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IN THE SUPREME COURT OF THE STATE OF NEVADA


IN RE:
ZACHARY BARKER COUGHLIN, ESQ.
NEVADA BAR NO: 9473
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Case 62337

OPPOSITION TO SBNS RESPONSE TO ORDER OF MAY 16, 2014.

COMES NOW, ZACHARY BARKER COUGHLIN by and through his attorney, ZACHARY
BARKER COUGHLIN, ESQ. and hereby requests permission to file this Opposition to the SBNs
6/3/14 Response and apprise this court of his Petition for Reinstatement Pursuant to SCR 111(10) in
65587.
FACTS: It is important to note that Coughlins protected Fourteenth Amendment
property right, his license to practice law, has now been suspended for over two years due solely to an
automatic temporary suspension pursuant to SCR 111(6). To be clear, the SBN never filed an SCR
102 petition to obtain a temporary suspension of Coughlins law license, and, necessarily, Coughlin
never received any pre-deprivation hearing connected thereto. Rather, the SBN has, so far, been able
to piggy back its more holes than an afghan SCR 105 Complaint at issue in 62337 onto that
temporary suspension, Asst. Bar Counsel King unilaterally ruling that the SCR 111(8) hearing
mandated by such rule and this Courts 6/7/12 Order referring this matter to the appropriate
disciplinary board for the institution of a formal hearing before a hearing panel in which the sole
issue to be determined shall be the extent of the discipline to be imposed was to be consolidated
and or combined with the formal disciplinary proceedings to follow from the 8/23/12 SCR 105
Complaint King filed, but never served Coughlin with.
The combining of such formal hearing (and, necessarily, the adjudication to follow
therefrom) required by SCR 111(8) in connection with the temporary suspension of Coughlins law
license and that at issue in the SCR 105 Complaint has now clearly resulted in an unconstitutional
deprivation of Coughlins protected Fourteenth Amendment property right (license to practice law)
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with no pre-deprivation hearing. Coughlin did not steal any candy bar and some cough drops
from Walmart, and, regardless, the conviction for such was not affirmed on appeal (though the SBN
and Reno City Attorneys Office keep trying to legislate away NRS 189.030(1) (which can not be
done given Nevadas Constitution expressly imbued the Legislature with the exclusive authority to
enact procedural rules for appeals from justice and municipal courts of record to the district
courts in Art 6. Sec. 8.
(Due process shown- Lawyers received sufficient due process before temporary suspensions,
where each lawyer received notice of the grounds for seeking his temporary suspension and was
afforded both a hearing before a single justice of the Supreme Judicial Court, at which facts were
presented, and a hearing before the full court prior to effectiveness of an order directing his
temporary suspension. Mass.Matter of Ellis, 425 Mass. 332, 680 N.E.2D 1154 (1997).
Coughlin filed Motions to Dismiss based on lack of service of the Complaint, then, under
protest, filed a Verified Response and or Answer to the Complaint plainly denying, under oath, each
and every allegation in Kings 26 (sicsuch skips from count/paragraph 19 to 26) count Complaint.
CJS Attorney and Client 93. Notice: Generally, an attorney is entitled to reasonable notice
of a disciplinary proceeding against him or her, and an opportunity to defend. The general rule is that
before an attorney may be disciplined, as by suspension or disbarment, whether under a statute or in
the exercise of a court's inherent powers, he or she is entitled to notice and opportunity to de-fend.[1]
Ordinarily, the right to defend is exercised in a trial or hearing.[2] [FN1] U.S.In re Ruffalo, 390
U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2D 117 (1968); In re Jones, 506 F.2D 527 (8th Cir. 1974). Ind.
Matter of Murray, 266 Ind. 221, 362 N.E.2D 128 (1977). Va.Maddy v. First Dist. Committee of
Virginia State Bar, 205 Va. 652, 139 S.E.2D 56 (1964). Fair notice and opportunity for hearing Before
a court exercises its inherent power to sanction an attorney, it must provide fair notice and an
opportunity for a hearing on the record. Kan.Knutson Mortg. Corp. V. Coleman, 24 Kan. App. 2D
650, 951 P.2D 548 (1997). Notice insufficient An attorney, who received a letter from the bar after an
initial disciplinary hearing which made no reference to a requirement that the attorney undergo a
mental health evaluation prior to reinstatement, did not have sufficient notice to allow him to offer
testimony in mitigation of this penalty. Fla.The Florida Bar v. Centurion, 801 So. 2D 858 (Fla.
2000). [FN2] 105.

http://www.scribd.com/doc/228372827/3-10-14-to-4-22-14-Couglin-s-Handwritten-Filings-
in-Jail-in-Disbarment-Appeal-in-62337

http://www.scribd.com/doc/228375119/8-13-13-SCR-102-4-d-and-SCR-111-7-Petition-to-
Dissolve-Temporary-Suspension-61462-in-Re-Coughlin-77-Pages
http://www.scribd.com/doc/228375239/5-7-14-65587-Coughlin-Petition-for-Reinstatement-
SCR-111-10-Stamped
http://www.scribd.com/doc/228374844/5-22-14-Supplemental-Petition-for-Reinstatement-
65587-14-16680
Coughlin timely moved for an extension of time to file his Opening Brief in this matter.
Coughlin filed his Brief on 3/14/14. The SBNs Answering Brief was due 4/14/14. The SBN has
failed to file a brief, and failed to move for an extension of time to do so, much less timely move for
such an extension. Asst. Bar Counsel Machado, whom heretofore has had no connection to this
matter, filed the SBNs Response on 6/3/14, and at many points therein admits he lacks much in the
way of knowledge about this case. However, that did not stop Machado from making many
inflammatory allegations, largely premised upon unsworn hearsay, whilst providing absolutely
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Machado utterly failed to and or This honorable Courts 5/16/14 Order to File Response in 62337
ordered the SBN to file a Response to Coughlins 4/22/14 Notice addressing:
1. To which cases the orders of dismissal attached to Coughlin's notice pertain;
2. The status of those cases and any related charges against Coughlin; and the effect, if any,
such statuses have on the instant bar discipline matter.'


http://www.scribd.com/doc/225900173/2JDC-Judge-Polaha-on-NRS-189-030-1-RMC-Must-
File-Transcript-Prior-to-Payment-by-Defendant-s
Compare Judge Elliotts Order Affirming the Ruling of the Reno Municipal Court in
Coughlins case in CR11-2064 (where Elliotts Order is not clear as to whether it is affirming the
Order for Summary Punishment of Contempt or the Judgment of Conviction and Court Order or
some other ruling, to Judge Elliotts standard phraseology in the following, where the term
conviction is specified and where there is no remand for all further proceedings as there is in his
3/15/12 Order in Coughlins case, where the RMC failed to file the transcript as required by NRS
189.030(1), which requires a remand pursuant to NRS 189.035.
http://www.scribd.com/doc/225900174/2JDC-Judge-Elliott-Order-Affirming-Appellant-s-
Conviction-Compare-to-CR11-2064-Order-Affirming-Ruling-of-the-RMC
http://www.scribd.com/doc/225901665/Legislative-history-NRS-189-030-1-189-050-SB267-
1979-2064-22176-60838-ocr
http://www.scribd.com/doc/225900171/NRS-189-030-1-2JDC-Judge-Flanagan-Applying-
Civil-Rules-of-Procedure-to-Excuse-RMC-s-Failure-to-File-Transcript
http://www.scribd.com/doc/225900172/2JDC-Judge-Elliott-Order-Granting-Motion-to-
Dismiss-Without-Prejudice-NRS-189-030-1
http://www.scribd.com/doc/225900176/RCA-Hazlett-Stevens-RPC-3-1-Violation-Re-NRS-
189-030-1-Transcript-Requirement-Citing-Mitchell-and-NRAP-9


