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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
ZACHARY BARKER COUGHLIN
PETITIONER
CASE NO
VS.
RENO JUSTICE COURT (JUDGES
DAVID CLIFTON, PETER SFERRAZZA
SCOTT PEARSON), RENO
MUNICIPAL COURT (JUDGES WILLIAM
L. GARDNER, KENNETH RAY HOWARD
DOROTHY NASH HOLMES, JAY DILWORTH
;SECOND JUDICIAL DISTRICT COURT;
STATE BAR OF NEVADA; RENO CITY
ATTORNEYS OFFICE; WASHOE COUNTY
DISTRICT ATTORNEYS OFFICE; NORTHERN
NEVADA DISCIPLINARY BOARD
________________________________________/
MOTION FOR TRO OR INJUNCTION WHERE YOUNG ABSTENTION UNCALLED FOR IN
LIGHT OF ENORMITY OF CONFLICTS OF INTEREST, IMPROPRIETY, MISCONDUCT, AND
CONSTITUTIONAL ISSUES INVOLVED
Coughlin apologizes for this not being in better form but he is overwhelmed, and seeks an op-
portunity to amend this proposed filing and to obtain counsel, hopefully at public expense or some
sort of assistance. The court also may not promulgate rules in order to diminish constitutional rights,
defeat
the right of litigants to access to the court, Knox v. Eighth Judicial Dist Court of State, In and For
County of Clark, 108
Nev. 354, 830 P.2d 1342 (1992).
http://www.leagle.com/decision/19922172830P2d1342_12164 It is unimaginable for the district
court to refuse to order released the sealed portions of Coughlins own criminal trials in rcr2011-
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063341, rcr2012-065630, etc., etc., especially where such is absolutely relevant,material and
necessary to his Marsden and Stankewitz claims, amongst other appealable issues. Additionally, the
RJC needs to face the music and release the three different hearing portions of 2/5/13 that in 065630
and 063341 that it is steadfastly refusing to release, same with the 12/18/12 hearing in rcr2012-
067980 involving wcpd jim leslie. Its not a brady analysis, its what occurred in open court.
Sunshine. Transparency. Access.
Couglin declares everything he asserts herein is true and correct made under penalty of perjury with
the the caveat that some of the dollar figures and dates as to his finances during oct 2011 through
april 2012 are from memory and likely not exact and that such assertions are based upon his own
personal knowledge except those matters stated upon information and belief and as to those matters
Coughlin believes them to be true: This filing should also be consider a Petittion for Extraordinary
writ (such as Mandamus, Prohibition, Certiorari, etc., etc. or evne Habeas Corpus) or a supplement to
those file previously in these case. Actually, the 3/26/12 Motion for New Trial, or, in the alterantive,
Motion to Alter or Amend Judge Elliotts 3/15/12 Order Affirming Ruling of the RMC has never been
adjudicated by the 2JDC, as such, the entire appeal in 60630 was arguably premature, and any orders
therefrom, necessarily, void (as to cr11-2064). Coughlin asks for appointment of counsel at public
expense and the transcript of the 2/27/12 and 3/12/12 trial dates in 11 tr 26800 to be prepared at
public expense (much more important that the 2/12/12 and 2/13/12 dates ordered prepared in cr12-
0376 (the SBN is attempting to disbar Coughlin largely based upon the horrid jurisprudence dished
out in 11 tr 26800which Coughlin appealed, and which he had a right to appeal (at least in his
status as a party, as pengilly seems to make clear an attorney must file a writ to challenge either
contempt or sanctiosn orders). Coughlin would also like the entire record (certified docket, etc)
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from 11 tr 26800 ordered transmitted to the 2JDC. That case has caused everybody else plenty of
headaches and problems, and the RMC and Judge Nash Holmes ought be made share the burden
As to all the Administrative Orders and pre-trial orders that alter all the deadlines applicable
to every other defendant (equal protection violation): Lower courts may also have rulemaking
authority[FN5] but may not encroach upon the authority granted to the state's highest court.[FN6]
Thus, the state's highest court's exclusive constitutional authority to enact rules that govern
procedural matters in all state courts cannot be supplemented, annulled, or superseded by an inferior
court. [FN5] In re Nuotila's Estate, 360 Mich. 256, 103 N.W.2D 638, 82 A.L.R.2D 923 (1960). [FN6]
United Services Auto. Ass'n v. Goodman, 826 So. 2D 914 (Fla. 2002).
Coughlin has a substantive right to defend himself against all these convenient 1983 collateral
bar desiring prosecutions. Its ridiculous to be attempting to characterize Coughlin as a vexatious
litigantvexatious litigants sue people for money (fine there is some habeas reform, etc., etc., but
the Rule 2.15 letters to the SBN (Judge Nash Holmes) and her 3/12/12 Order purporting Coughlin to
have violated RPC 3.1 meritorious claims for asserting basic witness bias arguments and or cross-
examination (and the same question can be asked for many, many different purposes, so Coughlin
repeating one, despite Howard and Nashs views, does not mean he is disobeying their directives),
not defend themselves against ridiculous prosecutions and brain dead arrests:
The court also may not promulgate rules in order to diminish constitutional rights,[FN10] de-
feat the right of litigants to access to the court,[FN11] or hinder parties from exercising their rights in
court.[FN12]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 Con-
stitution or case law. Elkins v. Superior Court, 41 Cal. 4th 1337, 63 Cal. Rptr. 3d 483, 163. [FN9]
Sackett v. Santilli, 146 Wash. 2D 498, 47 P.3D 948 (2002). [FN10] City of Auburn v. Brooke, 119
Wash. 2D 623, 836 P.2D 212 (1992). [FN11] Knox v. Eighth Judicial Dist Court of State, In and
For County of Clark, 108 Nev. 354, 830 P.2D 1342 (1992). [FN12] Hochberg v. Davis, 171 A.D.2D
192, 575 N.Y.S.2D 311 (1st Dep't 1991).
http://www.leagle.com/decision/1992742119Wn2d623_1701
http://www.leagle.com/decision/1991363171AD2d192_1326
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The appellate courts have already had occasion to spank Supreme Court judges for implementing
procedures that conflict with the CPLR. See Richard's Home Center & Lumber, Inc. v. Kownacki,
247 A.D.2d 371, 668 N.Y.S.2d 906, 372, 907 (2d Dep't 1998) (Supreme Court improperly limited
defendants to filing summary judgment motion only after court certified discovery was complete);
Hochberg v. Davis, 171 A.D.2d 192, 575 N.Y.S.2d 311 (1st Dep't 1992) (directing Supreme Court
justice to rescind his part rule requiring judicial consent before the filing of a written motion);
Goldheart Intl, Inc. v. Vulcan Constr. Corp., 124 A.D.2d 507, 509, 508 N.Y.S.2d 182, 183 (1st Dept
1986) (mem.) (Supreme Court has no authority to refuse to entertain a motion) Grisi v. Shainswit,
119 A.D.2d 418, 422, 507 N.Y.S.2d 155, 158-9 (1st Dep't 1986) (per curiam) (A party cannot be
deprived of his right to make a written motion or a record.) (NOTE: sound a lot like RMC Judge
Howards 12/15/11 Order in 22176 refusing to rule on Coughlins Motion for New Trial and Motion
to Disqualify Judge Howardand Judge Nash Holmes various Orders from 3/13/12 in RMC 11 TR
26800 and Judge Cliftons 11/27/12 no faxing no sthis and that were taking it back to the 80s
order is similarly ridiculous and illegal.
50. Permissible subjects of rulemaking authority, generally West's Key Number Digest West's
Key Number Digest, Courts k 80 to 80(5) The substantive law prescribes the norms for societal
conduct and the punishments for violations thereof, and thus creates, defines, and regulates
primary rights; in contrast, practice and procedure, as may be properly governed by state
court rules, pertain to the essentially mechanical operations of the courts by which substantive
law, rights, and remedies are effectuated.[ FN1] A court generally may only promulgate rules
regarding procedural matters[FN2] and may not abridge any substantive right.[FN3] Courts
have broad powers and wide discretion[FN4] to adopt rules of criminal procedure,[ FN5] civil
procedure,[FN6] and evidence,[FN7] to promulgate the procedure by which rights are
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judicially enforced,[FN8] and to promulgate rules for the administration of lower courts.[FN9]
[FN1] State v. Templeton, 148 Wash. 2D 193, 59 P.3D 632 (2002). [FN2] State ex rel. Uzelac v.
Lake Criminal Court, 247 Ind. 87, 212 N.E.2D 21 (1965). [FN3] In Re Samantha C., 268 Conn.
