Caruso v. Eighth Judicial Dist. Court of Nev.

509 P.3d 604 (Table)

Samuel Josiah CARUSO, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Mary Kay Holthus, District Judge, Respondents,andThe State of Nevada, Real Party in Interest.

No. 82362

Supreme Court of Nevada.

FILED MAY 18, 2022

Hamilton Law

Attorney General/Carson City

Clark County District Attorney

ORDER DENYING PETITION

This original petition for a writ of mandamus challenges the district court's decision denying petitioner Samuel Caruso's motion to dismiss pending charges based on an alleged separation-of-powers violation relating to Deputy District Attorney Melanie Scheible's dual service as a prosecutor and legislator.¹ We conclude that our intervention by extraordinary relief is not warranted because Caruso has not demonstrated that dismissal of the pending charges is the correct remedy for the alleged violation. NRS 34.160 (setting forth the standards for a writ of mandamus); Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (recognizing that it is within the discretion of this court to determine if a petition for extraordinary relief will be considered); Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (recognizing that a writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office or to control a manifest or arbitrary or capricious exercise of discretion); see also State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (stating that a manifest abuse of discretion occurs when there is a clearly erroneous interpretation or application of the law, and "[a]n arbitrary or capricious exercise of discretion is one founded on prejudice or preference rather than reason, or contrary to the evidence or established rules of law" (internal citations and quotation marks omitted)).

In reaching this decision we express no opinion on the merits of the separation-of-powers issue. "[I]t 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...." State v. Curler, 26 Nev. 347, 354, 67 P. 1075, 1076 (1902) ; see also Western Cab Co. v. Eighth Judicial Dist. Court, 133 Nev. 65, 67, 390 P.3d 662, 667 (2017) (recognizing that this court "avoid[s] legal and constitutional issues if unnecessary to resolve the case at hand"). Further, this court has disfavored issuing an advisory decision in procedurally deficient cases because the court's duty is "to resolve actual controversies." Personhood Nev. v. Bristol , 126 Nev. 599, 602, 245 P.3d 572, 574 (2010) (declining to consider merits of issue where the case had become moot); see also Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444 (1986) (declining to consider substantive issue where the issue of standing was dispositive); Applebaum v. Applebaum, 97 Nev. 11, 12, 621 P.2d 1110, 1110 (1981) ("This court will not render advisory opinions on moot or abstract questions."). Here, it is unnecessary to address the separation-of-powers issue as Caruso does not show that dismissal of the criminal charges, the only remedy that Caruso sought, was an available remedy. To be clear, we do not deny relief on the ground that Caruso should raise the issue on direct appeal if he is convicted. Instead, we deny extraordinary relief because Caruso has not demonstrated that he had a clear legal right to the only remedy Caruso sought in district court. See Walker v. Second Judicial Dist. Court, 136 Nev. 678, 680, 476 P.3d 1194, 1196 (2020) (recognizing that a petitioner seeking a writ of mandamus carries a substantial burden of showing a clear legal duty to act, or where the act is discretionary, "a clear legal right to a particular course of action" by the court). Rather than take Caruso at his word that he only sought dismissal of the charges based on the alleged separation-of-powers violation, our dissenting colleagues would issue a writ of mandamus and direct the district court to consider an alternate remedy that Caruso did not seek and which he expressly disclaimed in his pleadings in the lower court. But that approach relieves Caruso of his burden of demonstrating that he is entitled to writ relief.² See Walker, 136 Nev. at 680, 476 P.3d at 1196 ; Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) ; Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (recognizing that it is the party's "responsibility to present relevant authority and cogent argument"). And nothing in our decision precludes Caruso from seeking some other relief in the district court. Reaching a conclusion on the merits of the separation-of-powers issue at this time is further concerning as there has not been an opportunity for a full hearing on the issue of dual service, where the parties may develop the facts and where the named parties may participate in proceedings that may affect their employment with the Executive Branch. And the dissent, in going beyond the limits of Caruso's arguments, gives the appearance of committing members of the court to a position in a matter being litigated in the district court that will in all likelihood make its way to this court for resolution.³ Given the procedural deficiencies in the petition and the concerns expressed above, we think it is unnecessary to address the merits of the separation-of-powers issue at this time. Accordingly, we

ORDER the petition DENIED.

SILVER, J., with whom PICKERING, J., agrees, dissenting:

The Nevada Constitution's separation of powers clause prohibits Senator Melanie Scheible from serving as a legislator, passing laws, and at the same time working as a prosecutor, in the executive branch, enforcing those laws. The State's argument that this court should not entertain this writ because petitioner Samuel Caruso has an adequate remedy at law by an appeal if he is convicted of multiple life sentences is, in my view, unavailing. Because I believe that Caruso made a timely and proper separation of powers challenge in the district court prior to trial, and that a petition for a writ of mandamus is a proper vehicle by which he may challenge the denial of his trial court motion, I would grant consideration of the petition and address the merits of his challenge.¹ Cf. NRS 34.160 ; NRS 34.170 ; Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (recognizing that it is within the discretion of this court to determine if a petition for extraordinary relief will be considered).

"Nevada courts are the ultimate interpreter of the Nevada Constitution." Legislature of Nev. v. Settelmeyer, 137 Nev., Adv. Op. 21, 486 P.3d 1276, 1280 (2021) (internal quotation marks omitted). It is well-settled that where the Constitution's language is clear, this court will interpret the Constitution according to its plain language and will not look beyond that language. Id. (applying the rules for statutory interpretation).

Nevada's Constitution creates three branches of government: legislative, executive, and judicial. See Nev. Const. arts. 3-6; Comm'n on Ethics v. Hardy , 125 Nev. 285, 292, 212 P.3d 1098, 1103 (2009). Nevada adopted the separation of powers doctrine, which prevents any of these branches from encroaching on another's powers of government. Hardy, 125 Nev. at 291-92, 212 P.3d at 1103-04. That doctrine is incorporated in Article 3, Section 1, subsection 1 of our Constitution:

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 cases expressly directed or permitted in this constitution.

Thus, absent a constitutional provision allowing otherwise, a person "charged with the exercise of powers" of one department may not exercise any function "appertaining to" another department. Nev. Const. art. 3, § 1. This language is plain and unambiguous and there is no need to look beyond it. Here, it raises two questions: (1) was Senator Scheible charged with exercising the powers of the legislative branch of government? If so, then (2) did Senator Scheible, by prosecuting criminal cases, exercise a function appertaining to another branch of government?

I would answer both questions in the affirmative. First, legislators hold offices that are expressly created by Article 4 of the Nevada Constitution and are charged with the exercise of the legislative branch's powers. See generally Nev. Const. art. 4 (providing the Legislative branch's powers, duties, and rules governing that branch); see also Nev. Const. art. 4, § 1 (vesting the Senate with legislative authority). Senators are sworn into office for four years. Nev. Const. art. 4, § 4. Accordingly, once a senator is sworn into office, she or he is a senator at all times during that term and is charged with exercising the powers of the legislative branch throughout that entire time. Here, therefore, Senator Scheible, once sworn, was a full-time legislator and she remained charged with exercising the legislative branch's powers at all times during her four-year term.

The second question is the critical one: whether a sitting senator, who is also a deputy district attorney, exercises a function "appertaining to" another branch of government by prosecuting a crime on behalf of the State of Nevada. Without question, the answer is yes. We have described the "appertaining to" language as prohibiting any branch from "impinging on" the functions of another. Hardy , 125 Nev. at 291-92, 212 P.3d at 1103-04. And it is clear that prosecuting a crime—even at the local level—is an executive function. Specifically, the executive branch is...