RESPONSE TO SUPREME COURT'S ORDER OF
MAY 16, 2014
On May 16, 2014, this Coul1 directed the State Bar to address
allegations made by Zachary Coughlin ("Coughlin") in a pleading he
filed on April 22, 2014. In that pleading, Coughlin asserted that
certain cases against him in the Reno Municipal Court had been
dismissed. The State Bar was directed to address:
1. The cases to which the orders of dismissal Coughlin
attached to his notice pel1ain;
2. The status of those cases and any related charges against
Coughlin; and
3. The effect, if any, such statuses have on the instant bar
disciplinary proceeding.
Coughlin 's notice claimed, in part, that it was "appropriate to
immediately dissolve the now 22 month long 'temporary suspension'
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per case #60838 for a 'conviction that was not affirmed on appeal;
where now, the heart of the State Bar's case would appear to be no
more." (Emphasis in original).
Coughlin's claims are entirely without merit and appear to be
yet another attempt to delay and/or obstruct this disciplinary
proceeding.
1. Coughlin's conviction for which he was temporarily
suspended was, in fact, affirmed on appeal and was never
vacated.
Coughlin was suspended by this Court in regard to his
conviction for theft in Supreme Court Case No. 60838. Coughlin's
claim that his conviction was not affirmed on appeal is false and
Coughlin knew or should have known of its falsity when he filed his
notice on April 22, 2014.
Coughlin's statement is apparently based on an argument that
the Washoe County District Court remanded his petit larceny case for
a new trial which, according to Coughlin, never occurred. Fn1.
(footnote 1: The claim appears to be the basis of Coughlin's Petition
for Reinstatement Pursuant to SCR 111(10) in Supreme Court Case
No. 65587, which he filed with this Court on May 7, 2014.)
The court order relied upon by Coughlin is titled "Order
Affirming Ruling of the Reno Municipal Court." See Exhibit 1. The
district court, on page 3 of this order, specifically affirms the
Reno Municipal Court's finding that Coughlin was guilty of Petit
Larceny in violation of Reno Municipal Code 8.10.040. The district
court then remanded the matter for all further proceedings. In a
footnote on page 3, the district court noted that Coughlin was the
party required to order the transcripts from the Reno Municipal
Court proceeding but had failed to do so.
The "Order Affirming Ruling of the Reno Municipal Court"
was also the very same order which formed the basis of the State
Bar's SCR 111 Petition in Supreme Court No. 60838. In short,
Coughlin's interpretation of this order is wholly unreasonable. The
title of the order alone should have put Coughlin on notice that his
reading of the order was incorrect.
Further, Coughlin made the same argument to Brian Sooudi
("Sooudi") Acting Chief Deputy City Attorney for Reno. See Exhibit
2, "E-mail from Brian Sooudi to the State Bar of Nevada," dated May
19, 2014; see also Exhibit 3, "E-mail from Brian Sooudi to Zachary
Coughlin," dated May 7, 2014, at 1-2. Sooudi rejected Coughlin's
arguments for the same reasons noted above. See id.
Further, Coughlin moved for a new trial, but the court
denied the motion. The Reno Municipal Court case docket for this
matter and the Order Denying Appellant's Motion for a New Trial are
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attached hereto as Exhibit 4.
In summary, Coughlin's criminal conviction for theft which
formed the basis for the SCR 111 Petition in Supreme Court Case
No. 60838 has not been dismissed. Coughlin is attempting to mislead
this Court by claiming otherwise.
2. The orders of dismissal attached to Coughlin's notice
did not pertain to his Petit Larceny conviction.
a. Reno Municipal Court Case No. 11 TR 26800 21
The first order of dismissal attached to Coughlin's notice was
in regard to Reno Municipal Court Case No. 11 TR 26800 21. The
docket for this matter is attached at Exhibit 5. The charges for this
matters (sic) involved alleged violations of RMC 06.06170A (Right
of Way Stop Sign at Intersection), RMC 06.06.555A Secured
Vehicle (I nsurance) Required Owner) and RMC 06.06.560A
(Vehicle Registration Required). The latter two (2) charges were
dismissed prior to trial on the first charge on February 27, 2012. See
Exhibit 6, "Order Finding Defendant in Contempt of Court and
Imposing Sanctions," filed February 28, 2012.
The entire case was dismissed on March 29, 2013, as
reflected in the Order of Dismissal dated April 7, 2014. See Exhibit
7. Reno Municipal Court Case No. was 12 CR 00696 was also
dismissed on March 29, 2013. In that case, Coughlin was charged
with violating RMC 06.06.375A (Pedestrian to Use Sidewalk). The
docket for this matter is attached as Exhibit 8.
b. Reno Municipal Court Case No. 11 CR 26405
The second order of dismissal attached to Coughlin's notice
was in regard to Reno Municipal Court Case No. 11 CR 26405.
However, this dismissal was due to a clerical error (11 CR 26405
was incorrectly listed as the case number for the dismissal) and the
dismissal has since been rescinded. See Exhibit 9, "Order
Correcting & Rescinding Order of Dismissal," filed May 28, 2014.
The e-mail correspondence between Acting Deputy City Attorney
Sooudi and Coughlin noted that the dismissal was signed by a
judge assigned to a different department. See Exhibit 3 at 2.
Reno Municipal Case No. 11 CR 26405 resulted in Coughlin
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being convicted of trespassing in violation of RMC 08.10.010. This
conviction is the basis for the State Bar's second SCR 111 Petition
concerning Coughlin, docketed as Supreme Court Case No. 61901.
3. Impact on the instant bar disciplinary proceeding.
The Petit Larceny conviction that was subject of the SCR 111
Petition in Supreme Court Case No. 60838 was considered by the
hearing panel in the instant bar disciplinary proceeding. See, e.g.,
Exhibit 10,
Findings of Fact and Conclusions of Law
, pages 2-3.
Given that the conviction has not been vacated or dismissed,
there is no impact upon the disciplinary panel's findings. However,
given that Coughlin continues to make false statements in regard to
his disciplinary proceeding (fn2(footnote 2: Again, Coughlin's
notice filed with this Court on April 22, 2014, claimed that it was
"appropriate to immediately dissolve the now 22 month long
'temporary suspension' per case #60838 for a 'conviction that was
not affirmed on appeal; where now, the heart of the State Bar's
case would appear to be no more."))

Coughlin's notice could be
considered another attempt to obstruct a disciplinary proceeding.
As noted above, Reno Municipal Court Case No. 11 TR
26800 21, which concerned traffic violations, was dismissed. The
matter was also considered by the hearing panel. However, the
panel's findings reflected a concern over Coughlin's behavior at
the trial for the matter, not the underlying charges themselves.
See
Exhibit 10 at 3-5. These concerns included Coughlin being found in
contempt of court and being incarcerated for five (5) days. See id.
at
3-4 TT 7-8; see also
Exhibit 11, Order, filed March 12, 2012. The hearing
panel also noted that Coughlin filed nonsensical pleadings in the
matter and Coughlin's conduct was described as "inappropriate,
bizarre, dishonest, irrational and disruptive . . . ."
See
Exhibit 10 at
4-5 TT 10-11.
The dismissal of the charges in Reno Municipal Court
Case No. 11 TR 26800 21 did not vacate the Municipal Court's
finding of contempt nor did it excuse Coughlin's behavior during
the proceeding. Accordingly, the disciplinary proceeding is not
impacted by the dismissal in Reno Municipal Court Case No. 11
26800 21.
Thirdly, Coughlin's trespass conviction for Reno Municipal
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Case No. 11 CR 26405 was apparently referenced in paragraph 20
of the hearing panel's findings. See Exhibit 10 at 7. However,
given that the conviction remains in place, the disciplinary
proceeding is not impacted. Again, the dismissal that Coughlin
attached to his notice has been rescinded as reflected in Exhibit 9.
4. Status of Coughlin's other criminal cases.
There is a third SCR 111 Petition filed in regard to Coughlin,
docketed as Supreme Court Case No. 64903. In that case, Coughlin
was convicted by the Reno Justice Court and sentenced to 180 days
in jail for violating NRS 199.280 Resisting a Public Officer). I t
does not appear that this conviction was considered by the hearing
panel.
In addition, none of Coughlin's criminal proceedings appear
to be currently open. Coughlin recently withdrew six (6) appeals he
had filed with the Washoe County District Court in exchange for
credit for time served in some of his criminal matters. See Exhibit
12, Order After Hearing regarding Second Judicial District Court
cases CR14-0158 and CR14-0159, filed March 26, 2014;
see also
Exhibit 13, Order regarding Second Judicial District Court cases
CR13-0614, CR13-1890, CR12-0376, and CR12-2025, filed on April
18, 2014.
The resolution of these matters does not appear to impact
the findings made by the hearing panel in Coughlin's disciplinary
proceeding.
5. Coughlin was not rehired by Washoe Legal Services.
Lastly, Coughlin, in his notice filed on April 22, 2014,
claimed that he was rehired by Washoe Legal Services. I n a May
23, 2014, e-mail from attorney Paul Elcano, Executive Director of
Washoe Legal Services, informed the State Bar that Mr. Coughlin
is not a current employee of Washoe Legal Services. See
Exhibit 14.

6. Conclusion.
The Petit Larceny conviction for which Coughlin was
suspended was affirmed by the Washoe County District Court and
never vacated. As such, Coughlin's claim that the conviction was
not affirmed is blatantly false. The two dismissal orders attached in
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the notice did not relate to the Petit Larceny conviction. One related
to traffic violations and the other concerned criminal trespass.
Although the traffic violations were eventually dismissed,
the hearing panel considered his conduct at the trial, which
resulted in two court orders where Coughlin was severely criticized
by the court for his antics, including Coughlin being found in
contempt of court and incarcerated for five (5) days.
The criminal trespass conviction was also considered by the
hearing panel. However the dismissal order Coughlin attached was
rescinded as the dismissal was done in error.
Lastly, Washoe Legal Services never rehired Coughlin. As
such, Coughlin's assertion that he was rehired is untrue. In short,
none of the allegations in Coughlin's notice had any merit.
Coughlin's untrue claims resulted in this Court and the State Bar
needlessly expending time and resources in order to address those
false allegations.
Dated this 3rd day of June, 2014. STATE BAR OF
NEVADA