614, 847 A.2D 883 (2004); Ford v. ChartOne, Inc., 834 A.2D 875 (D.C. 2003); State v. Bicknell,
140 Idaho 201, 91 P.3D 1105 (2004); Consolidated Const. Services, Inc. V. Simpson, 372 Md.
434, 813 A.2D 260 (2002). [FN4] Fabre v. Walton, 436 Mass. 517, 781 N.E.2D 780 (2002). [FN5]
Hooper v. State, 585 So. 2D 137 (Ala. 1990); In re Application of Olson for Payment of Services,
648 N.W.2D 226 (Minn. 2002). [FN6] Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2D 843 (1992);
USF & G Ins. Co. 20 Am. Jur. 2D Courts 50 of Mississippi v. Walls, 2004 WL 1276971 (Miss.
2004). [FN7] State v. Gianakos, 644 N.W.2D 409 (Minn. 2002); USF & G Ins. Co. Of Mississippi
v. Walls, 2004 WL 1276971 (Miss. 2004); State v. Templeton, 148 Wash. 2D 193, 59 P.3D 632
(2002). [FN8] Boston v. Buchanan, 2003 OK 114, 89 P.3D 1034 (Okla. 2003). [FN9] Ziebarth v.
Farm Credit Bank of St. Paul, 494 N.W.2D 145 (N.D. 1992); Barger v. Brock, 535 S.W.2D 337
(Tenn. 1976). 51. Limitations on authority West's Key Number Digest West's Key Number Digest,
Courts k 78 The state constitution may grant the legislature limited authority to make procedural rules
where necessary.[FN1] To be valid, a rule of court must be reasonable.[FN2] 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.[FN3] A court generally may only promulgate rules
regarding procedural matters.[FN4] Accordingly, neither a court may prescribe a rule that creates a
remedy in addition to that prescribed by the legislature,[FN5] nor may it enlarge or restrict the court's
jurisdiction.[FN6] Thus, the delegation of rulemaking authority to impose costs must be explicit; the
courts cannot make such rules or orders and impose costs thereunder unless the power so to do is
expressly given them by statute or ratified by legislative enactment.[ FN7]
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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] defeat the right
of litigants to access to the court,[FN11] or hinder parties from exercising their rights in court.[FN12]
CUMULATIVE SUPPLEMENT Cases: 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). 20 Am. Jur. 2D Courts 51 [END OF SUPPLEMENT]
[FN1] R. E. W. Const. Co. V. District Court of Third Judicial Dist., 88 Idaho 426, 400 P.2D 390
(1965). [FN2] Slagle v. Valenziano, 134 Ind. App. 360, 188 N.E.2D 286 (Div. 2 1963); State ex rel.
Abel v. District Court of First Judicial Dist. In and For Lewis and Clark County, 140 Mont. 117, 368
P.2D 572 (1962); City of McAlester v. Nave, 1969 OK 39, 451 P.2D 681 (Okla. 1969). [FN3]
Campbell v. Criterion Group, 605 N.E.2D 150 (Ind. 1992). [FN4] 48. [FN5] Boudreaux v. Yancey,
256 So. 2D 340 (La. Ct. App. 1St Cir. 1971). [FN6] U.S. V. Sherwood, 312 U.S. 584, 61 S. Ct. 767,
85 L. Ed. 1058 (1941); People ex rel. Mijares v. Kniss, 144 Colo. 551, 357 P.2D 352, 82 A.L.R.2D
1163 (1960); Slagle v. Valenziano, 134 Ind. App. 360, 188 N.E.2D 286 (Div. 2 1963); Guimont v.
Naquin, 152 So. 2D 281 (La. Ct. App. 1St Cir. 1963). [FN7] Vicencio v. Lincoln-Way Builders, Inc.,
204 Ill. 2D 295, 273 Ill. Dec. 390, 789 N.E.2D 290 (2003). [FN9] Sackett v. Santilli, 146 Wash. 2D
498, 47 P.3D 948 (2002). [FN10] City of Auburn v. Brooke, 119 Wash. 2D 623, 836 P.2D 212
(1992). [FN11] Knox v. Eighth Judicial Dist Court of State, In and For County of Clark, 108 Nev.
354, 830 P.2D 1342 (1992). [FN12] Hochberg v. Davis, 171 A.D.2D 192, 575 N.Y.S.2D 311 (1st
Dep't 1991).
Rules of statutory construction apply to court rules. Weddell v. Stewart, 261 P.3d 1080,
127 Nev. Adv. Op. No. 58 (Nev. 2011).
The court also may not promulgate rules in order to diminish constitutional rights, defeat
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the right of litigants to access to the court, Knox v. Eighth Judicial Dist Court of State, In and For
County of Clark, 108
Nev. 354, 830 P.2d 1342 (1992). On April 20, 1992, the state filed in this court an answer to the pe-
tition for a writ of mandamus. In that answer the state first explains that petitioner's petition to seal
his records was not set for a hearing because it did not comply with Eighth District Court Rule
(EDCR) 2.20(a), which requires that motions "contain a notice of motion setting the same for hear-
ing." Because petitioner never requested that his petition be set for a hearing, the state explains that
no action was taken.
The state's explanation demonstrates a serious misunderstanding of civil procedure. Petitioner did not
file a motion in the district court; therefore EDCR 2.20 is inapplicable. Petitioner commenced an in-
dependent civil action by filing a petition. The district court had a mandatory duty to take official ac-
tion on that petition, whether or not petitioner filed any further documents in the district court. Fur-
ther, even if EDCR 2.20 were applicable, we hold that a district court may not use its local rules to
defeat the right of litigants to access to the court.
The rest of the state's answer is even more disturbing. The state explains that it is the regular practice
in the Eighth Judicial District to refer petitions under NRS 179.255 to a deputy district attorney for
review, and for the deputy district attorney to return the petition to the petitioner if, in the sole view
of the deputy district attorney, the petitioner's records should not be sealed. This procedure is fol-
lowed whether or not the petition has been filed in the district court. The state explains that the peti-
tioner may thereafter move to have the petition set for a hearing.
1
The state's explanation of the local
procedure for handling petitions under NRS 179.255, is confirmed by an affidavit from the Judge Jo-
seph T. Bonaventure.
We hold that the above procedure is illegal. NRS 179.255 has no provision for referring petitions to
seal records to the office of the district attorney. Instead, the district attorney is entitled to be notified
of the petition and to "testify and present evidence at the hearing on the petition." NRS 179.255(2).
There is absolutely no authority for referring a petition to the district attorney or for the district attor-
ney to return a petition to the petitioner. Likewise, there is no authority for the district court to avoid
its mandatory obligation to act on the petition by deferring its judicial role to a deputy district attor-
ney.
Accordingly, we grant this petition. The clerk of this court shall forthwith issue a writ of mandamus,
directing the district court to schedule a hearing on petitioner's petition to seal his records, and make
an official disposition of that petition
53. ConstructionConflicts between rules and statutory or constitutional provisions
West's Key Number Digest West's Key Number Digest, Courts k 85(2), 85(3) An apparent conflict
between a court rule and a statutory provision should be harmonized and both given effect if
possible.[FN1] 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] A statute may also control over
a rule where to permit the rule to control would confer new jurisdiction on the court.[FN4] A court-
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created rule of procedure also cannot be applied in derogation of a substantive, legislatively protected
right.[FN5] Observation: Whatever the scope of the inherent power of federal courts to formulate
procedural rules not specifically required by the Federal Constitution or by Congress, such power
does not include the power to develop rules that circumvent or conflict with the Federal Rules of
Criminal Procedure; the United States Supreme Court's case law does not establish any inherent
power of the federal courts to act in contravention of applicable federal court rules.[FN6] State rules
of civil procedure supersede all previous court decisions.[FN7] Observation: The promulgation of a
rule by the state's highest court, acting in its administrative capacity, is not a prior determination that
the rule is valid and constitutional; rather, that determination must await adjudication in a future
case.[FN8] CUMULATIVE SUPPLEMENT Cases: Where a rule of the Supreme Court on a matter
within the court's authority and a statute on 20 Am. Jur. 2D Courts 53 the same subject conflict, the
rule will prevail. Stein v. Krislov, 345 Ill. Dec. 675, 939 N.E.2D 518 (App. Ct. 1St Dist. 2010).
