Vu v. Second Judicial Dist. Court of Nev.

• Decision Date: 31 March 2016
• Docket Number: No. 65498.,65498.
• Parties: Phong T. VU, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and for the County of Washoe; and the Honorable Chuck Weller, District Judge, Respondents, and Richard A. Gammick, District Attorney, Real Party in Interest.
• Court: Nevada Supreme Court

371 P.3d 1015

132 Nev. Adv. Op. 21

Phong T. VU, Petitioner

v.The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and for the County of Washoe; and the Honorable Chuck Weller, District Judge, RespondentsandRichard A. Gammick, District Attorney, Real Party in Interest.

No. 65498.

Supreme Court of Nevada.

March 31, 2016.

Jeremy T. Bosler, Public Defender, and John Reese Petty and Kathleen M. O'Leary, Chief Deputy Public Defenders, Washoe County, for Petitioner.

Christopher J. Hicks, District Attorney, and Blaine E. Cartlidge, Deputy District Attorney, Washoe County, for Real Party in Interest.

Before the Court En Banc.

OPINION

By the Court, PARRAGUIRRE

, C.J.:

Under NRS 433A.310(1)(b)

, a district court may issue an order involuntarily admitting a person to a mental health facility if clear and convincing evidence demonstrates that the person “has a mental illness and, because of that illness, is likely to harm himself or herself or others if allowed his or her liberty.” The district court's order “must be interlocutory and must not become final if, within 30 days after the involuntary admission, the person is unconditionally released.” Id. “If the court issues an order involuntarily admitting a person ..., the court shall ... cause ... a record of such order to be transmitted to the Central Repository for Nevada Records of Criminal History....” NRS 433A.310(5).

At issue in this original proceeding is whether NRS 433A.310(5)

requires a district court to transmit an admission order at the time it is entered or if, instead, the district court is prohibited from transmitting the order until it becomes final under NRS 433A.310(1)(b) —i.e., until 30 days have elapsed without the admitted person being unconditionally released. We conclude that NRS 433A.310(5)'s plain language requires a district court to transmit an admission order at the time it is entered. Thus, although the petitioner in the underlying proceedings was unconditionally released 12 days after the district court's involuntary admission order, the district court was required under NRS 433A.310(5) to transmit the order to the Central Repository. And because the district court reasonably determined that clear and convincing evidence justified petitioner's involuntary admission, we deny petitioner's request for extraordinary writ relief.

FACTS

The Sparks Police Department responded to a call from petitioner Phong Vu's family in which the family requested assistance with Vu, According to the police report, Vu had threatened to murder his family, he was found with box cutters in his pocket, and he was muttering about murder while the police were present. The responding officers applied for the temporary emergency admission of Vu to a mental health facility, which was approved by a physician. Three days later, a psychiatrist filed a petition for court-ordered continued involuntary admission of Vu to a mental health facility. Based on her examination of Vu, the psychiatrist concluded that he had a mental illness and, as a result of that mental illness, there was an imminent risk that Vu was likely to harm himself or others if Vu were not involuntary admitted to a mental health facility.

Vu was appointed a public defender, and a hearing on the petition was held before the district court. At the hearing, the Washoe County District Attorney's Office, representing the State, called as witnesses a court-appointed psychiatrist and a court-appointed psychologist, both of whom had interviewed Vu. The District Attorney elicited testimony from the psychiatrist that Vu's family had called the police due to their concerns that Vu posed a threat to their safety. The psychiatrist also testified regarding an incident in which Vu, after having been admitted to a facility on an emergency basis, had approached a doctor in a manner that the doctor perceived as threatening, thereby prompting the doctor to seek intervention from other employees. The psychiatrist further testified that Vu was refusing to take an antipsychotic medication that had been prescribed to him. Summing up her opinion, the psychiatrist explained that although Vu had not committed any act in furtherance of a threat during the incidents with his family and the doctor,

I believe that the perceptions that people have that he is threatening to them, as well as his inability to communicate in an organized fashion, put him at risk for his own safety and well-being that if somebody feels threatened by him, they may respond in a way that affects his well-being [because] they may feel as though they need to defend themselves against the threat, and they may not have a mental health tech or the Sparks Police Department [to intervene].