AMJUR Courts: Although generally the legislature may not interfere with the court's authority
to promulgate rules, 13 the state constitution may grant it limited authority to make procedural rules
where necessary. 14 Footnote 13. Burton v Mayer, 274 Ky 263, 118 SW2d 547. Footnote 14. R. E. W.
Constr. Co. v District Court, 88 Idaho 426, 400 P2d 390
AMJUR Courts 49 Limitations on authority To be valid, a rule of court must be
reasonable. 15 In exercising its rulemaking authority, a court has the duty to ensure the orderly and
expeditious conduct of court business as well as to secure the rights of parties. 16 A court generally
may only promulgate rules regarding procedural matters.
The court also may not promulgate rules in order to diminish constitutional rights, (Griffin
v. Illinois, 351 U.S. 12 (1956), was a case in which United States Supreme Court held that a criminal
defendant may not be denied the right to appeal by inability to pay for a trial transcript. It was held
that the due process and equal protection clauses of the Fourteenth Amendment were violated by
the state's denial of appellate review solely on account of a defendant's inability to pay for a
transcript. The defendant's right to a transcript is governed by statute. United States v. Mosiman, 604
F. Supp. 1003 (D. Wis. 1985) 20 defeat the right of litigants to access to the court, 21 or hinder parties
from exercising their rights in court. 22
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Footnote 15. Letaw v Smith, 223 Ark 638, 268 SW2d 3, 45 ALR2d 1053; Slagle v
Valenziano, 134 Ind App 360, 188 NE2d 286; State ex rel. Abel v District Court, 140 Mont 117, 368
P2d 572; McAlester v Nave (Okla) 451 P2d 681; Raiford v Raiford, 193 Va 221, 68 SE2d 888.
Footnote 16. Campbell v Criterion Group (Ind) 605 NE2d 150. 1st Cir) 152 So 2d 281; Mortiz v
Byerly (Tex Civ App) 185 SW2d 589, writ ref. Footnote 20. Diversey Liquidating Corp. v
Neunkirchen, 370 Ill 523, 19 NE2d 363, 120 ALR 1395; Auburn v Brooke, 119 Wash 2d 623, 836
P2d 212. Footnote 21. Knox v Eighth Judicial Dist. Court, 108 Nev. 354, 830 P2d 1342; Craine v
Eighth Judicial Dist. Court, 107 Nev. 554, 816 P2d 451 (holding that a local rule of procedure may
not impair the right of any person to prosecute an appeal to the state supreme court). Footnote 22.
Hochberg v Davis (1st Dept) 171 App Div 2d 192, 575 NYS2d 311, amd, on reh (1st Dept) 179 App
Div 2d 372, holding that a supreme court justice would be directed to rescind his motion calendar
rules conditioning making of written motions on prior judicial consent, for although such rules might
discourage the filing of frivolous motions, they might also prevent a party from exercising the option
to move for relief to which he might be entitled; moreover, denying a party permission to engage in
motion practice hinders performance of counsel, and any inclination to file frivolous motions can be
discouraged by imposition of sanctions.
(NOTE: there really is not any conflict between NRS 189.030(1) and anything in NRAP
because NRAP does not apply to appeals to the district courtsbut if it didsee the following):
AMJUR Courts: 52 --Conflicts between rules and statutory or constitutional provisions
An apparent conflict between a court rule and a statutory provision should be harmonized and
both given effect if possible. 39 However, where the conflict is irresolvable, a procedural rule
generally prevails over a statute on procedure, 40 absent a constitutional provision subordinating the
court's rulemaking authority to the legislature in regard to practice and procedure. 41 A statute may
also control over a rule where to permit the rule to control would confer new jurisdiction on the court.
42 A court-created rule of procedure also cannot be applied in derogation of a substantive,
legislatively protected right. 43 State rules of civil procedure supersede all previous court decisions.
(NOTE: so, out goes the Mitchell, Hill, and Barkley decision the RCA attempts to twist into
relevance anyhow) 44
Footnote 39. People ex rel. Mijares v Kniss, 144 Colo 551, 357 P2d 352, 47 BNA LRRM
2376, 41 CCH LC 50098, 82 ALR2d 1163; In re Keenan, 310 Mass 166, 37 NE2d 516, 137 ALR
766; In re Guardianship of Dalton, 138 Mont 96, 354 P2d 1048; Bowyer v Taack, 107 Nev 625, 817
P2d 1176; State v Thomas, 121 Wash 2d 504, 851 P2d 673. Footnote 40. In re Opinion of Clerk (Ala)
606 So 2d 138; Hickson v State, 316 Ark 783, 875 SW2d 492; Thomas v Cornell, 316 Ark 366, 872
SW2d 370; State v Maxey, 125 Idaho 505, 873 P2d 150; Shaw v Shaw (Miss) 603 So 2d 287; State v
Knudson (ND) 499 NW2d 872; Williams v Cummings, 191 W Va 370, 445 SE2d 757. Footnote 41.
Stokes v Demark Emergency Medical Servs. (SC) 433 SE2d 850. The supreme court rules govern
over contradictory statutes in procedural matters unless the general assembly specifically annuls or
amends the rules in a bill limited to that purpose(NOTE: see NRS 189.030(1) to whatever extent
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NRAP is somehow made applicable to appeals to the district courts). Ostermueller v Potter (Mo) 868
SW2d 110. A court's rulemaking power, limited by the proviso that its rules not be inconsistent with
the state constitution or laws, was exceeded by a rule limiting witnesses in appeals from arbitration
proceedings to those witnesses who had appeared at the arbitration hearing where legislation
governing arbitration expressly provided that appeals were to be de novo. Weber v Lynch, 237 Pa
Super 48, 346 A2d 363, affd 473 Pa 599, 375 A2d 1278. Footnote 42. People ex rel. Mijares v Kniss,
144 Colo 551, 357 P2d 352, 47 BNA LRRM 2376, 41 CCH LC 50098, 82 ALR2d 1163; Simms v
Warden, 229 Conn 178, 640 A2d 601. As to the prohibition of a court rule enlarging or restricting the
court's jurisdiction, see 49. Footnote 43. People ex rel. Mijares v Kniss, 144 Colo 551, 357 P2d
352, 47 BNA LRRM 2376, 41 CCH LC 50098, 82 ALR2d 1163; Shewan v State (Fla App D5) 396
So 2d 1133; Slagle v Valenziano, 134 Ind App 360, 188 NE2d 286; Richey v Richey (Ky) 389 SW2d
914; Gair v Peck, 6 NY2d 97, 188 NYS2d 491, 160 NE2d 43, 77 ALR2d 390, remittitur amd 6 NY2d
983, 191 NYS2d 951, 161 NE2d 736, cert den and app dismd 361 US 374, 4 L Ed 2d 380, 80 S Ct
401; Ashford v Goodwin, 103 Tex 491, 131 SW 535; Wagner v Edgington Coal Co., 100 W Va 117,
130 SE 94; Weber v Weber, 176 Wis 2d 1085, 501 NW2d 413; Stevenson v Milwaukee County, 140
Wis 14, 121 NW 654. Footnote 44. Thomas v Cornell, 316 Ark 366, 872 SW2d 370; Shaw v Shaw
(Miss) 603 So 2d 287.
In a criminal case, the state has the duty to have trial testimony entered in the records of the
court and to file a transcript following a guilty verdict. Zant v Cook, 259 Ga 299, 379 SE2d 780.
Use in state court by counsel or party of tape recorder or other electronic
device to make transcript of criminal trial proceedings, 67 ALR3d 1013.
CJS XI. Record and Proceedings Not of Record
A. Matters to Be Shown by Record 554. Generally
A record prepared in accordance with the statutes and rules then in effect is a prerequisite
to a consideration of the appeal.[FN1]

110k1193 k. Jurisdiction and proceedings of appellate court after remand.
Even after a remittitur returns jurisdiction to the lower court, the appellate court may retain
limited jurisdiction over certain matters, particularly where constitutional rights are implicated.
Falkner v. Lindberg, 288 P.3d 1097 Utah App.,2012.

Beyond the constitutional rights implicated by Griffin v. Illinois and the denial of a transcript
here to Coughlin, and beyond the denial fo his Sixth Amendment rights in light of SCR 111(6) and
ADKT 411, is the denial of Coughlins constitutional right in Nevada to an appeal to the district
court.
See Floyd v. District Court, 36 Nev. 349, 354, 135 P. 922, 924 (1913) (stating that the
constitutional grant of final appellate jurisdiction to the district court is also a prescription that the
district court must assume final appellate jurisdiction in cases arising in a justice court, and hence it is
the duty which the district court cannot either refuse or divest itself of); see also Mazade v. Justice's
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Court of Goldfield Tp., 41 Nev. 481, 48283, 172 P. 378,
(Sandstrom v. Second Judicial Dist. Court of State
121 Nev. 657, 119 P.3d 1250Nev.,2005)
NRS 5.073(1) requires:

FN9. Nev. Const. art. 6, 6; see also id. 8.

