Kerkorian v. Sisolak
Decision Date | 30 April 2020 |
Docket Number | No. 80917,80917 |
Citation | 462 P.3d 256 (Table) |
Parties | Gregory KERKORIAN, Petitioner, v. The Governor of Nevada, Steve SISOLAK; and the Director of Nevada Department of Corrections, Charles Daniels, Respondents. |
Court | Nevada Supreme Court |
The Draskovich Law Group
Attorney General/Carson City
Attorney General/Las Vegas
Federal Public Defender/Las Vegas
This original petition seeks a writ of mandamus (1) directing the Governor and the Director of the Nevada Department of Corrections (Director) to "take all actions necessary to prevent the spread of the highly infectious and deadly COVID-19 virus to vulnerable populations in State custody," (2) directing the Governor to use his emergency powers under NRS Chapter 414 in a number of specific ways to reduce the prison population, and (3) commuting petitioner Gregory Kerkorian’s sentence to time served and directing his immediate release from prison.
As a threshold matter, we note that petitioner purports to seek relief on behalf of the entire "vulnerable population[ ] in State custody." But it does not appear that a petition of this sort may be used as an ad hoc class action, given that doing so would sidestep the procedural requirements that would otherwise apply. See NRCP 23 ; see also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1539-40 (2018) ( ). Amici's briefing attempts to further widen the appropriate scope of Kerkorian’s petition by pointing to an entirely different writ—habeas corpus—for our consideration. This too was likely procedurally improper, see 3B C.J.S, Amicus Curiae §§ 17 - 18 (2013), in addition to seeking relief that is beyond the scope of habeas corpus in Nevada, see Bowen v. Warden, 100 Nev. 489, 490, 686 P.2d 250, 250 (1984) ( ); Director, Nev. Dep't of Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1319 (1982) ( ).
Based upon our review of the documents filed in this court, we decline to exercise our original jurisdiction as to the claims Kerkorian asserts on his own behalf for two interrelated reasons. First, the record is replete with contested issues of fact which this court, as an appellate tribunal, cannot call live witnesses to hearing to resolve. Second, given the conflicts in the facts asserted, we cannot say, as a matter of law, that the respondents have violated a clear and unmistakable legal duty to act, which is what the law requires for a writ of mandamus to issue from this court. Poulos v. Eighth Judicial Dist. Court, 98 Nev, 453, 455, 652 P.2d 1177, 1178 (1982) ().
"[A]n appellate court is not an appropriate forum in which to resolve disputed questions of fact." Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981). Our review of the petition demonstrates that it presents disputed facts regarding the actions taken by the respondents and what further actions should be taken, if any. When there are factual issues presented, this court will not exercise its discretion to entertain a mandamus petition even though "important public interests are involved." Id.
Given the underlying factual disputes, Kerkorian has not demonstrated that respondents have a duty to act in a specific manner. See NRS 34.160 ( ); see also In re Montierth, 131 Nev. 543, 550, 354 P.3d 648, 652 (2015) ( ); Round Hill, 97 Nev. at 603, 637 P.2d at 536 ( ). Without an unmistakable duty to act—or a manifest abuse of discretion in disregarding such a duty—mandamus does not lie.
And finally, Kerkorian has not demonstrated respondents have acted arbitrarily or capriciously, or manifestly abused their discretion because he has not demonstrated a constitutional violation (i.e., cruel and unusual punishment based on the conditions of confinement or an equal protection violation). See Round Hill, 97 Nev. at 604, 637 P.2d at 536 ( ); see also Farmer v. Brennan , 511 U.S. 825, 828 (1994) ( ); Butler v. Bayer , 123 Nev. 450, 459, 168 P.3d 1055, 1062 (2007) (); Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000) ( ); Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999) ( ).
Our observations are consistent with those made by other courts faced...
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