134 Nev., Advance Opinion Te
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 73475
Petitioner,
vs.
THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, DEL 2018
IN AND FOR THE COUNTY OF BROM,3
CL
WASHOE; AND THE HONORABLE 1E CO' !fir
.
9Y- -
CONNIE J. STEINHEIMER, DISTRICT
JUDGE,
Respondents,
and
MATTHEW GLENN HEARN,
Real Party in Interest.
Original petition for writ of mandamus or prohibition
challenging a district court order striking language within MRS 176A.290(2)
as unconstitutional.
Petition denied.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, Terrence P. McCarthy, Chief Appellate Deputy District
Attorney, and Rebecca Carol Druckman, Deputy District Attorney, Washoe
County,
for Petitioner.
John L. Arrascada, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Kendra G. Bertschy, Deputy Public Defender, Washoe
County,
for Real Party in Interest.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, STIGLICH, J.:
NRS 176A.290 (2014) authorizes district courts to assign
certain eligible defendants to a veterans court program.' However, if the
offense charged or the defendant's prior convictions involved the use or
threatened use of force or violence, the district court is not allowed to assign
the defendant to the veterans court program, "unless the prosecuting
attorney stipulates to the assignment." NRS 176A.290(2).
The district court found that NRS 176A.290(2) was in effect a
prosecutorial veto over a judge's sentencing decision, in violation of the
Nevada Constitution's separation of powers doctrine. Nev. Const. art. 3,
§ (1)(1). The district court further held that the veto provision was
severable. We agree on both points. Accordingly, we deny the State's
petition.
FACTUAL AND PROCEDURAL HISTORY
Matthew Glenn Hearn was charged with and pleaded guilty to
battery by a prisoner, a category B felony, in violation of NRS 200.481(2)(0.
A specialty courts officer deemed Hearn eligible for the veterans court
program because he was a veteran who "appears to have a mental illness,
substance abuse, or posttraumatic stress disorder which appears to be
related to military service."
1 NRS 176A.290 was amended in 2017. See 2017 Nev. Stat., ch. 484,
§ 5, at 3021. The district court relied upon the version that became effective
on January 1, 2014. See 2013 Nev. Stat., ch. 384, §§ 1.5, 3, at 2093-94. We
apply the 2014 version throughout this opinion, but we note that our
analysis and holding apply equally to the current version of the statute,
which was not substantively changed by the 2017 amendment.
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At sentencing, the State refused to stipulate to Hearn's
assignment to veterans court pursuant to NRS 176A.290(2), which
prompted Hearn to ask the court to find the statute unconstitutional. The
district court obliged, finding that "NRS 176A.290(2) violates the separation
of powers doctrine by conditioning the judicial department's discretion to
place certain offenders into a treatment program on the prosecutor's
(discretionary) stipulation." It further found that the statute was severable
and struck the unconstitutional language from the statute. The State
challenges that decision in the present writ petition.
DISCUSSION
Propriety of writ relief
The decision to consider a writ of mandamus lies within the sole
discretion of this court. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674,
677,
818 P.2d 849, 851 (1991). As an extraordinary remedy, writ relief is
generally available only when no "plain, speedy and adequate" legal remedy
exists. Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39,
175 P.3d
906, 908 (2008) (internal quotation marks omitted). This court has
exercised its discretion to intervene to clarify "important legal issue [s] in
need of clarification" or "in the interest of judicial economy and to provide
guidance to Nevada's lower courts." State, Office of the Attorney General v.
Justice Court (Escalante), 133 Nev. 78, 80,
392 P.3d 170, 172 (2017). And a
writ of mandamus is the proper remedy "to control a manifest abuse or
arbitrary or capricious exercise of discretion." State v. Eighth Judicial Dist.
Court (Armstrong), 127 Nev. 927, 931,
267 P.3d 777, 779 (2011).
Both parties agree that the constitutionality of NRS
176A.290(2) is an "important legal issue in need of clarification." Esca/ante,
133 Nev. at 80, 392 P.3d at 172. They also contend that Nevada's district
courts are resolving this issue inconsistently, so our intervention is
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necessary "to provide guidance to Nevada's lower courts." Id. Finally, the
State argues that it has no adequate remedy in law to challenge the district
court's decision. We agree on all points and exercise our discretion to
consider the State's petition for a writ of mandamus. 2
Statutory background
NRS 176A.280 et seq. authorized the establishment of specialty
courts for veterans and military members who have been charged with
probation-eligible offenses. When certain criteria are met, a district court
has discretion to assign eligible defendants to a specialty court program.
NRS 176A.290. 3 The program benefits defendants like Hearn by
suspending further criminal proceedings and placing them on probation.
Id. Upon successful completion of the program, the charges are dismissed.
NRS 176A.290(4).
