Zaragoza v. Bennett–Haron

• Decision Date: 05 December 2011
• Docket Number: No. 2:11–CV–01091–PMP–GWF.,2:11–CV–01091–PMP–GWF.
• Parties: Phillip ZARAGOZA, Michael Franco, and Peter Kruse, Plaintiffs, v. Judge Karen P. BENNETT–HARON; Coroner P. Michael Murphy; and Chief Deputy District Attorney Christopher J. Laurent, Defendants.
• Court: U.S. District Court — District of Nevada

828 F.Supp.2d 1195

Phillip ZARAGOZA, Michael Franco, and Peter Kruse, Plaintiffs,

v.Judge Karen P. BENNETT–HARON; Coroner P. Michael Murphy; and Chief Deputy District Attorney Christopher J. Laurent, Defendants.

No. 2:11–CV–01091–PMP–GWF.

United States District Court, D. Nevada.

Dec. 5, 2011.

Joshua H. Reisman, Robert R. Warns, III, Reisman Sorokac, Las Vegas, NV, for Plaintiffs.

Luther Snavely, Eva Garcia–Mendoza, Garcia–Mendoza & Snavely, Chtd., Las Vegas, NV, for Defendants.

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Respondents Karen P. Bennett–Haron, P. Michael Murphy, and Christopher J. Laurent's Motion to Dismiss (Doc. # 11), filed on July 22, 2011. Petitioners Phillip Zaragoza, Michael Franco, and Peter Kruse filed an Opposition (Doc. # 18) on August 15, 2011. Respondents filed a Reply (Doc. # 19) on August 19, 2011.

Also before the Court is Petitioners' Motion to Remand for Lack of Federal Jurisdiction or Under Pullman Abstention (Doc. # 12), filed on July 23, 2011. Respondents filed an Opposition (Doc. # 17) on August 9, 2011. Petitioners filed a Reply (Doc. # 19) on August 19, 2011.

Also before the Court is non-party American Civil Liberties Union of Nevada's (“ACLU”) Motion to Intervene Pursuant to FRCP 24(a)(2) (Doc. # 20), filed on August 26, 2011. Petitioners filed an Opposition (Doc. # 23) on September 12, 2011. ACLU filed a Reply (Doc. # 24) on September 22, 2011.

This matter was reassigned to the undersigned on October 27, 2011. (Min. Order (Doc. # 26).) The Court held a hearing on these motions on November 30, 2011. (Mins. of Proceedings (Doc. # 32).)

I. BACKGROUND

This case presents a challenge to Clark County, Nevada's recently enacted ordinance establishing new procedures in coroner's inquests involving police officer involved deaths. The case originally was filed in Nevada state court by Petitioners Phillip Zaragoza, Michael Franco, and Pete Kruse. (Pet. for Removal (Doc. # 1), Ex. 1.) Petitioners are Las Vegas Metropolitan Police Department officers who were involved in the shooting death of Benjamin Bowman and are among the first officers who would be subject to the new inquest procedures. ( Id.) Petitioners brought a Petition in state court seeking a writ of mandamus or a writ of prohibition against Respondents, who are the presiding officer of the inquest, Justice of the Peace Karen P. Bennett–Haron; Coroner P. Michael Murphy; and Chief Deputy District Attorney Christopher J. Laurent, to prohibit these officials from utilizing the new inquest procedures with respect to Petitioners. Petitioners contend the new inquest ordinance violates due process under the U.S. and Nevada Constitutions, violates equal protection under the U.S. and Nevada Constitutions, is void for vagueness under the U.S. and Nevada Constitutions, and violates the Nevada Constitution's separation of powers clause. Respondents removed the action to this Court based on federal question jurisdiction. (Pet. for Removal.)

Petitioners now move to remand, arguing this Court lacks subject matter jurisdiction and, even if the Court has jurisdiction, the Court ought to abstain under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Respondents oppose, arguing the Court has subject matter jurisdiction because the Petition asserts claims arising under the U.S. Constitution. Respondents also contend Pullman abstention is inappropriate because the state law claims mirror their federal counterparts.

Respondents move to dismiss the Petition, arguing the ordinance does not violate the due process or equal protection clauses of the U.S. and Nevada Constitutions, is not void for vagueness, and does not violate the Nevada Constitution's separation of powers clause. Petitioners oppose, arguing the ordinance deprives them of their due process rights, distinguishes between police officers and citizens and imposes burdens on officers' fundamental rights, provides for arbitrary enforcement, and violates the separation of powers clause.

Finally, ACLU moves to intervene in this action. Petitioners oppose intervention.