The practice and proceedings in the municipal court must conform, as nearly as practicable, to the
practice and proceedings**1254
(Cite as: 121 Nev. 657, *661, 119 P.3d 1250, **1254)
of justices' courts in similar cases. An appeal perfected transfers the action to the district court for
trial anew, unless the municipal court is designated as a court of record as provided in NRS 5.010.
The municipal court must be treated and considered as a justice court whenever the proceedings
thereof are called into question.
Consistent with this statutory mandate, we have also recognized that procedures governing appeals
from final judgments rendered in *662
(Cite as: 121 Nev. 657, *662, 119 P.3d 1250, **1254)
municipal courts also conform to the procedures applicable to justice courts.
FN10
Consequently,
inasmuch as the proceedings and practice in municipal courts must conform to those in the justice
courts, we conclude that the district courts are also vested with jurisdiction to consider appeals from
orders of the municipal courts granting motions to dismiss misdemeanor criminal complaints.
FN10. See Root v. City of Las Vegas, 85 Nev. 326, 327, 454 P.2d 894, 894 (1969); State Ex Rel. Digby
v. Dist. Ct., 69 Nev. 186, 187, 244 P.2d 866, 866 (1952). Nev.,2005.
Sandstrom v. Second Judicial Dist. Court of State
121 Nev. 657, 119 P.3d 1250
An arbitrary exercise of inherent power by a municipal court is subject to judicial review and
correction by a higher court. Const. art. 6, 1, 9; N.R.S. 5.010-5.090. City of North Las Vegas ex
rel. Arndt v. Daines, 1976, 550 P.2d 399, 92 Nev. 292. Courts 190(1)


AMJUR Courts: However, where the conflict is irresolvable, a procedural
rule generally prevails over a statute on procedure,[FN2] absent a constitutional provision
subordinating the court's rulemaking authority to the legislature in regard to practice and procedure.[
FN3] State rules of civil procedure supersede all previous court decisions.[FN7] [FN2] In re Opinion
of Clerk, 606 So. 2d 138 (Ala. 1992); Hickson v. State, 316 Ark.
783, 875 S.W.2d 492 (1994); Haven Federal Sav. & Loan Ass'n v. Kirian, 579 So. 2d
730 (Fla. 1991) (declaring conflicting statute unconstitutional); Shaw v. Shaw, 603 So.
2d 287 (Miss. 1992); Williams v. Cummings, 191 W. Va. 370, 445 S.E.2d 757 (1994).
[FN3] Stokes v. Denmark Emergency Medical Services, 315 S.C. 263, 433 S.E.2d 850
(1993). [FN7] Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994); Shaw v. Shaw, 603
So. 2d 287 (Miss. 1992).
McElroy v. State, 172 S.W. 1144
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Tex.Crim.App.,1915
Supreme Court rule 116 102 Tex. liii, 142 S.W. xxv, adopted under Vernon's Ann.St.Const.
art. 5, 25, held invalid, because inconsistent with Code Cr.Proc.1911, arts. 930, 931, Vernon's
Ann.C.C.P. arts. 842, 843, providing for the preparation of transcripts in criminal
cases and their filing with the clerk of the Court of Criminal Appeals.

Watkins v. Kelley, 80 So.2d 247
106COURTS
106IIEstablishment, Organization, and Procedure
106II( F)Rules of Court and Conduct of Business
106k80Matters Subject to Regulation
106k80(4)k. Appeals.
Ala.,1955
Where both Supreme Court rule and statute purported to regulate time for filingtranscripts
and securing trial court's ruling on exceptions to the transcript, but were conflicting in their
terms and mutually exclusory in their effects, the act of the Legislature prevailed. Supreme
Court Rules, rule 48, Code 1940, Tit. 7Appendix; Code 1940, Tit. 7, 827(1) et seq.,
827(1a), 827(4).

Orndorff v. State ex rel. McGill, 108 S.W.2d 206
Tex.Civ.App.El.Paso,1937
Appeals in quo warranto proceedings are governed by statute, which supersedes court rule requiring
that transcript be filed within 20 days after appeal is perfected. Rules of Civil Procedure,
rule 781; Rules for Court of Civil Appeals, rule 7.
Tuttle v. Commonwealth, 77 S.W.2d 351
Ky.,1934
Statute permitting Court of Appeals to adopt rules consistent with law does not empower
court to set aside Code provision respecting time for filingtranscript by adoption of inconsistent
rule. Const. 110; Ky.St. 949; Cr.Code Prac. 336.

M. B. Goldenberg v. El Paso & S. W. Co., 169 P. 476
106COURTS
106IIEstablishment, Organization, and Procedure
106II( F)Rules of Court and Conduct of Business
106k86k. Conduct of particular proceedings.
N.M.,1917
In appeals from a justice of the peace court to the district court, rule 4 of the rules of practice
for the district courts, 14 N.M. 711, 107Pac. xi, providing that, if appellant, or plaintiff in error,
shall not procure the cause to be docketed on or before the third day of the term at which
the return shall be made, the appellee, or defendant in error, may, on motion, have the cause
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docketed, and the appeal or certiorari dismissed, or, at his election, he may have the judgment
of the justice court affirmed, is in aid of and supplemental to the statute, section 3222, making
it the duty of the justice of the peace to file a transcript of his docket, together with the papers
in the cause, with the clerk of the district court in all appeal cases, and section 3223,
making it the duty of the clerk of the district court to docket the cause, and is therefore not in
conflict with such statutory provisions, and not invalid.
[Cited 12 times for this legal issue]
Goldberg v. Eighth Judicial Dist. Court In and For Clark County, 572 P.2d 521
106 COURTS
106II Establishment, Organization, and Procedure
106II(F) Rules of Court and Conduct of Business

106 k81 k. Making and promulgation of rules.
Nev.,1977
Statute providing that all meetings of public bodies shall be open and public, as applied to judicial
bodies, is an unconstitutional infringement on inherent powers of judiciary which violates doctrine of
separation of powers, and thus Eighth Judicial District Court had authority to close its rule-making
meeting to the public. N.R.S. 241.020, subd. 1, 241.030, subd. 3; Const. art. 3, 1; art. 4, 1 et seq.

[Cited 5 times for this legal issue]
State v. Second Judicial Dist. Court ex rel. County of Washoe, 11 P.3d 1209
Nev.,2000
Statute providing that Supreme Court might make rules not inconsistent with statute and constitution
for governance of courts and might make rules regulating civil practice and procedure could not
limit Supreme Court's inherent authority to regulate criminal procedures under doctrine of separation
of powers; thus, to extent statute sought to curtail that power it failed. N.R.S. 2.120; Sup.Ct.Rules,
Rule 250, subd. 4(c).
a procedure lending itself to forfeiture of appeal from
ignorance of filing requirements is most undesirable and constitutes a proper subject
for rule-making or legislation. Indeed, since September 1, 1964, assigned counsel in
the First Department of New York have been under a duty to advise the defendant in
writing of his right to appeal, the time limitations involved, and the manner of instituting
an appeal and of obtaining a transcript of the testimony * * * to ascertain
whether the defendant wishes to appeal and, if so, * * * (to) serve and file the necessary
notice of appeal. Bronx and New York County Supreme Court Rules, Part 2,
Rule VI, in Cahill-Parsons New York Civil Practice (1963 ed.) (1965 Supplement at
233-34).

RMC Judge Howard quite arguably misled Coughlin as to whether he would have to himself
pay for the transcript (particularly where Howard had failed to rule Coughlin not indigent in response
to Coughlins 10/26/11 Application for Court Appointed Counsel...and Howards statements at the
close of trial on 11/30/11 that Coughlin would have to obtain the transcript at his own expense reveal
prejudice and bias as well as an attempt to mislead Coughlin as to Howards duty to file the transcript
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under NRS 189.030(1)), and whether the summary contempt order appealable.
Here, both access to the transcript
and the assistance of counsel for appeal were available to the indigent upon proper application,
and the question is how far the state was obliged to insure that such application
was effected by advising Mitchell of his rights or taking steps to achieve timely
filing of notice. 358 F.2d 922

We are obliged to hold, therefore, that the legislature in saying that such case shall be proceeded
upon as provided by law in cases of appeals in criminal cases from the justice of the
peace courts thereby prescribed that the accused should have a jury trial of his cause in the
district court. To hold otherwise would be to disregard the express direction of the legislature
as to the manner that appeals from the municipal court are to be determined on appeal. State v.
Hauser
137 Neb. 138, 288 N.W. 518
Pursuant to NV Constitution Art 6 Sec 6 Coughlin has a constitutional right to an appeal here.
N.R.S. Const. Art. 6, 6 6. District Courts: Jurisdiction; referees; family court
1. The District Courts in the several Judicial Districts of this State have original jurisdiction in all
cases excluded by law from the original jurisdiction of justices' courts. They also have final appellate
jurisdiction in cases arising in Justices Courts and such other inferior tribunals as may be established
by law. The District Courts and the Judges thereof have power to issue writs of Mandamus,
Prohibition, Injunction, Quo-Warranto, Certiorari, and all other writs proper and necessary to the
complete exercise of their jurisdiction. The District Courts and the Judges thereof shall also have
power to issue writs of Habeas Corpus on petition by, or on behalf of any person who is held in actual
custody in their respective districts, or who has suffered a criminal conviction in their respective
districts and has not completed the sentence imposed pursuant to the judgment of conviction.

The RMC has yet to impose sentence here.
Sandstrom v. Second Judicial Dist. Court of State, 121 Nev. 657, 119 P.3d 1250, Nev.,
September 22, 2005 (NO. 45153)

...municipal court must conform, as nearly as practicable, to the practice and proceedings of justices'
courts in similar cases. An appeal perfected transfers the action to the district court for trial anew,
unless the municipal court is designated as a court of record as provided in NRS 5.010 The municipal
court must be treated and considered as a justice court whenever the


Further, even if NRAP did apply here (it does not), due to the provision N.R.S. Const. Art. 6,
8, there is a constitutional provision prohibiting even NRAP from overriding NRS 189.030(1)s
requirment that the justice file the transcript with the district court: 8. Number, qualifications,
terms of office and jurisdiction of Justices of the Peace; appeals; Courts of Record...The
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Legislatureshall also prescribe by law the manner, and determine the cases in which appeals
may be taken from Justices and other courts. The Supreme Court, the District Courts, and such
other Courts, as the Legislature shall designate, shall be Courts of Record.