Not all veterans or service members, however, are eligible for
assignment to veterans court. NRS 176A.287(1). For example, a defendant
who "[hi as previously been assigned to such a program" is not eligible for
assignment. NRS 176A.287(1)(a). At issue in this case is NRS 176A.290(2),
which provides that a district court may not assign a defendant to such a
program without the prosecutor's agreement when an offense charged or
2 The State alternatively requests a writ of prohibition. A writ of
prohibition is inappropriate because the district court had jurisdiction to
rule on the constitutionality of NRS 176A.290(2), See Goicoechea v. Fourth
Judicial Dist. Court, 96 Nev. 287, 289,
607 P.2d 1140, 1141 (1980)
(explaining that a writ of prohibition will not lie if the court "had jurisdiction
to hear and determine the matter under consideration").
3 This statute was amended after Hearn was deemed eligible for the
program but prior to his sentencing date. See 2017 Nev. Stat., ch. 484, § 4,
at 3020. The minor changes to the statutory scheme do not affect his
eligibility.
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the defendant's prior convictions involved the use or threatened use of force
or violence:
If the offense committed by the defendant involved
the use or threatened use of force or violence or if
the defendant was previously convicted in this
State or in any other jurisdiction of a felony that
involved the use or threatened use of force or
violence, the court may not assign the defendant to
the program unless the prosecuting attorney
stipulates to the assignment.
(Emphasis added.) The district court believed that the emphasized
language requiring the prosecutor's agreement amounted to an
unconstitutional prosecutorial veto over the judiciary's sentencing decision.
It struck that language, leaving the rest of the statute intact.
Constitutionality of the prosecutorial consent element
The first issue is whether NRS 176A.290(2) violates Nevada's
separation of powers doctrine. "The constitutionality of a statute is a
question of law, which this court reviews de novo." Aguilar-Raygoza v.
State, 127 Nev. 349, 352,
255 P.3d 262, 264 (2011).
As with the United States Constitution, the structure of our
state constitution gives rise to the separation of powers doctrine through its
"discrete treatment of the three branches of government." Comm'n on
Ethics v. Hardy, 125 Nev. 285, 292,
212 P.3d 1098, 1103 (2009). But
"Nevada's Constitution goes one step further; it contains an express
provision prohibiting any one branch of government from impinging on the
functions of another." Id. at 292,
212 P.3d at 1103-04; see Nev. Const. art.
3, § 1(1).
In Stromberg v. Second Judicial District Court, this court
analyzed Nevada's separation of powers doctrine within the context of
sentencing decisions. 125 Nev. 1, 2-3,
200 P.3d 509, 510 (2009). Stromberg
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concerned a statute that allowed a district court to treat a defendant's third
DUI offense as if it were the defendant's second DUI offense "if the offender
successfully completes a treatment program." Id. at 3,
200 P.3d at 510. The
State contended that this statute violated the separation of powers doctrine
by infringing upon the prosecutor's power to determine how to charge a DUI
offender. Id. at 6,
200 P.3d at 512. This court rejected that argument by
distinguishing "between the prosecutor's decision in how to charge and
prosecute a case and the court's authority to dispose of a case after its
jurisdiction has been invoked." Id. at 7,
200 P.3d at 512. That is, the
prosecutor retained the power to charge an offender for a third DUI offense;
the statute merely gave district courts the option to sentence such offenders
to a treatment program. Id. at 8,
200 P.3d at 513. Such sentencing
decisions, we concluded, "properly fall[ ] within the discretion of the
judiciary." Id. Thus, Stromberg indicates that charging decisions are
within the executive realm and sentencing decisions are inherently judicial
functions.
We recognize that a district court's sentencing decision is
necessarily limited by the Legislature's power to define the parameters of
punishments, "within constitutional limits." Goudge v. State, 128 Nev. 548,
554,
287 P.3d 301, 304 (2012). And we reiterate that the Legislature can
"completely remove any judicial discretion to determine a criminal penalty
by creating mandatory sentencing schemes." Mendoza-Lobos v. State, 125
Nev. 634, 640,
218 P.3d 501, 505 (2009). However, we agree with other
jurisdictions that a court's sentencing discretion, once granted, cannot be
conditioned upon the prosecution's approval without running afoul of the
separation of powers doctrine. See, e.g., State v. Prentiss, 786 P.2d 932, 936
(Ariz. 1989) ("But once the legislature provides the court with the power to
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use sentencing discretion, the legislature cannot then limit the court's
exercise of discretion by empowering the executive branch to review that
discretion."); People v. Navarro, 497 P.2d 481, 489 (Cal. 1972) ("[A]lthough
the Legislature was not required in the first instance to give the court power
to commit persons in the status of [the defendant] to the treatment program,
having conferred this power it cannot condition its exercise upon the
approval of the district attorney."); State v. Olson, 325 N.W.2d 13, 18 (Minn.
