LVPPA v. Eighth Jud. Dist. Ct. , 2022 NV 59 ( 2022 )

138 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS POLICE PROTECTIVE No. 83793
ASSOCIATION, INC.,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT F[ILE
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
NANCY L. ALLF, DISTRICT JUDGE,
Respondents,
and
JORDAN TRAVERS; AND LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT,
Real Parties in Interest.
Original petition for a writ of mandamus or prohibition
challenging a district court permanent injunction and an order denying a
motion to intervene.
Petition denied.
Sgro & Roger and Anthony P. Sgro and Jennifer V. Willis Arledge, Las
Vegas; David J. Roger, Las Vegas,
for Petitioner.
Law Office of Daniel Marks and Daniel Marks and Adam Levine, Las Vegas,
for Real Party in Interest Jordan Travers.
Marquis Aurbach, Chtd., and Nick D. Crosby, Las Vegas,
for Real Party in Interest Las Vegas Metropolitan Police Department.
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BEFORE THE SUPREME COURT, HARDESTY, STIGLICH, and
HERNDON, JJ.
OPINION
By the Court, STIGLICH, J.:
Real party in interest Jordan Travers was an officer with real
party in interest Las Vegas Metropolitan Police Department (LVMPD). He
was not a member of petitioner Las Vegas Police Protective Association
(LVPPA), the recognized exclusive bargaining agent for nonsupervisory
peace officers employed by LVMPD for matters that fall under NRS Chapter
288. After Travers witnessed an officer-involved shooting, LVMPD notified
Travers that he was statutorily required to appear for an investigatory
interview regarding the incident. Travers then exercised his NRS 289.080
right to choose an attorney to represent him in the investigation, selected
an attorney covered by his FOP Plan,' and did not elect to use a
representative from LVPPA.
Pursuant to NRS 289.080 in the Peace Officer Bill of Rights, a
peace officer may have two representatives of their choosing assist them in
an internal investigation. Reviewing the statute in Bisch v. Las Vegas
Metropolitan Police Department,2 we concluded that NRS 289.080 provides
a peace officer with procedural protections during an internal investigation
conducted by their employer. We further concluded that the statute does
'Travers paid for benefits from the Fraternal Order of Police Legal
Defense Plan (FOP Plan). The FOP Plan pays for attorney fees for its plan
members in certain circumstances, including representation in
administrative investigations.
2 129 Nev. 328, 302 P.3d 1108 (2013).
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not impose a duty for the recognized bargaining agent to represent a peace
officer during an internal investigation. Bisch, 129 Nev. at 336-37, 302 P.3d
at 1114.
Here, after Travers exercised his right to choose a
representative, LVMPD denied his representation, and Travers sought
injunctive relief concerning representation during internal investigations.
After the district court issued the permanent injunction in Travers' favor,
LVPPA moved to intervene in the action. LVPPA argued, as the recognized
bargaining agent, that it was a necessary party to the litigation. The
district court declined to permit intervention because it had already entered
a final judgment in the matter and, in doing so, did not address whether
LVPPA was a necessary party.
We conclude that the district court properly denied LVPPA's
motion to intervene because a final judgment had been entered that
resolved the case prior to LVPPA's attempt to intervene. Additionally,
while we agree that a writ petition is the appropriate vehicle to challenge
the final order, as LVPPA was not a party to the proceedings below, we
decline to grant the requested writ relief because we further conclude
LVPPA was not a necessary party required to be joined in the underlying
action such that the district court erred.
FACTS AND PROCEDURAL HISTORY
While serving as an LVMPD officer, Travers witnessed an
officer-involved shooting. LVMPD then notified Travers that he was
statutorily required to participate in an investigatory interview regarding
the incident conducted by LVMPD's Critical Incident Review Team that
could result in punitive action. Travers advised LVMPD that he would be
represented by an attorney covered by his FOP Plan during the
investigation, pursuant to NRS 289.080. LVMPD subsequently informed
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the attorney that it would not allow him to represent Travers, under the
belief that the Fraternal Order of Police is a "rival organization" and that a
recent Employee-Management Relations Board (EMRB) decision prohibited
representation by such an organization.
