Buckles (James) v. Dist. Ct. (State) ( 2014 )

 Zamarripa v. First Judicial Dist. Court, 103 Nev. 638, 640, 747 P.2d 1386,
1387 (1987). NRS 34.020(3) provides that a writ of certiorari may be
granted where a person has been prosecuted for violating a statute or
municipal ordinance, an appeal has been taken from a justice court or
municipal court, and on appeal, the district court has "passed upon the
constitutionality or validity of such statute or ordinance." 1
The principles that govern the evaluation of a statute's
constitutionality apply to CCMC § 8.04.126. See Silvar v. Eighth Judicial
Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006) (applying the
presumption that a statute is constitutional to an ordinance). When
challenged as being unconstitutional, a statute is interpreted based on its
plain meaning. Sheriff, Clark Cnty. v. Burcham, 124 Nev. 1247, 1257, 198
P.3d 326, 332 (2008). In so doing, we presume that a statute is
constitutional, resulting in the challenger bearing a heavy burden to show
that the statute is unconstitutional. Silvar, 122 Nev. at 292, 129 P.3d at
684.
A statute may be unconstitutionally void for vagueness on two
independent bases. State v. Castaneda, 126 Nev. „ 245 P.3d 550,
553 (2010). First, a statute is unconstitutionally vague "if it fails to
provide notice sufficient to enable persons of ordinary intelligence to
'Buckles raised his argument concerning the constitutionality of the
CCMC § 8.04.126 for the first time in a supplemental briefing. Further,
the argument did not appear within the scope of the district court's order
for supplemental briefing. However, as the district court addressed the
argument, we conclude that a petition for a writ of certiorari is
appropriate as the district court elected to pass on the constitutionality of
the statute.
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understand what conduct is prohibited." Silvar, 122 Nev. at 293, 129 P.3d
at 685. Second, a statute is unconstitutionally vague if it "lacks specific
standards" to guide its enforcement, so as "to prevent arbitrary and
discriminatory enforcement." Id.In Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 525-
26 (1994), the United States Supreme Court concluded that the federal
statute prohibiting the possession of drug paraphernalia, 21 U.S.C. § 857(current version at 21 U.S.C. § 863 (1990)), was not unconstitutionally
vague. The court held that the statute provided "clear guidelines as to
prohibited conduct" by listing items that "constitute Ed] per se drug
paraphernalia." Id. at 525. It further "minimize[d] the possibility of
arbitrary enforcement and assist[ed] in defining the sphere of prohibited
conduct under the statute" by listing factors "for assessing whether items
constitute drug paraphernalia." Id. at 526. Lastly, the Supreme Court
recognized that the scienter requirement that it inferred in § 857 also
"assists in avoiding any vagueness problem." Id. Given these
considerations, we conclude that Buckles failed to demonstrate that
CCMC § 8.04.126 fails to provide sufficient notice of what conduct is
prohibited. CCMC § 8.04.126 has a scienter requirement in that it
prohibits the use or possession with intent to use drug paraphernalia, as it
is defined by NRS 453.554, to manufacture, grow, store, sell, or ingest a
controlled substance. In addition, he failed to demonstrate that the
ordinance lacks sufficient standards to prevent arbitrary or discriminatory
enforcement. NRS 453.554(1) lists numerous examples of items that could
be considered drug paraphernalia, and NRS 453.556 lists relevant factors
to determine whether an object is drug paraphernalia. Therefore, we
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conclude that CCMC § 8.04.126 is not unconstitutionally void for
vagueness. Accordingly, we
ORDER the petition DENIED. 2
J.
Hardesty
J.
J.
2 111 its answer, the State asserted that consideration of this petition
is barred by the doctrine of laches. Buckles filed his petition ten months
after the district court affirmed his justice court conviction. See Hedland,
116 Nev. at 135, 994 P.2d at 697 (holding that eleven-month delay in filing
petition for extraordinary relief warranted imposition of doctrine of
laches). Such a delay suggests that he acquiesced to the district court's
judgment. See Bldg. & Constr. Trades Council of N. Nev. v. State, ex rel.
Public Works Bd., 108 Nev. 605, 611, 836 P.2d 633, 637 (1992)
(considering "whether an implied wavier arose from the petitioner's
knowing acquiescence in existing conditions" in deciding whether laches
precludes consideration of writ). However, the State failed to allege that it
suffered prejudice as a result of Buckles' delay in filing his writ petition.
Id. (requiring showing of "circumstances causing prejudice to the
respondent").
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cc: Chief Judge, First Judicial District Court
State Public Defender/Carson City
Carson City District Attorney
Carson City Clerk
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