State of Nevada v. Dist. Ct.(Anzalone)
| Decision Date | 13 March 2002 |
| Docket Number | No. 38185.,38185. |
| Citation | 42 P.3d 233,118 Nev. 140 |
| Parties | STATE of Nevada, Office of the Attorney General; Frankie Sue Del Papa, Donald Haight, David Thompson, and J.T. Healy, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable James C. Mahan, District Judge, Respondents, and Michael J. Anzalone, Real Party in Interest. |
| Court | Nevada Supreme Court |
Frankie Sue Del Papa, Attorney General, Patrick O. King, Senior Deputy Attorney General, and David W. Wasick, Assistant Attorney General, Carson City, for Petitioners.
Wait Law Firm, Reno, for Petitioner Del Papa, individually.
Christopher G. Gellner, Las Vegas; Fitzgerald & Arsenault, Las Vegas; Mirch & Mirch, Reno; Christine Manno, Phoenix, Arizona, for Real Party in Interest.
BEFORE THE COURT EN BANC.
This writ petition arises from a wrongful termination case against the Attorney General's office by a former investigator, Mike Anzalone. Anzalone's complaint alleges various causes of action arising from his termination, including, among others, defamation, civil rights violations, and tortious discharge. On October 13, 2000, petitioners filed a motion to dismiss the complaint. The district court denied the motion.1 Petitioners now seek extraordinary relief from this court to compel dismissal of the underlying case. Extraordinary relief lies within our sole discretion, and is granted only in limited circumstances. As a matter of judicial economy and because this case raises important legal questions, we exercise our discretion to grant extraordinary relief here. We conclude that Anzalone's claims against petitioners either lack merit or cannot be sustained against petitioners. We therefore grant the petition.
Mike Anzalone was employed at the Attorney General's office from August 1993 until he resigned in 1996. Before his resignation, Anzalone was involved with the criminal investigation of Ron Harris, a Gaming Control Board (GCB) employee, who had been arrested for cheating activity. The GCB had previously experienced problems with the legal representation the Attorney General's office was providing. As a result, the GCB, at the time the Attorney General's office initiated the Harris investigation, was lobbying for legislation that would have allowed it to hire its own legal counsel.
Anzalone alleges that from that time on, bad feelings persisted between the Attorney General's office and the GCB. Anzalone further alleges that as a result, the Attorney General's office unlawfully expanded the criminal investigation of Harris to include an "intelligence-type investigation" of the GCB and its chairman, Bill Bible. Anzalone alleges that as part of this investigation, Deputy Attorney General David Thompson, who was ultimately put in charge of the Harris investigation at the direction of Attorney General Frankie Sue Del Papa, requested that Anzalone obtain telephone and bank records of Bible and other GCB members by illegal means. Anzalone alleges that he was forced to resign because he refused to do so.
Thereafter, on February 18, 1998, Anzalone filed the underlying complaint against the State of Nevada; Frankie Sue Del Papa, Attorney General; Office of the Attorney General for the State of Nevada; Donald Haight, Deputy Attorney General; J.T. Healy, an investigator of the Attorney General's office; Ronald Wheatly,2 an investigator of the Attorney General's office; and David Thompson, Deputy Attorney General. Anzalone sued the individuals in their individual and official capacities. In his complaint, Anzalone raised various claims related to his termination. On October 13, 2000, petitioners filed a motion to dismiss the complaint. On February 26, 2001, the district court held a hearing and denied the motion to dismiss.3 On July 17, 2001, as the trial date approached, petitioners filed this writ petition requesting this court to compel dismissal of Anzalone's claims.