Where there is an irreconcilable conflict between a court rule and a statute, the statute supersedes the
rule. Hermanson v. Szafarowicz, 457 Mass. 39, 927 N.E.2D 982 (2010). It is only where there is an
inherent conflict between a statute and a court rule that a court is required to decide if a statute is a
legislative attempt to supplant Supreme Court's authority to control practice and procedure in the
courts. Muci v. State Farm Mut. Auto. Ins. Co., 267 Mich. App. 431, 705 N.W.2D 151 (2005). If no
distinct conflict exists between a statute and a rule, the court will apply the ruleunless the purpose
of the statute would be so frustrated by an application of the rule that the rule and the statute must be
deemed inconsistent. 48 M.S.A., Rules Civ.Proc., Rule 81.01(A). In re Civil Commitment of
Lonergan, 2012 WL 1192168 (Minn. 2012). Because the rules of appellate procedure are dependent
on statutory authority, they necessarily are subordinate to that authority; it follows that, where there is
an inconsistency between a statute and a rule, the statute must govern. West's Or.Rev. Stat. Ann
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1.002(1), 2.120; Rules App.Proc., Rule 1.05 Et seq. State v. Harding, 347 Or. 368, 223 P.3D 1029
(2009). A court rule will not be construed to circumvent or supersede a constitutional mandate. State
v. Waldon, 148 Wash. App. 952, 202 P.3D 325 (Div. 1 2009). [END OF SUPPLEMENT] [FN1]
Bowyer v. Taack, 107 Nev. 625, 817 P.2D 1176 (1991); State v. Thomas, 121 Wash. 2D 504, 851
P.2D 673 (1993). [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). [FN4] Simms v. Warden, 229
Conn. 178, 640 A.2D 601 (1994). As to the prohibition of a court rule enlarging or restricting the
court's jurisdiction, see 49. [FN5] Shewan v. State, 396 So. 2D 1133 (Fla. Dist. Ct. App. 5Th Dist.
1980); Weber v. Weber, 176 Wis. 2D 1085, 501 N.W.2D 413 (1993). [FN6] Carlisle v. U.S., 517 U.S.
416, 116 S. Ct. 1460, 134 L. Ed. 2D 613 (1996). [FN7] Thomas v. Cornell, 316 Ark. 366, 872 S.W.2D
370 (1994); Shaw v. Shaw, 603 So. 2D 287 (Miss. 1992). [FN8] New York State Ass'n of Criminal
Defense Lawyers v. Kaye, 95 N.Y.2D 556, 721 N.Y.S.2D 588, 744 N.E.2D 123 (2000).
448. Right of criminal defendant to complete record West's Key Number Digest West's Key
Number Digest, Criminal Law k1110 An indigent criminal defendant who appeals his conviction is
entitled under the federal Constitution's 14th Amendment to the use of a transcript or other record of
his trial which is sufficiently complete to allow consideration of the errors assigned.[FN1] The
requirement of sufficient completeness does not translate automatically into a requirement of a
complete verbatim transcript.[FN2] A state is not required to furnish to the defendant a verbatim
transcript,[ FN3] except where it is necessary to assure him or her as effective an appeal as would be
available to a defendant with financial resources.[FN4] Thus, there is no federal constitutional right
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to a perfect transcript.[FN5] Possible substitutes for a complete verbatim transcript include a
statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's
minutes taken during the trial, or a full narrative statement based on the court reporter's untranscribed
notes.[FN6] Caution: A capital murder defendant waives on appeal the issue of whether the trial court
erred in failing to record sidebar discussions which took place during voir dire and both phases of
trial, where the defendant fails to object at trial or ask that the sidebar discussions be recorded.[ FN7]
CUMULATIVE SUPPLEMENT Cases: Record in a criminal case must be of sufficient completeness
for appellate review of potential errors, but a complete verbatim transcript is not required. State v.
Johnson, 147 Wash. App. 276, 194 P.3D 1009 (Div. 2 2008). To satisfy due process, a criminal
defendant is entitled to a record of sufficient completeness for purposes of an appeal; a "record of
sufficient completeness" does not necessarily mean a complete verbatim report of proceedings and, as
long as another method allows effective review, such method is constitutionally permissible. In re
Detention of Strand v. State, 139 Wash. App. 904, 162 P.3D 1195 (Div. 2 2007). [END OF
SUPPLEMENT] [FN1] Draper v. State of Wash., 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2D 899
(1963). [FN2] Farbotnik v. State, 850 P.2D 594 (Wyo. 1993). As to the right of a criminal defendant
in federal court to a new trial due to the failure of a court reporter to record the entire proceeding as
required by federal law, see Am. Jur. 2D, New Trial 98 [FN3] State v. DePastino, 228 Conn. 552,
638 A.2D 578 (1994). [FN4] Farbotnik v. State, 850 P.2D 594 (Wyo. 1993). [FN5] State v. Menzies,
845 P.2D 220 (Utah 1992) (transcript errors did not prevent proper consideration of the defendant's
claims and, therefore, use of them did not violate the defendant's right to equal protection of the
laws). [FN6] State v. Williams, 227 Conn. 101, 629 A.2D 402 (1993). As to the failure of the court
reporter in a criminal trial to transcribe his or her notes due to death or disability as entitling the
accused to a new trial, see 460, 461. [FN7] State v. Drummond, 111 Ohio St. 3D 14, 2006-Ohio-
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5084, 854 N.E.2D 1038 (2006). 1109. Generally West's Key Number Digest West's Key Number
Digest, Constitutional Law k4809 West's Key Number Digest, Criminal Law 641.11 A.L.R. Library
Reimbursement to Pro Se Criminal Defendants Under Criminal Justice Act, 18 U.S.C.A. Sec
3006A(d), 3 A.L.R. Fed. 2D 223 Although the Sixth Amendment guarantees a criminal defendant the
right to effective assistance of counsel, the right does not extend to providing an indigent defendant
with the representation of his or her choice.[FN1] Moreover, an indigent defendant is entitled to
representation by counsel only for trial and for the direct appeal from the judgment of conviction and
sentence.[FN2] The court, however, does not have discretion to deny counsel to an indigent
defendant.[FN3] Observation: A statute governing the designation of a public defender for an
indigent defendant in any criminal action entitles an indigent defendant to the assistance of counsel
for the purpose of determining whether a legitimate basis exists for the filing of a motion to correct
an illegal sentence and, if so, for the purpose of representing the defendant in the preparation and
filing of the motion and, thereafter, in connection with any direct appeal from the denial of the
motion.[FN4] CUMULATIVE SUPPLEMENT Cases: Indigent defendant did not have Sixth
Amendment right to continuity of representation by military defense counsel following suspension of
military commission and transfer of his criminal case to district court. U.S.C.A. Const.Amend. 6.
U.S. V. Ghailani, 686 F. Supp. 2D 279 (S.D. N.Y. 2009). Once an indigent litigant has been appointed
counsel, the Supreme Court refers to its constitutional jurisprudence to determine the scope of the
obligation borne by the appointed attorney. A.L.L. V. People, 226 P.3D 1054 (Colo. 2010). When an
indigent defendant's choice of counsel is supported by objective considerations favoring the
appointment of the preferred counsel and there are no countervailing considerations of comparable
weight, it is an abuse of discretion to deny the defendant the counsel of his preference. Phan v. State,
290 Ga. 588, 723 S.E.2D 876 (2012). Sixth Amendment guarantees a criminal defendant the right to
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effective assistance of counsel, but that right does not extend to entitle an indigent defendant to
counsel of his or her choice. State v. Smith, 42 Kan. App. 2D 344, 212 P.3D 232 (2009). Defendant's
right to continue with assigned counsel as counsel of his own choosing once an attorneyclient
relationship has been formed is qualified in the sense that a defendant may not employ it as a means
to delay judicial proceedings. U.S.C.A. Const.Amend. 6. People v. Griffin, 934 N.Y.S.2D 393 (App.
Div. 1St Dep't 2011). While an indigent defendant is entitled to free counsel, he is not entitled to free
counsel of his own choosing. Com. V. Cook, 952 A.2D 594 (Pa. 2008). A trial judge is under no duty,
under federal and state protections of the right to effective assistance, to search until he finds an
attorney agreeable to the defendant. U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas C.C.P. Art. 26.04.
Barnett v. State, 344 S.W.3D 6 (Tex. App. Texarkana 2011), petition for discretionary review refused,
(Sept. 14, 2011). An appointed attorney's legal responsibilities do not magically and automatically
terminate at the conclusion of the trial; the continuity of representation from trial to appeal is
necessary to correct the ambiguity of representation which all too often follows a conviction. Rogers
v. State, 305 S.W.3D 164 (Tex. App. Houston 1st Dist. 2009). [END OF SUPPLEMENT] [FN1] State
v. McCormick, 37 Kan. App. 2D 828, 159 P.3D 194 (2007), review denied, (Sept. 27, 2007). [FN2]
Orr v. State, 276 Ga. 91, 575 S.E.2D 444 (2003). [FN3] Lamonte v. State, 839 N.E.2D 172 (Ind. Ct.
App. 2005). [FN4] State v. Casiano, 282 Conn. 614, 922 A.2D 1065 (2007).
