Blandino v. Dist. Ct. (City of Las Vegas) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
KIM BLANDINO, No. 68761
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILE
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE ROB
JUN 16 2016
cLET - Al E IN E M1IcANu
BARE, DISTRICT JUDGE,
Respondents, H t
I'‘ ,
BY 441S It:
and
CITY OF LAS VEGAS,
Real Party in Interest.
ORDER DENYING PETITION
This is a pro se petition for a writ of prohibition and a writ of
mandamus Petitioner Kim Blandino argues that respondent Judge Bare
improperly held him in contempt of court and banned him from the
courtroom and from a 25-foot space outside the courtroom. Blanclino
further argues that Judge Bare improperly disqualified himself in
Blandino's appeal from a judgment of conviction involving a misdemeanor.
Whether to consider a writ petition is within this court's
discretion, Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818
P.2d 849, 851 (1991), and a petitioner bears the burden of demonstrating
that extraordinary relief is warranted, Pan v. Eighth Judicial Dist. Court,
120 Nev. 222, 228, 88 P.3d 840, 844 (2004). "A writ of mandamus is
available to compel the performance of an act that the law requires as a
duty resulting from an office, trust, or station or to control an arbitrary or
capricious exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (citations
omitted); see also NRS 34.160. A writ of prohibition may issue when a
district court acts without or in excess of its jurisdiction. See NRS 34.320.
SUPREME COURT
OF
NEVADA
(0) 1947A eo
IL,- leg F-)
In Peng-illy v. Rancho Santa Fe Homeowners Ass'n, this court
held that there was no right to appeal from a contempt order, but that
review of a contempt order was available in a petition for a writ of
mandamus or prohibition. 1 116 Nev. 646, 649, 5 P.3d 569, 571 (2000).
"[A] writ of mandamus is available to control a manifest abuse of
discretion—for example, when the order purportedly violated does not
clearly prohibit the conduct engaged in by the contemnor." Id. at 650, 5
P.3d at 571. Whereas, "[a] writ of prohibition is available where the
district court clearly exceeded its jurisdiction—for example, when a
finding of indirect contempt is not based upon a proper affidavit." Id. at
650, 5 P.3d at 571-72.
Blandino argues that the district court exceeded its
jurisdiction in imposing the courtroom and 25-foot bans because one of the
incidents used to find him in contempt was not within Judge Bare's
immediate view and because Judge Bare did not immediately impose
sanctions for the other two incidents.
We conclude that Blandino has not demonstrated that he is
entitled to extraordinary relief. The district court's labeling the order as
involving contempt and pursuing contempt sanctions pursuant to
summary proceedings is problematic for the reasons identified by
Blandino. See NRS 22.030(2) (providing that if the contemptuous act is
not in the immediate view of the district court, "an affidavit must be
presented to the court . . . of the facts constituting the contempt"); Intl
Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 832
1 We summarily deny the petition for a writ of habeas corpus and
petition for a writ of certiorari as the claims raised fall outside the scope of
these writs. See NRS 34.360; NRS 34.020(3).
SUPREME COURT
OF
NEVADA
2
(0) 1947A ea
(1994) (providing that if the court delays punishing direct contempt
(contempt in the court's immediate presence) until the completion of trial,
"due process requires that the contemnor's rights to notice and a hearing
be respected"). The label of contempt and reliance upon NRS Chapter 22
is likewise awkward in this case because the district court imposed a
sanction not available under NRS 22.100(2). Nevertheless, Judge Bare
properly acted within his inherent authority in imposing the bans to
control the dignity of the courtroom and to prevent an abuse of the judicial
process. See NRS 1.210(1) (providing that the district court has the power
to "preserve and enforce order in its immediate presence)"; NRS 1.210(2)
(providing that the district court has the power to "enforce order in the
proceedings before it"); Halverson v. Hardcastle, 123 Nev. 245, 261-62, 163
P.3d 428, 440 (2007) (providing that a court's inherent authority includes
the power "to preserve the integrity of the judicial process"). Further,
ordinary due process requirements were not triggered because there was
no life, liberty, or property interest involved. See United States v. Mourad,
289 F.3d 174, 179 (1st Cir. 2002). Therefore, we conclude that the district
court did not exceed its jurisdiction in imposing the bans.
Blandino next argues that Judge Bare acted arbitrarily and
capriciously in imposing the bans because he was not disruptive and was
only trying to aid the court. An arbitrary or capricious exercise of
discretion is "one founded on prejudice or preference rather than on
reason, or contrary to the evidence or established rules of law." State v.
Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d
777, 780 (2011) (internal citation and quotation marks omitted). We
conclude that Blanclino has not demonstrated that he is entitled to
extraordinary relief. Blandino has failed to demonstrate that Judge Bare
acted with prejudice or preference or that his actions fell outside
SUPREME COURT
OF
NEVADA
3
(0) 1947A de
established law. The record supports Judge Bare's grave concern that
Blandino may have been engaging in the unauthorized practice of law and
that this caused a disruption to the orderly processes of the court.
Finally, Blandino argues that Judge Bare exceeded his
jurisdiction in disqualifying himself from Blandino's appeal and Judge
Bare should be compelled to decide Blandino's appeal. We conclude that
Blandino has not demonstrated that he is entitled to extraordinary relief.
First, this issue is moot as the appeal has been decided by another judge
during the pendency of these proceedings More importantly, Judge Bare's
decision to disqualify himself from future proceedings involving Blandino
is not contrary to relevant authority. See NCJC Rule 2.11(A) (providing
that a judge should disqualify himself "in any proceeding in which the
judge's impartiality might reasonably be questioned"). Accordingly, we
ORDER the petition DENIED. 2
Douglas
J.
Gibbons
2 Blandino has filed a number of supplements and amendments to
the original petition. Some of the claims presented in these supplements
and amendments are new and different from those set forth in the original
petition and therefore were not addressed in the answer. We decline
permission to expand the scope of claims before this court beyond those
raised in the original petition, and thus, we decline to consider these
claims. We further decline to consider any claims for which Blandino
failed to present cogent argument.
SUPREME COURT
OF
NEVADA
4
(0) 1947A
cc: Hon. Rob Bare, District Judge
Kim Blandino
Las Vegas City Attorney/Criminal Division
Attorney General/Carson City
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1907A ctlajto