State v. Dist. Ct. (Bussert) ( 2014 )

 manner." (Emphases added.) It concluded that the terms "careful" and
" prudent" were "too subjective," failed "to establish what acts are
prohibited . . . in the mind[s] of persons of ordinary intelligence," and
lacked the specificity needed to prevent arbitrary and discriminatory
enforcement. The district court further concluded that Elko County Code
§ 8-1-9(A) contradicted the intent of the Nevada Legislature, which
repealed a statute that shared similar language as Elko County's code.
See NRS 484.060(1) (1967) (repealed 1969); 1969 Nev. Stat., ch. 675, § 201,
at 1510.
Petitioner State of Nevada filed the petition for a writ of
certiorari that is properly before us. See NRS 34.020(3) (providing that a
petition for a writ of certiorari may be granted where a person has been
prosecuted for violating an ordinance, an appeal has been taken from a
justice court, and on appeal the district court has "passed upon the
constitutionality or validity of such statute or ordinance"). In its petition,
the State contends that the district court erroneously determined that
Elko County Code § 8-1-9(A) was unconstitutionally void for vagueness.
Pursuant to our de novo review of the code, we agree with the State of
Nevada. See Hernandez v. Bennett Haron, 128 Nev. „ 287 P.3d
-
305, 310 (2012) (providing that this court reviews the constitutionality of a
statute de novo).
The principles that govern the evaluation of a statute's
constitutionality apply to Elko County Code § 8-1-9(A). 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
SUPREME COURT
OF
NEVADA
2
(0) I947A
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
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.
Here, Elko County Code § 8-1-9(A)'s careful-or-prudent
language sufficiently informs the public of the conduct that is unlawful
and prevents arbitrary and discriminatory enforcement. As the United
States v. Escalante court recognized in recounting a state supreme court's
evaluation of a similar statute, the careful-or-prudent language conveys
the "familiar tort law standard, requiring. . . the same standard of care as
a prudent person would exercise." 239 F.3d 678, 680 (5th Cir. 2001)
(quoting Leuer v. City of Flowood, 744 So. 2d 266, 270 (Miss. 1999)); see
also Joynt v. Cal. Hotel & Casino, 108 Nev. 539, 543-44, 835 P.2d 799, 802
(1992) (using the term "careful" in discussing negligence and the
"ordinarily careful person"); Driscoll v. Erreguible, 87 Nev. 97, 101, 482
P.2d 291, 294 (1971) (using the term "prudent" in discussing negligence
and the "ordinary prudent man"). This well-established tort standard may
be understood by ordinary people, and "[b]ecause it applies only to conduct
that is negligent, such that the conduct endangers the motorist or others,
[the careful-or-prudent language] does not empower the police to punish
whatever conduct they choose." Escalante, 239 F.3d at 680; see also People
v. Wawczak, 486 N.E.2d 911, 913-14 (Ill. 1985) (concluding that similar
statutory language, "due care," conveyed the well-established negligence
standard, such that the language was not "impermissibly vague"); State v.
Jacobs, 995 N.E.2d 1247, 1251-52 (Ohio Ct. App. 2013) (rejecting the
argument that similar statutory language, "proceed with due caution," is
unconstitutionally vague upon determining that the language conveys to a
person of ordinary intelligence the well-established reasonable-person
standard). Thus, we conclude that Elko County Code § 8-1-9(A) is not
unconstitutionally void for vagueness.
As to the district court's reliance on legislative history that
concerned the repeal of a state statute that contained language that was
similar to Elko County Code § 8-1-9(A), that history is neither
authoritative nor persuasive. The Legislature's acts do not inform
whether Elko County Code § 8-1-9(A)'s language is vague. And the
Legislature's repeal of a statute does not convey the intent to bar counties
from enacting codes that resemble that repealed statute. If the
Legislature had wanted to preclude a county from enacting a code that
SUPREME COURT
OF
NEVADA
4
(0) 1947A
was similar to the repealed statute, it would have likely evinced that
intent with a statute that expressly forbids a county from doing so.
Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF CERTIORARI instructing the
district court to vacate the portion of its order that reversed the conviction
that was entered by the justice court.
Saitta
cc: Hon. Nancy L. Porter, District Judge
Attorney General/Carson City
Elko County District Attorney
Sears Law Firm, Ltd.
Elko County Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A