Are Legislative Changes to Rule 35 Unconstitutional?

Tomorrow AB 285 takes effect and is expressly intended to modify NRCP 35.  But is it unconstitutional for violating the separation of powers doctrine? 

Rule 35 v. AB 285

On March 1, 2019 Nevada’s significantly revised rules of civil procedure took effect.[1]  Rule 35 was one of the rules revised.  There were three proposed drafts, one was adopted.  Then on March 18, 2019 AB 285 was introduced in the Nevada Legislature.  As signed by the Governor, AB 285 adds a new section to NRS chapter 52.[2]  The relevant parts are compared below.

(4) Observers at the Examination. The party against whom an examination is sought may request as a condition of the examination to have an observer present at the examination. When making the request, the party must identify the observer and state his or her relationship to the party being examined. The observer may not be the party’s attorney or anyone employed by the party or the party’s attorney.
(A) The party may have one observer present for the examination, unless:
(i) the examination is a neuropsychological, psychological, or psychiatric examination; or
(ii) the court orders otherwise for good cause shown.
(B) The party may not have any observer present for a neuropsychological, psychological, or psychiatric examination, unless the court orders otherwise for good cause shown.
(C) An observer must not in any way interfere, obstruct, or participate in the examination.
1. An observer may attend an examination but shall not participate in or disrupt the examination.
2. The observer attending the examination pursuant to subsection 1 may be:
(a) An attorney of an examinee or party producing the examinee; or
(b) A designated representative of the attorney, if:
(1) The attorney of the examinee or party producing the examinee, in writing, authorizes the designated representative to act on behalf of the attorney during the examination; and
(2) The designated representative presents the authorization to the examiner before the commencement of the examination.
(3) Recording the Examination. On request of a party or the examiner, the court may, for good cause shown, require as a condition of the examination that the examination be audio recorded. The party or examiner who requests the audio recording must arrange and pay for the recording and provide a copy of the recording on written request. The examiner and all persons present must be notified before the examination begins that it is being recorded.
3. The observer attending the examination pursuant to subsection 1 may make an audio or stenographic recording of the examination.
No equivalent 4. The observer attending the examination pursuant to subsection 1 may suspend the examination if an examiner:
(a) Becomes abusive towards an examinee; or
(b) Exceeds the scope of the examination, including, without limitation, engaging in unauthorized diagnostics, tests or procedures.
5. An examiner may suspend the examination if the observer attending the examination pursuant to subsection 1 disrupts or attempts to participate in the examination. 6. If the examination is suspended pursuant to subsection 4 or 5, the party ordered to produce the examinee may move for a protective order pursuant to the Nevada Rules of Civil Procedure.

The legislative minutes make expressly clear this bill was intended to implement changes to Rule 35.  Supporters noted what became AB 285 was rejected during the process that led to Nevada’s amended rules of civil procedure.

We voted 7-to-1 to make substantial changes, the changes that are set forth or embodied in the bill before you, Assembly Bill 285. Unfortunately, when our recommendations went to the full Supreme Court of Nevada, they rejected our changes for reasons we are still not clear on. At that point, we reassessed our position.[3]

What’s the problem?

The separation of powers doctrine intends to divide the power of governing into three equal branches: executive, legislative, and judicial.  The idea is the three branches are equal to each other.  “In keeping with this theory, the judiciary has the inherent power to govern its own procedures.”[4]  NRS 2.120 expressly recognized that authority.  “The judiciary is entrusted with rule-making and other incidental powers reasonable and necessary to carry out the duties required for the administration of justice and to economically and fairly manage litigation.”[5]  This means “the legislature 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.”[6]

In addition to the constitutionally mandated bases for keeping separate those inherent powers of the judiciary, leaving control of court rules and the administration of justice to the judiciary, and thereby placing the responsibility for the system’s continued effectiveness with those most familiar with the latest issues and the experience and flexibility to more quickly bring into effect workable solutions and amendments, makes good sense.[7]

The judiciary’s authority “to promulgate procedural rules is independent of legislative power, and may not be diminished or compromised by the legislature. … Furthermore, where, as here, a rule of procedure is promulgated in conflict with a pre-existing procedural statute, the rule supersedes the statute and controls.”[8]

The bill’s supporters argued it was not a procedural statute, but instead a substantive right to physical integrity.  It is true the legislature can create and modify substantive rights.  However this bill did not create or modify any substantive rights, meaning causes of action that can be alleged or damages that may be sought.  The statute instead expressly attempts to modify the process by which the courts govern a specific part of personal injury litigation.  It is expressly procedural and thus violates the separation of powers.

Then why isn’t AB 418 unconstitutional?

AB 418 codified the new Rule 68 into NRS chapter 17.  In practical effect, it means there is an argument that this is now a substantive right that can be invoked in federal actions applying Nevada law.  NRCP 68 is far stronger than FRCP 68.

This statute is constitutional because it complements, but does not supplant, NRCP 68. 

[T]he legislature may, by statute, sanction the exercise of inherent powers by the courts, and the courts may acquiesce in such pronouncements by the legislature.  Even so, we remain ever mindful that such statutes are merely legislative sanctions of independent rights already belonging to the courts, and where, as here, those statutes attempt to limit or destroy an inherent power of the courts, such statutes must fail.[9]

So What Now?

Eventually this issue will arise in some case and it will go up to the Supreme Court on a writ petition. Who knows what happens then.

[1] Yes, I know I haven’t discussed them.  Maybe someday.

[2] I don’t know what the new number is yet.

[3] Minutes of Assembly Committee on Judiciary, March 27, 2019, Page 4, statement of Graham Galloway.

[4] Berkson v. Lepome, 126 Nev. 492, 499, 245 P.3d 560, 565 (2010) (quotation omitted).

[5] Id. quotations omitted.

[6] Id. quotations omitted.

[7] Id.

[8] State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300 (1983).

[9] State v. Dist. Court, 116 Nev. 953, 961, 11 P.3d 1209, 1214 (2000).