1982) ("But once the legislature has prescribed the punishment for a
particular offense it cannot, within constitutional parameters, condition the
imposition of the sentence by the court upon the prior approval of the
prosecutor."). To be certain, statutory schemes vary from state to state. But
the principle gleaned is that once a defendant's guilt has been determined,
the prosecutor's charging discretion is complete and the judiciary's
sentencing discretion, if any, is all that remains. See State v. Ramsey, 831
P.2d 408, 412 (Ariz. Ct. App. 1992) ("Once the prosecutor has pursued and
obtained a guilty verdict, the executive role in the resolution of the criminal
action is limited constitutionally."). 4
Returning to the case at hand, a court's decision to assign a
defendant to the veterans court program is a sentencing decision—it is a
statutorily approved alternative to entering a judgment of conviction and
imposing a term of incarceration. And as we indicated in Stromberg,
sentencing decisions are "within the discretion of the judiciary." 125 Nev.
4 We note that in this matter, as in Stromberg,
125 Nev. at 2-3,
200
P.3d at 510, we are asked to consider the district court's sentencing
discretion after a determination of guilt has been made.
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at 8, 200 P.3d at 513. 5 In requiring that a prosecutor stipulate to the district
court's decision, the effect of NRS 176A.290(2) is to afford an executive veto
over a judicial function. We recognize that the statute operates in a
seemingly atypical fashion, but any prosecutorial power over the district
court's disposition at this stage of the proceedings is offensive to the
separation of powers. 6 See Navarro, 497 P.2d at 488-89 (finding a violation
of the separation of powers doctrine where a statute required agreement by
the prosecutor before the court could assign the defendant to a treatment
program and reiterating "that the Legislature, of course, by general laws
can control eligibility for probation, parole and the term of imprisonment,
but it cannot abort the judicial process by subjecting a judge to the control
of the district attorney" (internal quotation marks omitted)); cf. People v.
Andreotti, 111 Cal. Rptr. 2d 462, 468-69 (Ct. App. 2001) (concluding a
prosecutor's motion for deferral was akin to plea bargaining but
acknowledging that " [o]nce the defendant pleads guilty and the prosecutor
moves for deferral, the decision of how to dispose of the charges is in the
hands of the judge, where it belongs" and that "[i]f the [prosecution] had
some sort of veto over this decision by the trial court," then the statute
5 Hearn was before the district court for disposition after his guilt had
been established. See People v. Superior Court of San Mateo Cty., 520 P.2d
405, 410 (Cal. 1974) ("It is true that acquittal or sentencing is the typical
choice open to the court, but in appropriate cases it is not the only
termination. With the development of more sophisticated responses to the
wide range of anti-social behavior traditionally subsumed under the
heading of 'crime,' alternative means of disposition have been confided to
the judiciary.").
6 0f particular note in this matter is that the prosecutor was granted
unreviewable power for which the statute provided no guidance in
exercising.
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would violate the separation of powers doctrine). Thus, we hold that the
prosecutorial veto within NRS 176A.290 violates the Nevada Constitution's
prohibition against one branch of government "exercis[ing] any functions,
appertaining to either of the others." Nev. Const. art. 3, § 1(1).
Severability
The next issue is how to remedy NRS 176A.290(2)'s
unconstitutionality. We must determine whether the statute is severable,
i.e., whether "it is possible to strike only the unconstitutional provision[ l."
Sierra Pac. Power Co. v. State, Dep't of Taxation, 130 Nev. 940, 945,
338
P.3d 1244, 1247 (2014) (internal quotation marks omitted), cert. denied,
U.S. 136 S. Ct. 792 (2016). To resolve that issue, we analyze "whether
the remainder of the statute, standing alone, can be given legal effect, and
whether preserving the remaining portion of the statute accords with
legislative intent." Id.; see also NRS 0.020(1).
The district court struck "unless the prosecuting attorney
stipulates to the assignment" and found that the remainder of the statute
accorded with the legislative intent behind NRS 176A.290(2) and its
associated statutes. We agree. The Legislature enacted NRS 176A.280 et
seq. to provide veterans and military members "with an alternative to
incarceration and [to] permit[ ] them to access proper treatment for mental
health and substance abuse problems resulting from military service." 2009
Nev. Stat., ch. 44, at 100. The Legislature recognized that many veterans
suffer from "combat-related injuries" that "can lead to encounters with the
criminal justice system which would not have otherwise occurred." Id.
Thus, to "enable the criminal justice system to address the unique
challenges veterans and members of the military face as a result of their
honorable service," the Legislature authorized "[t]he establishment of
specialty treatment courts for veterans and members of the military who
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are nonviolent offenders." Id. (emphasis added). This language indicates
that the primary intended beneficiaries of the veterans court are
"nonviolent offenders." Id. The fact that the Legislature provided for the
admittance of some violent offenders, pursuant to prosecutorial stipulation,
indicates there was a secondary goal of allowing some violent offenders the
benefit of the veterans court. However, the remaining language after
severance accords with the Legislature's primary intent.
