegas, Nevada 89101
(702) 384-4012
DISTRICT COURT
CLARK COUNTY, NEVADA
RON CAMPBELL,
Plaintiff,
ve. CASE NO. A268414
THALIA DONDERO: yo Fon aley
MANNY CORTEZ; R. J.
RONZONE:; W. WILSON, ORDER
AND BRUCE L.
WOODBURY,
INDIVIDUALLY and as
(Filed Jan. 25, 1991)
HEARING DATE:
CLARK COUNTY 1-15-91
COMMISSIONERS; |
LIQUOR CONTROL
BOARD; D. FITZPATRICK,
INDIVIDUALLY and as
Director of CLARK
COUNTY LICENSE
DEPARTMENT; Officer
WELLINGTON,
INDIVIDUALLY and as a
member of the LAS
VEGAS METROPOLITAN
POLICE DEPARTMENT;
MALON EDWARDS,
INDIVIDUALLY and as a
Deputy DISTRICT
i
App. 5
ATTORNEY of the
CLARK COUNTY
DISTRICT ATTORNEY
OFFICE; the CLARK
COUNTY LIQUOR
CONTROL BOARD; the
CLARK COUNTY
LICENSE DEPARTMENT;
the LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT, CLARK
COUNTY DISTRICT
ATTORNEY’S OFFICE;
and the political
subdivisions of the county
of CLARK, state of
NEVADA, and JOHN/
JANE DOES 1 through 20
inclusive,
Defendants.
— ee ee ee ee ee” ee ee ee See Se ee Se ee Nee ee ee ee ee See
UPON HEARING OF PLAINTIFF’S MOTION TO SET
ASIDE ORDER, attended by Plaintiff, Ron Campbell on
his own behalf, and by Dana Jonathon Nitz, Esq., of the
law office of Rawlings, Olson & Cannon on behalf of all
Defendants, upon consideration of the parties’ Points and
Authorities and upon acquiescence of Defendants’ coun-
sel, it is hereby ORDERED:
1. Plaintiffs Motion is granted to the extent that the
Order entered December 20, 1988, granting Defendants’
Motion to Dismiss is set aside, provided Plaintiff files
Points and Authorities in Opposition to that Motion to
Dismiss.
App. 6
2. Plaintiff shall have until February 4, 1991, in
which to serve and file his Opposition.
3. If Plaintiff fails to serve and file his Opposition
by February 4, 1991, the previous Order of this Court
shall stand.
4. Defendants shall have until February 11, 1991, in
which to file any reply Points and Authorities in support
of their Motion to Dismiss.
5. Rehearing of the Motion to Dismiss shall be held
February 12, 1991 at the hour of 9:00 a.m.
6. If Plaintiff files an Opposition to the Motion to
Dismiss and the Motion is, once again, granted, this
Court will award Defendants’ reasonable expenses,
including attorneys’ fees, incurred as a result of Plain-
tiff’s filing his Motion to Set Aside Order and Opposition
to Motion to Dismiss under Rule 11 of the Nevada Rules
of Civil Procedure and NRS 18.010.
7. All other relief requested in Plaintiff’s Motion to
Set Aside Order is denied.
DATED this 24th day of January, 1991.
JACK LEHMAN
DISTRICT JUDGE
SUBMITTED BY:
RAWLINGS, OLSON & CANNON
/s/ Dana Jonathon Nitz
Dana Jonathon Nitz, Esq.
State Bar No. 000050
301 E. Clark #1000
Las Vegas, Nevada 89101
Attorneys for Defendants
|
App. 7
APPENDIX C
DANA JONATHON NITZ, ESQ.
RAWLINGS, OLSON & CANNON
State Bar No. 000050
301 E. Clark #1000
Las Vegas, Nevada 89101
(702) 384-4012
DISTRICT COURT
CLARK COUNTY, NEVADA
RON CAMPBELL,
Plaintiff,
~~ Se
VS.
THALIA DONDERO: MANNY)
CORTEZ; R. J. RONZONE: W.)
WILSON, AND BRUCE LL. ?
WOODBURY, INDIVIDUALLY ?
CASE NO. A268414
and as CLARK COUNTY __ ) So aae a
COMMISSIONERS; CLARK
COUNTY LIQUOR CONTROL) ones
BOARD; D. FITZPATRICK
INDIVIDUALLY and as
Director of CLARK COUNTY
(Filed Mar. 22, 1991)
LICENSE DEPARTMENT; ee as di
Officer WELLINGTON, HEARING
INDIVIDUALLY and as a
member of the LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT; MALON
EDWARDS, INDIVIDUALLY
and as a Deputy DISTRICT
ATTORNEY of the CLARK
COUNTY DISTRICT
ATTORNEY OFFICE; the
CLARK COUNTY LIQUOR
TIME: 9:00 A.M.
