The principle of stare decisis—to stand by things decided—is a cornerstone of legal stability. It ensures predictability, fairness, and the orderly development of the law.
In 2008, Justice Gibbons wrote the following: “These decisions now hold positions of permanence in this court's jurisprudence--precedent that, under the doctrine of stare decisis, we will not overturn absent compelling reasons for so doing. Mere disagreement does not suffice.” Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008). Recently, a new Nevada Supreme court has decided to excise the first part of the phrase (“These decisions now hold positions of permanence in this court's jurisprudence—precedent”) and just cite the latter part (“under the doctrine of stare decisis, we will not overturn absent compelling reasons for so doing.”). And this new Court removed Justice Gibbons warning: “Mere disagreement does not suffice.” To say the least, this “selective citation” is something that the Court routinely warns counsel against doing. Yet, so that the new Court can meet the ends it wants, it must excise Justice Gibbons writing in a way that fits it. The ends justify the means?
One of the first things law school teaches is the function of stare decisis in our system of jurisprudence. At its core, stare decisis is Latin for to stand by things decided. However, stare decisis is shorthand for “stare decisis et non quieta movere—stand by the thing decided and do not disturb the calm.” See James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, The Constitution, and the Supreme Court, 66 B.U. L. Rev. 345, 347 (1986). That last part, “do not disturb the calm”, is important because, as we will see, the Nevada Supreme Court has waded into calm waters only to create waves of uncertainty by reversing case law that could be disagreed with, but was not causing a problem.
But what is the point of stare decisis? To this author, the point is that it stops chaos. The law cannot be changing every day. The law needs to be somewhat constant so that Judges, lawyers, and the public can know what the law is and that such is reliable. Imagine the Nevada Supreme Court changing their minds every day. Business would not work. Freed persons one day could be criminals the next. As a lawyer how could one practice law? No legal opinions could be given because Courts could change their minds by the minute on a particular issue. Or, a change in Court personnel could have the same effect:
“The end of litigation, so much to be desired, is not fully satisfied by the close of the particular law suit, but implies that the question involved therein is settled; so settled, that all parties may adjust their dealings and conduct accordingly. A change in the personnel of a court should not mean a shift in the law. Stare decisis is the rule, and not the exception.”
Hartranft v. Meyer, 149 U.S. 544, 547, 13 S. Ct. 982, 983 (1893)(dissent op.).
The first mention of stare decisis in the Nevada Supreme Court came in 1865 in a case involving the power to coin money. In a constrained decision, the Court explained:
"The reasons for applying the rule stare decisis to questions of constitutional power are much stronger than in other cases. The legislative department of our government having exercised certain powers for a long series of years, commencing with the very first establishment of the government, and those powers during all that time having been sanctioned by the co-ordinate branches of the government, it would be little short of revolution for courts, at this late day, to decide such powers were usurped. This court is not disposed to inaugurate any such system of revolutionary decisions."
Maynard v. Newman, 1 Nev. 271, 288 (1865).
The next case to discuss stare decisis was Linn v. Minor, 4 Nev. 462 (1869). The case itself set down the law of stare decisis explaining its basis and its good and bad. The case overruled a prior case but the Court provided and explained the guard rails of stare decisis:
"We are inclined to give to the doctrine of stare decisis as great weight and consideration as is given to it by any of the courts. We are of the opinion that no deliberate decision should be reversed by the same court where it has been generally accepted as the law, or whenever a reversal of it would be likely to disturb any right of property or derange any general commercial custom. But if a decision be clearly incorrect, and no injurious results will be likely to flow from a reversal, and especially if it be injurious and unjust in its operations, it is, it seems to us, the imperative duty of the court to reverse it. Certainty in the law is, doubtless, greatly to be desired, and if there were no other consideration, that of itself is sufficient to suggest the necessity of a strict adherence to decided cases. However, notwithstanding our willingness to give to this consideration the greatest possible weight, it is not, we think, sufficient to justify us in blindly adhering to a decision manifestly erroneous, and which is productive only of wrong and injustice."