The district court believed that after striking the offending
language it would have the discretion to send a violent offender to veterans
court. It is here that we part ways with the district court. With the
offending language stricken, the statute now states that, for defendants who
have been charged with or have a prior felony conviction for a crime
involving "the use or threatened use of force or violence, the court may not
assign the defendant to the program." NRS 176A.290(2). Thus the legal
effect of this severance is to render all offenders deemed violent by a court
ineligible for the veterans court program. 7
7 The concurrence seems to agree with the district court. However,
NRS 0.025(1)(b) provides that "{m] ay not' . . . abridges or removes a right,
privilege or power." (Emphasis added.) And while the use of the word "may"
is generally permissive, see Nev. Pub. Emps. Ret. Bd. v. Smith, 129 Nev.
618, 627,
310 P.3d 560, 566 (2013), the use of the word "not" disallows
discretion. Indeed, the structure of the statute at issue ("may not" followed
by "unless") supports our interpretation that "may not" disallows discretion
because the use of the word "unless" would be meaningless if "may not" was
discretionary. See Hobbs v. State, 127 Nev. 234, 237,
251 P.3d 177, 179
(2011) (recognizing that this court "avoid[s] statutory interpretation that
renders language meaningless or superfluous").
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While we recognize that severing the language allowing a
violent offender to be assigned to the program upon the prosecutor's
agreement impedes the Legislature's secondary goal of allowing some
violent offenders to be assigned to the veterans court, it is for the
Legislature, not this court, to remedy this impediment. Our goal in severing
is merely to determine whether the remainder of the statute can be given
legal effect such that it comports with legislative intent. Having concluded
that the remaining language in NRS 176A.290(2) conforms with the stated
intent of establishing veterans courts for nonviolent offenders and providing
guidance to the courts in determining whether the charged offense or the
defendant's prior felony convictions make the defendant ineligible, 8 we
conclude that severance of the prosecutorial-stipulation provision is proper.
Therefore, the district court did not manifestly abuse or arbitrarily or
capriciously exercise its discretion in arriving at the same conclusion, and
a writ of mandamus will not issue. See Armstrong, 127 Nev. at 931-32, 267
P.3d at 780 ("An arbitrary or capricious exercise of discretion is one founded
on prejudice or preference rather than on reason, or contrary to the evidence
or established rules of law." (citation and internal quotation marks
omitted)).
8What constitutes a violent offense is still a determination left to the
district court. The remainder of subsection 2 allows the court to decide
whether the offense "involved the use or threatened use of force or violence"
and provides guidance in making that decision by directing the court to
"consider the facts and circumstances surrounding the offense." NRS
176A.290(2). In particular, the courts are required to consider "whether the
defendant intended to place another person in reasonable apprehension of
bodily harm." Id.
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CONCLUSION
Nevada's separation of powers doctrine is violated when a
prosecutor is granted veto power over a district court's sentencing decision.
Because NRS 176A.290(2) does precisely that, the district court correctly
deemed it unconstitutional. The district court also correctly determined
that the following language within NRS 176A.290(2) is severable • "unless
the prosecuting attorney stipulates to the assignment." 9 Accordingly, we
deny the State's petition.
Stiglich
We concur:
J.
J.
Gibbons
J.
Hardesty
J.
9 For the reason described in note 1, supra, this holding applies to both
the 2014 and 2017 versions of the statute.
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DOUGLAS, C.J., concurring:
The district court correctly determined that the prosecutor does
not have an executive veto power over the judiciary pursuant to NRS
176A.290(2); however, the court—as well as my colleagues—commits the
mistake of relying on the separation of powers doctrine to reach this
conclusion, while not first looking to the specific statutory language. The
statutory language here is permissive, and thus, the district court retained
the discretion to assign Hearn to the specialty program without the
prosecuting attorney's stipulation to the assignment.
We have consistently held "that we should avoid considering
the constitutionality of a statute unless it is absolutely necessary to do so."
Sheriff v. Andrews, 128 Nev. 544, 546,
286 P.3d 262, 263 (2012) (emphasis
added); accord State v. Curler, 26 Nev. 347, 354,
67 P. 1075, 1076 (1902)
(noting that "it is a well-established rule of this and other courts that
constitutional questions will never be passed upon, except when absolutely
necessary to properly dispose of the particular case"). Indeed, on at least
one occasion, we have declined to consider the constitutionality of a statute
when principles of statutory construction resolved the case. See Anthony
Lee R. v. State, 113 Nev. 1406, 1417 n.6,
952 P.2d 1, 8 n.6 (1997). As
demonstrated below, such is the case here.
When interpreting statutes, "if the language of a statute is clear
on its face, we will ascribe to the statute its plain meaning and not look
beyond its language." Koller v. State, 122 Nev. 223, 226,
130 P.3d 653, 655
(2006) (internal quotation marks omitted). Additionally, this court gives
effect and "meaning to all words, phrases, and provisions of a statute."