1111. Who is indigent or otherwise sufficiently impecunious for purposes of entitlement
to appointed counsel West's Key Number Digest West's Key Number Digest, Criminal Law 641.11
A.L.R. Library Determination of indigency of accused entitling him to appointment of counsel, 51
A.L.R.3D 1108 Forms Am. Jur. Pleading and Practice Forms, Criminal Procedure 66 (Notice
Motion for leave to withdraw as attorneyDefendant not indigent) Implementation of the right of an
indigent accused to the assistance of appointed counsel for his or her defense necessitates a
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determination whether he or she is in fact indigent. This determination rests within the sound
discretion of the trial court,[FN1] at least where the accused is possessed of some assets or
funds.[FN2] While a person who is able to afford retained counsel is not indigent,[FN3] there are few
hard and fast rules otherwise available for the resolution of this issue. The determination of indigency
must be determined according to the facts of the particular case.[FN4] An accused need not be totally
devoid of means to be considered indigent.[FN5] A defendant may be found indigent for the purpose
of receiving public assistance of counsel and yet solvent to pay other costs and fees, and the record
must justify the order of partial indigency.[FN6] The fact that a defendant is employable,[FN7] has
previously retained counsel,[FN8] owns valuable property,[FN9] or has succeeded in obtaining his or
her release on bail[FN10] does not compel a conclusion that he or she is not indigent. Conversely, an
accused may be denied appointed counsel even though he or she is unemployed,[FN11] is unable to
post bail,[FN12] has expenses that exceed his or her income,[FN13] or will suffer great but not
insurmountable burdens in retaining counsel.[FN14] When determining whether a defendant is
indigent and entitled to the appointment of counsel, the record must show that the determination of
the ability to pay includes a balancing of assets against liabilities and a consideration of the amount of
the defendant's disposable income or other resources reasonably available to the defendant after the
payment of fixed or certain obligations.[FN15] The determination of indigency for purposes of
appointment of counsel must be based on a thorough examination of the defendant's total financial
picture as is practical, and not on a superficial examination of income and ownership of
property.[FN16] Moreover, when determining a defendant's eligibility for court-appointed counsel, a
defendant's spouse's income and assets may be considered insofar as they may reduce a defendant's
other expenses and free more of his or her income to pay for counsel.[FN17] The court may also
consider the income of a cohabitant,[FN18] or the possibility of financial assistance from his or her
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family or friends.[FN19] A defendant's claim of indigency, warranting court-appointed counsel,
certainly should be rejected when the defendant puts his or her own assets into relatives' names, while
those assets, in fact, remain at the defendant's disposal.[FN20] Observation: A court may find a
defendant partly indigent and require him or her to pay part of the cost of appointed counsel.[FN21]
The defendant bears the burden of demonstrating that he or she is sufficiently impecunious to be
entitled to appointed counsel.[FN22] Moreover, a defendant who refuses to disclose his or her
financial condition is not entitled to appointed counsel.[FN23] CUMULATIVE SUPPLEMENT
Cases: Trial judge only possesses restricted discretion to limit an indigent defendant's state
constitutional right to counsel by certifying, in writing, before trial that the defendant will not be
imprisoned. State v. Kelly, 999 So. 2D 1029 (Fla. 2008). [END OF SUPPLEMENT] [FN1] Warren v.
City of Enterprise, 641 So. 2D 1312 (Ala. Crim. App. 1994); Alexander v. Superior Court, 22 Cal.
App. 4Th 901, 27 Cal. Rptr. 2D 732 (2d Dist. 1994), As modified on denial of reh'g, (Mar. 10, 1994);
People v. Nord, 767 P.2D 750 (Colo. Ct. App. 1988), Judgment rev'd on other grounds, 790 P.2D 311
(Colo. 1990). [FN2] People v. Walker, 255 Ill. App. 3D 10, 194 Ill. Dec. 77, 627 N.E.2D 193 (1st
Dist. 1993). [FN3] State v. Buelow, 122 Wis. 2D 465, 363 N.W.2D 255 (Ct. App. 1984). [FN4] State
v. Haag, 49 Ohio App. 2D 268, 3 Ohio Op. 3D 301, 360 N.E.2D 756 (9th Dist. Summit County
1976); Williams v. State, 691 S.W.2D 81 (Tex. App. Houston 1st Dist. 1985). [FN5] Graves v. State,
503 N.E.2D 1258 (Ind. Ct. App. 1987). [FN6] Willis v. State, 708 So. 2D 939 (Fla. 1998). [FN7]
Baldwin v. State, 51 Md. App. 538, 444 A.2D 1058 (1982). [FN8] State v. Dubrock, 649 S.W.2D 602
(Tenn. Crim. App. 1983). [FN9] State v. Masilko, 226 Neb. 45, 409 N.W.2D 322 (1987); State v.
Lathe, 132 Vt. 631, 326 A.2D 147 (1974). [FN10] Hancock v. State, 26 Ark. App. 107, 760 S.W.2D
391 (1988); Vera v. State, 689 So. 2D 389 (Fla. Dist. Ct. App. 2D Dist. 1997); State v. Hesse, 110
Idaho 949, 719 P.2D 1209 (1986). [FN11] Boles v. State, 178 Ga. App. 508, 343 S.E.2D 729 (1986).
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[FN12] State v. Fontaine, 382 N.W.2D 374 (N.D. 1986). [FN13] State v. Vincent, 883 P.2D 278 (Utah
1994). [FN14] Texas Dept. Of Human Resources v. Texas State Employees Union CWA/ AFL-CIO,
696 S.W.2D 164 (Tex. App. Austin 1985). [FN15] Lamonte v. State, 839 N.E.2D 172 (Ind. Ct. App.
2005). [FN16] Lamonte v. State, 839 N.E.2D 172 (Ind. Ct. App. 2005). [FN17] State v. Atkins, 143
N.H. 242, 723 A.2D 939 (1998). [FN18] State v. Vincent, 883 P.2D 278 (Utah 1994). [FN19] State v.
Vincent, 883 P.2D 278 (Utah 1994). [FN20] State v. Atkins, 143 N.H. 242, 723 A.2D 939 (1998).
[FN21] State v. Ferris, 540 N.W.2D 891 (Minn. Ct. App. 1995). [FN22] Adams v. City of Pelham,
651 So. 2D 55 (Ala. Crim. App. 1994); People v. Adams, 836 P.2D 1045 (Colo. Ct. App. 1991); State
v. Smith, 677 A.2D 1058 (Me. 1996); State v. Smith, 677 A.2D 1058 (Me. 1996); State v. DuPaul,
527 N.W.2D 238 (N.D. 1995). [FN23] State v. Eichelberger, 227 Neb. 545, 418 N.W.2D 580 (1988).
As to the practice of requiring an indigent defendant seeking appointment of counsel to execute an
affidavit as to his or her financial condition, see 1114./// 1112. Who is indigent or otherwise
sufficiently impecunious for purposes of entitlement to appointed counselEffect of official
guidelines, or conclusion of public defender as to accused's indigency West's Key Number Digest
West's Key Number Digest, Criminal Law 641.11 Some jurisdictions have adopted guidelines
regarding the income or assets of accused persons for use in evaluating their entitlement to appointed
counsel.[FN1] It has been held that the failure of a particular defendant to meet income eligibility
standards stated in such guidelines justifies denial of appointed counsel.[FN2] However, some such
guidelines serve only to establish a presumption of indigency where the defendant's income or assets
fall below the prescribed levels.[FN3] Observation: The trial court abused its discretion in accepting a
public defender's determination that a defendant was not indigent, where a discrepancy existed
between information regarding the defendant's income and an investigator's determination that the
defendant was above the guidelines for indigency, no evidence in the record explained the
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discrepancy, and the trial court made no findings or further inquiry.[FN4] [FN1] See, e.G., People v.
Tellez, 890 P.2D 197 (Colo. Ct. App. 1994). [FN2] Horton v. State, 161 Ga. App. 664, 289 S.E.2D
788 (1982). [FN3] State v. Ferris, 540 N.W.2D 891 (Minn. Ct. App. 1995). [FN4] Peoplel v.
Steinbeck, 2007 WL 2728609 (Colo. Ct. App. 2007)...... 1114. Who is indigent or otherwise
sufficiently impecunious for purposes of entitlement to appointed counselRequirement of affidavit
as to financial condition of accused West's Key Number Digest West's Key Number Digest, Criminal
Law 641.11 Forms Am. Jur. Pleading and Practice Forms, Federal Criminal Procedure 14 (Affidavit
of financial status) It is a common practice to require a defendant seeking appointment of counsel to
make and execute an affidavit as to his or her financial condition. He or she may also be required to
execute a release authorizing a court investigator to verify the statements made therein. Such a
requirement has been upheld as against the contentions that it violates the defendant's right to be free
from unreasonable search and seizure, his or her privilege against self-incrimination, and his or her
right to counsel.[FN1] A motion to file a financial affidavit under seal has been denied,
notwithstanding the claim that the defendant's privilege against self-incrimination would be violated
if the government were to use the information in the affidavit against him at trial, where the claim
was made without any specificity, the contents of the affidavit were unknown, and the government
had not indicated any intent to use the affidavit to incriminate the defendant.[FN2] Observation: A
district court's inquiry into a defendant's financial status to determine if he qualified for court-
appointed counsel was a judicial proceeding, and thus the defendant was exempt from prosecution
for making false statements to a judicial branch on the basis of statements or omissions in a financial
affidavit submitted to the district court in support of a request for appointment of counsel.[FN3]
[FN1] State v. Smith, 677 A.2D 1058 (Me. 1996). [FN2] U.S. V. Madrzyk, 990 F. Supp. 1004 (N.D.
