CLARK COUNTY OFFICE OF THE CORONER/MEDICAL EXAMINER, Appellant,
LAS VEGAS REVIEW-JOURNAL, Respondent.
for stay pending appeal without supersedeas bond or other
B. Wolfson, District Attorney, and Laura C. Rehfeldt, Deputy
District Attorney, Clark County; Marquis Aurbach Coffing and
Micah S. Echols, Las Vegas, for Appellant.
McLetchie Shell LLC and Margaret A. McLetchie and Alina M.
Shell, Las Vegas, for Respondent.
may obtain a stay of a money judgment pending appeal upon
posting a supersedeas bond pursuant to NRCP 62(d). Under NRCP
62(e), when a state or local government appeals and the
judgment is stayed, no bond is required. Nevertheless, here,
the district court denied appellant Clark County Office of
the Coroner/Medical Examiner's motion to stay enforcement
of the attorney fees and costs judgment awarded to respondent
Las Vegas Review-Journal (LVRJ) under NRS 239.011(2) after it
prevailed on its public records request to obtain certain
autopsy reports. The Coroner's Office then moved this
court for a stay. We conclude that, as a local government
entity that moved for a stay under these provisions below,
the Coroner's Office was entitled to a stay of the money
judgment without bond or other security as a matter of right.
Coroner's Office asserts that a stay from the attorney
fees and costs award should have been granted as a matter of
right under NRCP 62(d), with no bond required per NRCP
62(e). NRCP 62(d) provides as follows:
When an appeal is taken the appellant by giving a supersedeas
bond may obtain a stay subject to the exceptions contained in
subdivision (a) of this rule. The bond may be given at or
after the time of filing the notice of appeal. The stay is
effective when the supersedeas bond is filed.
NRCP 62(e) reads:
When an appeal is taken by the State or by any county, city
or town within the State, or an officer or agency thereof and
the operation or enforcement of the judgment is stayed, no
bond, obligation, or other security shall be required from
addressed these rules in two pertinent cases. In
Public Service Commission a First
Judicial District Court, we considered whether the
appellant, a state entity, was entitled as of right to a stay
of a district court order granting a petition for judicial
review and directing it to grant the respondent Southwest Gas
Corporation's application to impose a surcharge, merely
upon filing a notice of appeal and without posting a
supersedeas bond. 94 Nev. 42, 574 P.2d 272 (1978),
abrogated in part by Nelson, 121 Nev. at
834 n.4, 122 P.3d at 1253 n.4. There, the court
"interpret[ed] the 'may' in Rule 62(d) to be
permissive and not mandatory and construe[d] the conjunctive
'and' contained in Rule 62(e) to require a separate
and distinct application for a stay." Id. at
46, 122 P.3d at 275. As a result, we determined that a stay
did not automatically arise merely because the state entity
filed a notice of appeal. Id. at 45-46, 574 P.2d at
years later, in Nelson v. Heer, this court again
considered whether NRCP 62(d) entitled the appellant to a
stay upon posting a supersedeas bond. 121 Nev. at 834, 122
P.3d at 1253. Recognizing that "[t]his rule is
substantially based on its federal counterpart, FRCP 62(d),
" and that "[m]ost federal courts interpreting the
rule generally recognize that FRCP 62(d) allows an appellant
to obtain a stay pending appeal as of right upon the posting
of a supersedeas bond for the full judgment amount, "
this court overruled Public Service Commission to
the extent that it implied a stay is discretionary in such
circumstances. Id. at 834 n.4, 122 P.3d at 1253 n.4.
In so doing, the court expressly maintained the second
holding in Public Service Commission:
"PSC's requirement that the State or a state agency
file a motion for stay pending appeal is not in any way
affected by this opinion, however." Id.
Nelson v. Heer involved an appeal from a money
judgement, to which the automatic stay provisions of NRCP 62
apply, while Public Service Commission did not.
Thus, neither case directly addresses the question here,
whether the Coroner's Office is entitled to a stay from a
money judgment for attorney fees and costs without bond under
both NRCP 62(d) and NRCP 62(e) together. Most federal courts
to have addressed the issue with respect to the analogous
Federal Rules of Civil Procedure, however, conclude that the
subsections should be read together to provide the government
with a stay as of right without posting a bond.
instance, in Hoban v. Washington Metropolitan Area
Transit Authority,841 F.2d 1157, 1159 (D.C. Cir. 1988),
the court stated that the rules must be read "in tandem,
" such that the right to an automatic stay upon posting
a bond under subsection (d) and the exception to the bond
requirement for the government under subsection (e) meant
that the governmental agency "is entitled to a stay as a
matter of right without posting a supersedeas bond."
Id. (citing 7 J. Moore & J. Lucas,
Moore's Federal Practice ¶ 62.07, at 62-36
(2d ed. 1985) ('"When an appeal is taken by the
United States or an officer or agency thereof or by direction
of any department of the Government of the United States'
and a stay is authorized under other subdivisions of Rule 62,
the United States is entitled to a stay without the necessity
of giving bond, obligation or security.")). See also
Lightfoot v. Walker,797 F.2d 505, 507 (7th Cir. 1986)
("Judgments against the United States, for example, are
paid out of a general appropriation (the 'Judgments Fund,
' as it is called) to the Treasury. This makes Rule
62(e), which entitles the federal government (and its
departments, agencies, and officers) to a stay of execution
pending appeal, without its having to post a bond or other
security, appropriate." (citations omitted)); Rhoads
v. F.D.I.C,286 F.Supp.2d 532, 540 (D. Md. 2003)
("Pursuant to Rules 62(d) and (e) of the Federal Rules
of Civil Procedure, the FDIC is entitled to a stay of
enforcement of the money judgment, and no bond is required of
the United States when it seeks a stay pending
appeal."); United States v. U.S. Fishing Vessel
Maylin,130 F.R.D. 684, 686 (S.D. Fla. 1990) ("Stay
as a matter of right lies where the judgment involved is
monetary, because the bond serves to guarantee the judgment
in kind ...