AMJUR Courts 51. Limitations on authorityThe state constitution may grant the legislature
limited authority to make procedural rules
where necessary.[FN1] The state's supreme court cannot contradict the state constitution by court
rule.[FN9] The court also may not promulgate rules in order to diminish constitutional rights,[FN10]
A trial court is without authority to adopt local rules or procedures that conflict with statutes
or with rules of court adopted by the Judicial Council, or that are inconsistent with the
Constitution or case law. Elkins v. Superior Court, 41 Cal. 4th 1337, 63 Cal. Rptr. 3d 483, 163
P.3d 160 (2007). [FN1] R. E. W. Const. Co. v. District Court of Third Judicial Dist., 88 Idaho 426,
400
P.2d 390 (1965). [FN9] Sackett v. Santilli, 146 Wash. 2d 498, 47 P.3d 948 (2002).; State v. Saintcalle,
309 P.3d 326, 349, Wash. [FN10] City of Auburn v. Brooke, 119 Wash. 2d 623, 836 P.2d 212 (1992).
Further, the City of Renos relevant ordinance deeming the RMC a court of record has remixed
NRS 189.030(1) to somehow require payment up front before the RMCs justices file the transcript
with the district court in criminal appeals:
AMJUR Courts D. Rulemaking
Research References

48. Sources of rulemaking power, generally

49. Courts possessing rulemaking power; manner of exercise

50. Permissible subjects of rulemaking authority, generally

51. Limitations on authority

52. Construction

53. --Conflicts between rules and statutory or constitutional provisions


AMJUR Courts D. Rulemaking
Research References
48. Sources of rulemaking power, generally
49. Courts possessing rulemaking power; manner of exercise
50. Permissible subjects of rulemaking authority, generally
51. Limitations on authority
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52. Construction
53. --Conflicts between rules and statutory or constitutional provisions

Validity of statutes: Provision of county ordinance that justices of the peace preside in
coroner inquests into officer-involved deaths, which provision unconstitutionally impinged on the
Legislature's constitutionally delegated authority to determine the jurisdiction of justices of the
peace, was not severable from remaining provisions establishing inquest scheme regarding officer-
involved deaths, and thus entire scheme would be struck down; although ordinance contained
severance clause, county code made no provision for anyone other than a justice of the peace to serve
as presiding officer in inquests involving officer-involved deaths, such that the officer-involved
inquest scheme could not, standing alone, be given legal effect. Hernandez v. Bennett-Haron, 2012,
287 P.3d 305. Constitutional Law 2438; Counties 55
Mandamus, when sought to coerce judicial action in criminal proceedings, or proceedings
relating thereto, is controlled, in general, by the same principles that are operative in other cases of
mandamus against judicial officers,
2
and the remedial appropriateness of the writ to enforce the
performance of plain and positive ministerial duties resting upon the court or judge in such
proceedings cannot be questioned.
3
The writ lies to assure the accused a fair trial in a criminal case,
4

and to compel the trial judge to act if he or she erroneously refuses to exercise jurisdiction.
5
Insofar as
the court exercises discretion or acts in a judicial capacity in criminal matters, and does not abuse the
powers conferred,
6
mandamus does not lie to direct or review the action taken,
7
nor is the writ
available to review mere errors in criminal procedure.
8
As in other cases, the writ will issue only if
the relator has a clear right to the performance of the acts which he or she seeks to compel,
9
and
which the respondent is under a clear duty to perform.
10

1
In re Cooper, 320 S.W.3d 905 (Tex. App. Texarkana 2010), reh'g overruled, (Sept. 21, 2010).
2
Will v. U.S., 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967); Dunn v. Municipal Court, Eureka
Judicial Dist., 220 Cal. App. 2d 858, 34 Cal. Rptr. 251 (1st Dist. 1963).
3
Bloeth v. Marks, 20 A.D.2d 372, 247 N.Y.S.2d 410 (1st Dep't 1964).
4
Maine v. Superior Court of Mendocino County, 68 Cal. 2d 375, 66 Cal. Rptr. 724, 438 P.2d 372
(1968).
5
Meyer v. Superior Court In and For Sacramento County, 247 Cal. App. 2d 133, 55 Cal. Rptr. 350 (5th
Dist. 1966); State ex rel. Boatman v. Payne, 97 Okla. Crim. 48, 257 P.2d 842 (1953).
6
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17
Cornell v. Superior Court In and For San Diego County, 52 Cal. 2d 99, 338 P.2d 447, 72 A.L.R.2d
1116 (1959).
7
Application of Gottesman, 332 F.2d 975 (2d Cir. 1964); Hoelzeman v. State, 241 Ark. 213, 406
S.W.2d 883 (1966).
8
Goldberg v. Hoffman, 226 F.2d 681 (7th Cir. 1955).
9
Application of Wicks, 142 Mont. 614, 386 P.2d 75 (1963); State ex rel. Smith v. Columbus, 66 Ohio
St. 3d 271, 1993-Ohio-102, 611 N.E.2d 827 (1993).
10
State ex rel. Yates v. Ohio Dept. of Rehab. & Corr., 84 Ohio St. 3d 82, 1998-Ohio-589, 701 N.E.2d
1012 (1998) ; State ex rel. Baines v. Parrino, 174 Ohio St. 531, 23 Ohio Op. 2d 177,
190 N.E.2d 571 (1963).
s

Wood v. State, 104 P.2d 187
110 CRIMINAL LAW
110XXIV Review
110XXIV(U) Determination and Disposition of Cause

110 k1193 k. Jurisdiction and proceedings of appellate court after remand.
Nev.,1940
A motion to recall the remittitur, filed after affirmance by Supreme Court of a conviction, and the
denial of a petition for a new trial, on ground that Supreme Court lacked jurisdiction in that
information failed to state a public offense, that district court lacked jurisdiction, that change of venue
granted by district court was void, and that defendant was deprived of right of counsel would be
denied where remittitur was regularly issued, and there was no inadvertence, fraud, misapprehension,
or mistake of fact. Comp.Laws, 11105; Supreme Court Rules, rule 15.

[Cited 3 times for this legal issue]
Wood v. State, 104 P.2d 187
Nev.,1940
A remittitur will be recalled only when inadvertence, mistake of fact, or an incomplete knowledge of
the circumstances of the case on the part of the court or its officers, whether induced by fraud or
otherwise, has resulted in an unjust decision. Comp.Laws, 11105; Supreme Court Rules, rule 15.