Ill. 1998). [FN3] U.S. V. McNeil, 362 F.3D 570 (9th Cir. 2004).
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62. Duty to exercise jurisdiction West's Key Number Digest West's Key Number Digest,
Courts k 26, 28 Generally, a court with jurisdiction over a case has not only the right but also the duty
to exercise that jurisdiction,[FN1] and to render a decision in a case before it.[FN2] State courts are
not free to decline the jurisdiction conferred on them by Congress in cases based on federal statutes if
such cases are within the scope of the ordinary jurisdiction of the state courts as prescribed by local
laws.[FN3] A court's duty to exercise its jurisdiction can be enforced by way of a mandamus
proceeding.[FN4] In certain situations, a court having jurisdiction over a case may in its discretion
decline to exercise it,[FN5] as when the doctrine of forum non conveniens is applicable.[FN6]
CUMULATIVE SUPPLEMENT Cases: As a general matter, the pleader must allege facts that
affirmatively demonstrate the court's jurisdiction to hear the case. In re Forlenza, 140 S.W.3D 373
(Tex. 2004). [END OF SUPPLEMENT] [FN1] Buckman v. United Mine Workers of America, 80
Wyo. 199, 339 P.2D 398 (1959). [FN2] Buckman v. United Mine Workers of America, 80 Wyo. 199,
339 P.2D 398 (1959). 20 Am. Jur. 2D Courts 62 [FN3] Bowles v. Barde Steel Co., 177 Or. 421, 164
P.2D 692, 162 A.L.R. 328 (1945). As to state court jurisdiction over federal causes of action, see 92.
[FN4] Am. Jur. 2D, Mandamus. [FN5] Lyon v. Lyon, 618 So. 2D 127 (Ala. Civ. App. 1992); Sparrow
v. Nerzig, 228 S.C. 277, 89 S.E.2D 718, 56 A.L.R.2D 328 (1955). [FN6] 130 to 143. (NOTE:
Judge Stiglich, Coughlin respectfully submits, is mistaken to whatever extent she is of the opnion that
anything order by the NSCT in 60360 or 60630,, or 61383 somehow absolves the district court of its
duty to rule on 60b motions, etc., etc., and nothing about Judge Elliotts 3/15/12 Order in cr11-2064
takes away the requirements of NRS 177 and 178 that Judge Stiglich adjudicated Coughlins filing
herein and therein.
Amjur appellate review 445. Duty to present adequate record West's Key Number Digest
West's Key Number Digest, Appeal and Error k557, 580, 596, 619 West's Key Number Digest,
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Criminal Law k1092.3, 1099.2 West's Key Number Digest, Federal Courts k691 Especially where
NRS 189.030(1) Required the RMC to transmit the very record that Judge Elliott purported to be
Coughlin's duty to transmit, the affirming of Judge Howard's "Ruling" is completely inappropriate,
especially where all of Howard's Orders and the judgment is fundamentally erroneous on its
face.McNair v. Pavlakos/McNair Development Co., 576 So. 2D 933 (Fla. Dist. Ct. App. 5Th Dist.
1991).
AMJUR Courts 49. Courts possessing rulemaking power; manner of exercise West's Key
Number Digest West's Key Number Digest, Courts k 81 to 84 The power to make rules is generally
vested in a jurisdiction's highest court,[FN1] which has broad powers to adopt procedural
rules.[FN2] Observation: A state supreme court's constitutional authority to engage in rulemaking
includes the exclusive power to establish or modify court rules through judicial decisions.[FN3] The
court's constitutional authority to promulgate rules governing practice and procedure in the courts
may also be exercised in the form of general directives or specific orders.[FN4] Lower courts may
also have rulemaking authority[FN5] but may not encroach upon the authority granted to the state's
highest court.[FN6] Thus, the state's highest court's exclusive constitutional authority to enact rules
that govern procedural matters in all state courts cannot be supplemented, annulled, or superseded by
an inferior court.[FN7] Unlike local court rules, administrative orders of a chief judge of a judicial
circuit generally do not have to be approved by the state's highest court.[FN8] In this regard, a lower
court's administrative order which establishes a procedure for every defendant to comply with consti-
tutes a "rule" within the purview of the state's highest court, and must be approved by the higher
court.[FN9] A state supreme court may hold its rulemaking conferences in private so as to be free of
whatever influence the presence of others might occasion.[FN10] CUMULATIVE SUPPLEMENT
Cases: Under the state constitution, the court possesses plenary authority to create procedural rules in
both civil and criminal cases. West's C.R.S.A. Const. Art. 6, 21. City and County of Broomfield v.
Farmers Reservoir and Irrigation Co., 239 P.3D 1270 (Colo. 2010). 20 Am. Jur. 2D Courts 49
[END OF SUPPLEMENT] [FN1] Schoenvogel ex rel. Schoenvogel v. Venator Group Retail, Inc.,
895 So. 2D 225 (Ala. 2004); Borer v. Lewis, 91 P.3D 375 (Colo. 2004); United Services Auto. Ass'n
v. Goodman, 826 So. 2D 914 (Fla. 2002); Fabre v. Walton, 436 Mass. 517, 781 N.E.2D 780 (2002);
USF & G Ins. Co. Of Mississippi v. Walls, 2004 WL 1276971 (Miss. 2004); Berdella v. Pender, 821
S.W.2D 846 (Mo. 1991); State v. Davis, 141 S.W.3D 600 (Tenn. 2004), Cert. Denied, 125 S. Ct.
1306 (U.S. 2005); State v. Arbaugh, 215 W. Va. 132, 595 S.E.2D 289 (2004); Terex Corp. V. Hough,
2002 WY 112, 50 P.3D 317 (Wyo. 2002). Only the state supreme court, not the judicial council, has
authority to adopt rules governing the use of memorandum decisions in the appellate process. Grand
County v. Rogers, 2002 UT 25, 44 P.3D 734 (Utah 2002). [FN2] 48. [FN3] State v. J.M., 182 N.J.
402, 866 A.2D 178 (2005). [FN4] State v. J.M., 182 N.J. 402, 866 A.2D 178 (2005). [FN5] In re
Nuotila's Estate, 360 Mich. 256, 103 N.W.2D 638, 82 A.L.R.2D 923 (1960). [FN6] United Services
Auto. Ass'n v. Goodman, 826 So. 2D 914 (Fla. 2002). [FN7] State, ex rel. Romley v. Ballinger, 209
Ariz. 1, 97 P.3D 101 (2004). [FN8] Physicians Healthcare Plans, Inc. V. Pfeifler, 846 So. 2D 1129
(Fla. 2003). [FN9] State, ex rel. Romley v. Ballinger, 209 Ariz. 1, 97 P.3D 101 (2004). [FN10]
Amendment of The State Bar of Wisconsin, Matter of, 480 N.W.2D 442 (Wis. 1992).
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District Court has the final appellate jurisdiction in cases arising in municipal courts, Appellate ap-
propriately sought post conviction relief therefrom. The above-mentioned denial of the Appellate's
Motion can either be interpreted as the District Court refusing a new trial or refusing to exercise its
jurisdiction,and in both cases, this Court has jurisdiction to review such a determination.
A. REFUSING A NEW TRIAL
Appellate believes that there were at least two substantial reasons to move the District
Court to rehear the appeal and/or seek a new trial, both of which were reflected in his Motion:
1) As stated above, Appellate acted in proper person; and, 2) The Respondents did not meet their
burden of proof that Appellant was the perpetrator of that crime. There is therefore a claim that the
factual underpinnings of the District Courts' initial decisions were incorrect, as well as, for all intents
and purposes, insufficiency of counsel for both the Bench Trial at Boulder City Municipal Court as
well as for the Appeal at District Court. Appellant was not sufficiently versed in court procedure or
practice to articulate the details of his defense.