Ne Nat a at eat eat Sag ii ast i ssi Saag
¢
>
ac)
ae)
oo
CONTROL BOARD; the
CLARK COUNTY LICENSE
DEPARTMENT; the LAS
VEGAS METROPOLITAN
POLICE DEPARTMENT,
CLARK COUNTY DISTRICT
ATTORNEY’S OFFICE; and
the political subdivisions of
the county of CLARK, state
of NEVADA, and JOHN/
JANE DOES 1 through 20
inclusive,
Defendants.
ee ee ee ee ee ee
Defendants’ Motion to Dismiss having come on for
hearing this 12th day of February, 1991, Plaintiff RON
CAMPBELL appearing on his own behalf, and Defen-
dants THALIA DONDERO, MANNY CORTEZ, R.J.
RONZONE, W. WILSON, BRUCE WOODBURY, CLARK
COUNTY LIQUOR CONTROL BOARD, D.
FITZPATRICK, OFFICER WELLINGTON, MALON
EDWARDS, the ‘*CLARK COUNTY LIQUOR CONTROL
BOARD, THE CLARK COUNTY LICENSE DEPART-
MENT, THE LAS VEGAS METROPOLITAN POLICE
DEPARTMENT AND THE CLARK COUNTY DISTRICT
ATTORNEY’S OFFICE appearing by and through their
attorneys, RAWLINGS, OLSON & CANNON and DANA
JONATHON NITZ, ESQ., and after reviewing the Com-
plaint and points and authorities of the parties on file
herein, and having heard the arguments of counsel, this
Court does hereby
ORDER, ADJUDGE AND DECREE that Defendants’
Motion to Dismiss the Plaintiff’s Civil Complaint for
App. 9
Damages from Racketeer Influenced and Corrupted
Organization Acts (RICO/NRS Chapter 207) seeking
relief under 18 USC §1961 et seq. is granted;
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Plaintiff’s claim for relief pursuant to 18
USC §1961 et seq. is dismissed;
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Plaintiff’s claims for punitive damages
are dismissed as to all Defendants pursuant to NRS
41.035.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Plaintiff’s Opposition to said Motion is
frivolous and that Plaintiff is ordered to pay to Defen-
dants, in care of their counsel, RAWLINGS, OLSON &
CANNON, $350.00 as and for attorneys fees as a sanction
under Rule 11 of the Nevada Rules of Civil Procedure
and NRS 18.010.
[T IS FURTHERED ORDERED, ADJUDGED AND
DECREED that the Answer filed November 14, 1988 on
behalf of Defendants Commissioner Dondero, Las Vegas
Metropolitan Police Department, and Officer Wellington,
and the Joinder in Answer, filed September 20, 1989 on
behalf of all other named Defendants is accepted by this
court as a responsive pleading under Rule 12(a) of the
Nevada Rules of Civil Procedure and no further pleading
need be filed by Defendants.
DATED this 22 day of March, 1991.
JACK LEHMAN
DISTRICT JUDGE
actin inci al
App. 10
SUBMITTED BY:
RAWLINGS, OLSON & CANNON
/s/ Dana Jonathon Nitz
Dana Jonathon Nitz, Esq.
State Bar No. 000050
301 E. Clark #1000
Las Vegas, Nevada 89101
Attorneys for DEFENDANTS
App. 11
APPENDIX D
IN THE SUPREME COURT
OF THE STATE OF NEVADA
RON CAMPBELL, No. 22107
Appellant,
VS.
)
)
)
)
THALIA DONDERO, MANNY )
CORTEZ, R.J. RONZONE, W. )
WILSON and BRUCE WOODBURY, ?
Individually and as Clark County )
Commissioners; CLARK COUNTY _ )
LIQUOR CONTROL BOARD; D.
FITZPATRICK, Individually and as_ )
Director of Clark County License )
Department; OFFICER )
WELLINGTON, Individually and as ?
a member of the Las Vegas )
Metropolitan Police Department; )
MALON EDWARDS, Individually _ )
and as a Deputy District Attorney )
of the Clark County District )
Attorney’s Office; THE CLARK )
COUNTY LICENSE DEPARTMENT: )
THE LAS VEGAS METROPOLITAN )
POLICE DEPARTMENT; CLARK _ )
COUNTY DISTRICT ATTORNEY’S | )
OFFICE; and THE POLITICAL )
SUBDIVISIONS OF THE COUNTY _ )
OF CLARK, STATE OF NEVADA,
)
)
Respondents.