CJS Appellate Review: XVIII. Determination and Disposition of Cause
G. Jurisdiction and Proceedings of Appellate Court after Remand
1. In General
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Topic Summary References Correlation Table
1175. Recall of mandate
West's Key Number Digest
West's Key Number Digest, Appeal and Error 1218
Where reason for doing so exists, or the ends of justice so require, an appellate court may
recall its mandate, at least during the term at which it was issued, but ordinarily a mandate
will not be recalled in the absence of misapprehension, fraud, or inadvertence in its issuance.
Where reason for doing so exists,[FN1] or the ends of justice so require,[FN2] an appellate
court may generally recall its mandate after it has been sent down to the lower court. [FN3]
While there is authority that it is competent for the appellate court to decide whether it
shall resume jurisdiction for any purpose, and that when it so decides, it may recall the mandate
so as to reinvest itself with jurisdiction,[FN4] the rule most generally adhered to is that
an appellate court is without power to recall a mandate regularly issued without mistake,
inadvertence,
fraud, prematurity, or misapprehension,[FN5] and that it will not recall the mandate
for the purpose of re-examining the cause on the merits,[FN6] or to correct judicial error.
[FN7] Likewise, a mandate may not be recalled for the purpose of granting supplemental relief,[
FN8] for the purpose of changing the substance and effect of its final determination,[
FN9] or because an alleged adverse party was not made a party to the appeal,[FN10] or
for the purpose of striking harmless surplusage from the judgment. [FN11]
The appellate court, however, may recall its mandate where it was inadvertently[FN12] or
improvidently[FN13] issued on a misapprehension of the facts, for the purpose of allowing[
FN14] or refusing[FN15] costs, where they were improperly denied or granted, where
there are clerical errors, fraud, or imposition in the judgment,[FN16] or where the mandate
does not conform to the judgment. [FN17] Likewise, the mandate may be recalled where the
lower court did not render the judgment called for by the mandate of the appellate
court,[FN18] where a party did not apply for a rehearing because of erroneous information
given him or her by the clerk of the appellate court,[FN19] or where the mandate was prematurely
and erroneously issued before the expiration of the time allowed by statute for a rehearing.
[FN20] The reviewing court may also recall its mandate for the taking of appeal or error
proceedings to a still higher court,[FN21] since it is generally necessary that a mandate
already issued be recalled before an appeal can be taken to a still higher court. [FN22]
A motion or petition to recall the remittitur may operate as a belated petition for rehearing
on special grounds, without any time limitations. [FN23] The appellate court may recall the
mandate during the term in which it was issued. [FN24] While some authorities flatly deny
that the appellate court has any power to recall its mandate after the expiration of the term at
which the judgment was rendered and the mandate issued, in the absence of a special order
continuing jurisdiction over the cause,[FN25] according to other authorities, as long as a motion
to recall the mandate was timely filed with the clerk of the court during the same term as
the challenged judgment and mandate, the appellate court has jurisdiction to consider the motion
to recall the mandate during the next term. [FN26] After one motion to recall a mandate
has been acted on, another will not lie. [FN27]
Laches and lack of due diligence; failure to comply with court rule as to service on opposite
party.
Regardless of its jurisdiction, the appellate court will deny a motion to recall the mandate
where the moving party is guilty of laches and lack of due diligence,[FN28] or where he or
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she has not complied with a court rule by serving affidavits and notice of motion on the opposite
party. [FN29]
CUMULATIVE SUPPLEMENT
Cases:
When the remittitur has been properly sent, the appellate court no longer has jurisdiction
over the matter and no motion can be heard thereafter; the only exception to the rule is when
the remittitur is sent down by mistake, error or inadvertence of the appellate court. Wise v.
South Carolina Dept. of Corrections, 372 S.C. 173, 642 S.E.2d 551 (2007).
The Supreme Court lacked jurisdiction over motion to alter or amend judgment; the Court
of Appeals properly sent remittitur to the trial court after 15 days had elapsed from the date of
the order dismissing the appeal without the proper filing of a petition for reinstatement. Wise
v. South Carolina Dept. of Corrections, 372 S.C. 173, 642 S.E.2d 551 (2007).
[END OF SUPPLEMENT]
[FN1] Neb.Fick v. Herman, 161 Neb. 110, 72 N.W.2d 598 (1955).
Pa.Lawler v. Com., 347 Pa. 568, 33 A.2d 432 (1943).
ircumstances causing doubt
If circumstances arise that cause doubt on the correctness of the law of the case established
on appeal, a litigant may press the appellate court to depart from its mandate and
opinion by a motion to recall the mandate.
Mo.Davis v. J.C. Nichols Co., 761 S.W.2d 735 (Mo. Ct. App. W.D. 1988).
[FN2] IdahoJohn W. Brown Properties v. Blaine County, 132 Idaho 60, 966 P.2d
656 (Ct. App. 1997).
[FN3] Cal.Bryan v. Bank of America, 86 Cal. App. 4th 185, 103 Cal. Rptr. 2d 148
(1st Dist. 2001).
IdahoJohn W. Brown Properties v. Blaine County, 132 Idaho 60, 966 P.2d 656 (Ct.
App. 1997).
IowaIn re M.T., 714 N.W.2d 278 (Iowa 2006).
Mo.Reimers v. Frank B. Connet Lumber Co., 273 S.W.2d 348 (Mo. 1954).
Neb.Fick v. Herman, 161 Neb. 110, 72 N.W.2d 598 (1955).
N.J.Isserman v. Isserman, 2 N.J. 1, 65 A.2d 508 (1949).
Okla.Anderson v. Talley, 1947 OK 266, 199 Okla. 491, 187 P.2d 206 (1947).
Or.Gow v. Multnomah Hotel, 191 Or. 45, 228 P.2d 791 (1951).
Wash.Kosten v. Fleming, 24 Wash. 2d 355, 164 P.2d 655 (1945).
[FN4] N.Y.Franklin Bank-Note Co. v. Mackey, 158 N.Y. 683, 51 N.E. 178 (1898).
[FN5] Cal.Bryan v. Bank of America, 86 Cal. App. 4th 185, 103 Cal. Rptr. 2d 148
(1st Dist. 2001).
Ky.Morris v. Thomas, 275 S.W.2d 423 (Ky. 1954).
Minn.Kasal v. Kasal, 228 Minn. 570, 37 N.W.2d 711 (1949).
Neb.Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950).
S.D.Lesmeister v. Dewey County, 75 S.D. 360, 65 N.W.2d 136 (1954).
Tex.Guaranty Securities Corporation v. Marshall, 142 S.W.2d 632 (Tex. Civ. App.
Galveston 1940), writ dismissed.
Wash.State ex rel. City of Seattle v. Department of Public Utilities of Wash., 33
Wash. 2d 896, 207 P.2d 712 (1949).
[FN6] Cal.Southwestern Inv. Corp. v. City of Los Angeles, 38 Cal. 2d 623, 241 P.2d
985 (1952).
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La.Alexis v. Walker, 35 So. 2d 906 (La. Ct. App., Orleans 1948).
Wash.Kosten v. Fleming, 17 Wash. 2d 500, 136 P.2d 449 (1943).
[FN7] Cal.Kohle v. Sinnett, 136 Cal. App. 2d 34, 288 P.2d 139 (3d Dist. 1955).
[FN8] N.J.General Motors Acceptance Corporation v. American Surety Co. of New
York, 113 N.J.L. 139, 172 A. 905 (N.J. Sup. Ct. 1934).
Or.Osburn v. De Force, 123 Or. 352, 262 P. 222 (1927).
[FN9] Or.Krause v. Oregon Steel Co., 50 Or. 88, 91 P. 442 (1907).
[FN10] Cal.Richardson v. Chicago Packing & Provision Co., 135 Cal. 311, 67 P.
769 (1902).
[FN11] Or.Morrell v. Miller, 28 Or. 354, 43 P. 490 (1896), aff'd, 28 Or. 354, 45 P.
246 (1896).
[FN12] Ariz.Ferguson v. Superior Court In and For Pinal County, 59 Ariz. 314, 127
P.2d 131 (1942).
Cal.McClearen v. Superior Court of Tulare County, 45 Cal. 2d 852, 291 P.2d 449
(1955).
La.Putnam & Norman v. Levee, 186 So. 368 (La. Ct. App. 1st Cir. 1939).
N.J.Friedman v. National Cas. Co., 133 N.J.L. 567, 45 A.2d 591 (N.J. Ct. Err. &
App. 1946).
[FN13] Cal.Haydel v. Morton, 28 Cal. App. 2d 383, 82 P.2d 623 (1st Dist. 1938).
[FN14] Cal.Security-First Nat. Bank v. Superior Court in and for San Diego County,
134 Cal. App. 195, 25 P.2d 234 (4th Dist. 1933).
[FN15] Cal.Horan v. Varian, 207 Cal. 7, 276 P. 1002 (1929).
[FN16] Cal.McClearen v. Superior Court of Tulare County, 45 Cal. 2d 852, 291
P.2d 449 (1955).
Colo.Grimes v. Barndollar, 58 Colo. 421, 148 P. 256 (1914).
Okla.Simmons v. Harris, 1924 OK 1137, 108 Okla. 189, 235 P. 508 (1924).
[FN17] Cal.In re Davis' Estate, 8 Cal. 2d 11, 63 P.2d 827 (1936).
S.D.Haglund v. Egge, 42 S.D. 313, 174 N.W. 744 (1919)
[FN18] Wash.Kosten v. Fleming, 17 Wash. 2d 500, 136 P.2d 449 (1943).
[FN19] N.D.Nystrom v. Templeton, 17 N.D. 463, 117 N.W. 473 (1908).
[FN20] Mo.Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43 (1927).
Okla.Brann v. Harris, 1935 OK 298, 173 Okla. 167, 47 P.2d 876 (1935).
[FN21] Tex.Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326 (1907).
[FN22] N.Y.Thompson v. Kearney, 14 Daly 436, 14 N.Y. St. Rep. 686 (N.Y.C.P.
1888).
[FN23] Cal.Bryan v. Bank of America, 86 Cal. App. 4th 185, 103 Cal. Rptr. 2d 148
(1st Dist. 2001).
[FN24] Fla.Judges of Eleventh Judicial Circuit In and For Dade County v. Janovitz,
635 So. 2d 19 (Fla. 1994).
Ind.McBride v. Coleman, 189 Ind. 7, 125 N.E. 449 (1919).
[FN25] Fla.Pawley v. Pawley, 47 So. 2d 546 (Fla. 1950).
N.C.Davis v. Southern Ry. Co., 176 N.C. 186, 96 S.E. 945 (1918).
[FN26] Fla.Peter v. Seapine Corp., 678 So. 2d 508 (Fla. Dist. Ct. App. 1st Dist.
1996).
[FN27] Or.McLeod v. Lloyd, 45 Or. 67, 75 P. 702 (1904).
[FN28] Cal.Southwestern Inv. Corp. v. City of Los Angeles, 38 Cal. 2d 623, 241
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P.2d 985 (1952).
IdahoFite v. French, 54 Idaho 104, 30 P.2d 360 (1934).
Wash.Gordon v. Hillman, 102 Wash. 411, 173 P. 22 (1918).
Effect of lapse of time
The lapse of time alone was not conclusive on the question whether the appellants
were diligent in moving to recall the remittitur, where it was only very recently that it
appeared that the trial court was about to enter judgment not in accordance with the supreme
court mandate.
Wash.Kosten v. Fleming, 21 Wash. 2d 825, 153 P.2d 309 (1944).
[FN29] S.C.Thomas v. Lynch, 87 S.C. 44, 68 S.E. 817 (1910).