NRS 177.015(1)(b) states: "...The party aggrieved in a criminal action may appeal only... [t]o the Su-
preme Court from an order of the district court granting a motion to dismiss, a motion for acquittal or
a motion in arrest of judgment, or granting or refusing a new trial." (Emphasis added) This
Court has repeated and reiterated NRS 177.015(1)(b) in determining its authority to
review in similar matters. "In interpreting a similar provision (determining whether a pre-sentence
motion to
withdraw a guilty plea is the functional equivalent of an appealable order granting a motion for
a new trial) with respect to civil appeals under NRAP 3A, which authorizes appellate review of a
district court order "granting or refusing a new trial," this court has concluded that only orders re-
solving post-judgment motions for a new trial are appealable. We see no reason why the identical
language in NRS 177.015 "granting or refusing a new trial" should be construed in a man-
ner inconsistent with NRAP 3A. And to the contrary, there are compelling policy justifications...
underlying the general rule that a judgment be final before this court is 4
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vested with jurisdiction. We therefore hold that, pursuant to NRS 177.015(1)(b), this court has au-
thority to review determinations of the district court resolving post-conviction motions for a new trial,
as well as post-conviction motions that are the "functional equivalent" of a motion for a new trial."
State v. Lewis, 178 P.3d 146 (Nev. 2008).
Appellant's Motion specified the flaws in the prosecution of the case and counsel attempted
to argue the merits therein. Appellant was denied a hearing, not based on the merits, but on an ar-
gument of improper jurisdiction. Had the matter been heard and denied on the 5
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merits, Appellant agrees that this Court would not have jurisdiction, but that was not the
outcome. Pursuant to NRS 177.015(1)(b), this Court has authority to review this matter.
B. REFUSING TO EXERCISE JURISDICTION
The District Court did not deny Appellant's Motion on the merits and did not entertain even
an opportunity for the matter to be reheard. The Appellant's Motion was denied for improper juris-
diction, with the District Court deferring to this, the Nevada Supreme Court, according to the hear-
ing minutes, and Respondents reflecting in the Order that the case had been remanded to Boulder
City Municipal Court and was therefore not within the District Court's jurisdiction. The Nevada
Constitution, Article 6, 6 (1) states, in pertinent part:
"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."
(Emphasis added)
This Court stated, in Floyd v. District Court, 36 Nev. 349, 354, 135 P. 922, 924 (1913) 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. Jus-
tice's Court of Goldfield Tp., 41 Nev. 481, 482-83, 172 P. 378, 379 (1918); Bancroft v. Pike, 33 Nev.
53, 80, 110 P. 1,2 (1910).
Further, while in discussion over authority to review a writ of mandamus in State of Ne-
vada v. Dist. Ct., 116 Nev. 127, 994 P.2d 692 (Nev., 2000), this Court stated "...we have declined
to entertain writs that request review of a decision of the district court acting in its appellate ca-
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pacity unless the district court has improperly refused to exercise its jurisdiction, has exceeded its
jurisdiction, or has exercised its discretion in an arbitrary or capricious manner."
The matter of State, obviously different in the nature of the aggrieved's petition, still bears
consideration based on this Court's authority for intervention on grounds of the district 6
court refusing to exercise its jurisdiction. It has been this Court's practice to provide for the review,
where appropriate, of appeals decided by the court of appeals. That includes the District Court, in it's
appellate capacity.
In Passanisi v. State 108 Nev. 318, 321-22, 831 P.2d 1371, 1373 (1992) this Court concluded, "...
that [it] had jurisdiction over a post-conviction motion to modify sentence as the functional equiva-
lent of a motion for a new trial because both motions were "based on the claim that the factual under-
pinnings of the District Court's decision [were] incorrect".
"Where factual allegations are made which, if true, could establish a right to relief, a convicted
person must be allowed an evidentiary hearing on such issue, unless the available record repels such
allegations." Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974).
Coughlin can report that WCDA Assistant District Attorney Bruce Hahn sat both on the Board
of Directors of Washoe Legal Services and Coughlins NNDB Screen Panel in April 2012, an
unimaginable conflict that Hahn failed to recuse himself from, especially in light of Coughlins
lawsuits against WLS, and Washoe Countys culpability (and the WCDAs accessory stance thereto)
vis a vis the systematic burglaries of tenants dressed up as summary eviction lockouts, of which
Coughlin has been subjected to at least three such burglaries by the WCSO (11/1/11 in Rev2011-
001708 (resulting in Coughlins arrest in RMC 11 CR 26405), 3/15/12 in rev2012-00374, and
rev2012-001048 on 6/28/12, resulting in Coughlins arrest in rcr2012-067980).
This Courts 8/22/13 Order granted Coughlins Motion to Proceed Informa Pauperisas such,
the state or city (or county) is required to prepare at public expense the transcript of the 11/30/11 trial
(and, arguably the less than five minute 10/11/11 arraignment in RMC 11 CR 22176, now on appeal
(and arguably the subject of a Petition for Extraordinary writ (possibly one of the Habeas Corpus
variety), Motion for New Trial, appeal of any order deny such Motion for New Trial), whether the
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2JDC ever had jurisdiction to adjudicate the appeal in cr11-2064 or not (compliance with NRS
189.030(1) arguably being a jurisdictional prerequisite and or NRS 189.035 made void for lack of
jurisdiction any orders from the 2JDC beyond remanding for new trial based upon the materially
defective transcript forwarded to the 2JDC by the RMC (not forwarding one at all still qualifies as
being materially defective).
Coughlin does not even need an order granting publication of transcript at public expense
given he has an order granting his motion to proceed informa pauperis, which makes law of the case
the issue of whether or not Coughlin is indigent. Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100
L. Ed. 891, 55 A.L.R.2d 1055 (1956) (why can collateral estoppels constantly be applied against
Coughlin, yet none of the IFPs granted in other cases ever provided a basis for applying collateral
estoppels in Coughlins favor2JDC Judge Steinheimmer granted Coughlins 6/27/11 Motion to
Proceed IFP in CV11-01896, yet Judge Howard is permitted to sidestep the issue in his 10/27/11 and
12/15/11 orders now on appeal in cr11-2064? 01896 was a civil case and the case Howard presided
over was a criminal case. IFPs are universally more readily granted in criminal cases.
Also, Elliotts 3/15/12 Order Affirming misstates NRS 4.410(2), as such was amended in 2011
to direct the depositing of the down payment in a civil case with the court reporter rather than
the clerk of court that Elliott references. As such, Pam Longonis angrily hanging up the phone on
Coughlin on multiple occasions and refusal to indicate to Coughlin as to where he may make such
deposit (refusing to provide any mailing or contact information) becomes much, much more relevant.
Also the TRANSCRIPTS ON APPEAL/OTHERS handout provide to Coughlin and others by the
RMC is arguably further not in compliance with Nevada law in that it purports to required criminal
defendants to pay for not just their copy of the transcript, but a copy for the court and one for the
Respondent as well: 2.'Cost. Appeal transcripts are billed at $4.10 per page, which includes an
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original (to be filed with District Court), one copy for the appeilant, and one copy for the opposing
counsel.. Remuneration for transcripts is statutorily set and heavily dependent on the numbers of
days it takes the CCR to prepare such under NRS 3 compared to when it was ordered, and the number
of hours involved in the proceeding to be recording (in Coughlins case the 11/30/11 trial consists of
6 hours of audio, and the 10/11/11 arraignment consists of four minutes of audio). And, actually, that
RMC/Longoni handout needs to be looked over with a fine tooth comb, its on RMC letterhead
(listing CASSANDRA JACKSON Interim Court Administrator) and provided to the public (and
provided to Coughlin at all relevant times herein) by the RMCs filing office, and such reads:
http://www.scribd.com/doc/169461777/Rmc-Transcript-Rules-in-Violation-of-Nrs-Longioni
TRANSCRIPTS ON APPEAL/OTHERS:
If you wish to order a transcript of your proceedings in the Reno Municipal Court, you may
do so by contacting Pam Longoni at (775) 530-5251.
The following information is provided to assist you in placing an order for a transcript:
1. Orders will require the date of the court appearance, type of proceeding, (trial, arraignment,
etc.), department number in which the proceeding was held, and also include the appropriate deposit
as indicated below. Payment may be made by check or money order. No transcript will be prepared
until the required deposit is received.
2. Cost. Appeal transcripts are billed at $4.10 per page, which includes an original (to be filed
with District Court), one copy for the appellant, and one copy for the opposing counsel. Transcripts
ordered for purposes other than appeal, where only one copy and original transcript is required, are
billed at $3.00 per page.
3. Deposits. Deposits required are as follows: $75.00 for arraignment/sentencing; a minimum
deposit of $200.00 for any trial transcript; and a minimum deposit of $500.00 for very lengthy trials
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(those lasting more than three hours). NO TRANSCRIPT IS CONSIDERED TO BE
OFFICIALLY ORDERED, AND COMMENCEMENT OF TRANSCRIPTION WILL NOT
BEGIN, UNTIL RECEIPT OF THE REQUIRED DEPOSIT.
4. Follow-up on Transcript Preparation. You will be notified when your transcript has been
prepared. If the actual cost of the transcript is less than the amount of the deposit paid, a refund will
he issued with the transcript. And, likewise, any outstanding balance due after completion of the
transcript must be paid before the Original is filed with District Court or any copies released. No
refunds of deposits will be given for transcripts once they have been prepared and no responsibility
will be taken for the dismissal of any appeal by District Court because no Original was filed due to
non payment of an outstanding balance due.
