Mirin v. Justices of Supreme Court of Nevada, LV 75-149-RDF.

Citation415 F. Supp. 1178
Decision Date11 May 1976
Docket NumberNo. LV 75-149-RDF.,LV 75-149-RDF.
PartiesWilliam MIRIN, Plaintiff, v. The JUSTICES OF the SUPREME COURT OF NEVADA et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

COPYRIGHT MATERIAL OMITTED

Mark Lemle Amsterdam, New York City, for plaintiff.

Lionel, Sawyer, Collins & Wartman by Samuel S. Lionel, Las Vegas, Nev., for defendants Justices of the Supreme Court of Nevada, David Zenoff, Elmer M. Gunderson, Cameron M. Batjer, John C. Mowbray, Gordon Thompson, individually and in their capacities as Justices of the Supreme Court of Nevada (judicial defendants).

Robert List, Atty. Gen., by Jeffrey N. Clontz, Deputy Atty. Gen., Las Vegas, Nev., for defendants Members of the State Taxicab Authority of Clark County, Manuel Cortez, James Jones, B. J. Handlon, Joseph La Voie (authority defendants).

DECISION

HAUK, District Judge.

BACKGROUND FACTS

This matter comes before the undersigned A. Andrew Hauk, sitting as District Judge of the District of Nevada by designation on December 18, 1975, of Ninth Circuit Chief Judge Richard H. Chambers. Plaintiff commenced this action on August 18, 1975, seeking both injunctive and declaratory relief pursuant to 28 U.S.C. 1331 ("Federal Question" jurisdiction), 1343 ("Civil Rights" jurisdiction), 1651 ("All Writs" jurisdiction), 2201 ("Declaratory Judgment" jurisdiction), and 2202 ("Declaratory Judgment" — other relief)1; 42 U.S.C. 1983 ("Civil Rights" action), 1985 ("Civil Rights Conspiracy"—jurisdiction), and 1986 ("Civil Rights Conspiracy"—action for neglect to prevent)2; and the First, Fifth, Sixth and Fourteenth Amendments3 to the Constitution of the United States. There are two groups of Defendants: one group consists of the five justices of the Nevada Supreme Court being sued in both their individual and their official capacities ("Judicial Defendants"); the second group is composed of the members of the Administrator of the Clark County State Taxicab Authority ("Authority Defendants").

Plaintiff seeks (1) empanelment of a 3-judge court to determine the issues raised; (2) declaratory relief to the effect that actions of Defendants violate Plaintiff's rights under the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution; (3) that this Court preliminarily and permanently enjoin Defendants from enforcing the order staying Nevada District Judge Hays' partial summary judgment for Plaintiff in a pending Nevada State case involving Plaintiff; (4) that this court preliminarily and permanently enjoin Defendants from interfering with the Plaintiff's taxicab operation; (5) that this court preliminary and permanently enjoin Defendants from enforcing Rule 44 of the Nevada Supreme Court Rules, and Rule 46(b) of the Nevada Rules of Appellate Procedure and declare them both unconstitutional; (6) that the Court require the Defendants to disclose the source and amount of their past campaign contributions and of any future contributions; and (7) that the Court issue a preliminary and permanent injunction prohibiting the Defendants from ruling in Nevada State proceedings in which the Plaintiff is a party.

Plaintiff has been operating taxicabs in Las Vegas, Nevada since 1962. For several years the Plaintiff did not have a Certificate of Public Convenience and Necessity, claiming that under the wording of the pertinent Nevada statute it was not required. Plaintiff has been arrested on numerous occasions for his failure to obtain or possess such a Certificate and became somewhat well known in the Las Vegas area for his episodic appearances in litigation. Finally, after gaining considerable public notoriety, Plaintiff in 1965 was able to lobby through the Nevada Legislature a bill allowing him a cab operation in Las Vegas, but apparently limited to one taxicab.

In the same year, as a result of a cab strike against major Las Vegas cab companies not affecting Plaintiff's cab company, a joint agreement was signed by the major cab companies limiting their number of taxis in the Las Vegas area to 200. This agreement ending the strike was approved by the then District Court Judge (now Supreme Court Justice) John Mowbray, February 28, 1966. Then the Board of Clark County Commissioners, the legislative body of Clark County, Nevada, which includes the city of Las Vegas, enacted an ordinance limiting the number of cabs which the various cab companies were allowed to have on the street, and Plaintiff at this time was allocated one taxi by the Board. The Nevada State Public Service Commission reviewed and revised the allocations in December of 1966 enlarging the numbers allocated to the major companies, but continued to limit Plaintiff and two other small companies to one cab each. Shortly thereafter, when Plaintiff was prosecuted for putting two taxis on the Las Vegas Streets, a lower State court held the allocation ordinance to be jurisdictionally illegal and wiped it off the County statute books. Thereupon Plaintiff continued to put more and more taxis on the street until on October 8, 1968, he claimed to have 72 taxis operating in the County and in Las Vegas. On this date, however, the Nevada Supreme Court reversed the lower State court ruling and reinstated the County allocation ordinance. But since the Public Service Commission had scheduled a hearing on a revised allocation at the time of this reversal, the Supreme Court of Nevada issued a Peremptory Writ of Mandate requiring the Public Service Commission to reinstate its December, 1966, allocation order, at least until new hearings could be held and a new allocation plan be determined. The new hearings were held from January through May of 1969. In the meantime, and in April of 1969, the Internal Revenue Service seized and sold Plaintiff's cabs for an outstanding tax debt owed to the Federal Government. And when the sale of the cabs was not enough to completely pay off the debt, in May of 1969 the IRS seized and sold the Plaintiff's cab operating rights under the State and County allocation orders and ordinance.

Plaintiff has continued to operate one taxi claiming that he has always been a Certificate holder of some sort under the applicable legislative enactment which he lobbied through the Nevada Legislature in 1965. The State Taxicab Authority, which by the Nevada Legislature was given the regulation of taxicabs, taken away from the Public Service Commission in July of 1969, set up a program of having Plaintiff's drivers arrested and his cabs impounded, claiming that Plaintiff had no certificated operating rights. This conflict between the Nevada State Taxicab Authority and Plaintiff has resulted in numerous Nevada State court actions and finally the State of Nevada instituted a State court action to enjoin and restrain Plaintiff from operating any taxicab. Plaintiff counterclaimed seeking, inter alia, a review of a new application of Plaintiff for certificated operating rights that had been denied by the Authority. Upon Plaintiff's motion for partial summary judgment on the first twelve counts of the counterclaim, the lower State court on September 3, 1974, granted the relief sought and in the partial summary judgment awarded Plaintiff a new Certificate of Public Convenience and Necessity for operation of sixty-four cabs.

The lower court denied the State's application for a Stay Order but an ex parte Stay Order was granted on September 6, 1974, by Defendant Nevada Supreme Court Justice Zenoff, who set a hearing date before the entire Supreme Court en banc for three days later. This en banc hearing was held on September 9, 1974, in camera, with Justice Gunderson recusing himself and withdrawing voluntarily. Plaintiff alleges that he was not allowed to enter the conference room or participate in the in camera proceedings, but there is no dispute as to the fact that the attorney representing Plaintiff in this litigation was present. Plaintiff alleges that at this point in time, however, this attorney was no longer really representing him. Plaintiff also complains that he had filed an Affidavit of Prejudice against all five Justices of the Nevada Supreme Court before the hearing was held in camera on the Stay Order but that there was never a hearing held on his Affidavit of Prejudice, although Plaintiff contends such is required by Nevada Revised Statutes, Section 1.225. Plaintiff, because the Nevada Supreme Court had granted the Stay Order, was forced to cease all taxicab operations.

In the meantime, the Authority Defendants held a hearing on September 4, 1974, and, since the lower State Court partial summary judgment awarding Plaintiff an allocation of sixty-four cabs was still in question, awarded the Plaintiff the right to operate three taxicabs. But after the issuance of the Nevada Supreme Court Stay Order, Plaintiff was not permitted to operate any cabs at all in the streets of Las Vegas and therefore was not given any Certificate of Necessity for operation of the three cabs that the Authority had allocated to Plaintiff.

Plaintiff alleges generally that these activities of the Judicial Defendants and the Authority Defendants, as well as numerous but undefined orders of the Supreme Court of Nevada, adverse to the Plaintiff, have resulted in violation of his federally protected Constitutional and Civil Rights. So he now seeks relief in the Federal District Court, District of Nevada. We therefore have before us today three motions: first, Plaintiff's motion for a three-judge court to be empaneled to hear the issues raised; second, Plaintiff's motion for a Preliminary Injunction against any and all continuing conduct of both the Judicial Defendants and the Authority Defendants relating to his taxicab operations; and third, the motions of both groups of Defendants to dismiss. We shall discuss these motions individually.

PLAINTIFF'S MOTION FOR A THREE-JUDGE COURT

Plaintiff's fourth claim alleges that Rule 44, Nevada Supreme Court Rules and Rule 46(b), Nevada Rules of Appellate Procedure...

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5 cases
  • Louis v. Supreme Court of Nevada
    • United States
    • U.S. District Court — District of Nevada
    • April 16, 1980
    ...the purposes of these motions, the Court must deem all factual allegations by the plaintiff to be true. Mirin v. Justices of Supreme Court of Nevada, 415 F.Supp. 1178 (D.Nev.1976). Subject Matter Nevada Supreme Court Rule 70 provides that an applicant not recommended by the Board of Bar Exa......
  • Rapp v. Committee on Professional Ethics & Conduct
    • United States
    • U.S. District Court — Southern District of Iowa
    • December 31, 1980
    ...F.2d 811, 813-14 (4th Cir. 1975). But see Zimmerman v. Spears, 428 F.Supp. 759, 761 (W.D. Tex. 1977); Mirin v. Justices of Supreme Court of Nevada, 415 F.Supp. 1178, 1190-93 (D.Nev. 1976); Smallwood v. United States, 358 F.Supp. 398, 403 (E.D.Mo.), aff'd, 486 F.2d 1407 (8th Cir. 1973); MacK......
  • Mullis v. U.S. Bankruptcy Court For Dist. of Nevada
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 11, 1987
    ...any orders or judgments entered during the proceedings. 12 The district court, relying on Mirin v. Justices of the Supreme Court, 415 F.Supp. 1178 (D.Nev.1976), and MacKay v. Nesbett, 285 F.Supp. 498 (D.Alaska 1968), aff'd, 412 F.2d 846 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, ......
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    • February 4, 1992
    ...be taken as true. But this does not mean that we must accept legal opinions and conclusions as true. Mirin v. Justices of Supreme Court of Nevada, 415 F.Supp. 1178, 1190 (D.Nev.1976) (where plaintiff's allegation of conspiracy was held not to sustain complaint in face of motion to dismiss b......
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