II. MOTION TO REMAND (Doc. # 12)

Petitioners move to remand this case to state court, arguing no federal question jurisdiction exists to support removal because Petitioners seek a writ of mandamus and a writ of prohibition, both creations of state law. Petitioners also argue that because they assert independent state law theories to support their claims, their claims do not depend on a construction of federal law. Petitioners also argue that even if federal question jurisdiction exists, the Court should abstain under Pullman because this case raises substantial questions of state law, the Court may avoid deciding constitutional questions because resolution of the state law questions may moot the federal constitutional questions, and resolution of the state law questions is uncertain.

Respondents oppose remand, arguing that because the Petition raises due process and equal protection claims under the U.S. Constitution, federal question jurisdiction exists. Respondents also contend that the Court should not abstain under Pullman for the purpose of allowing the state court to interpret state constitutional provisions that parallel federal constitutional provisions. Respondents contend that Nevada's due process, equal protection, and separation of powers constitutional provisions mirror their federal counterparts, and the Court therefore should not abstain.

Petitioners reply that while Respondents attempt to re-cast their Petition into seven claims for relief, three federal and four state, that is not how Petitioners pled their Petition as masters of their pleading. Rather, Petitioners contend they pled only two state law claims for a writ of prohibition and a writ of mandamus, and these claims arise only under Nevada state law. Petitioners also argue that because Respondents move to dismiss on the basis that Petitioners lack standing, there is no jurisdiction in this Court. Finally, Petitioners argue Pullman abstention is appropriate because there is no federal counterpart to Nevada's explicit constitutional provision that prohibits one branch of government from impinging on the functions of another.

A. Subject Matter Jurisdiction

If the Court lacks subject matter jurisdiction, the Court must remand a removed action to state court. 28 U.S.C. § 1447(c). The Court has original federal question jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. To remove based on federal question jurisdiction, the federal question must be an essential element of the plaintiff's cause of action. Gully v. First Nat'l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The presence or absence of a federal question is determined by the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Under the well-pleaded complaint rule, the plaintiff is the master of his or her complaint, and a plaintiff may defeat removal by choosing not to plead independent federal claims. ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir.2000). This does not mean, however, that a plaintiff may defeat removal by “omitting to plead necessary federal questions in a complaint.” Id. (quotation omitted). If a federal question is an essential element of the relief sought, a plaintiff may not avoid federal jurisdiction by choosing to ignore the federal question in the complaint. Id. A state-created cause of action arises under federal law: “(1) where federal law completely preempts state law; (2) where a claim is necessarily federal in character; or (3) where the right to relief depends on the resolution of a substantial, disputed federal question.” Id. (internal citations omitted).

The Petition here seeks relief under two Nevada statutes which grant authority to certain Nevada state judicial bodies and officers to issue a writ of prohibition and writ of mandamus. Specifically, the mandamus statute, Nevada Revised Statutes section 34.160, provides that the Supreme Court, a district court, or a district court judge may issue a writ to “compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.” The prohibition statute, section 34.330, grants the Supreme Court or a district court the power to issue a writ of prohibition under section 34.320 to an inferior tribunal to “arrest[ ] the proceedings of any tribunal ... when such proceedings are without or in excess of the jurisdiction of such tribunal....”

Petitioners contend they assert two causes of action: one for a writ of prohibition and one for a writ of mandamus. However, under Nevada law, writs of prohibition and mandamus are remedies, not causes of action. See, e.g., State v. Eighth Jud. Dist. Ct., 118 Nev. 140, 42 P.3d 233, 237 (2002) (referring to writ relief as an “extraordinary remedy”); Mineral Cnty. v. State, Dep't of Conservation & Natural Res., 117 Nev. 235, 20 P.3d 800, 805 (2001) (same); Scrimer v. Eighth Jud. Dist. Ct., 116 Nev. 507, 998 P.2d 1190, 1193 (2000) (same); Kussman v. Eighth Jud. Dist. Ct., 96 Nev. 544, 612 P.2d 679, 679 (1980) (same). Petitioners rely on cases that refer to the writs as “claims” or “causes of action,” but none of those cases are Nevada cases, and Nevada has stated on multiple occasions that the writs are remedies. In any event, the language in the cases upon which Petitioners rely reflects how courts may refer to claims for a certain remedy, like a punitive damages “claim” even though punitive damages is a remedy not a claim.

The properly pled Petition asserts seven claims, not two, all of which seek as a remedy either a writ of prohibition or mandamus. Three of those claims arise under the U.S. Constitution, where Petitioners allege the inquest ordinance violates the...