Haney v. State, 124 Nev. 408, 412,
185 P.3d 350, 353 (2008). Furthermore
"every reasonable construction must be resorted to in order to save a statute
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from unconstitutionality." State v. Castaneda, 126 Nev. 478, 481,
245 P.3d
550, 552, opinion modified on denial of reh'g (2010) (quoting Hooper v.
California, 155 U.S. 648, 657 (1895)); accord Virginia & Truckee R.R. Co. v.
Henry, 8 Nev. 165, 174 (1873) ("It requires neither argument nor reference
to authorities to show that when the language of a statute admits of two
constructions, one of which would render it constitutional and valid and the
other unconstitutional and void, that construction should be adopted which
will save the statute."). "Moreover, the rules of statutory interpretation that
apply to penal statutes require that provisions which negatively impact a
defendant must be strictly construed, while provisions which positively
impact a defendant are to be given a more liberal construction." Mangarella
v. State, 117 Nev. 130, 134,
17 P.3d 989, 992 (2001) Nalpplying these rules
to NRS 176A.410(1)(e)" to hold that the statute was not unconstitutionally
overbroad because "the scope of polygraph examination must be limited to
questions relating to the use of controlled substances by the defendant" and
the statute "does not permit a probation officer to conduct a polygraph
examination on any issue").
As noted by the majority, NRS 176A.290(2) provides in part:
If the offense committed by the defendant involved
the use or threatened use of force or violence or if
the defendant was previously convicted in this
State or in any other jurisdiction of a felony that
involved the use or threatened use of force or
violence, the district court, justice court or
municipal court, as applicable, may not assign the
defendant to the program unless the prosecuting
attorney stipulates to the assignment.
(Emphasis added.) The majority concludes that this affords an executive
veto power over the judiciary because it requires that a prosecutor stipulate
to the district court's decision. Majority opinion ante at 8. "But this reading
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ignores the statute's use of the permissive 'may." Nev. Pub. Emps. Ret. Bd.
v. Smith, 129 Nev. 618, 627,
310 P.3d 560, 566 (2013). "It is a well-settled
principle of statutory construction that statutes using the word 'may' are
generally directory and permissive in nature, while those that employ the
term 'shall' are presumptively mandatory." Id. (quoting Nev. Comm'n on
Ethics v. JMA I Lucchesi, 110 Nev. 1, 9-10,
866 P.2d 297, 302 (1994)); see
also Barral v. State, 131 Nev. 520, 523,
353 P.3d 1197, 1198 (2015) (holding
that a district court has no discretion where the statute includes the term
"shall").
NRS 176A.290(2) states that the court "may not assign the
defendant to the program" without the prosecuting attorney's stipulation,
but the statute does not state that the court "shall not" or "must not." The
Legislature could have used the term "shall" to impose a duty on the courts
to refrain from assigning a defendant to the program unless the prosecuting
attorney stipulated to the assignment. See NRS 0.025(1)(d) (defining "shall"
as "impos find a duty to act"); see also 1A Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 21:8 (7th ed. 2009) ("When
the action is mandatory 'shall' should always be employed. When the action
is permissive "may" should be used."). Indeed, the Legislature has done so
in other statutes. See NRS 16.110(1) ("After the [jury] instructions are
given, the judge shall not clarify, modify or in any manner explain them to
the jury except in writing unless the parties agree to oral instructions."
(emphasis added)); NRS 176.0611(4) ("If a fine is determined to be
uncollectible, the defendant is not entitled to a refund of the fine or
administrative assessment the defendant has paid and the justice or judge
shall not recalculate the administrative assessment." (emphasis added)). If
there were any doubts, the sentence after the one relied upon here by the
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majority demonstrates that the Legislature knew how to use "shall" instead
of "may" when imposing an affirmative duty on the court:
For the purposes of [NRS 176A.290(2)], in
determining whether an offense involved the use or
threatened use of force or violence, the district
court, justice court or municipal court, as
applicable, shall consider the facts and
circumstances surrounding the offense, including,
without limitation, whether the defendant
intended to place another person in reasonable
apprehension of bodily harm.
NRS 176A.290(2) (emphasis added).
Instead, the Legislature chose to state that the court "may not"
assign defendants to the program without the prosecuting attorney's
stipulation. As clarified by NRS 0.025(1)(b), the term "may not," unless
expressly provided otherwise, "abridges or removes a right, privilege or
power." (Emphasis added.) In the context of NRS 176A.290(2), I would
interpret it as abridging the court's discretion to assign defendants to the
program by requiring it to seek input from the prosecuting attorney when
determining whether to assign a defendant to the program. However, it
would not prevent the court from assigning defendants to the program if the
prosecuting attorney does not so stipulate, so long as the court sought the
input from the prosecuting attorney.
