Bruen v. State, Dept. of Public Safety ( 2013 )

 On appeal, Bruen argues that the Department abused its
discretion in applying certain risk assessment criteria to the facts of his
case. Bruen also challenges the constitutionality of the statutes
controlling the risk assessment, contending that the scoring matrix fails to
take into account an offender's age and history of rehabilitative treatment,
and that the assessment score is impermissibly binding on the agency's
determination. We disagree.
Standard of review
"This court's function when reviewing a district court's order
denying a petition for judicial review is the same as the district court's: to
determine whether substantial evidence supports the appeals officer's
decision and whether that decision is affected by legal error." Holiday
Retirement Corp. v. State, DIR, 128 Nev. „ 274 P.3d 759, 761
(2012). This court may not substitute its judgment for that of an agency
as to the weight of evidence on a question of fact," and our review is
limited to the record that was before the agency. NRS 233B.135(3); Emp't
Sec. Dep't v. Cline, 109 Nev. 74, 76, 847 P.2d 736, 738 (1993). The burden
of proof is on the party attacking the agency's decision to show that the
final decision is not supported by substantial evidence. NRS 233B.135(2).
Substantial evidence supports the Department's decision
Bruen argues that the Department improperly scored the
assessment criteria regarding degree of force, degree of victim injury, and
the number of victims. Having reviewed the briefs and record on appeal,
we conclude that the Department's findings with regard to each of the
above criteria are supported by substantial evidence and that Bruen has
failed to meet his burden under NRS 233B.135(2). Cline, 109 Nev. at 76-
77, 847 P.2d at 738 (defining substantial evidence as "that which a
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reasonable mind might accept as adequate to support a conclusion"
(internal quotations omitted)).
The statutes governing sex-offender assessments are not unconstitutional
Bruen argues that the statutes in NRS Chapter 179D
governing the assessment of sex offenders are unconstitutional. 2 In doing
so, Bruen first argues that the rating criteria improperly permit the
Department to disregard an offender's age and efforts of rehabilitation.
We disagree, as the scoring matrix satisfies NRS 179D.720's
requirement that the Department consider factors relevant to the risk of
recidivism, such as whether an offender's risk is diminished by therapy
treatments and advanced age or debilitating illness. Dutchess Bus. Servs.
v. State, Bd. of Pharm., 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008)
(holding that this court "defer[s] to an agency's interpretation of its
governing statutes or regulations if the interpretation is within the
language of the statute"). Alternatively, Bruen appears to simply be
arguing that these criteria should have been rated as more significant
mitigating factors in his assessment, or that the Department failed to
adequately consider his age and rehabilitation efforts. Because the record
shows that the Department took these factors into consideration in
reaching its decision, we conclude that this argument is unpersuasive.
Cline, 109 Nev. at 77, 847 P.2d at 738.
Finally, Bruen argues that the statutes are unconstitutional
because the rating criteria are impermissibly binding and preclude the
2 Wenote that the statutes in question were repealed on July 1, 2008
by A.B. 579, 74th Leg. (Nev. 2007); Nev. Stat., ch. 485, § 56, at 2780.
However, neither party challenges the fact that the provisions of NRS
Chapter 179D were properly applied to Bruen's assessment.
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Department from exercising its discretion. Other jurisdictions have
rejected this position. See, e.g., People v. Ferrer, 894 N.Y.S.2d 387, 389
(App. Div. 2010). We similarly reject this argument, as Bruen makes no
factual assertion that the Department blindly accepted the matrix score as
determinative for its assessment. Instead, pursuant to NRS Chapter
179D and Nevada's Guidelines and Procedures for Community
Notification of Adult Sex Offenders, the risk assessment methodology is
not binding and the agency "shall have the capability to over-ride any tier
level risk assessment." It simply chose not to alter the assessment rating
here.
Thus, we conclude that the Department's decision is supported
by sufficient evidence and that Bruen has failed to raise a relevant or
persuasive constitutional argument on appeal. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Sa-4-7Z
Hardesty
J.
Parraguirre
cc: Hon. James Todd Russell, District Judge
Richard F. Cornell
Attorney General/Dep't of Public Safety/Carson City
Carson City Clerk
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