The Washoe County District Attorney's Office v. The Second Judicial District Court of The State, 100820 NVSC, 79792

Docket Nº79792, 80008, 80009
Opinion JudgePARRAGUIRRE, J.
Party NameTHE WASHOE COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE KATHLEEN M. DRAKULICH, DISTRICT JUDGE, Respondents. THE WASHOE COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN ...
AttorneyChristopher J. Hicks, District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District Attorney, Washoe County, for Petitioner. Aaron D. Ford, Attorney General, Greg D. Ott, Chief Deputy Attorney General, and Peter P. Handy, Deputy Attorney General, Carson City, for Respondents.
Judge PanelBEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ. We concur: Hardesty, J., Cadish, J.
Case DateOctober 08, 2020
CourtSupreme Court of Nevada

136 Nev.Adv.Op. 67

THE WASHOE COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner,

v.

THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE KATHLEEN M. DRAKULICH, DISTRICT JUDGE, Respondents.

THE WASHOE COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner,

v.

THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE KATHLEEN M. DRAKULICH, DISTRICT JUDGE, Respondents.

THE WASHOE COUNTY DISTRICT ATTORNEYS OFFICE, Petitioner,

v.

THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE KATHLEEN M. DRAKULICH, DISTRICT JUDGE, Respondents.

Nos. 79792, 80008, 80009

Supreme Court of Nevada

October 8, 2020

Consolidated original petitions for a writ of mandamus or prohibition challenging district court orders directing the Washoe County District Attorney's Office to participate in criminal record-sealing proceedings.

Petitions granted.

Christopher J. Hicks, District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District Attorney, Washoe County, for Petitioner.

Aaron D. Ford, Attorney General, Greg D. Ott, Chief Deputy Attorney General, and Peter P. Handy, Deputy Attorney General, Carson City, for Respondents.

BEFORE PARRAGUIRRE, HARDESTY and CADISH, JJ.

OPINION

PARRAGUIRRE, J.

INTRODUCTION

NRS 179.2405 through NRS 179.301, and most specifically NRS 179.245, provide a process by which people convicted of certain crimes may petition the district court to seal their criminal records. NRS 179.245(3) instructs the district court upon the fifing of such a petition to notify, among other entities, the district attorney's office that prosecuted the petitioner. NRS 179.245(3) further provides that upon notification of the petition, the district attorney's office "may testify and present evidence at any hearing on the petition."

In 2017, the Legislature amended NRS 179.245 to clarify that district courts are not required to hold a hearing on every petition to seal criminal records. In so doing, the Legislature enacted a new subsection 4 permitting a district court to resolve the petition without a hearing if the district attorney's office stipulates to sealing the records, but requiring the district court to hold a hearing if the district attorney's office does not stipulate to sealing the records. The Legislature also enacted NRS 179.2445, which creates a rebuttable presumption in favor of sealing records.

In these consolidated writ petitions, petitioner Washoe County District Attorney's Office challenges respondent Second Judicial District Court's authority to compel it to participate in a record-sealing proceeding if it chooses to neither stipulate to nor oppose the petition to seal. As explained below, a criminal-record-sealing petition is a civil proceeding separate from the original criminal prosecution, and a district attorney's office is not a party to that record-sealing proceeding. Thus, if a district attorney's office chooses not to participate in a proceeding, the district court lacks the authority to compel it to do so. We therefore grant the Washoe County DA's writ petitions.

FACTS

Following the Legislature's above-described 2017 amendments, 1 the Washoe County DA sent the district court a memorandum in January 2019 stating that it would henceforth participate in a given record-sealing proceeding only when it wanted to oppose the petition. Later in 2019, Edward Harsh, Thomas Stokley, and Thomas McCall each filed petitions with the district court to seal their criminal records. Thereafter, and as required by NRS 179.245(3), the district court notified the Washoe County DA that each petition had been filed. After each petitioner requested that his petition be submitted for decision, the district court issued substantively identical "Order[s] to Respond," one of which stated the following: IT IS HEREBY ORDERED that the District Attorney will file a response or opposition to the Petition to Seal Records Pursuant to NRS 179, 245 and NRS 179.255, which shall include whether the representations of Petitioner's criminal history are consistent with the records of the Washoe County District Attorney's Office no later than ten (10) days from the date of this Order.

In lieu of responding, the Washoe County DA promptly filed these three identical writ petitions challenging the district court's authority to compel the Washoe County DA to participate in the record-sealing proceedings.[2]

DISCUSSION

Entertaining the writ petitions is warranted

"A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions when such proceedings are in excess of the jurisdiction of the district court."3 Club Vista Fin. Servs., LLC

v. Eighth Judicial Dist. Court, 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). "A writ of prohibition is an extraordinary remedy, and therefore, the decision to entertain the petition lies within our discretion." Daane v. Eighth Judicial Dist. Court, 127 Nev. 654, 655, 261 P.3d 1086, 1087 (2011). We will generally entertain a petition for extraordinary relief when the petitioner lacks an adequate remedy at law. Johanson v. Eighth Judicial Dist. Court, 124 Nev. 245, 248-49, 182 P.3d 94, 96 (2008).

Here, the Washoe County DA does not have an adequate remedy at law. If the Washoe County...

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