Separation of Powers between Nevada Courts and the Nevada Legislature
Nevada’s Constitution prohibits one branch of government from encroaching on the powers of another branch. (Nev. Const. art. 3, § 1). For example, the Nevada legislature cannot encroach upon the powers of Nevada courts when it comes to the courts’ judicial functioning. When a court prescribes rules to establish how it will function, the legislature cannot later enact a law to “get around” that rule.
The Nevada Supreme Court recently reaffirmed this principle in Lyft, Inc., v. Eighth Jud. Dist. Ct. in & for Cty. of Clark, 137 Nev. Adv. Op. 86 (2021), which addressed a conflict regarding physical and mental examinations of persons under Nevada Rule of Civil Procedure 35 and NRS 52.380.
Some history behind NRCP 35 and NRS 52.380: In 2017, the Nevada Supreme Court established a committee to review and update the Nevada Rules of Civil Procedure. See ADKT0522. After two years of comprehensive committee work comprised of countless meetings, drafts, public comment, and hearings, the Nevada Supreme Court issued the revised Nevada Rules of Civil Procedure in 2019. Id. Significant edits were made to NRCP 35, which governs mental and physical examinations. The amendment added the ability of a person subject to examination to have the examination recorded for good cause determined by the court. Id. It also added the ability of the person, pursuant to court order, to have an observer present at the examination, so long as the observer was not the party’s attorney or anyone employed by the party or his/her attorney. Id.
After the amended version of NRCP 35 was issued in March 2019, the Nevada Legislature subsequently enacted AB 285 as NRS 52.380 in a version that, as testimony shows, was explicitly previously rejected by the Nevada Supreme Court. NRS 52.380 removed the district court’s discretion to protect the process and control the presence of observers and audio recordings. It permitted the party’s attorney to attend the exam with the party, but precluded a representative from the defendant to attend, other than the doctor examining the person. Id.
This tension was born out in the Lyft, Inc., case, where the Nevada Supreme Court held that NRS 52.385 conflicted with NRCP 35 such that the provisions could not be harmonized. The court rejected the plaintiff’s claim that NRS 52.380 created an “substantive right” for a plaintiff. Rather, the independent medical examination process of Rule 35 was procedural. The court held that, “the [L]egislature may not enact a procedural statute that conflicts with a pre-existing procedural rule, without violating the doctrine of separation of powers, and … such a statute is of no effect.” Lyft, Inc., v. Eighth Jud. Dist. Ct. in & for Cty. of Clark, 137 Nev. Adv. Op. 86 (2021). As a result, NRS 52.380 was deemed unconstitutional, because the Nevada Legislature could not legislate around the court’s inherent authority to regulate the judicial process, including physical and mental examinations. In conclusion, the diligent work of the NRCP committee was not undone by subsequent legislation.
Lemons, Grundy & Eisenberg is a civil ligation law firm with a variety of practice areas, from appeals to complex civil ligation including personal injury. If you have questions, contact our office to see if we can assist you.