Writ relief
We must first consider whether a petition for writ relief seeking to compel dismissal of the case after an unsuccessful motion to dismiss is proper. Writ relief is an extraordinary remedy that will only issue at the discretion of this court.4 A writ of mandamus is available "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station," or to control manifest abuse of discretion.5 A writ of prohibition is the counterpart of the writ of mandamus and is available to "arrest[ ] the proceedings of any tribunal . . . when such proceedings are without or in excess of the jurisdiction of such tribunal."6 Writ relief is not proper to control the judicial discretion of the district court, "unless discretion is manifestly abused or is exercised arbitrarily or capriciously."7
The instant petition follows from petitioners' unsuccessful motion to dismiss the underlying case. We have previously held that writ relief is available to review a district court's denial of a motion to dismiss, but only on a limited basis. In State ex rel. Department of Transportation v. Thompson,8 we determined that it was not in the best interest of Nevada's judicial system for this court to entertain writ petitions challenging district court denials of motions to dismiss or motions for summary judgment. Since that decision, we have determined that although we will generally decline to entertain such writ petitions, we may do so when: (1) no factual dispute exists and the district court is obligated to dismiss an action pursuant to clear authority under a statute or rule; or (2) an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition.9 We have emphasized, however, that "very few writ petitions warrant extraordinary relief" and that "[t]he interests of judicial economy, which inspired the Thompson rule, will remain the primary standard by which this court exercises its discretion."10
Here, while we again reiterate the limited availability of writ relief to review district court orders denying motions to dismiss or for summary judgment, we conclude that the instant case is one of the very few instances that warrant extraordinary relief. The underlying case has been pending for nearly four years and involves important questions of law and serious, well-publicized allegations against the Attorney General's office. If petitioners' contention that Anzalone's claims are meritless is correct, the entire case must be dismissed. Petitioners have already been subjected to four years of litigation, and should not be subjected unnecessarily to four more years. We therefore conclude that judicial economy militates in favor of our intervention.
Anzalone counters, asserting laches. Anzalone explains that the petitioners waited over two years from the time he filed his complaint to file the underlying motion to dismiss. Writ relief is subject to laches.11 To determine whether or not laches should preclude consideration of a writ petition, "a court must determine: (1) whether there was an inexcusable delay in seeking the petition, (2) whether an implied waiver arose from the petitioner's knowing acquiescence in existing conditions, and (3) whether there were circumstances causing prejudice to the respondent."12
Anzalone's contention that there was inexcusable delay lacks merit. Shortly after Anzalone filed his complaint, petitioners filed a motion to dismiss for failure to state a claim. The district court dismissed two causes of action and denied petitioners' remaining arguments for dismissal without prejudice, stating that petitioners could file a motion for summary judgment after the parties conducted discovery. Also, after the petitioners filed the underlying motion to dismiss, the district court continued the motion several times to conduct further discovery at the request of Anzalone's attorney. Furthermore, this writ petition was filed less than four months after the district court denied the underlying motion to dismiss, which does not present inexcusable delay.
As noted earlier, the motion should have been treated as a motion for summary judgment. Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to summary judgment as a matter of law.13
Anzalone alleges various defamation claims against Del Papa and J.T. Healy, an investigator with the Attorney General's office. To create liability for defamation there must be, among other things, a false and defamatory statement that was an unprivileged publication.14 Anzalone's various defamation claims against Del Papa arise from a letter she wrote to the Las Vegas Sun on March 26, 1997. The letter was written in response to an article published in the Las Vegas Sun earlier that day that alleged that the Attorney General's office was conducting an unauthorized "intelligence investigation" of the GCB. This article also stated that, "Anzalone said he believes he was taken off the intelligence case in January 1996 and forced to resign a month later because he wouldn't help Thompson pursue the investigation, which did not lead to the filing of criminal charges against any other Control Board employees." Del Papa's letter first denied the allegations that the Attorney General's office was conducting an "intelligence investigation," and as to Anzalone, the letter stated:
The [March 26, 1997,] article places heavy reliance on an obviously disgruntled former employee of the Attorney General's office, who indeed was given the choice to resign or be fired. Mr. Anzalone has chosen to publicly discuss his reasons for leaving the Attorney's [sic] General's office, but has not been completely candid. In point of fact, I did lose confidence in Mr. Anzalone after it was reported to me that he had removed documents from a file and...
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