Spilotro v. State, ex rel. Nevada Gaming Com'n

• Decision Date: 31 March 1983
• Docket Number: No. 12615,12615
• Citation: 99 Nev. 187,661 P.2d 467
• Parties: Anthony John SPILOTRO, Appellant, v. The STATE of Nevada, ex rel. NEVADA GAMING COMMISSION; Harry M. Reid, as Chairman of the Nevada Gaming Commission; and Clair Haycock, George C. Swarts, Walter Cox, and Jack C. Walsh, as Members of the Nevada Gaming Commission, Respondents.
• Court: Nevada Supreme Court

Page 467

661 P.2d 467

99 Nev. 187

Anthony John SPILOTRO, Appellant, v. The STATE of Nevada, ex rel. NEVADA GAMING COMMISSION Harry M. Reid, as Chairman of the Nevada Gaming Commission and Clair Haycock, George C. Swarts, Walter Cox, and Jack C Walsh, as Members of the Nevada Gaming Commission, Respondents.

No. 12615.

Supreme Court of Nevada.

March 31, 1983.

Goodman, Terry, Stein & Quintana, and Martin J. Kravitz, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Patricia Becker, Deputy Atty. Gen., Carson City, H. Leon Simon, Deputy Dist. Atty., Las Vegas, for respondents.

OPINION

MOWBRAY, Justice:

Appellant is challenging the constitutionality of NRS 463.151 through NRS 463.155 and Nevada Gaming Commission Regulation 28 on numerous grounds. He also challenges the adequacy of his hearing before the Commission, and the failure of the Commission to make factual findings in support of its decision barring him from licensed gaming establishments in Nevada. We hold that the statutes and the Commission regulation in issue are constitutional. However, we reverse and direct the district court to remand the case to the Commission for a statement of the basic factual findings on which the Commission rested its ultimate finding that appellant fell within the meaning of NRS 463.151(1) and Regulation 28.010.

THE FACTS

On December 7, 1978, the Nevada Gaming Commission issued an order placing appellant Anthony J. Spilotro on its list of persons to be excluded or ejected from licensed gaming establishments throughout the State of Nevada. The exclusionary list was established pursuant to NRS 463.151 through NRS 463.155 and Gaming Commission Regulation 28. ¹ The Commission's order followed a hearing at which Spilotro had been represented by counsel. He had been given the opportunity to present evidence and to cross-examine witnesses. In its decision, the Commission stated the statutory grounds for entering an order of exclusion. The Commission did not make any further findings of fact in support of its decision.

Spilotro is subject to a gross misdemeanor charge if he enters the premises of a licensed gaming establishment while he is on the list. ² He does not allege that he has been charged with such a violation.

Spilotro petitioned for judicial review of the Commission's order. The district court affirmed the order, upholding the constitutionality of the statutes authorizing the exclusionary list and holding that the order was supported by substantial evidence in the record. This appeal followed.

THE COMMISSION FAILED TO MAKE THE NECESSARY FACTUAL FINDINGS

NRS 463.312(18) provides that:

[a]fter the hearing of a contested matter, the Commission shall render a written decision on the merits which must contain findings of fact, a determination of the issues presented and the penalty to be imposed, if any; and shall thereafter make and enter its written order in conformity to such decision. (Emphasis added.)

Nevada Gaming Commission Regulation 28.070(1) makes NRS 463.312(18) applicable to hearings under NRS 463.153. Factual findings are required to assure reasoned decision making by the administrative agency, assist the affected parties in preparing for judicial review, and enable the courts to review the agency's action without intruding on the agency's fact-finding function. See State, Dep't of Commerce v. Hyt, 96 Nev. 494, 611 P.2d 1096 (1980); Pub. Serv. Comm'n v. Continental Telephone Co., 94 Nev. 345, 580 P.2d 467 (1978); Nevada Tax Comm'n v. Hicks, 73 Nev. 115, 122, 310 P.2d 852, 855 (1957); In re Sturm, 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97 (Cal.1974); Application of Hawaii Elec. Light Co., Inc., 60 Hawaii 625, 594 P.2d 612 (Hawaii 1979).

In the instant case, the Commission did not make any findings of basic fact to support its ultimate findings that Spilotro possessed a notorious and unsavory reputation, had been convicted of crimes that would be felonies if committed in Nevada or under federal law, and was a person whose presence in a licensed gaming establishment would be inimical to the interests of the State and the licensed gaming industry. Thus, the Commission made absolutely no attempt to comply with the dictates of NRS 463.312(18). We therefore reverse, and order the district court to remand this case to the Gaming Commission for a statement of the factual basis for its order. NRS 463.315(11)(c).

