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Degraw v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

May 31, 2018

DAVID HARRISON DEGRAW, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE LINDA MARQUIS, DISTRICT JUDGE, Respondents, and MISTY JO DEGRAW, Real Party in Interest.

          Original petition for writ of mandamus or prohibition challenging a district court order finding NRS 1.310 unconstitutional.

          Nevada Family Law Group and Keith F. Pickard, Henderson, for Petitioner.

          Ghandi Deeter Blackham and Brian E. Blackham and Nedda Ghandi, Las Vegas, for Real Party in Interest.

          Legislative Counsel Bureau Legal Division and Brenda Erdoes, Legislative Counsel, and Kevin C. Powers, Chief Litigation Counsel, Carson City, for Amicus Curiae Legislative Counsel Bureau.

         BEFORE THE COURT EN BANC

          OPINION

          HARDESTY, J.

         In the underlying dispute, petitioner David Degraw moved the district court for the continuance of a custody hearing pursuant to Nevada's legislative continuance statute, NRS 1.310, because his attorney was a member of the Nevada State Assembly, and the 2017 legislative session was due to begin. NRS 1.310(1) provides:

If a party to any action or proceeding in any court or before any administrative body is a member of the Legislature of the State of Nevada, or is President of the Senate, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, including, without limitation, any discovery or other pretrial or posttrial matter involved in the action or proceeding, for the duration of any legislative session.

         Real party in interest Misty Degraw opposed David's request for a continuance, arguing that NRS 1.310 was unconstitutional because it violated the separation of powers doctrine. Misty requested an evidentiary hearing, contending that there was an emergency and she was at risk of irreparable harm because David was withholding the children from her. The district court granted David's motion for a continuance, but also ordered an evidentiary hearing for a date during the legislative session. The district court further concluded that NRS 1.310 was unconstitutional under the separation of powers doctrine.

         While the parties ask us to decide the constitutionality of NRS 1.310, we decline to do so as the custody issues between the parties have been resolved, and therefore, we conclude that this case is moot. Additionally, we conclude that the interpretation of NRS 1.310 does not fall within the exception to the mootness doctrine for cases that are capable of repetition yet evading review. Accordingly, we deny the writ petition.

         FACTS AND PROCEDURAL HISTORY

         In November 2016, Misty filed a complaint for divorce against David. The district court set a case management conference and mediation for January 2017, and Misty filed a motion requesting an order for temporary custody, child support, and attorney fees. Misty alleged she and David orally agreed to a custody agreement when she moved out of the marital residence and that David was not upholding his end of the agreement because he was wrongfully withholding the children from her. Misty further argued that David's "cruel and divisive conduct [wa]s taking a toll on the children." David filed a motion to continue the hearing for temporary custody and support orders pursuant to NRS 1.310, requesting that the district court stay further litigation until after the 2017 legislative session concluded. Misty opposed the motion to continue, arguing that NRS 1.310 was unconstitutional because it violated the separation of powers doctrine under the Nevada Constitution and it infringed upon her fundamental right to parent.

         The district court found:

NRS 1.310 [is] unconstitutional as written as it violates the separation of powers doctrine of the Nevada Constitution by allowing the legislature to commandeer the inherent power of the judiciary to govern its own procedures, removing all discretion from the Court. There are instances in which the postponement of an action would result in irreparable harm or defeat an existing right, and emergency ...

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