App. 12
ORDER
(Filed Aug. 12, 1991)
This is an appeal from an order of the district court
dismissing appellant’s complaint seeking damages pur-
suant to 18 USC §§ 1961 et seq.
Appellant has filed in this court a document entitled
“Ex-Parte Motion to Dismiss Appeal,” claiming that the
judgment of the district court is not final as to all the
parties. Appellant requests that this court dismiss the
appeal without prejudice to his right to reinstate it when
a final judgment has been entered by the district court.
Included in appellant’s motion is a stipulation to dismiss
signed by opposing counsel.
After examining the record on appeal, we are unable
to identify any party to whom the district court’s judg-
ment was not final. Further, we note that although appel-
lant’s notice of appeal was filed on March 14, 1991, the
district court’s order was not entered until March 22,
1991. It appears, therefore, that appellant’s notice of
appeal was premature and fails to vest jurisdiction in this
court. See Ruse v. Clark Cty. School District, 103 Nev. 686,
747 P.2d 1380 (1987).
Accordingly, appellant shall have twenty (20) days
from the date of this order within which to show cause
why this appeal should not be dismissed with prejudice.
App. 13
We stay the briefing of this appeal pending further order
of this court.
It is so ORDERED.
/s/ Springer A.C.J.
cc: Alan R. Harter
Rawlings, Olson & Cannon
App. 14
APPENDIX E
IN THE SUPREME COURT
OF THE STATE OF NEVADA
RON CAMPBELL,
Appellant,
VS.
THALIA DONDERO, MANNY
CORTEZ, R.J. RONZONE, W.
WILSON and BRUCE WOODBURY,
Individually and as Clark County
Commissioners; CLARK COUNTY
LIQUOR CONTROL BOARD; D.
FITZPATRICK, Individually and as
Director of Clark County License
Department; OFFICER
WELLINGTON, Individually and as
a member of the Las Vegas
Metropolitan Police Department;
MALON EDWARDS, Individually
and as a Deputy District Attorney
of the Clark County District
Attorney’s Office; THE CLARK
COUNTY LICENSE DEPARTMENT;
THE LAS VEGAS METROPOLITAN
POLICE DEPARTMENT; CLARK
COUNTY DISTRICT ATTORNEY’S
OFFICE; and THE POLITICAL
SUBDIVISIONS OF THE COUNTY
OF CLARK, STATE OF NEVADA,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 22107
App. 15
ORDER DISMISSING APPEAL
(Filed Sept. 30, 1991)
This is an appeal from an order of the district court
dismissing appellant’s complaint seeking damages pur-
suant to 18 U.S.C. section 1961 (1988).
Appellant filed in this court a document entitled “Ex-
Parte Motion to Dismiss Appeal,” claiming that the judg-
ment of the district court is not final as to all the parties.
Appellant requested that this court dismiss the appeal
without prejudice to his right to reinstate it when a final
judgment had been entered by the district court. Included
in appellant’s motion was a stipulation to dismiss signed
by opposing counsel.
After examining the record on appeal, this court was
unable to identify any party to whom the district court’s
judgment was not final. Further, we noted that although
appellant’s notice of appeal was filed on March 14, 1991,
the district court’s order was not entered until March 22,
1991. Thus, it appeared that appellant’s notice of appeal
was premature and failed to vest jurisdiction in this
court. See Rust v. Clark Cty. School District, 103 Nev. 686,
747 P.2d 1380 (1987). This court therefore ordered appel-
lant to show cause why this appeal should not be dis-
missed with prejudice.
In response to our order to show cause, appellant
does not identify specific parties to whom the district
court’s order was not final. Rather, appellant states that
“[a]nswers had been filed in the court below for Defen-
dants Dondero, Las Vegas Metropolitan Policy Depart-
ment, and Wellington only, and the Order of the Court
below filed March 22, 1991, actually applied only to the
App. 16
answering Defendants.” This is not true. As stated in the
order of the district court entered March 22, 1991, all
other named parties joined in the answer on September
20, 1989. The district court’s order was thus final as to all
parties.
Because the district court’s order was final as to all
claims and all parties, and because appellant’s notice of
appeal was premature with respect to that order, we
conclude that we lack jurisdiction to entertain this appeal.
Accordingly, we dismiss this appeal with prejudice. We
deny as moot the parties’ motion to dismiss this appeal
without prejudice.
It is so ORDERED.
/s/ Mowbray, CJ.
Mowbray
/s/ Springer, J.
Springer
/s/ Rose, J.
Rose
/s/ Steffen, J.
Steffen
/s/ Young, J.
Young
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