Appellant's other contentions would be certain to reappear following reissuance of the Commission's written order. We therefore shall dispose of them at the present time.

THE STATUTES AUTHORIZING THE EXCLUSIONARY LIST ARE VALID ON THEIR FACE

Appellant first contends that NRS 463.151 through NRS 463.155 are unconstitutional on their face because they permit punishment of individuals on the basis of status or reputation. He relies on City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967), in which we invalidated a disorderly conduct ordinance that did not require the doing of an act or the presence of criminal intent before imposing punishment. The city of Reno had attempted to supply these elements by inference from the past history or reputation of the defendant and his association with others bearing the same burden.

Mere association with a person or group cannot be made criminal. Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.1980). The State may inflict punishment only if the accused has committed some act or engaged in some behavior that society has an interest in preventing; thus, the State may not punish solely on the basis of status or reputation. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) (plurality opinion); Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). However, appellant's reliance on City of Reno v. District Court is misplaced, for two reasons. First, the purpose of the statutes is regulatory, not penal. The exclusionary list is designed not to punish those listed for past bad behavior, but to protect the interests of the State and the licensed gaming industry, by avoiding any potentially significant criminal or corruptive taint and thus maintaining public confidence and trust in the gaming industry. See Nevada Tax Comm'n v. Hicks, supra, 73 Nev. at 119, 310 P.2d at 854; NRS 463.130(1)(c); NRS 463.151(1) & (3)(c). See also State, Nev. Gaming Comm'n v. Glusman, 98 Nev. 412, 651 P.2d 639 (1982).

Additionally, the statutes require the commission of an act before imposing any criminal sanctions. A person must first be listed by the Gaming Commission, and then the listed person must enter the premises of a licensed gaming establishment to commit the gross misdemeanor set forth in NRS 463.155. As will be discussed below, the State may validly prohibit a listed person from entering such establishments. The situation is akin to that found in Powell v. Texas, supra, where the High Court upheld the conviction of a chronic alcoholic who violated a statute prohibiting persons from being "found in a state of intoxication in any public place." 392 U.S. at 517, 532, 88 S.Ct. at 2146, 2154. The dangers of harassment and unfettered police discretion pointed out in City of Reno are not here present. See Dinitz v. Christensen, 94 Nev. 230, 577 P.2d 873 (1978). In sum, the statutes authorizing the exclusionary list do not permit criminal punishment on the basis of status or reputation.

Appellant also challenges the statutes on their face as constituting a bill of attainder. This contention is meritless. A bill of attainder is any legislative act that applies to named individuals or an easily ascertainable group in such a way as to inflict punishment on them without a judicial trial. United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1714-15, 14 L.Ed.2d 484 (1965), citing United States v. Lovett, 328 U.S. 303, 315-16, 66 S.Ct. 1073, 1078-79, 90 L.Ed. 1252 (1946); Oueilhe v. Lovell, 93 Nev. 111, 560 P.2d 1348 (1977). On the other hand, if the enactment sets out criteria or a general definition describing those who fall within its prohibitions, it is not a bill of attainder. In the instant case, NRS 463.155 sets forth the elements of the gross misdemeanor, but leaves the determination of a particular defendant's guilt to the courts. Hence, it is not a bill of attainder. See Oueilhe v. Lovell, supra. The other statutory provisions lack any punitive purpose, and therefore cannot be bills of attainder. For the same reason, contrary to appellant's contention, they do not inflict a "cruel and unusual punishment," upon appellant or anyone else. See Trop v. Dulles, 356 U.S. 86, 94-97, 78 S.Ct. 590, 594-96, 2 L.Ed.2d 630 (1958).

Appellant lastly challenges the statutes on their face as overbroad. He contends that because the statutes (as written at the time of his hearing) permitted the Commission to exclude persons from any establishment that is licensed to operate any gambling game, including slot machines, the statutes impermissibly swept constitutionally protected conduct within their ambit, and must be declared invalid on their face. However, the Legislature amended the statutes in 1981 to exclude licensed gaming establishments that contained slot machines only. Since Spilotro does not allege that he has been charged with a violation of the statutes, we shall analyze the statutes as they presently exist. See Western Beverage, Inc. v. State, 96 Idaho 588, 532 P.2d 930, 932 (Idaho 1974).

The overbreadth doctrine traditionally has been reserved for statutes regulating First Amendment rights. See State, Nev. Gaming Comm'n v. Glusman, supra. It is based on the assumption that a statute regulating First Amendment freedoms may cause persons not before the court to refrain from constitutionally protected conduct; hence, the defendant may challenge the statute even if it would continue to prohibit his own conduct after it was sufficiently...