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State v. The Justice Court of Las Vegas Township

Supreme Court of Nevada

April 6, 2017

THE STATE OF NEVADA, OFFICE OF THE ATTORNEY GENERAL, Petitioner,
v.
THE JUSTICE COURT OF LAS VEGAS TOWNSHIP; AND THE HONORABLE JUSTICE OF THE PEACE DEBORAH J. LIPPIS, Respondents, and MARIA ESCALANTE; AND RAMIRO FUNEZ, Real Parties in Interest.

         Original petition for a writ of mandamus or prohibition challenging a justice court order denying a motion to reconsider an order dismissing a criminal complaint.

         Petition denied.

          Adam Paul Laxalt, Attorney General, Carson City; Lawrence VanDyke, Solicitor General, and Jordan T. Smith, Assistant Solicitor General, Carson City, for Petitioner.

          McCracken, Stemerman & Holsberry and Richard G. McCracken and Paul L. More, Las Vegas; Pitaro & Fumo, Chtd., and Thomas F. Pitaro, Las Vegas, for Real Parties in Interest.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          HARDESTY, J.

         This original proceeding requires us to determine whether NRS 30.130 entitles petitioner Nevada Office of the Attorney General (AG) to notice and an opportunity to be heard when constitutional challenges to Nevada statutes are raised in criminal proceedings. We conclude that the AG is not entitled to such notice or opportunity to be heard, and we thus deny the AGs petition for writ relief.

         FACTS AND PROCEDURAL HISTORY

         In December 2015, real parties in interest Maria Escalante and Ramiro Funez were cited for trespassing at Red Rock Casino Resort & Spa in Las Vegas. An amended criminal complaint was filed charging Escalante and Funez (collectively, Escalante) each with one count of trespass in violation of NRS 207.200(1)(a). Escalante moved to dismiss both charges arguing that NRS 207.200(1)(a)[1] is unconstitutionally vague. Specifically, Escalante argued that the 'Vex or annoy" intent requirement is void for vagueness. The AG was not notified of the constitutional challenge to NRS 207.200(1)(a).

         The justice court subsequently issued an order granting the motion to dismiss in part, determining that the 'Vex or annoy" intent requirement in NRS 207.200(1)(a) is unconstitutionally vague. The justice court ordered defense counsel to provide a copy of the order to the AG. Upon receiving notification of the justice court's order, the AG filed a "motion to place on calendar, " arguing that the AG was entitled to notice of the constitutional challenge under NRS 30.130.[2] Escalante objected, arguing that the AG was not entitled to notice before the court ruled on the constitutionality of NRS 207.200(1)(a).

         After briefing, the justice court issued a second order denying the AG's motion and deciding that NRS 30.130 only applies to declaratory relief actions, has no applicability to criminal proceedings, and only entitles the AG to notice and opportunity to be heard in constitutional challenges to municipal ordinances or franchises.[3] This petition for writ relief followed.

         DISCUSSION

         Consideration of the AG's writ petition

         A writ of mandamus is available to "compel the performance of an act" that the law requires or to control an arbitrary or capricious exercise of discretion. NRS 34.160. Because mandamus is an "extraordinary remed[y], we have complete discretion to determine whether to consider [it]." Cote H. v. Eighth Judicial Dist Court,124 Nev. 36, 39, 175 P.3d 906, 908 (2008). "This court will exercise its discretion to consider petitions for extraordinary writs... when there . . . are .. . important legal issues that need clarification in order to promote judicial economy and ...


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