Floyd (Zane) Vs. Dist. Ct. (State) ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ZANE MICHAEL FLOYD, No. 83108
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF CLARK; DEC 3 2021
AND THE HONORABLE MICHAEL A. BROWN
UPREME COURT
VILLANI, DISTRICT JUDGE,
CLERK
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This original petition for a writ of mandamus challenges the
district court's order denying a motion to disqualify the Clark County
District Attorney's office (CCDA) due to an alleged separation-of-powers
violation. Petitioner Zane Floyd argues that the dual service of deputy
district attorneys as legislators violates the separation-of-powers clause set
forth in Article 3, Section 1 of the Nevada Constitution. Floyd further
argues that CCDA Steve Wolfson violated the separation-of-powers clause
because he supervises the deputy district attorneys who serve as legislators
and may influence their roles as legislators, he made statements against a
bill to abolish the death penalty, and his office sought an execution warrant
for Floyd after the bill to abolish the death penalty was voted out of the
Assembly. Floyd argues these circumstances demonstrate a specific
identifiable impropriety requiring disqualification of the entire district
attorney's office.
The State counters there is no separation-of-powers violation
because the deputy district attorneys who serve as legislators had no
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positions as deputy district attorneys to serve in the Legislature. Further,
the State argues CCDA Wolfson has not violated the separation-of-powers
clause in either seeking the execution warrant or speaking publicly about
the bill to abolish the death penalty. Finally, the State argues there is no
basis for disqualifying the entire district attorney's office.
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty arising from an office, trust, or station,
or to control a manifest abuse of discretion or an arbitrary or capricious
exercise of discretion. NRS 34.160; State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 931, 267 P.3d 777, 779 (2011); Round Hill Gen.
Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536
(1981). A manifest abuse or arbitrary or capricious exercise of discretion
involves either a clearly erroneous interpretation or application of the law
or a decision based upon partiality, preference, or bias. Walker v. Second
Judicial Dist. Court, 136 Nev., Adv. Op. 80, 476 P.3d 1194, 1196-97 (2020);
Armstrong, 127 Nev. at 931-32, 267 P.3d at 780. It is within this court's
discretion to issue a writ of mandamus. Gathrite v. Eighth Judicial Dist.
Court, 135 Nev. 405, 407, 451 P.3d 891, 893 (2019).2
1F1oyd 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 Floyd's criminal
case, a writ of prohibition is not the way to challenge the district court's
decision.
2The district court's order is not appealable, and will not be
reviewable on appeal from some other appealable order or judgment. It
thus appears that Floyd has no alternative remedy. See NRS 34.170
(providing that a writ of mandamus will issue "where there is not a plain,
SUPREME COURT speedy and adequate remedy in the ordinary course of law").
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Floyd has not demonstrated that there is a separation-of-
powers violation related to dual service in this case because the deputy
district attorneys that serve in the Legislature have had no involvement in
prosecuting Floyd's case or seeking the execution warrant. CCDA Wolfson
has not violated the separation-of-powers clause in seeking the execution
warrant given that he is authorized to do so under NRS 176.495. And as
the officer with policymaking authority for his office, NRS 252.070(1), he is
permitted to speak publicly about pending criminal legislation. Floyd has
not put forward any evidence establishing that CCDA Wolfson exerted
improper authority over his deputies in their capacities as legislators.
Absent such a showing, we cannot say CCDA Wolfson has exercised any
legislative powers.3 Thus, Floyd has not demonstrated an entitlement to
writ relief based on a violation of the separation-of-powers clause under the
Nevada Constitution.
Floyd further has not demonstrated any purported conflict of
interest "would render it unlikely that the defendant would receive [fair
proceedings in the lower court] unless the entire prosecutor's office is
disqualified from [proceeding in] the case." State v. Eighth Judicial Dist.
Court (Zogheib), 130 Nev. 158, 165, 321 P.3d 882, 886 (2014). Of note, in
Zogheib, this court specifically rejected the impropriety standard referenced
by Floyd in evaluating a request to disqualify the entire district attorney's
office. See id.3Any allegations of misconduct committed by the deputy district
attorneys in their roles as legislators are only reviewable by the Legislature
as we recognized in Comm'n on Ethics v. Hardy, 125 Nev. 285, 293, 212 P.3d
1098, 1104 (2009) (observing that "the power to discipline legislators for
disorderly conduct is a function constitutionally committed to each house of
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Having concluded that Floyd has not demonstrated entitlement
to the relief he sought in the district court, we
ORDER the petition DENIED.
I1, C.J.
Hardesty
J.
P. rraguirre Stiglich
J. , J.
Silver
Pie,64 J.
Pickering
cc: Hon. Jacqueline M. Bluth, District Judge
Hon. Michael Villani, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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