The District Attorney elicited similar testimony from the court-appointed psychologist, who summed up his opinion by stating, “I can't predict that anybody would assault [Vu], but I feel there's certainly a risk of that.”

At the end of the hearing, the district court made the following findings:

[I] can glean that there exists a reasonable probability that a serious bodily injury will occur if he's discharged soon because of the fact that that's how people have reacted to him in recent days. There's nothing to suggest that his behavior has been modified.... I find that within the last 30 days he's ... had auditory hallucinations and ... some of those are paranoid. He's carried weapons. It may reasonably be inferred from these acts that without the care, supervision and continued assistance of others, that he will be unable to satisfy his personal needs for self-protection and safety ... unless admitted to a mental health facility and adequate treatment is provided.

Over defense counsel's objection, the district court directed the clerk of the court to forward a record of the involuntary admission order to the Central Repository for inclusion in the National Instant Criminal Background Check System (NICS).¹

Twelve days after the district court's admission order was entered, Vu was unconditionally released from the mental health facility based on the determination of a team of evaluators that Vu no longer presented a clear and present danger of harm to himself or others. See NRS 433A.390(2)

. Thereafter, Vu filed this petition for a writ of mandamus, asking that this court direct the district court to recall from the Central Repository the previously transmitted record of Vu's involuntary admission. As a basis for the requested relief, Vu contends that (1) NRS 433A.310(5) did not authorize transmission of the involuntary admission order unless and until that order became final under NRS 433A.310(1) ; and (2) regardless, the district court's underlying determination that Vu should have been involuntarily admitted was not supported by sufficient evidence.

DISCUSSION

“A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion.” Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)

(footnote omitted); see NRS 34.160. Whether to consider a writ petition is within this court's discretion, and writ relief is generally available only when “an adequate and speedy legal remedy” does not otherwise exist. Int'l Game Tech., 124 Nev. at 197–98, 179 P.3d at 558–59 ; see NRS 34.170.

Here, we agree with Vu that he does not have an adequate legal remedy other than to seek a writ of mandamus, as the district court's involuntary admission order never became final under NRS 433A.310(1)(b)

, meaning that Vu has no right to appeal that order. See

Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984) (recognizing that this court has jurisdiction to consider only those appeals that are authorized by a statute or court rule); see also NRAP 3A(b)

(listing appealable orders). Additionally, the issue of whether NRS 433A.310(5) requires district courts to transmit involuntary admission orders to the Central Repository before those orders become final “presents an important issue of law that has relevance beyond the parties to the underlying litigation.” Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130 Nev. ––––, ––––, 331 P.3d 876, 878–79 (2014). Accordingly, we elect to entertain the petition.

The district court was required under NRS 433A.310(5) to transmit the involuntary admission order to the Central Repository even though the order had not become final

Vu first contends that the district court improperly directed a record of the involuntary admission order to be transmitted to the Central Repository under NRS 433A.310(5)

, which instructs that “[i]f the court issues an order involuntarily admitting a person to a public or private mental health facility ..., the court shall ... cause ... a record of such order to be transmitted to the Central Repository.” In support of his argument, Vu relies on NRS 433A.310(1)(b)'s statement that an involuntary admission “order of the court must be interlocutory and must not become final if, within 30 days after the involuntary admission, the person is unconditionally released pursuant to NRS 433A.390.” According to Vu, because NRS 433A.310's subsection 1(b) numerically precedes subsection 5, subsection 1(b)'s distinction between an interlocutory and final order applies to NRS 433A.310's remaining subsections, meaning that subsection 5's reference to the “order” to be transmitted to the Central Repository is necessarily restricted to only final orders.

We disagree with this proffered construction of the statute, as it goes beyond the statute's plain meaning. See In re Candidacy of Hansen, 118 Nev. 570, 572, 52 P.3d 938, 940 (2002)

(“It is axiomatic that when words of a statute are plain and unambiguous, they will be given their plain meaning.”). Subsection 5 plainly states that “[i]f the court issues an order ..., the court shall ... cause ... a record of ...