Savage v. Dist. Ct.
| Decision Date | 29 January 2009 |
| Docket Number | No. 50445.,No. 51333.,50445.,51333. |
| Citation | 200 P.3d 77 |
| Parties | Lonnie SAVAGE, Petitioner, v. The THIRD JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF LYON; The Honorable Robert E. Estes, District Judge; and the Honorable Leon Aberasturi, District Judge, Respondents, and The State of Nevada, Real Party in Interest. Marco Antonio Hernandez, Petitioner, v. The Fourth Judicial District Court of the State of Nevada, in and for the County of Elko, and the Honorable Andrew J. Puccinelli, District Judge, Respondents, and The State of Nevada, Real Party in Interest. |
| Court | Nevada Supreme Court |
Pederson and Kalter, P.C., and Wayne A. Pederson, Yerington, for Petitioner Lonnie Savage.
Frederick B. Lee, Jr., Public Defender, and Alina M. Kilpatrick, Deputy Public Defender, Elko County, for Petitioner Marco Antonio Hernandez.
Catherine Cortez Masto, Attorney General, and Robert E. Wieland, Senior Deputy Attorney General, and Heather D. Procter, Deputy Attorney General, Carson City, for Real Party in Interest in Docket No. 50445.
Gary D. Woodbury, District Attorney, Mark D. Torvinen, Chief Deputy District Attorney, and Robert J. Lowe, Deputy District Attorney, Elko County, for Real Party in Interest in Docket No. 51333.
BEFORE THE COURT EN BANC.1
In these original proceedings, we primarily consider whether district courts in Elko County and Lyon County manifestly abused their discretion when they refused to consider petitioners' applications for treatment pursuant to NRS 484.37941.2 In doing so, we also consider the following: (1) whether the statute requires counties to create a treatment program, (2) whether the district court has jurisdiction to order the Division of Parole and Probation (DOPP) to supervise offenders who enter a program of treatment pursuant to NRS 484.37941, and (3) whether NRS 484.37941 violates the separation-of-powers doctrine by requiring the district court to perform duties reserved to the executive branch.
We conclude that the plain language of NRS 484.37941 requires the district court to consider the merits of an offender's application for treatment. In reaching this conclusion, we agree with the State's argument that NRS 484.37941 does not require counties to create a "program of treatment." Rather, a review of NRS 484.37941 reveals that the statute only requires district courts to oversee the procedures and conditions of probation imposed upon the offender at the time the district court accepts the offender's application for treatment; it does not require counties to create treatment facilities or a "program of treatment." We further conclude that the district court has jurisdiction to order the DOPP to supervise any offenders whose applications for treatment are granted pursuant to NRS 484.37941. And, finally, we conclude that NRS 484.37941 does not violate the separation-of-powers doctrine. The district courts manifestly abused their discretion by refusing to consider petitioners' applications for treatment. We therefore grant these petitions and direct the district courts to consider petitioners' applications for treatment.3
The State charged petitioner Lonnie Savage with a third-offense DUI. Savage initially pleaded not guilty but later attempted to change his plea from not guilty to guilty pursuant to a plea agreement with the State. In the plea agreement, the State indicated that it would not oppose Savage seeking treatment pursuant to NRS 484.37941. The district court refused to accept the guilty plea, noting that the treatment program set forth in NRS 484.37941 was not available in Lyon County because the DOPP would not oversee the program and the district court would not be able to run a program on its own. The district court informed Savage's counsel that he should discuss the matter with his client and further concluded that the matter could not go forward and continued it until October 15, 2007. On that date, Savage appeared before the district court for a status hearing and announced that he would be filing a writ petition in this court challenging the district court's refusal to consider NRS 484.37941. Savage thereafter filed this original petition for a writ of mandamus.
The State charged petitioner Marco Antonio Hernandez with a third-offense DUI. Subsequently, Hernandez and the State entered into a plea agreement in which Hernandez waived his right to a preliminary hearing and agreed to plead guilty to a third-offense DUI. The State reserved the right to litigate any application for treatment filed pursuant to NRS 484.37941.
At Hernandez's arraignment, the district court advised Hernandez's counsel to file a motion for treatment, if he intended to file one, so that the State could have the opportunity to respond. The district court also solicited a response from a DOPP representative, Peggy Hatch, who was present in the district court, regarding the DOPP's willingness to supervise a defendant under NRS 484.37941. Hatch indicated that she had been advised that the DOPP would not be supervising defendants diverted for treatment pursuant to NRS 484.37941. The district court noted that it was unable to supervise offenders diverted for treatment pursuant to NRS 484.37941. The district court further indicated that it believed that NRS 484.37941 was an unfunded mandate and that it would deny the application on the basis that the DOPP would not provide supervision. Nevertheless, the district court continued Hernandez's arraignment.
On the day of his arraignment, Hernandez filed a motion for treatment pursuant to NRS 484.37941, even though he had yet to enter his guilty plea. The State opposed the motion. Shortly thereafter, the district court heard arguments on the motion for treatment, which it subsequently denied, stating that The district court indicated that it did not have the infrastructure, or budget to properly establish the infrastructure, needed to properly supervise offenders diverted to treatment under NRS 484.37941. The district court further indicated that the Legislature did not require counties to create the treatment program established in the statute. Hernandez then filed this original petition for a writ of mandamus.
As an initial matter, the State has challenged the propriety of writ relief in the first instance. After addressing that threshold issue, we will turn to the merits of the claims raised in these writ proceedings.
The propriety of writ relief
"This court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously." Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006); see also NRS 34.160. The writ will issue where the petitioner has no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170; Redeker, 122 Nev. at 167, 127 P.3d at 522. But the decision to entertain a mandamus petition lies within the discretion of this court, and in deciding whether to entertain a petition, "[t]his court considers whether judicial economy and sound judicial administration militate for or against issuing the writ." Redeker, 122 Nev. at 167, 127 P.3d at 522. "Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification." Id.
In regard to Hernandez, the State argues that he is not entitled to extraordinary relief because he has an adequate remedy at law by way of a direct appeal and by filing a motion for bail pursuant to NRS 177.105, which, if granted, would require a stay of his sentence of imprisonment. We disagree. Hernandez has not yet entered a guilty plea, nor did the district court set the matter for trial. To the contrary, Hernandez attempted to plead guilty to a third-offense DUI and filed a motion for treatment pursuant to NRS 484.37941. However, after hearing arguments on the motion for treatment, the district court indicated that it would deny the motion and invited Hernandez to file an emergency writ petition in this court. Because Hernandez's guilty plea is intrinsically connected to whether he is allowed to apply for treatment pursuant to NRS 484.37941, we conclude that in this narrow circumstance he should not be required to proceed to trial before he is allowed to challenge the actions of the district court. Moreover, we reject the State's contention that a motion for bail would adequately protect Hernandez's interests because there is simply no guarantee that if Hernandez was convicted and filed such a motion, it would be granted. If the application were denied, it is likely that Hernandez would expire his sentence before the resolution of his direct appeal. Under these limited circumstances, we conclude that writ review is appropriate.
In regard to Savage, the State contends that writ relief is inappropriate because he failed to enter a guilty plea after the district court informed him that it would not consider the provisions of NRS 484.37941, and therefore, he is ineligible for treatment. We find this argument to be wholly unpersuasive. Because the district court's actions prevented Savage from entering his guilty plea, it would be unfair to preclude him from writ relief on the basis that he failed to enter his plea. As explained above, the district court unequivocally indicated that it would not consider Savage's application for treatment because the program did not exist in Lyon County and because the State's agreement to allow Savage to enter a treatment program was the basis for his guilty plea, the...
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