5. Pam Longoni will be happy to answer any questions you may have regarding the above
information.
With regard to the problem of determining whether any given defendant is indigent, so
as to entitle him to a free transcript or other record for use in appealing his conviction, which is the
subject of this annotation, the statement has frequently been made that the determination of indigency
is a matter resting in the sound discretion of the trial court, and therefore (impliedly or expressly) is
reviewable only for abuse of such discretion.
8
However, it has also been said that a lower courts
determination in this regard, though entitled to great weight, will nonetheless be subject to review
upon appeal, for the reason that it involves a basic constitutional right relating to the administration of
criminal justice.
9
3
, infra.
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State v Rutherford (1964) 63 Wash 2d 949, 389 P2d 895.
Law Reviews and Other Periodicals
Note, Criminal ProcedureFree Transcripts for Indigents. 51 NC L Rev 621 (1973)
Also relevant to this Courts 8/25/13 Order (Coughlin respectfully seeks leave of court to
exceed the 15 page limit referenced therein and in addition, respectfully submits that there is no valid
oblivation to so limit his advocacy, and, as such, submits this open refusal respectfully made,
pursuant to RPC 3.5(d), especially in light of the statutory provisions in NRS 178.600, and .610, and
the ambiguity over what rules apply to these criminal appeals to the district court (it does not seam
that NRAP applies were NRAP Rule 3B Criminal Actions: Rules Governing specifically identifies
only appeals from district court deteriminations in criminal actions shall be governed by these
rules..(NOTE: NRAP RULE 3B. CRIMINAL ACTIONS: RULES GOVERNING Appeals from
district court determinations in criminal actions shall be governed by these Rules and by NRS
177.015 to 177.305 and NRS 34.575. All appeals in capital cases are also subject to the provisions of
SCR 250. Rule 3C applies to all other direct and post-conviction criminal appeals, except those
matters specifically excluded from the fast track by Rule 3C(a). [As amended; effective July 1,
2009.] its not exactly clear what is meant by Rule 3c applies to all other direct and post-conviction
criminal appeals
i
though the all other phrase would tend to reference all criminal appeals that are
not appeals from district court determinations and thus make NRAP 3C applicable to these NRS
189 appeals from the justice and municipal courts to the district courts.? A problem arises,
however, where NRAP Rule 3C contradicts NRS 189.030(1), seemingly, and other rules.. and the
WDCR do not limit criminal appeal briefs while they do limit civil appeal briefs. )allowing Coughlin
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to file a Supplemental Brief speaking to the issue of whether this Court still has jurisdiction in cr11-
2064: STATE v. EIGHTH JUDICIAL DISTRICT COURT, 396 P.2D 680 (1964) Were Harris
financially responsible, he could purchase a copy of the transcript; unfortunately he is without money.
The district court granted his motion. The transcript was ordered to be prepared at county expense
and a copy thereof delivered to counsel for Harris. By this proceeding in certiorari the district
attorney challenges the validity of that order, contending that the court lacked power to make it. His
argument is based upon the absence of any statute authorizing such a charge against the county. The
argument has no merit.
http://www.leg.state.nv.us/courtrules/NRAP.html NRS 177.165 Preparation of
record and papers on appeal. All appeals from a district court to the Supreme Court shall be heard
on the original papers and the reporters transcript of evidence or proceedings. The form and manner
of preparation of the record and of other papers filed may be prescribed by the Supreme Court, and to
the extent not otherwise so prescribed shall conform to the practice in civil cases.
(Added to NRS by 1967, 1445)
NRS 177.155 seems to make quite clear that Judge Stiglichs jurisdiction in these criminal appeals to
the district court is vast, and not affected by anything in 60630 (the appeal of 2064 to the Nevada
Supreme Court) nor by Judge Elliotts purported remittitur in his 3/15/12 OARRMC (which purports
to adjudicate on appeal a ruling which would necessarily be interlocutory in natureas such,
maybe that is why Judge Elliotts Order Affirming indicates such remand is made back to the RMC
for all future proceedings, which implies there is some proceeding in the RMC that are to take
place or were at the time of that 3/15/12 Order (perhaps a reference to the fact that RMC Judge
Howard was precluded from presiding over a contempt trial of Coughlin (which is what Howard
made the petty larceny trial less than ten minutes into such when he found Coughlin in contempt the
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indicated he was, rather than perform the immediate action necessary to protect the dignity of the
court that such a summary contempt ruling would requireJudge Howard instead proceeded to hold
nearly six hours of trial, indicating that he would determine Coughlins punishment on such purported
summary contempt finding after the petty larceny trial was concluded (therefore impermissibly, to
much prejudice to Coughlin, mixing the two). Pengilly and McCormick v. Sixth Judicial Dist. Court
in and for Humboldt County, 218 P.2d 939, 67 Nev. 318, make quite clear that pursuant to NRS
22.030(3), Judge Howard was not permitted to preside over any portion of such contempt
proceedings upon the motion to disqualify/objection to Howards so presiding that Coughlin
immediately made upon Howards contempt ruling less than ten minutes into the trial (ie, Judge
Elliotts 3/15/12 Order tip toed around the fact that Judge Howard violated Nevada law yet again in
such respect, and that future proceedings necessarily were required in the RMC and that Elliotts
3/15/ Order Affirming the Ruling of the RMC purports to do just that, affirm a ruling, not affirm
a Judgment of ConvictionNRS 177.155 Supervision of appeal. The supervision and control
of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed
with its clerk, except as otherwise provided in this title. The appellate court may at any time entertain
a motion to dismiss the appeal, or for directions to the trial court, or to modify or vacate any order
made by the trial court or by any judge or justice of the peace in relation to the prosecution of the
appeal, including any order fixing or denying bail.
(Added to NRS by 1967, 1445)
NRS 22.030(3) provides: 22. 030. Summary punishment of contempt committed
in immediate view and presence of court; affidavit or statement to be filed when contempt
committed outside immediate view and presence of court; disqualification of judge3. Except
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as otherwise provided in this subsection, if a contempt is not committed in the immediate view
and presence of the court, the judge of the court in whose contempt the person is alleged to be
shall not preside at the trial of the contempt over the objection of the person. The provisions of
this subsection do not apply in: see , Pengilly v. Rancho Santa Fe Homeowners Assoc., 116
Nev. 646, at 650, 5 P.3d 569 (2000); it was a mandatory duty of the judge not to preside at the
trial of the contempt charges after the objection under NCL 8943 (cf. NRS 22.030), a writ
issued to prevent the judge from presiding. McCormick v. Sixth Judicial Dist. Court, 67 Nev.
318, 218 P.2d 939 (1950)
Judge Howard violated NRS 22.030(3) where he continued to preside over the
trial of the contempt over Coughlins objection where such portion of such alleged contempt
occurring after the point ten minutes into the 11/30/11 trial in 11 CR 22716 (see cr11-2064)
necessarily did not occure in the immediate view and presence of court given such alleged
contemptuous behavior (specifically referenced, somewhat, in Howards 11/30/11 Order
Punishing Summary Contempt) patently, manifestly from the record, did not occur until after
such point ten minutes into the 11/30/11 trial when Judge Howard found Coughlin in contempt (at
which point Coughlin requested the appoitnement of defense counsel, which howard denied,..).
Howard presided over the trial over contempt that had not even occurred yet (to the extent his
11/30/11 Order Punishing Summary Contempt patently references alleged behavior occurring beyond
the first 10 minutes of the trial.obviously that which will allegedly only occur in the future is not
immediate.
NRS 5.073 Conformity of practice and proceedings to those of justice courts;
exception; imposition and collection of fees.
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1. The practice and proceedings in the municipal court must conform, as nearly as
practicable, to the practice and proceedings of justice 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.
2. Each municipal judge shall charge and collect such fees prescribed in NRS 4.060 that
are within the jurisdictional limits of the municipal court.
(Added to NRS by 1989, 903; A1991, 455; 1997, 115)
NRS 5.075 Form of docket and records. The Court Administrator shall prescribe the
form of the docket and of any other appropriate records to be kept by the municipal court, which form
may vary from court to court according to the number and kind of cases customarily heard and
whether the court is designated as a court of record pursuant to NRS 5.010.
NRS 3.320(3) relating to the duties of court reporters in criminal cases provides, in part, that
the reporter "if directed by the court * * * must, within such reasonable time after the trial of such
case as may be designated by law or, in the absence of any law relating thereto, by the court, write
out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or
by typewriter or other printing machine, and certify to the same as being correctly reported and
transcribed, and, when directed by the law or court, file the same with the clerk of the court." NRS
3.370(2) reads, in part, that "in criminal cases the fees for reporting and for transcripts ordered by the
court to be made must be paid out of the county treasury upon the order of the court." These
provisions embrace the order of which the district attorney complains.