Such an interpretation would "save [the] statute from
unconstitutionality," Castaneda, 126 Nev. at 481,
245 P.3d at 552 (internal
quotation marks omitted), because the statute would not give the
prosecuting attorney an executive veto over the judiciary. Indeed, we need
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not reach the constitutionality of the statute, as traditional principles of
statutory construction would resolve the case. See Anthony Lee R., 113 Nev.
at 1417 n.6,
952 P.2d at 8 n.6. Moreover, this interpretation is consistent
with our prior holdings that penal statutes "which negatively impact a
defendant must be strictly construed," Mangarella, 117 Nev. at 134,
17 P.3d
at 992, as there is no doubt that requiring the prosecuting attorney to
stipulate to the defendant's assignment to the program negatively impacts
the defendant.
I agree with my colleagues that an executive veto over the
judiciary in this case would violate the separation of powers doctrine.
However, that is not what we have here. Because I believe the majority's
logic ignores the language of the statute and reaches an unnecessary issue,
I write separately and concur as to the result only.
C.J.
Douglas
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PICKERING, J., dissenting:
The Legislature has authorized a deferred sentencing program
to treat defendants who are veterans or members of the military, known as
veterans court. NRS 176A.280. After guilt is established, whether by guilty
plea or other adjudication, the court suspends further proceedings,
including entry of judgment, so the defendant can participate in the
veterans court program. NRS 176A.290(1). If the defendant fails to
complete the program, the court then enters the judgment of conviction and
sentences the defendant conventionally. NRS 176A.290(3). But if the
defendant successfully completes the program, "the court shall discharge
the defendant and dismiss the proceedings." NRS 176A.290(4). With
certain exceptions not relevant here, discharge and dismissal under this
statute "is without adjudication of guilt and is not a conviction." Id.
The Legislature has placed a number of conditions on eligibility
for veterans court, including that the defendant appears to suffer from a
mental illness, substance abuse, brain injury, or posttraumatic stress
disorder related to military service, or military sexual trauma, NRS
176A.280(1)(a)(1), (2); the defendant "[w]ould benefit from assignment to
the program," NRS 176A.280(1)(b); the defendant has not been previously
assigned to such a program, NRS 176A.287(1)(a); the defendant was
honorably discharged unless extraordinary circumstances exist, NRS
176A.287(1)(b), (2); and the offense is probationable, NRS 176A.290(1).
The Legislature has further limited eligibility for veterans court
based on the defendant's use of force or violence, as follows:
If the offense committed by the defendant involved
the use or threatened use of force or violence or if
the defendant was previously convicted. . . of a
felony that involved the use or threatened use of
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force or violence, the district court. . . may not
assign the defendant to the program unless the
prosecuting attorney stipulates to the assignment.
NRS 176A.290(2) (emphasis added). It is this provision that is at issue on
this writ. The majority concludes that the italicized language—requiring
prosecutorial stipulation before a veteran charged with, or who has a
history of, violent crime can be assigned to veterans court—intrudes on
judicial discretion and thus violates the separation of powers doctrine. To
correct this perceived violation, the majority rewrites the statute to strike
its italicized language. As a result, no veteran charged with or who has a
history of violent crime can participate in veterans court going forward—
even, presumably, in a case where both the district court and the prosecutor
believe assignment is appropriate. As I disagree with both the reasoning
and result, I respectfully dissent.
I.
Matthew Hearn is a veteran of the United States Army,
honorably discharged from service, with a diagnosis of posttraumatic stress
disorder. He was charged with felony battery by a prisoner for the use of
"force or violence upon the person of DEPUTY JAMES COOK by putting
the victim in a headlock and strangling him." Hearn pleaded guilty. During
the plea canvass, Hearn stated that he did not dispute the facts of the crime
as charged.
After entry of his plea, Hearn applied for veterans court. A
specialty courts officer sent a letter informing Hearn that he was eligible to
participate in veterans court. The prosecutor subsequently informed Hearn
that the State would not agree to Hearn's assignment to veterans court.
Hearn then filed a motion to hold NRS 176A.290(2), in particular the
provision relating to prosecutorial stipulation, unconstitutional as a
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violation of the separation of powers. The district court agreed, finding that
the provision requiring the prosecutor's stipulation for a violent offender to
be eligible for veterans court violated the separation of powers doctrine. The
district court then purported to sever the provision requiring the
prosecutor's stipulation from the remainder of subsection 2 and held that
"[w]ithout the offending language, the judiciary retains its discretion to
assign or not assign the defendant to the program."
The State filed a petition for a writ of mandamus or prohibition
challenging the district court's decision. Although the majority denies the
State's writ petition, it reaches the exact opposite conclusion from the
district court. In the majority's view, a defendant charged with, or who has
a history of violent crime, is categorically ineligible for veterans court.
Article 3, Section 1(1) of the Nevada Constitution addresses the
relationship between the three branches of State government:
The powers of the Government of the State of
Nevada shall be divided into three separate
departments,—the Legislative,—the Executive and
the Judicial; and no persons charged with the
exercise of powers properly belonging to one of
these departments shall exercise any functions,
appertaining to either of the others, except in the
cases expressly directed or permitted in this
constitution.