Mandamus
Summary
I. In General
II. Jurisdiction and Power to Issue
III. General Principles Governing Remedy
IV. Rights and Duties Enforceable
V. Questioning Constitutionality of Statutes and Ordinances
VI. Duties of Private Individuals, Corporations, and Unincorporated Associations
VII. Duties of Public Service Corporations and Their Officers
VIII. Duties of Public Officers, Bodies, and Commissions
IX. Particular Duties and Acts of Public Officers
X. Rights Pertaining to Public Office
XI. Courts and Judicial Officers

XI. Courts and Judicial Officers
A. In General
305. --Court's failure to perform an act
308. Compelling assumption and exercise of jurisdiction
309. Control or review of judicial action or discretion
310. --Abuse of power or discretion

312. Nondiscretionary or ministerial duties
B. Particular Duties or Acts
342. Appeal, error, or other review
342. Appeal, error, or other review
Mandamus 57(1)
Mandamus is the appropriate remedy to compel a lower court to take such action, not discretionary in
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character, as may be required by the statutes and the practice to obtain appellate
review.[FN1] To that end, the writ may be granted to compel a subordinate tribunal
to furnish or approve a record;[FN4] to furnish a transcript, [FN5] or accurate report of the
proceedings;[FN7] The writ is also available to compel a justice of the peace to perform mandatory
duties with respect to the allowance and perfection of an appeal.[FN9] A clerk of court who has an
absolute duty to file a notice of appeal will be compelled by mandamus to do so.[FN10]
[FN1] Minchew v. State, 366 S.W.2d 942 (Tex. Crim. App. 1963).
[FN2] 338.
[FN3] Ex parte Soto, 407 S.W.2d 787 (Tex. Crim. App. 1966).
[FN4] McSherry v. Israel, 222 Ga. 520, 150 S.E.2d 646 (1966).
[FN5] State ex rel. Howard v. Ferreri, 70 Ohio St. 3d 587,1994-Ohio-234, 639 N.E.2d
1189 (1994). mandamus is appropriate to provide a complete transcript of proceedings or to correct
the record. See, e.g., State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183;
State ex rel. Spirko v. Judges of the Court of Appeals, Third Appellate Dist. (1986), 27 Ohio St.3d 13,
27 OBR 432, 501 N.E.2d 625; cf. State ex rel. Cody v. Toner (1983), 8 Ohio St.3d 22, 8 OBR 255,
456 N.E.2d 813. (mandamus is the proper remedy to enforce the right of an indigent to a copy of the
transcript for the purpose of preparing appeal where the request for transcript has been denied by the
court); Associated Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 11 OBR 166, 463 N.E.2d
417;
[FN6] Park v. Archer, 158 Tex. 274, 311 S.W.2d 231 (1958).
[FN7] Tansor v. Checker Taxi Co., 27 Ill. 2d 250, 188 N.E.2d 659 (1963).
[FN8] Carson v. Harris, 242 S.W.2d 777 (Tex. Civ. App. San Antonio 1951), writ refused
n.r.e.
[FN9] France v. Weinstein, 224 Or. 100, 355 P.2d 621 (1960).
[FN10] Craine v. Eighth Judicial Dist. Court In and For County of Clark, 107 Nev.
554, 816 P.2d 451 (1991).
343. --Exercise of jurisdiction or other action by appellate court
344. Compliance with judgment or mandate of appellate court
345. Costs and fees
346. --Proceeding in forma pauperis

346. Costs and feesProceeding in forma pauperis
West's Key Number Digest
West's Key Number Digest, Mandamus 59
Forms
Am. Jur. Pleading and Practice Forms, Mandamus 97 (Petition or applicationFor writ
of mandamusTo compel judicial officers to file petition in forma pauperis)
Mandamus lies to review the action of a court on a motion to permit a party to proceed in
forma pauperis,[FN1] or to appeal on a partial transcript.[FN2] However, the writ does not lie to
control the discretion of a trial court in ruling on
a motion to proceed in this manner,[FN4] and its ruling will not be disturbed unless it is
against the preponderance of the evidence,[FN5] or an abuse of discretion is shown.[FN6]
Where a petitioner did not establish a clear legal right to proceed in forma pauperis in a
civil action, such petitioner has been held not entitled to a writ of mandamus compelling the
clerk of circuit court to file his or her civil action without prepayment of any fees, costs, or security,
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where there were conflicting financial disclosures, making it unclear whether the petitioner's
financial affidavit was sufficient to meet the eligibility requirements.[FN7]


[FN1] Isrin v. Superior Court of Los Angeles County, 63 Cal. 2d 153, 45 Cal. Rptr.
320, 403 P.2d 728 (1965); Grimaldo v. Lewis, 915 S.W.2d 222 (Tex. App. Corpus
Christi 1996).
[FN2] Taylor v. Sullivan, 368 Mich. 506, 118 N.W.2d 421 (1962).
[FN3] Rivera v. District Court of Comanche County, 1993 OK 63, 851 P.2d 524 (Okla.
1993).
[FN4] Browning v. United States, 218 F.2d 821 (9th Cir. 1955); Taylor v. Carlisle, 566
So. 2d 576 (Fla. Dist. Ct. App. 4th Dist. 1990); Trevino v. Pemberton, 918 S.W.2d 102
(Tex. App. Amarillo 1996).
[FN5] Stephens v. Dodson, 226 S.W.2d 924 (Tex. Civ. App. Dallas 1950).
[FN6] Trevino v. Pemberton, 918 S.W.2d 102 (Tex. App. Amarillo 1996).
[FN7] State ex rel. Deblasio v. Jackson, 227 W. Va. 206, 707 S.E.2d 33 (2011).

C. Particular Actions and Proceedings
1. In General
347. Generally
349. Disbarment proceedings
351. Habeas corpus proceedings
2. Criminal Proceedings
353. Generally
355. Appointment of counsel
West's Key Number Digest
West's Key Number Digest, Mandamus 61
Mandamus will issue to enforce the right of a defendant in a criminal case to counsel, or to
consult with counsel,[FN1] [FN1] Wright v. Pound, 399 S.W.2d 306 (Ky. 1965).
354. Disqualification of judge; recusal
368. Record; correction of record
XI. Courts and Judicial Officers
C. Particular Actions and Proceedings
2. Criminal Proceedings
Topic Summary Correlation Table References
AMJUR Mandamus 368. Record; correction of record
West's Key Number Digest
West's Key Number Digest, Mandamus 61
In criminal proceedings, a plain and positive duty resting upon the court to amend or correct
its record may be enforced by mandamus.[FN1] It is undoubtedly an appropriate remedy
to compel the court to expunge from the record a void order entered therein,[FN2]
[FN1] People v. Meehan, 124 Cal. App. 2d 589, 269 P.2d 70 (1st Dist. 1954); State ex
rel. Sparling v. Bronson, 83 Ohio App. 108, 38 Ohio Op. 203, 82 N.E.2d 780 (3d Dist.
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Defiance County 1947).
[FN2] People ex rel. Adamowski v. Dougherty, 19 Ill. 2d 393, 167 N.E.2d 181 (1960).



AMJUR Appellate:
F. Mandate; Proceedings on Remand
Research References
1. Mandate, in General
a. In General
b. Stay of Mandate Pending Application for Certiorari
2. Construction of Mandate
731. Generally
732. Conflicts between mandate and opinion
3. Effect of Mandate; Proceedings on Remand, in General
a. In General
733. Generally
734. General requirement of strict compliance with mandate
735. Lower court's discretion in implementing mandate, generally
736. Effect of presence of specific instructions; limitation of issues or
actions
737. Effect of absence of specific instructions
738. Remand for resentencing
739. Applicable law; retroactive application of new rules
b. Deviation from Mandate
740. Generally
741. Effect of whether appellate court decided issue
742. Extraordinary circumstances
4. Enforcement of Mandate; Relief from Judgment after Issuance of Mandate
5. Recall of Mandate
a. In General
746. Generally
747. Nature of remedy
b. Grounds
748. Clarification of mandate
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749. Correction of errors in mandate
750. --Interest; costs
751. Protection of judicial integrity; fraud
752. Subsequent developments
6. Ordering Further Proceedings
a. In General; Remand
753. Generally
754. Reassignment of judge upon remand
b. New Trial
(1) In General
755. Generally; authority and discretion of court
756. General standards as to appropriateness of granting new trial
(2) Particular Circumstances where Appropriate
757. Generally
758. Inconsistent or inaccurate record or verdict
759. Issues regarding damages
c. Remand for Dismissal
d. Remand for Further Development; Amendment or Supplementation of
Record
762. Generally; remand for additional findings of fact
763. --Remand based on ambiguity of findings
764. Remand to determine or clarify record on unresolved issues
765. Remand to correct misapprehension or misapplication of law
766. Amendment or supplementation of pleadings on remand
e. Remand Due to Change in Law
N.R.S. 189.030


West's Nevada Revised Statutes Annotated Currentness
Title 14. Procedure in Criminal Cases (Chapters 169-189)
Chapter 189. Justice Courts
Appeals to District Court
Appeal by Defendant
189.030. Transmission of transcript, other papers, sound recording and copy of docket to
district court
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1. The justice shall, within 10 days after the notice of appeal is filed, transmit to the clerk of the
district court the transcript of the case, all other papers relating to the case and a certified copy of the
docket.

2. The justice shall give notice to the appellant or the appellants attorney that the transcript and all
other papers relating to the case have been filed with the clerk of the district court.

3. If the district judge so requests, before or after receiving the record, the justice of the peace shall
transmit to the district judge the sound recording of the case.