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However, we wish to mention that in this case the judicial power to make the order in
question does not rest primarily upon the statutory provisions which we have related. The demands of
the due process and equal protection clauses of the fourteenth amendment to the federal constitution
compel that a copy of the transcript of the first trial be furnished Harris. The mentioned statutes
merely implement the constitutional mandate. Griffin v.Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.
891, involved an indigent's right to a transcript for the purpose of appellate review. Illinois had not,
by statute, authorized an indigent appellant to obtain the transcript at state expense. The United States
Supreme Court held that the due process and equal protection clauses of the fourteenth amendment
prevent a state from denying appellate review to an indigent because of his poverty. Justice Black
wrote: "There can be no equal justice where the kind of a trial a man gets depends upon the amount
of money he has. Destitute defendants must be afforded as adequate appellate review as defendants
who have money enough to buy transcripts. * * * Plainly, the ability to pay costs in advance bears no
rational relationship to the defendant's guilt or innocence and could not be used as an excuse to
deprive a defendant of a fair trial." The Griffin principle has been subsequently applied by the high
court to closely related situations. In Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, it
was held that Griffin applied to state collateral proceedings even where a criminal appeal was
discretionary and not a matter of right. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39,
the court held that a state may not require a payment of statutory filing fees by an indigent before his
appeal would be docketed. In Eskridge v. Washington State Board of Prison Terms and Paroles, 357
U.S. 214, 78 S.Ct. 1061, 2 L.E.2d 1269, the Griffin principle was given retrospective application. See
also Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; Coppedge v. United
States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9
L.Ed.2d 892.
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As already stated the Griffin doctrine involved fundamental fairness to one seeking appellate
review of his conviction. He was no longer clothed with the presumption of innocence. In the case
before us we are concerned with fundamental fairness to one who is about to stand trial for a capital
offense. He presently enjoys the presumption of innocence. We believe that the Griffin principle has
greater need for application here than it did in Griffin itself, for we know that everyone accused of
crime has a constitutional right to a fair trial. On the other hand, we are not at all certain that a
convicted defendant has a constitutional right to appeal; the United States Supreme Court has never
said so. Indeed, that court stated in McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867,
that "a review by an appellate court of the final judgment in a criminal case, however grave the
offense of which the accused is convicted, was not at common law and is not now a necessary
element of due process of law." In the light of Griffin v. Illinois, the order made below was
compelled.
We would reach the same result quite apart from any consideration of the particular statutory
and constitutional demands which we have discussed. The inherent power of a court to exercise
reasonable control over a criminal proceeding cannot seriously be questioned. In Marshall v. District
Court, 79 Nev. 280, 382 P.2d 214, we held that the district court in a murder case had the power to
order the district attorney to produce for the inspection of the defendant the autopsy report of the
victim any and all photographs relevant to the case, all statements of all persons who testified at the
preliminary hearing or who will be witnesses at the trial, and a certain tape recording given by the
defendant. In Pinana v. District Court, 75 Nev. 74, 334 P.2d 843, we held that the district court had
the power to deny the defendant's request for pre-trial inspection of statements made by her to the
district attorney. In neither case was certiorari available to control judicial discretion or to review the
propriety of judicial action. In each case the state had incurred an expense in obtaining the
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information sought by the defendant's pre-trial discovery motions, and in each instance the court
possessed power to enter the order in question.
It is important to note that Judge Elliotts 3/15/12 Order Affirming Ruling of the RMC
(OARMC) misapplies NRS 4.410(2) to NRS 189.030(1) in characterizing Coughlin as the one
ordering the transcript. That is a three card monty approach. Coughlin merely filed a Notice of
Appeal in the RMC, which triggered the statutory requirement that the RMC necessarily, order the
transcript as the RMC, under NRS 189.030(1) shall transmit such to the district court within 10
days of Coughlins 12/11/11 filing of a Notice of Appeal (unless the 2004 ADKT makes a post-Rust
application required whereby the filing by Coughlin at the same time of a Motion for New Trial made
such Notice of Appeal premature and tolling the requirements of NRS 189.030(1)but regardless,
what actually occurred in Elliotts 3/15/12 OARRMC is completely inappropriate and voidSo,
actually, under Elliotts analaysis (especially if the RMC wants to keep its NRS 5.010 court of
record designation or be made to answer for the fraud attendant to enforcing the local ordinance
But, really, the RMC and Longoni makes this quite easy were their own handout admits that
the preparation of the transcript will not begin (whether a civil or criminal case (and the RMC
handles barely any civil cases at all anyways) until the money deposit outlined is made:
Reno MUNICIPAL COURT
GENERAL PROVISIONS
NRS 5.010 General requirements for court; designation as court of record. There must
be in each city a municipal court presided over by a municipal judge. The municipal court:
1. Must be held at such place in the city within which it is established as the governing body of
that city may by ordinance direct.
2. May by ordinance be designated as a court of record.
[35:19:1865; B 940; BH 2454; C 2535; RL 4855; NCL 8397](NRS A 1983, 899;
1985, 671; 1991, 161)
Sec. 2.16.040. Court of record; recording.
The Reno Municipal Court is hereby designated as a court of record in accordance with NRS
5.010. Proceedings in the municipal court may be recorded by any method recognized by the
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Nevada Supreme Court.
(Ord. No. 4199, 1, 3-24-92)
Editors noteOrd. No. 3099, 1, adopted June 27, 1983, repealed former 2.16.040
2.16.060, concerning the office of the marshal, which sections derived from Code 1966,
2.32.0102.32.030.
Sec. 2.16.050. Recording; operation of equipment; transcription of
recordings; use of transcript.
(a) Each judge shall appoint a suitable person, who need not be a certified shorthand reporter
and may have other responsibilities in the court to operate the recording equipment. The
person so appointed shall subscribe to an oath that he or she will so operate it as to record
all of the proceedings.
(b) The municipal court may designate any certified person to transcribe the recording into a
written transcript. The person so designated shall subscribe to an oath that he or she has
correctly transcribed it. The transcript may be used for all purposes for which transcripts
are used and is subject to correction in the same manner as other transcripts.
(Ord. No. 4199, 1, 3-24-92)
Sec. 2.16.060. Recording; preservation; destruction.
The recording of each proceeding in municipal court must be preserved until at least 30 days
after the time for filing an appeal expires. If no appeal is taken, the judge may order the
destruction of the recording at any time after that date. If there is an appeal to the district court,
the recording must be preserved until at least 30 days after final disposition of the case on
appeal. The municipal court may order the destruction of the recording at any time after that
date.
(Ord. No. 4199, 1, 3-24-92)
Sec. 2.16.070. Filing of appeals.
An appeal in a civil or criminal case must be taken and perfected in the same manner as the
same type of appeal from the justice's courts, as provided in the Nevada Revised Statutes.
(Ord. No. 4199, 1, 3-24-92)
Sec. 2.16.080. Recording; payment of fees.
(a) The fees for transcripts, processing an appeal, and copies must be paid by the party
ordering them in accordance with the municipal court procedures.
(b) In a civil case the preparation of the transcript need not commence until the fees have been
deposited.
(c) In a civil case, upon a finding of a party's indigency by the court, such fees shall be waived
or paid by the court.
(Ord. No. 4199, 1, 3-24-92)
Sec. 2.16.090. Transmission of transcript, other papers, recording
and copy of docket to district court.
(a) The court shall transmit to the clerk of the district court the recording and/or transcript of
the case, all other papers relating to the case and a certified copy of his or her docket in
accordance with the Nevada Revised Statutes, District Court Rules, and the Washoe
County District Court Rules.
(b) The judge shall give notice to the appellant or his or her attorney and to the other party that the
recording and/or transcript, all other papers relating to the case, and a certified copy of
the docket have been filed with the clerk of the district court.
(Ord. No. 4199, 1, 3-24-92)
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So, Reno Municipal Code Sec 2.16.080 becomes pretty important, huh? Sec. 2.16.080. Recording;
payment of fees.
(a) The fees for transcripts, processing an appeal, and copies must be paid by the party
ordering them in accordance with the municipal court procedures.
This is true, especially considering that the RMC provided Coughlin in obstructing his attempts to get
the transcript made and even to obtain a copy of the audio from this alleged court of record a
handout on RMC letterhead that reads: RENO MUNICIPAL COURT
TRANSCRIPTS ON APPEAL/OTHERS
If you wish to order a transcript of your proceedings in the Reno Municipal Court, you
may do so by contacting Pam Longoni at (775) 530-5251.
The following information is provided to assist you in placing an order for a transcript:
I. Orders will require the date of the court appearance, type of proceeding, (trial,
arraignment, etc.), department number in which the proceeding was held, and also
include the appropriate deposit as indicated below. Payment may be made by check or
money order. No transcript will be prepared until the required deposit is received.