This provision establishes that the three branches are separate and
coequal, and each has powers related to its own functions. While observing
that each branch "maintain [s] its separate autonomy," this court has
recognized that there is some amount of overlap and interdependence.
Galloway v. Truesdell, 83 Nev. 13, 21,
422 P.2d 237, 243 (1967).
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A.
One area of overlap and interdependence is implicated in this
case—what penalty applies to a criminal offense. Establishing the penalty
for a criminal offense is a legislative function. Mendoza-Lobos v. State, 125
Nev. 634, 639-40,
218 P.3d 501, 504-05 (2009). Deciding what penalty to
impose in a given case is a judicial function. Id. The judicial function is
constrained, however, by the related legislative function. For example, the
Legislature may "completely remove any judicial discretion to determine a
criminal penalty by creating mandatory sentencing schemes" or "mandat[el
factors to be considered by the courts when imposing a sentence." Id. at
640,
218 P.3d at 505. Similarly, "[t]he power to suspend [a] sentence and
grant probation springs from legislative grant rather than from the
inherent powers of the court." Creps v. State, 94 Nev. 351, 360,
581 P.2d
842, 848 (1978). So too does the power to place a defendant in a deferred
sentencing program. See Savage v. Third Judicial Dist. Court, 125 Nev. 9,
16-17,
200 P.3d 77, 82 (2009) (recognizing that the Legislature authorized
a DUI treatment program). Judicial power, on the other hand, "is the
authority to hear and determine justiciable controversies." Galloway, 83
Nev. at 20,
422 P.2d at 242. And demonstrating this coordination of powers,
judicial power naturally includes the imposition of a sentence within the
limits set by the Legislature. Mendoza-Lobos, 125 Nev. at 639-40, 218 P.3d
at 505.
The majority concludes that the Legislature may not condition
eligibility for veterans court upon prosecutorial agreement because it
affords the prosecutor a veto over a judicial function. Not so. The
Legislature has set the parameters of eligibility for the program: a violent
offender is not eligible for veterans court without prosecutorial stipulation.
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This does not afford the prosecutor a veto but rather establishes a condition
precedent to the district court's exercise of the discretion granted by the
Legislature. The district court may not place a violent offender in the
program without an agreement by the prosecutor (and the defendant for
that matter, see NRS 176A.290(1)). These are the eligibility parameters
established by the Legislature. Without them, a violent offender would not
be eligible for veterans court at all. While the district court may exercise
its discretion in sentencing within the bounds set by the Legislature, the
district court has no authority to traverse the bounds or ignore the
conditions on eligibility set by the Legislature.
This is no different than conditions the Legislature has placed
on the district court's discretion to suspend a sentence and place a
defendant on probation. For example, the Legislature has provided that
defendants convicted of certain offenses shall not be placed on probation
without a psychosexual evaluation certifying that the defendant is not a
high risk to reoffend. NRS 176A.110(1). Without this certification, a
district court has no discretion to place a defendant on probation. A
condition precedent does nothing more than set the parameters of the
district court's discretion.
B.
The majority mistakenly relies upon Stromberg v. Second
Judicial District Court, 125 Nev. 1,
200 P.3d 509 (2009), to conclude that
the Legislature cannot condition assignment to veterans court upon
prosecutorial agreement. Unlike the case before us today involving the
tension between the legislative and judicial branches, Stromberg addressed
the interplay between the executive and judicial branches. In Stromberg,
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the State argued that former NRS 484.37941 1 violated the separation of
powers in permitting the district court to accept a guilty plea to a third-offense DUI and, upon successful completion of the program, enter a
conviction for a second-offense DUI over the State's objection. Id. at 6, 200
P.3d at 512. The State argued that this interfered with its exclusive power
to charge a defendant. Id. This court rejected the separation-of-powers
argument, noting that the district court's exercise of discretion in granting
the application for treatment was "simply a choice between the legislatively
prescribed penalties set forth in the statute" and does not limit the State's
discretion to charge an offender with a third-offense DUI or a lesser offense.
Id. at 8, 200 P.3d at 513 Insofar as this court recognized that the district
court exercised its discretion within the parameters set by the Legislature,
Stromberg correctly states the law.
However, Stromberg went on to conclude that the "court's
decision to allow an offender to enter a program of treatment is analogous
to the decision to sentence an offender to probation." Id. This is a false
analogy. Assignment to veterans court is not analogous to sentencing. The
assignment defers sentencing, and the successful completion of veterans
court results in the dismissal of charges. NRS 176A.290(4). An offender
will only be sentenced if the offender does not successfully complete the
program. Id.
The California cases relied upon in Stromberg, Esteybar
Municipal Court for Long Beach Judicial District, 485 P.2d 1140 (Cal.
