Caruso (Samuel) v. Dist. Ct. (State) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SAMUEL JOSIAH CARUSO, No. 82362
Petitioner,
VS.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF CLARK; FliLE
AND THE HONORABLE MARY KAY
HOLTHUS, DISTRICT JUDGE, MAY 1 8 2022
Respondents, A. BROWN
CLERK OF S REME COURT
and
BY "LEM<
THE STATE OF NEVADA,
Real Party in Interest.
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.' 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 determin.e
'Caruso alternatively seeks a writ of prohibition. However, "[a] writ
of prohibition . . . will not issue if the court sought to be restrained had
jurisdiction to hear and determine the matter under consideration."
Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140,
1141 (1980). As the district court had jurisdiction over Caruso's criminal
case, a writ of prohibition is not the way to challenge the district court's
decision.
8
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 (Arrnstrong), 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 We.stern
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) CThis court will
SUPREME COURT
OF
NEVADA 2
(0) I947A astWOR
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 rernedy 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
argumene). And nothing in our decision precludes Caruso from seeking
some other relief in the district court. Reaching a conclusion on the merits
2 0ur dissenting colleagues provide no support for the idea that this
court can or should substitute the form of relief expressly sought by the
petitioner. Nor do they provide support for the idea that the opposing party
may alter the type of relief sought by the petitioner.
SUPREME COURT
OF
NEVADA
3
(0) I947A
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 DENIEDr-..
, C.J.
Parraguirre
J.
Hardesty
J.
Stiglich
J.
3A separation-of-powers challenge naming a number of members of
the Legislature, including DDA Scheible, has been raised in an action for
declaratory relief in the district court. Nev. Policy Research Inst. v.
Cannizzaro, 138 Nev. , Adv. Op. 28, P.3d (2022).
SUPREME COURT
OF
NEVADA
4
(0) 1947A 04110
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 States 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. 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. Settelrneyer, 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).
'While I acknowledge that this court's decision in Nevada Policy
Research Institute, Inc. v. Cannizzaro, 138 Nev. , Adv. Op. , P.3d
(2022), may allow this court to investigate broader allegations of
separation of powers issues regarding other types of public employees,
Caruso's petition would allow this court to address the specific issue of an
elected state legislator's dual service as a criminal prosecutor. After
reviewing the oral arguments and extensive briefing, including amici
briefing, proffered here and in related cases, I believe this issue is ripe for
this court's review.
SUPREME COURT
OF
NEVADA
5
to) IN7A .egiff,o
Nevada's Constitution creates three branches of government:
legislative, executive, and judicial. See Nev. Const. arts. 3-6; Conun'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 powere of one department tnay 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
6
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
c``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
charged with carrying out and enforcing Nevada law, Del Papa v. Steffen,
112 Nev. 369, 377, 915 P.2d 245, 250 (1996), and prosecutors represent the
plaintiff State of Nevada in all criminal prosecutions, see NRS 169.055.
Furthermore, all prosecutions are subject to the state attorney general's
supervisory authority, and that office is an executive one. Nev. Const. art.
5, § 22 (establishing the office of attorney general under the executive
branch); NRS 228.120(2)-(3) (granting the attorney general supervisory
powers over all district attorneys and the authority to take charge of any
prosecution). Moreso, criminal prosecution is a core function of the
executive branch. See, e.g., Pyke v. Cuomo, 258 F.3d 107, 109 (2nd Cir. 2001)
(recognizing the decision of whether to prosecute a case is a "core executive
function); In re Jackson, 51 A.3d 529, 538 (D.C. 2012) ("[C]riminal
prosecution is a core executive function, and that power is allocated to the
executive branch of government . . . ." (citation and internal quotation
marks omitted)); Steen v. Superior Court, 331 P.3d 136, 137 (Cal. 2014)
SUPREME COURT
OF
NEVADA
7
I()) I947A .11D.
(recognizing that "the discretionary power to initiate criminal prosecutions"
is "a core function of the executive branch"). Therefore, the separation of
powers clause forbids legislators who are promoting legislation on behalf of
their constituents from concurrently acting as a prosecutor—executing
criminal prosecutions through enforcement of our state criminal laws.
Senator Scheible, a legislator, impinged on a core function of
the executive branch by appearing in court as a Clark County Deputy
District Attorney prosecuting cases on behalf of the plaintiff State of
Nevada and under the authority of the executive branch. This impingement
is "repugnant to the constitution." Cf. State v. Snodgrass, 4 Nev. 524, 525-
26 (1869) (addressing the infringement of legislative power). Because I
would conclude that Senator Scheible performed an executive function in
prosecuting Caruso at the same time that she was a Nevada legislator,
which violated the Constitution, I would grant the petition for writ relief
and instruct the district court to determine the appropriate rernedy under
these particular circumstances.2 Accordingly, I dissent.
J.
Silver
I concur:
2 Both Caruses and the States appellate briefs are devoid of any law
or analysis as to what the appropriate remedy would be for a prosecutor's
constitutional violation against a defendant during a pending criminal case.
SUPREME COURT
OF
NEVADA
8
(0) 11947A efiSPD
HERNDON, J., with whom PICKERING, J., agrees, dissenting:
Because the majority focuses solely on petitioner's recitation of
the appropriate relief for the separation-of-powers violation raised herein
as grounds for denying the writ petition, instead of considering whether the
constitutional issue raised warrants extraordinary relief, I respectfully
dissent.