Linn v. Minor, 4 Nev. 462, 467 (1869)(emphasis added). Using that analysis, the Court then overruled a prior decision.[1]
[1] The Court explained: “That the case of Milliken v. Sloat is erroneous; that to overrule it will disturb no rights of property, nor any commercial custom we are thoroughly satisfied. The reasoning in the case of Carpentier v. Atherton very clearly maintains the right of the courts to render a judgment for coin upon an agreement to pay it, and, in our opinion, the learned judges who delivered the opinion in Milliken v. Sloat entirely failed to answer it. That no right of property can be disturbed by the reversal of the latter decision, is manifest from the very nature of the case; and as to deranging any commercial system, it is enough to say that the moral sense of the community has repudiated it from the moment it was rendered, and it has only been invoked by that class of persons whose moral obliquities are such that they can perceive no wrong in the violation of a deliberate and fair contract provided the law gives them protection, or fails to afford a remedy against them. The commercial business of the State has been as generally transacted on a coin basis since the decision in Milliken v. Sloat as it was before; the community relying upon individual honor and sense of right for that security which the law denied to it. All the hazards necessarily resulting from such a state of things have not been sufficient to force the people of this State to adopt the paper currency of the country as a general medium of commercial transactions. Indeed, beyond giving legal sanction to the violation of contracts, and enabling the dishonest debtor to defraud his creditor, the employer to deprive the laborer of thirty per cent. of the wages of his industry, the decision has been a dead letter, virtually overruled by the moral power of the upright portion of community. Its effects have been pernicious, and cannot be otherwise in the future. Can it be said, then, that it is the duty of the court to follow it? We think not. The court below must therefore be directed to render a judgment for coin, in accordance with the terms of the contract sued on.” Linn v. Minor, 4 Nev. 462, 468 (1869).
Respectfully to the new Nevada Supreme Court, the Linn analysis is what should guide the Court. No doubt there are cases that were decided wrong. But, we don’t just look at whether a case was decided wrong when reviewing such for overruling purposes. We look at the effect of overruling it, whether such decision was relied upon, and the injuries from such reversal. Certainly, the Court can and should look at the injuries from not reversing. But the analysis requires a Court to respect certainty under the law. Of course, if the legislature believes the Nevada Supreme Court got something wrong, it can legislate accordingly via the separation of powers doctrine.
Limprasert v. Serenity Mental Health: Rewriting Negligence Law
In Limprasert, the Nevada Supreme Court overturned the common knowledge exception, a principle previously recognized in Estate of Curtis that allowed certain negligence claims to proceed without expert affidavits under NRS 41A.071. By rejecting this exception, the court significantly narrowed the pathway for plaintiffs to bring claims involving healthcare providers, effectively insulating defendants from liability unless highly technical expert testimony is presented at the outset. The decision ignored the reliance interests of plaintiffs who had pursued claims under the reasonable assumption that Curtis would apply. Worse, it upended established interpretations of statutory law without clear justification, leaving litigants and practitioners scrambling to adjust to the new legal landscape.
Vazquez v. JBS USA: Undermining Workers' Compensation Protections
In Vazquez v. JBS USA, the Nevada Supreme Court overruled prior precedent regarding the burden of proof in workers' compensation claims for injuries exacerbated by workplace conditions. The court shifted the legal standard, making it harder for injured workers to recover compensation. This ruling disregarded years of settled law protecting workers and left countless individuals vulnerable to denial of benefits. The Nevada Supreme Court’s decision in Vazquez v. JBS USA marks a significant departure from the longstanding principles of stare decisis. By overruling the 1986 precedent established in Breen v. Caesars Palace, the court has upended decades of settled workers’ compensation law, raising concerns about judicial stability and fairness. The decision in Vazquez disregards the principle of stare decisis without demonstrating that Breen was unworkable or manifestly erroneous. Overruling a precedent that has governed workers’ compensation law for nearly 40 years undermines public confidence in the judiciary and creates uncertainty for litigants. The court’s rationale in Vazquez rested on unworkability but it had worked for 40 years! When did it become unworkable? The reversal disregarded the expectations of injured workers and their attorneys, undermining trust in the stability of Nevada law. The Nevada Supreme Court’s willingness to overrule precedent destabilizes the legal system. Litigants lose confidence in the predictability of outcomes, attorneys face greater uncertainty in advising clients, and the courts appear more politicized.
While the court has the authority to refine and adjust legal doctrines, its growing pattern of overruling recent decisions risks eroding the legitimacy of Nevada’s judiciary. For individuals and businesses alike, this trend makes it harder to rely on established legal principles when planning litigation or compliance strategies.
Murdock & Associates: Advocating for Stability and Justice
Murdock & Associates Chtd. has seen firsthand the challenges caused by the Nevada Supreme Court’s inconsistent application of stare decisis. In cases like Limprasert, where long-standing doctrines are overturned without clear justification, clients face significant barriers to pursuing justice. We believe in advocating not only for our clients but also for a legal system that upholds predictability and fairness. The rule of law depends on a judiciary committed to honoring precedent, revisiting it only when absolutely necessary.
If you or your clients have been affected by recent judicial reversals in Nevada, Murdock & Associates Chtd. is here to help you navigate these challenges and fight for justice.
Comments