Bonaventura v. Bd. of Cnty. Commissioners ( 2015 )

 Appellant John Bonaventura, individually and as the Las
Vegas Township Constable, argues, among other claims, that (1) the
ordinance violated his due process rights, (2) the district court erred in
sanctioning his counsel, and (3) the district court erred in denying
injunctive relief. We conclude that these arguments lack merit, and
therefore affirm the district court's order.
Due process
The agenda items referenced a "finding" that had been made
by the Board, and, because this "finding" was not made public,
Bonaventura argues that there was no meaningful opportunity for him to
review, question, and be heard on its validity and accuracy.
"Substantive due process guarantees that no person shall be
deprived of life, liberty or property for arbitrary reasons." Allen v. State,
100 Nev. 130, 134, 676 P.2d 792, 794 (1984). The first part of a
substantive due process analysis is "whether the interest at stake . .. is
constitutionally protected." See Mosley v. Nev. Comm'n on Judicial
Discipline, 117 Nev. 371, 378, 22 P.3d 655, 659 (2001). Notably, the
constable position is not a constitutionally created position. Moore v.
Humboldt Cty., 46 Nev. 220, 224-25, 204 P. 880, 881 (1922) (explaining
that the constitution only provides for the election of county clerks, county
commissioners, county recorders, sheriffs, district attorneys, public
administrators, and county surveyors), rev'd on other grounds on reh'g, 46
Nev. 220, 210 P. 401 (1922). But see Anthony v. State, 94 Nev. 338, 341,
580 P.2d 939, 941 (1978) (permitting the "use [of] population as a criterion
in effecting a law which may nevertheless be deemed a general law");
Clark Cty. By and Through Bd. of Cty. Comm'rs v. City of Las Vegas By
and Through Bd. of City Comm'rs, 97 Nev. 260, 264, 628 P.2d 1120, 1122
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(1981) ("Nor is such an enactment in violation of the Nevada Constitution,
art. 4, s 25, which requires a uniform system of county and township
government as long as the use of the population criteria is rationally
related to the subject matter and does not create an odious or absurd
distinction.").
Bonaventura was elected and accepted the position of
constable in 2011 with knowledge that Clark County could abolish the
office pursuant to NRS 258.010(3)(b). Thus, we conclude that
Bonaventura does not have a property interest in his constable position, so
the ordinance did not violate his due process rights. See Sham berger v.
Ferrari, 73 Nev. 201, 206-07, 314 P.2d 384, 386-87 (1957) (holding that
surveyor general incumbent did not have a property right to an office,
which, by statute, could be abolished even during an incumbent's term).
Sanction
After the Board passed the proposed ordinance, Bonaventura
attached to his trial brief an affidavit from a Board of County
Commissioner describing the ordinance as a prearranged plan to get rid of
Bonaventura. The district court struck the Commissioner's affidavit and
proposed testimony.
RPC 4.2 provides that "a lawyer shall not communicate about
the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so." Sanctions for this
rule's violation have included "exclusion of information obtained by ex
parte contact, [and] prohibition on the use of such information at trial."
Palmer v. Pioneer Inn Assoc., Ltd., 118 Nev. 943, 948, 59 P.3d 1237, 1240
(2002). This court reviews sanctions made by a district court for an abuse
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of discretion. Foster v. Dingwall, 126 Nev. 56, 65, 227 P.3d 1042, 1048
(2010).
Based on the testimony that Bonaventura, his counsel, and his
counsel's paralegal went to see the commissioner to obtain the
commissioner's signature on the typed affidavit, we conclude that the
district court did not abuse its discretion in finding an RPC 4.2 violation or
in sanctioning Bonaventura for the violation.
Bonaventura argues that the commissioner is a whistleblower,
and NRS 281.631(1), 2 which is a part of Nevada's whistleblower statutory
scheme, prohibited the district court from blocking the disclosure of
inappropriate governmental action. Bonaventura cites to Van Asdale v.
International Game Technology, 577 F.3d 989 (9th Cir. 2009) to support
his contention that the whistleblower statute overcomes the attorney-
client privilege. However, we conclude that this case is distinguishable
from Van Asdale, In Van Asdale, the attorney-client privilege was based
on the relationship between the plaintiffs, defendant's former in-house
counsel, who complained that their discharge was retaliatory, and the
2 NRS 281.631(1) provides that
A state officer or employee and a local
governmental officer or employee shall not directly
or indirectly use or attempt to use the official
authority or influence of the officer or employee to
intimidate, threaten, coerce, command, influence
or attempt to intimidate, threaten, coerce,
command or influence another state officer or
employee or another local governmental officer or
employee, as applicable, in an effort to interfere
with or prevent the disclosure of information
concerning improper governmental action.
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defendant. 577 F.3d at 995. In that case, the defendant argued, and the
court rejected, the premise that the attorney-client relationship alone
should be a bar to the lawsuit as plaintiffs were privy to privileged
material. Disparately, the attorney-client privilege that Bonaventura is
attempting to overcome concerns the relationship between a commissioner
of the Board, who is a member of the defendant County Board of
Commissioners in this case, and the Board's counse1. 3 As such, we
conclude this case is inapplicable here.
Injunctive relief
This court reviews a denial of request for injunctive relief for
abuse of discretion. Comm'n on Ethics v. Hardy, 125 Nev. 285, 291, 212
P.3d 1098, 1103 (2009). "Permanent injunctive relief may only be granted
if there is no adequate remedy at law, a balancing of equities favors the
moving party, and success on the merits is demonstrated." Chateau Vegas
Wine, Inc. v. S. Wine & Spirits of Am., Inc., 127 Nev. 818, 824-25, 265 P.3d
680, 684 (2011), as corrected on denial of reh'g (Apr. 17, 2012). While
questions of statutory construction are reviewed de novo, "[a] district
court's findings of fact are accorded deference[ J . . . unless they are clearly
erroneous and not based on substantial evidence." Id. at 825, 265 P.3d
684 (internal quotation marks omitted).
Based on our review of the record, our determination that the
district court considered the language set forth in the in the agenda item,
3 Additionally, while the district court prohibited the commissioner
from disclosing improper governmental action within the confines of
Bonaventura's suit, the commissioner was able to disclose this information
in other ways. In fact, the commissioner contacted a newspaper and
shared the information that was in the affidavit.
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and our foregoing conclusions in this order, we conclude that Bonaventura
cannot demonstrate future success on the merits. Therefore, the district
court did not abuse its discretion in denying injunctive relief.4
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Pe..cr , C.J.
Hardesty
etA.A. J.
Parraguirre Douglas-,
/
Cherry Saitta
irkeAkil
Gibbons Pickering )
4Bonaventura raises the following additional arguments on appeal:
(1) Clark County Ordinance 2.15.010 and NRS 258.010(3) are
unconstitutional, and (2) the Board enacted the ordinance in violation of
Nevada's Open Meetin g Law. We conclude that Bonaventura's
constitutionality argument lacks merit. With re gard to his argument that
the Board violated Nevada's Open Meeting Law, Bonaventura provides no
discussion or analysis of his cited authorities, and as such, we decline to
address this argument. See Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court
need not consider claims that are not cogently argued).
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cc: Hon. Rob Bare, District Judge
Robert B. Pool
Clark County District Attorney/Civil Division
Eighth Judicial District Court Clerk
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