Petitioner Samuel Caruso was charged with various felony
offenses in Clark County, Nevada. His case proceeded through the justice
court preliminary hearing process and was set for trial in the Eighth
Judicial District Court. Petitioner filed a pre-trial "Motion to dismiss case
and exclude evidence for district attorney's violation of the separation of
powers under the Nevada constitution." The substantive allegation made
by petitioner was that Deputy District Attorney (DDA) Melanie Scheible's
involvement as a prosecutor on his case, while she also served as an elected
state legislator, violated the separation of powers doctrine. In his motion,
petitioner sought, as a remedy for the constitutional violation, dismissal of
his case. The State opposed the motion as raised by petitioner, but also
acknowledged that petitioner's motion was more akin to a motion to
disqualify DDA Scheible than a motion to dismiss his case, and then
asserted there were no grounds to disqualify her. The district court heard
argument and denied the motion by way of a summary written order, which
stated only that the motion was denied "for the reasons and arguments
stated in the [s]tate's [o]pposition."
For writ relief to be available, the petitioner must
"demonstrate[e] that extraordinary relief is warranted." Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). The
majority refuses to even consider the alleged constitutional violation, which
SUPREME COURT
OF
NEVADA
9
(0) 1947A 4Z.
was raised below and ruled on by the district court, much less the question
of whether any relief is necessary to address a constitutional violation—
clearly and timely raised by petitioner—merely because, as the majority
states, the remedy of dismissal as sought by petitioner is unavailable to him
in this case. As recognized by the majority, this court should not avoid
constitutional questions when they are necessary to ensure the proper
disposition of the particular case. State v. Curler, 26 Nev. 347, 354, 67 P.
1075, 1076 (1902). If petitioner's separation-of-powers argument has merit,
permitting DDA Scheible to prosecute the criminal action arguably
destabilizes the entire criminal justice system, and specifically undermines
the judicial procedure and eventual disposition here. See Int'l Garne Tech.,
Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197-98, 179 P.3d 556, 559
(2008) (explaining that a writ of mandamus may be warranted when "an
important issue of law needs clarification and considerations of sound
judicial economy and administration militate in favor of granting the
petition"). It is hard to imagine a situation raising a constitutional query
with a greater need for the court to protect the integrity of the judicial
process, in the eyes of the public, than one in which elected state legislators
seek to also execute the powers of the executive branch within the state's
trial courts, in possible violation of the separate of powers doctrine. See
Halverson v. Hardcastle, 123 Nev. 245, 261-62, 163 P.3d 428, 440 (2007)
(explaining that courts have the "inherent power to prevent injustice and to
preserve the integrity of the judicial procese). Thus, I believe the majority's
decision to focus only on the petitioner's wished-for remedy is shortsighted
and ignores whether petitioner actually and timely raised an issue
warranting extraordinary relief.
10
The posture of this case differs from that in State v. Eighth
Judicial District Court (Plurnlee), No. 82236, (2022), and State v. Eighth
Judicictl District Court (Molen), No. 82249, (2022). In those cases, DDA
Scheible tried the cases to judgments of conviction in justice court, with the
challenge being raised on appeal thereafter to district court. Here,
petitioner filed a pre-trial motion in the district court alleging a separation
of powers violation. The district court denied his motion, thereby denying
the substantive allegations he raised, without ever reaching the issue of
what an appropriate remedy would be for a separation of powers violation.
Both the district court's summary denial and the majority's
summary denial here, ignore the fact that even the State acknowledged
below that petitioner's motion was, at its core, a motion to disqualify DDA
Scheible. The State spent almost four pages of its opposition below
addressing the disqualification issue. Thus, although petitioner continued
to advocate for dismissal as a remedy, the issue of disqualification as a
remedy was placed squarely in front of the district court. While the district
court's summary order denying the motion was devoid of any substantial
legal or factual analysis, it did state that the motion was being denied "for
the reasons and arguments stated in the [s]tate's [o]pposition." As such, the
district court's order implied that it denied the allegation of a separation of
powers violation in what had been reframed by the State to be a motion to
disqualify DDA Scheible.
Therefore, when petitioner asserted that the district court
arbitrarily or capriciously exercised its discretion, his argument necessarily
raised the issue of whether it was an arbitrary and capricious exercise of
discretion to refuse to find a violation of the separation of powers and grant
the remedy he sought (dismissal of his case) and/or the separate remedy
SUPREME COURT
OF
NEVADA
11
(0) 1947A
that was also placed before the district court (disqualification of DDA
Scheible). Thus, this issue is ripe for this court's determination, especially
considering the procedural posture of this case and the extensive appellate
briefing, including amici briefing, and argument that has occurred in this
case and in Plumlee and Molen. I believe this court must address the
constitutional question raised in this matter to ensure the proper
disposition of petitioner's case below. Accordingly, for the reasons stated
above, I disagree with the majority's decision to ignore the properly raised
constitutional question of whether an elected state legislator acting as a
prosecutor violates the separation of powers doctrine.
441"11.r
Herndon
, J.
I concur:
Adeu J
Pickering
'This court's recent decision in Nevada Policy Research Institute v.
Cannizzaro, 138 Nev. , Adv. Op. , P.3d (2022), will potentially
allow for a more thorough investigation of the broader allegation of
separation of powers issues involving all manner of public employees.
However, I believe that petitioner's timely and proper challenge in the
district court provides the vehicle by which this court should address the
more narrow issue of elected state legislators simultaneously serving as
criminal prosecutors.
12
• , • ,tieto—tys
•••• _ teALA • a.1
cc: Hon. Mary Kay Holthus, District Judge
Hamilton Law
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
13
(01 1947A 45Csp.
, •v‘i •
94: