Salaiscooper v. Dist. Ct.

Decision Date15 November 2001
Docket NumberNo. 38296.,38296.
PartiesVirginia Anchond SALAISCOOPER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK and the Honorable Joseph T. Bonaventure, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
CourtNevada Supreme Court

William B. Terry, Las Vegas, for Petitioner.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Real Party in Interest.

Before MAUPIN, C.J., and YOUNG, SHEARING, AGOSTI, ROSE, LEAVITT and BECKER, JJ.

OPINION

PER CURIAM.

INTRODUCTION

Petitioner Virginia Anchond Salaiscooper contends that, in prosecuting her for solicitation of prostitution, Clark County District Attorney Stewart Bell is engaging in impermissible unconstitutional selective prosecution that violates her right to equal protection under the law. More specifically, Salaiscooper contends that the district attorney intended to discriminate against females by implementing a policy that prohibited his deputies from entering into plea negotiations with female defendants charged with solicitation of prostitution, thereby foreclosing any possibility that they could attend a diversion class in order to avoid solicitation convictions.

Had the district attorney done as Salaiscooper alleges and, in exercising his prosecutorial discretion, intended to discriminate against women, we would agree with Salaiscooper. However, the unrefuted evidence in this matter demonstrates that the district attorney's prosecution policy differentiates between buyers of sex and sellers of sex, not between males and females. We cannot say that a prosecutor intends to discriminate against females by allowing all buyers of sex, regardless of gender, to attend a successful diversion program, which is designed solely for buyers of sex. We also cannot say that a prosecutor intends to discriminate against females by implementing a policy treating sellers of sex differently in order to deter acts of prostitution committed by those who work in the adult entertainment industry. Because we conclude that this is a case of prosecutorial discretion and not unconstitutional selective prosecution, we deny Salaiscooper's petition.

FACTS

This matter has a somewhat unusual procedural history. On February 29, 2000, Megan Joy Hayhurst, who was charged with soliciting prostitution, filed a motion for discovery requesting the written policy of the Clark County District Attorney's Office concerning prosecution of solicitation of prostitution cases. Hayhurst contended that the policy violated the Equal Protection Clauses of the United States and Nevada Constitutions because it resulted in impermissible gender discrimination.1 Hayhurst was represented by attorney William B. Terry, who was also counsel of record for numerous other defendants charged with solicitation of prostitution in the various departments of the Las Vegas Justice Court, wherein the same argument was raised.

The policy at issue was summarized in a December 1999 memo from Clark County District Attorney Stewart Bell to his deputies. The memo provided:

In light of some changes in policy at the Las Vegas Metropolitan Police Department with regard to work card licensing for exotic dancers charged with prostitution, it has been agreed ... that (except in cases of first time male offenders who opt for the diversion program) we will not negotiate the nature of cases of soliciting prostitution, nor will we agree that they may be in the future dismissed for any reason.

The policy was implemented due to the American Civil Liberties Union's (ACLU) objection to the fact that the Las Vegas Metropolitan Police Department (Metro) was revoking adult entertainment industry employees' work cards based merely on an arrest for solicitation of prostitution. The ACLU contended that revoking a work card needed to work in the entertainment industry without an underlying conviction violated due process. In response to the ACLU's objection, the district attorney implemented a no-plea-bargain policy that prohibited his deputies from entering into a plea agreement with a defendant charged with solicitation of prostitution allowing a plea to a lesser charge. The plain language of the policy prohibiting plea bargains excepted first time male defendants.

Because the justice court was concerned with the gender-specific language used in the policy, it ordered an evidentiary hearing where both sides could present evidence to support or refute a specific finding of discriminatory purpose. As a result of the court's order, Mr. Terry and the State agreed that they would randomly select a solicitation of prostitution case in which to conduct the hearing out of the fifty-six pending in the various departments of the Las Vegas Justice Court. The Salaiscooper case was randomly selected, and Justice of the Peace Jennifer Togliatti presided over the hearing.

