LAS VEGAS REVIEW-JOURNAL v. CITY OF HENDERSON
2021 NV 81
| Nev. | 2021Background
- The Las Vegas Review-Journal (LVRJ) requested public records from the City of Henderson covering its use of a public‑relations firm; Henderson located ~70,000 pages and sought payment for a privilege‑review fee.
- LVRJ sued under the Nevada Public Records Act (NPRA) seeking mandamus to compel production without paying the fee; Henderson allowed inspection, produced most records, and withheld documents identified in a privilege log.
- This court previously remanded for the district court to balance Henderson’s interest against the public interest for 11 documents withheld under the deliberative‑process privilege; before remand resolution, Henderson voluntarily disclosed those 11 documents.
- LVRJ sought costs and attorneys’ fees under NRS 239.011(2); the district court denied fees under the catalyst theory.
- The Nevada Supreme Court held the district court misapplied the catalyst‑theory factors (misconstruing the settlement factor and failing to analyze other factors), affirmed the law‑of‑the‑case limitation as waived by LVRJ, reversed the denial as to the 11 documents, and remanded for proper findings and balancing.
Issues
| Issue | Plaintiff's Argument (LVRJ) | Defendant's Argument (Henderson) | Held |
|---|---|---|---|
| 1. Scope of recoverable fees (whether LVRJ may recover fees for records beyond the 11 deliberative‑process documents) | LVRJ: its litigation was the catalyst for disclosure of the broader set of records, so fees should cover all efforts. | Henderson: law‑of‑the‑case precludes recovery beyond the issues on which LVRJ prevailed in prior appeals. | Court: LVRJ raised this argument first in its reply brief and thus waived it; district court affirmed on that basis. |
| 2. Whether LVRJ prevailed under the catalyst theory for the 11 deliberative‑process documents | LVRJ: the suit caused Henderson to change course and voluntarily disclose the 11 documents, so LVRJ is prevailing and entitled to fees. | Henderson: disclosure was voluntary and not necessarily caused by litigation; no prevailing party. | Court: district court abused discretion by misapplying and inadequately analyzing the mandatory catalyst factors; reversed and remanded for full factor analysis and findings. |
| 3. Proper application of CIR (catalyst) factors — especially settlement‑effort factor | LVRJ: its actions justified fee recovery; factor weighting should not bar recovery here. | Henderson: the district court properly found LVRJ did not reasonably attempt to settle and thus did not prevail. | Court: district court inverted factor #5 (it examined government’s settlement efforts instead of requester’s), failed to analyze factors 2–4 factually, so remand required. |
| 4. Whether the suit was frivolous or whether litigation actually caused disclosure (causation and frivolousness) | LVRJ: suit was not frivolous; litigation was the catalyst for disclosure. | Henderson: no causal nexus and the suit was not a proper basis for fees. | Court: district court’s conclusion on frivolousness was based on erroneous reasoning (relying on silence of prior opinions); factual causal nexus was not adequately analyzed—trial court must reassess. |
Key Cases Cited
- Las Vegas Metro. Police Dep't v. Center for Investigative Reporting, Inc., 136 Nev. 122, 460 P.3d 952 (2020) (adopting and describing the catalyst theory and mandatory factors for NPRA fee awards)
- Thomas v. City of North Las Vegas, 122 Nev. 82, 127 P.3d 1057 (2006) (attorney fees require statutory authorization)
- Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc., 131 Nev. 80, 343 P.3d 608 (2015) (definition of prevailing party for fee awards)
- Dimick v. Dimick, 112 Nev. 402, 915 P.2d 254 (1996) (general rule that final judgment normally required to be a prevailing party)
- First Amendment Coalition v. U.S. Dep't of Justice, 878 F.3d 1119 (9th Cir. 2017) (causal‑nexus standard used in catalyst analyses)
- Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983) (factors for fee awards in other contexts; court referenced in comparison)
- Wynn v. Smith, 117 Nev. 6, 16 P.3d 424 (2001) (fee determinations are fact‑intensive and courts are encouraged to make specific findings)