By Professor Thomas McAffee
In Landreth v. Malik, 251 P.3d 163 (Nev. 2011), the Nevada Supreme Court held that a district court judge serving in a family court division may decide a case involving subject matter outside the scope of the statute setting forth the family division's jurisdiction. The family court judge had entered a default judgment in a conflict over competing property ownership claims of an unmarried couple — "a subject matter outside NRS 3.223’s scope." The court reasoned that the "Legislature does not have the constitutional authority to limit the constitutional powers of a district court judge in the family court division." But it did not conclude that the jurisdictional statute was unconstitutional. It was ambiguous and needed to be harmonized with other statutes. Since the family court division "was constitutionally established as a ‘division of any district court,’ Nev. Const. art. 6, § 6(2), and the judges sitting in family court are district court judges whose power and authority are derived from the Constitution and not statutorily," judges should be reluctant to read generally worded statutes, such as NRS 3.223, as conferring only specified jurisdiction.
Dissenting, Chief Justice Douglas, joined by Justice Pickering, contended that the Court’s decision implied "that a district judge enlarges the family court’s jurisdiction simply by showing up for work." Without disputing that family court judges are district judges who hold the same authority as others, Douglas argued that "[a] judge’s power is not personal, as the majority’s holding seems to suggest," but is "institutional" in the sense that "[j]urisdiction belongs to the court." Given that jurisdiction "is not a personal attribute of the judge," the better reading of the Nevada jurisdictional statute is to limit the court's jurisdiction to the power set forth in the statute’s text. Justice Cherry joined the dissenting opinion, adding the view that the Nevada Constitution is best read as granting the Legislature power to prescribe the jurisdiction of the district courts; and that is what the legislature did. The Court's decision presents an assertion of power that moves away from judicial restraint.