The State called two witnesses to testify at the hearing. The first witness was Dr. Roxanne Clark Murphy, a clinical psychologist and the Program Coordinator for the First Offender Program for Men in Las Vegas. Murphy testified that she developed the First Offender Program in collaboration with Metro and that it boasted an extremely low recidivism rate of less than one percent. Murphy explained that the diversionary program was designed for buyers of sex that are statistically almost always male. Murphy also described the requisite for entrance into the program was that a defendant must be a first-time offender charged with soliciting a prostitute.

Murphy testified that the vast majority of sellers of sex are females. Murphy also stated that it would take a minimum of a year to successfully rehabilitate a seller of sex. Murphy explained that, in order for a diversion program to be an effective deterrent, it would need to be a residential program that would protect women from their pimps, teach them job skills, and provide substance abuse and psychological counseling. Murphy further explained that more effort is required to rehabilitate and deter sex sellers than buyers because many prostitutes have been sexually abused, selling sex since the age of 13 to 14, disassociated from their actions through the use of drugs and alcohol, and/or controlled by a violent pimp or procurer.

The second and last witness to testify on behalf of the State was Metro Lieutenant Terry Davis, a supervisor of the vice department and teacher at the First Offender Program for Men. Officer Davis testified that the program was designed for buyers of sex. Davis also confirmed that he told a Las Vegas newspaper that the impetus of the policy was Metro's need for an underlying solicitation of prostitution conviction in order to revoke an adult entertainment industry employee's work card.

At the end of the hearing, Judge Togliatti reserved her ruling so that the seven justices of the peace in Las Vegas Justice Court, who were not present at the evidentiary hearing, could take the matter under advisement and reach a collective decision. On December 27, 2000, Judge Togliatti issued a lengthy order stating that the Las Vegas Justice Court had unanimously found that the policy did not discriminate on the basis of gender and that its distinction based on buyers of sex and sellers of sex was constitutionally permissible. In so finding, Judge Togliatti qualified this conclusion by stating that the judges were relying on the district attorney's representations that his policy applied to all sellers of sex regardless of gender, and consequently ordered Mr. Bell to clarify this fact in writing to his deputies within ten days.

In response to the court's order, Mr. Bell filed a clarification of policy in the justice court, affirming that he had distributed a memo clarifying that the First Offender Program for Men was available only to buyers of sex regardless of whether they were male or female. Accordingly, under the clarified policy, if a female buyer of sex was charged with solicitation of prostitution, she, like a male buyer of sex, would have the option of attending the First Offender Program, thereby avoiding a solicitation conviction.

Salaiscooper appealed the justice court ruling to the district court, which concluded that the decision of the justice court was supported by substantial evidence, and that the policy of the Clark County District Attorney's Office was constitutional.2 Consequently, the district court remanded the Salaiscooper case back to the Las Vegas Justice Court for trial. Thereafter, the district court stayed the justice court proceedings until this court addressed the issue by way of extraordinary writ. Salaiscooper then filed the instant petition for a writ of certiorari, or in the alternative, a writ of prohibition or mandamus, contending that both the justice court and the district court erred in concluding that the no-plea policy's distinction based on buyers and sellers of sex was constitutionally permissible. We discuss the issues raised in the petition below.

DISCUSSION

We begin by addressing the unusual procedural posture of the controversy before us. The justice court decision at issue in this case, although signed by the justice of the peace who presided over the hearing, apparently resulted from the collaborative deliberation of all seven judges of the Las Vegas Justice Court. Indeed, at the conclusion of the evidentiary hearing on the constitutionality of the policy, Chief Judge Togliatti stated:

I'm ordering a copy of the transcript .... I will take it under advisement for the seven of us to review the transcript, and we will issue and prepare a written record and decision. I can't give you a definite time frame because we are dealing with seven of us.

Apparently, because this identical issue arose in cases pending in all seven departments, the judges of the Las...

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