Harvey v. Dist. Ct.
| Citation | 117 Nev. 754,32 P.3d 1263 |
| Decision Date | 10 October 2001 |
| Docket Number | No. 35144.,35144. |
| Parties | The STATE of Nevada, ex rel. Amy HARVEY, the Duly-Elected County Clerk of Washoe County and ex Officio Court Clerk of the Second Judicial District Court, and Amy Harvey in Her Official Capacity as Clerk of the Second Judicial District Court, Plaintiff/Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF WASHOE, and the Honorable Charles M. McGee, Chief Judge, Second Judicial District Court; the Honorable Brent T. Adams, District Judge, Second Judicial District Court; the Honorable Janet J. Berry, District Judge, Second Judicial District Court; the Honorable Peter I. Breen, District Judge, Second Judicial District Court; the Honorable Steven P. Elliott, District Judge, Second Judicial District Court; the Honorable James W. Hardesty, District Judge, Second Judicial District Court; the Honorable Scott Jordan, District Judge, Second Judicial District Court; the Honorable Steven R. Kosach, District Judge, Second Judicial District Court; the Honorable Jerome M. Polaha, District Judge, Second Judicial District Court; the Honorable Deborah Schumacher, District Judge, Second Judicial District Court; and the Honorable Connie J. Steinheimer, District Judge, Second Judicial District Court, Defendants/Respondents and Real Parties in Interest. |
| Court | Supreme Court of Nevada |
Michael E. Langton, Reno, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Thomas M. Patton, First Assistant Attorney General, Carson City, for Respondents.
Stewart L. Bell, District Attorney, and Janson F. Stewart, Chief Deputy District Attorney, Clark County, for Amicus Curiae Shirley Parraguirre.
Scott W. Doyle, District Attorney, Douglas County, for Amicus Curiae Nevada Association of County Clerks.
BEFORE THE COURT EN BANC.
This is an original proceeding by complaint and information in the nature of quo warranto. The complaint arises from a disagreement between the Washoe County Clerk, Amy Harvey, and the Second Judicial District Court over the District Court's assumption of the supervision and control of the court clerk's position.1
Harvey asserts that the county clerk is the sole person designated in the Nevada Constitution as responsible for performing the duties associated with the court clerk. According to Harvey, the District Court has usurped her position as ex officio court clerk of the District Court in violation of NRS 35.120. Harvey urges this court to oust the District Court from the court clerk position or, in the alternative, to prohibit the District Court from usurping her position.
The District Court contends that the office of the court clerk is a ministerial function of the judicial branch of government. According to its view, the Nevada Constitution's provisions relating to the county clerk's office do not prohibit a district court from supervising, controlling or operating the office of the district court clerk. Therefore, the District Court maintains that the duties of the court clerk can be assumed in whole or in part by a district court.
For the reasons stated below, we conclude that the District Court has not usurped the office of county clerk by assuming direct control over the functions of the court clerk. The office of the clerk of the district court is not a constitutional office. Rather, it is a ministerial office inherent to the judicial branch of government. Its sole purpose is to perform clerical and record-keeping functions necessary to the district court's operation. Its duties may be performed, in whole or in part, either by the county clerk pursuant to legislative enactment, or by the district court pursuant to court rule. Therefore, we conclude that the District Court has not usurped Harvey's authority, and we dismiss the complaint in quo warranto.
The county clerk is an elected official who, under the Nevada Constitution, is also designated as the ex officio court clerk of his or her district. Article 4, section 32 of the Nevada Constitution provides:
Pursuant to its general authority to enact laws for the orderly administration of government and the public welfare, the legislature has assigned several record-keeping duties to the court clerk.2 As well, district court clerks have numerous receipting and accounting duties assigned by the legislature, such as providing receipts for payments or processing bail funds.3 These duties are illustrative, not exhaustive, of the court clerk's record-keeping and financial duties. In addition to the duties set forth in statutes, court clerks have duties assigned to them by the judiciary through court rules.4
Prior to 1974, the county clerk controlled and supervised the court clerk's functions in the Second Judicial District Court. In June of 1974, at the request of the District Court, the Washoe County Board of Commissioners adopted Washoe County Ordinance number 230 which established a "Court Administrator" position for the District Court. The Ordinance resulted from discussions between the Commissioners and the District Court regarding management of the court system, including the court clerk's functions. The Ordinance provided, in pertinent part:
The Ordinance also stated that employees performing duties of the office of the district court clerk were under the complete jurisdiction and control of the district judges. The Ordinance then provided for the transfer of thirty-two employees of the Washoe County Clerk's Office to the District Court as "exempt employees of the District Judges."
The Ordinance provided the mechanism for approving funds for a new court position as well as the change in the personnel classifications of persons working in the court clerk's office. The District Court, through its own internal actions, clarified its position regarding direct supervision and control of the court clerk's office.
Since 1974, District Court employees have performed virtually all of the court clerk responsibilities. The county clerk is still listed as the clerk of the District Court on official documents and reports, but apparently has no control over the operation of the court clerk's office or the individuals (designated as deputy court clerks) who handle the court clerk's duties. The county clerk has no say in the hiring, firing or disciplinary actions involving District Court employees assigned to the court clerk's functions.5
Preliminarily, this court must decide whether an original proceeding in quo warranto or a petition for a writ of prohibition is the appropriate vehicle by which to challenge the District Court's alleged usurpation of Harvey's office. The Nevada Constitution grants this court the "power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus."6 NRS Chapter 35, entitled "Quo Warranto," includes a provision that specifically relates to alleged usurpation of public offices:
A person claiming to be entitled to a public office ... unlawfully held and exercised by another may, by himself or by an attorney and counselor at law, bring an action therefor in the name of the state, as provided in this chapter.7
Harvey argues that her position is a public office and she is therefore entitled to bring this action in quo warranto in the name of the state. We agree that she is entitled to bring this action under NRS 35.050 and we have chosen to treat this matter as an original complaint in quo warranto, not as a petition for a writ of prohibition. We now turn to the merits of Harvey's complaint.
Harvey and amici curiae argue that the judicial branch is not permitted to interfere with the office of the county clerk, a part of the executive branch of government. Only the legislature may alter the office of the county clerk, because the Nevada Constitution provides the legislature with that authority. Harvey and the amici basically assert that the court clerk is a constitutional office. Therefore, the only way it can be changed is by the legislature pursuant to the constitution or by an amendment of the constitution itself. They assert that the court clerk is either a separate constitutional office that is held concurrently by the person elected to the office of county clerk, or that it is a part of the county clerk's office whose parameters are constitutionally set by the legislature.
The District Court argues that the office of court clerk is not a constitutional office. Rather, the District Court asserts the court clerk is a ministerial office of the judicial branch, subject to control and supervision by the court. Further, the District Court contends that designation of the county clerk, as ex officio court clerk in the constitution, was a matter of convenience when state government was formed and that the court clerk has always been a judicial office. According to the District Court, since the court clerk is not a constitutional office, a...
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