CREDIT(S)

Amended by Laws 1973, p. 631 (did not include word transcript); Laws 1979 (add the word
transcript and changed must to shall and added other before papers and added the
entirety of NRS 189.030(3) regarding trasnmitting th eaudio recording upon request of district court
judge...that same Senate Bill No. 267 an act relating to justice courts; transforming the to cours of
record, and providing other matters properly relating therto NRS 189.050 was amended , striking out
for trial anew after the action to th edistrict court and adding to be judge on the record), p.
1512.

Formerly Cr.Prac. (1911), 664; RL (1912), 7514; NCL (1929), 11311.
HISTORICAL AND STATUTORY NOTES

2009 Legislation

Technical corrections were made to conform with Legislative Counsel Bureau revisions (2009).

LIBRARY REFERENCES
Criminal Law 260.7.
Westlaw Key Number Search: 110k260.7.


NOTES OF DECISIONS
Cost of transcripts 2
Late filing 3
Mailed documents 1

1. Mailed documents

To be filed, a document must be received. Merely mailing a notice of appeal within the 10-day period
is not sufficient to meet the filing requirement, since filing requires the actual receipt of the notice by
the court within the time allowed by law. Even though the filing may not be timely, the magistrate has
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the duty to forward the case to the district court under NRS 189.030. Op.Atty.Gen. Opinion No. 79-4
(Feb. 16, 1979), 1979 WL 34680.

2. Cost of transcripts

Petitioner for writ of certiorari was required to pay for justice's court trial transcript. N.R.S. 189.030,
subd. 1. Braham v. Fourth Judicial Dist. Court, 1987, 747 P.2d 1390, 103 Nev. 644. Certiorari 71

3. Late filing

Late filing of transcript of record of original proceedings against defendant by justice's court on
defendant's appeal of conviction to the district court did not warrant dismissal of underlying criminal
charges against defendant. State v. O'Donnell, 1982, 646 P.2d 1217, 98 Nev. 305. Criminal Law
260.7

N. R. S. 18189.050. Action to be judged on record

An appeal duly perfected transfers the action to the district court to be judged on the record.

CREDIT(S)

Amended by Laws 1979, p. 1512.

Formerly Cr.Prac. (1911), 666 [part]; RL (1912), 7516; NCL (1929), 11313.
LIBRARY REFERENCES
Criminal Law 260.4.
Westlaw Key Number Search: 110k260.4.


NOTES OF DECISIONS
Right to trial by jury 1

1. Right to trial by jury

Statutes, reviewed in their entirety, reflect an intention of Legislature to provide a right to jury trial to
one who has appealed to the district court from a conviction in the municipal court for municipal
ordinance violation. N.R.S. 189.050, 189.080, 266.550, 266.595. Hudson v. Eighth Judicial Dist.
Court, In and For Clark County, 1967, 422 P.2d 688, 83 Nev. 62. Jury 23(1)
.030, NV ST 189.030



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VIII. Appellate Determinations H. Determination of Appeal 1. Affirmance 774.
Generally Appeal and Error k1124 to 1144 Criminal Law k1182 Federal Courts k926 to 927, 929 An
appellate court also may affirm a lower court's opinion solely on the basis of a party's failure to
comply with the jurisdiction's appellate rules of procedure,[FN7] [FN7] West Valley City v. Majestic
Inv. Co., 818 P.2d 1311 (Utah Ct. App. 1991). [FN8]
VIII. Appellate Determinations H. Determination of Appeal 1. Affirmance 777. Effect
of court's inability to review factual basis of judgment; inadequacy or absence of record Appeal
and Error k1124 to 1144 Criminal Law k1182 Federal Courts k926 to 927, 929 An appellate court
will affirm a judgment if it cannot review the factual basis of the judgment, such as where the
appellant provides no record[FN1] or an insufficient record.[FN2] In addition, where the issues are
not sufficiently presented, the decision below may be affirmed on that basis.[FN3] Practice Guide:
The burden is essentially on the appellant to present a record sufficient for the appellate court to
determine that the lower court was in error.[FN4] When a judgment or order may have been based
upon grounds not challenged on appeal, a court of appeals must normally affirm.[FN5] Cases: Where
there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the
record has not been prepared, a judgment which is not fundamentally erroneous on its face must be
affirmed. West's F.S.A. R.App.P.Rule 9.200(a)(3), (b)(3). Zarate v. Deutsche Bank Nat. Trust Co. as
Trustee, 81 So. 3d 556 (Fla. 3d DCA 2012). In light of failure on the part of patient to provide
appellate court with a complete transcript of trial in her malpractice suit against doctor, appellate
court was prevented from assessing the probable impact that the exclusion of the impeachment
evidence had on the jury, and patient was not entitled to reversal on contention that evidence of a
prior medical review board matter against doctor was erroneously excluded impeachment evidence.
Rules App.Proc., Rule 66(A). Gibson v. Bojrab, 950 N.E.2d 347 (Ind. Ct. App. 2011). Where a trial
court's order does not state the basis for the court's ruling, the Court of Appeals may affirm on any
basis preserved in the record. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex. App.
Dallas 2008). [FN1] Woodard v. State Dept. of Indus. Relations, 599 So. 2d 48 (Ala. Civ. App. 1992).
[FN2] In re Schnabel, 612 F.2d 315 (7th Cir. 1980); Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130
(1993); Jones v. Beavers, 116 N.M. 634, 866 P.2d 362, 22 U.C.C. Rep. Serv. 2d 865 (Ct. App. 1993).
In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous
must be affirmed. Marshall v. Marshall, 953 So. 2d 23 (Fla. Dist. Ct. App. 5th Dist. 2007). A mother,
on appeal on behalf of a child in a child's medical malpractice action against a doctor, did not present
the appellate court a with record sufficient to allow appellate review of the mother's claim that the
trial court plainly erred by failing to act, sua sponte, to instruct the jury that it could infer that an
allegedly altered medical record was unfavorable to the doctor, and thus, the appellate court would
affirm; the record was wholly insufficient to allow an appellate court to evaluate whether an absence
of an adverse-inference instruction prejudiced the child's case or led to a miscarriage of justice. Worth
v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). [FN3] Lyman v. State, 824 P.2d 703 (Alaska
1992) (inadequately briefed issues). When the appellant does not cite any authority, or make any
convincing argument, and it is not apparent without further research that the point put forth by the
appellant would be well-taken, the supreme court will affirm. Firstbank of Arkansas v. Keeling, 312
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Ark. 441, 850 S.W.2d 310 (1993). [FN4] Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).
[FN5] Hagberg v. City of Pasadena, 2007 WL 494201 (Tex. App. Houston 1st Dist. 2007). In
reviewing, on an accused's petition for certiorari, a lower court's decision, the United States Supreme
Court will decline to reach alternative grounds for affirmance which the government did not raise
below. Ryder v. U.S., 515 U.S. 177, 115 S. Ct. 2031, 132 L. Ed. 2d 136 (1995). AMJUR
APPELLATE 777
VIII. Appellate Determinations H. Determination of Appeal 3. Vacation b. Grounds for
Vacation

Federal Courts k932, 932.1 Where the record is inadequate, such as where it is not clear whether the
state court rested its decision on federal or state grounds,[FN1] or there is a question whether there is
a remedy under state law, the judgment may be vacated.[FN2] Similarly, a court of appeals must
vacate the judgment and remand the case for proper findings if a district court makes only general,
conclusory, or inexact findings.[FN3] or if a federal appellate court is uncertain whether the lower
court properly applied applicable state law.[FN4] [FN1] Dixon v. Duffy, 344 U.S. 143, 73 S. Ct. 193,
97 L. Ed. 153 (1952); Minnesota v. National Tea Co., 309 U.S. 551, 60 S. Ct. 676, 84 L. Ed. 920
(1940). [FN2] Jennings v. State of Ill., 342 U.S. 104, 72 S. Ct. 123, 96 L. Ed. 119 (1951). [FN3] OCI
Wyoming, L.P. v. PacifiCorp, 479 F.3d 1199 (10th Cir. 2007). [FN4] Hope Flooring & Lumber Co. v.
Boulden, 215 F.2d 731 (8th Cir. 1954). AMJUR APPELLATE 793

Respectfully submitted DATED this 5/22/14



/s/ Zachary Barker Coughlin
Zachary Barker Coughlin, Esq.
Nevada Bar No 9473
1471 E. 9
th
St.
Reno, NV 89512
Tel and Fax: 949 667 7402
Attorney for Petitioner


CERTIFICATE/DECLARATION OF ZACHARY BARKER COUGHLIN PURSUANT TO
SCR 111(10)
STATE OF NEVADA)
ss.
COUNTY OF WASHOE)

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Comes Now, Declarant, ZACHARY BARKER COUGHLIN, being first duly sworn, deposes
and says under penalty of perjury and certifies the following is true and correct:
1. I am subject attorney in the above-referenced matter, have personal knowledge of the facts
contained herein and am competent to attest thereto, and I hereby declare that all assertions I have
made herein are true and correct to the best of my knowledge. Everything I have linked to herein
directs to a true and complete copy of the document it purports to be.
Respectfully submitted DATED this 6/5/14



/s/ Zachary Barker Coughlin
Zachary Barker Coughlin, Esq.


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CERTIFICATE OF SERVICE AND MAILING

I HEREBY CERTIFY that on June 5, 2014 a true and correct copy of the foregoing document
was submitted for electronic filing to be electronically served upon the State Bar of Nevada's Patrick
O. King and or David Clark:





/s/ Zach Coughlin
Zach Coughlin,