1971), and People u. Superior Court of San Mateo County, 520 P.2d 405 (Cal.
1974), have dubious value, since they involve dissimilar statutory
1 NRS 484.37941 was repealed and replaced by NRS 484C.340.
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provisions for treatment of an offense as a misdemeanor and a pre-plea
diversion program. And while it is neither necessary nor helpful to try to
explicate the Byzantine array of sentencing and alternative sentencing
options in California, California has subsequently recognized that a
deferred sentencing program, similar to our veterans court, did not violate
the separation of powers by conditioning assignment upon prosecutorial
agreement. See People v. And reotti, 111 Cal. Rptr. 2d 462, 463-70 (Ct. App.
2001) (explaining the difference between a diversion program and a
deferred entry of judgment program, likening the requirement that the
prosecutor move to defer entry of judgment to the prosecutor's power to plea
bargain, and concluding that this requirement did not violate the separation
of powers). The majority's reading of the And reotti decision seemingly
ignores the fact that a prosecutor must file a motion for a defendant to be
eligible for deferral and the ultimate conclusion that this requirement does
not violate the separation of powers. Id. It is hard to reconcile how
eligibility based upon prosecutorial stipulation differs much in substance to
eligibility based upon a prosecutorial motion. Under either scenario,
eligibility for placement in a diversion program, which involves
prosecutorial agreement, necessarily informs on the district court's
discretion to place a defendant in a diversion program.
Other states have similarly determined that conditioning the
district court's exercise of discretion upon prosecutorial agreement in
deferred sentencing does not run afoul of the separation of powers. See, e.g.,
People in Interest of R.M.V., 942 P.2d 1317, 1319-22 (Colo. App. 1997)
(holding that conditioning deferral of sentencing upon prosecutorial consent
does not violate separation of powers because it is analogous to the
executive authority to plea bargain); State v. Graves, 648 P.2d 866, 868-69
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(Or. Ct. App. 1982) (determining that drug diversion statute did not violate
separation of powers); State v. Pierce, 657 A.2d 192, 195-96 (Vt. 1995)
(determining that requiring prosecutorial agreement in deferred sentencing
does not violate separation of powers because deferred sentencing is more
analogous to the prosecutor's power to plea bargain or a conditional pardon).
I agree with these decisions and would hold that NRS 176A.290(2) does not
violate the separation of powers by requiring the prosecutor's stipulation
before a violent offender is eligible for veterans court.
After determining that the prosecutorial-stipulation language
in NRS 176A.290(2) violates the separation of powers doctrine, the majority
addresses severance. It concludes that the remedy for the separation of
powers violation is to strike the phrase "unless the prosecuting attorney
stipulates to the assignment" from NRS 176A.290(2). As revised, NRS
176A.290(2) now reads: "If the offense committed by the defendant involved
the use or threatened use of force or violence or if the defendant was
previously convicted. . . of a felony that involved the use or threatened use
of force or violence, the district court . . . may not assign the defendant to
the program."
Severance is a recognized means of curing constitutional
infirmity in a statute. NRS 0.020(1). As employed here, though, it leads to
the dog-in-the-manger result that no defendant who is charged with or has
committed a violent crime can participate in veterans court. The judiciary's
power is protected but at the price of the discretionary eligibility for
veterans court the Legislature provided for. The majority appears to try to
soften the blow of its decision, which precludes all violent offenders from
being assigned to veterans court, by reminding the district court to consider
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whether "the facts and circumstances surrounding the offense" show that
the offense involved the use or threatened use of force or violence pursuant
to NRS 176A.290(2). Aside from the fact that no one has suggested the
offense charged in this case did not involve the use or threatened use of force
or violence for purposes of NRS 176A.290(2), the record before us
establishes the offense involved the use of force (a chokehold). Given the
charges, which he admitted in pleading guilty, Mathew Hearn is
categorically ineligible for veterans court.
IV.
The wisdom of requiring prosecutorial agreement for a violent
offender to be assigned to veterans court is debatable among reasonable
people. However, it is up to the Legislature to make public policy
determinations about the eligibility requirements for a deferred sentencing
program and the parameters of the district court's discretion in determining
whether to assign an offender to such a program. Veterans court is
Nevada's acknowledgment of the service of the men and women in our
military and the debt we owe them for their service. In establishing
veterans court, the Legislature acknowledged that combat-related injuries
have led to increased contact with the criminal justice system for some
veterans and that these veterans would benefit from rehabilitative services.
2009 Nev. Stat., ch. 44, at 99-100 (enacting statements). The Legislature
chose to open the doors of veterans court to those who committed violent
crimes if the prosecution agreed. But the majority's decision precludes
offenders who commit violent crimes from inclusion in the program. I
disagree that NRS 176A.290(2) violates the separation of powers doctrine,
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and I dissent from the decision categorically precluding all violent offenders
from assignment to veterans court.
J.
Pickering
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