Travers filed a petition for injunctive relief pursuant to NRS
289.120 against LVMPD, requesting a permanent injunction "to prohibit
LVMPD from denying any peace officer a representative of their own
choosing pursuant to NRS 289:080 (1) or (2)." LVMPD took no position on
the issue. The district court granted the permanent injunction, enjoining
LVMPD "from denying any peace officer in its employ during any phase of
any interview, interrogation, or hearing the right to be represented by two
representatives of the peace officer's own choosing including, without
limitation, a lawyer, a representative of a labor union or another peace
officer." It further ordered that "LVMPD cannot deny a peace officer's
choice of counsel because the chosen counsel has or does provide
representation for other employee organizations." The district court
clarified that this permanent injunction was "limited to investigations
within the meaning of NRS 289.057" and that the EMRB shall continue to
govern other matters.
LVPPA then moved to intervene, citing as relevant here NRCP
19(a) (joinder of necessary parties) and NRCP 24(a) (intervention of right
by someone protecting an interest in the action). The district court denied
the motion "because after the entry of the injunction there is nothing further
to litigate." The district court did not address LVPPA's assertion that it was
a necessary party. LVPPA subsequently filed the instant petition for a writ
of mandamus or prohibition with this court, requesting that we either
compel the district court to terminate the permanent injunction or prohibit
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its enforcement and allow LVPPA to participate as a party in further
proceedings.
DISCUSSION
A writ petition is the appropriate method for a nonparty to challenge a
district court order
Whether to entertain a writ petition is within this court's sole
discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818
P.2d 849, 851 (1991). This court may issue a writ of mandamus to compel
the performance of an act that the law requires or to control a district court's
arbitrary or capricious exercise of discretion. NRS 34.160; Int'l Game Tech.,
Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558
(2008). And this court may issue a writ of prohibition "when a district court
acts without or in excess of its jurisdiction." Nev. State Bd. of Architecture,
Interior Design & Residential Design v. Eighth Judicial Dist. Court, 135
Nev. 375, 377, 449 P.3d 1262, 1264 (2019) (citing NRS 34.320). This
extraordinary relief may be available if a petitioner does not have a plain,
speedy, and adequate remedy in the ordinary course of law. NRS 34.170
(mandamus); NRS 34.330 (prohibition).
Initially, we agree with LVPPA that a writ petition is the
appropriate vehicle to challenge the district court's injunction and order
denying its motion to intervene. Pursuant to NRAP 3A(a), only a party has
standing to appeal a district court order. See Gladys Baker Olsen Family
Tr. v. Olsen, 109 Nev. 838, 839-40, 858 P.2d 385, 385-86 (1993) (recognizing
that NRAP 3A(a) limits standing to appeal to parties to the proceedings
below). Here, LVPPA was not a party to the district court proceedings, as
the district court denied its motion to intervene. See Aetna Life & Cas. Ins.
Co. v. Rowan, 107 Nev. 362, 363, 812 P.2d 350, 350 (1991) (recognizing "that
a proposed intervenor does not become a party to a lawsuit unless and until
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the district court grants a motion to intervene"). Thus, as a nonparty to the
proceedings below, LVPPA can only seek relief via a petition for
extraordinary relief. See id. at 363, 812 P.2d at 350-51 (dismissing an
appeal for a lack of standing where the appellant was never a party to the
underlying district court proceedings and stating that an extraordinary writ
petition was the proper method for appellant to seek relief from the subject
order). We therefore exercise our discretion to review the merits of this
petition.
LVPPA's motion to intervene was untimely
LVPPA argues in its petition that the timing of its motion to
intervene was "irrelevant," suggesting that the district court should have
substantively considered its motion. Travers responds that the district
court properly denied LVPPA's motion because it was untimely filed after
entry of the final judgment resolving the underlying proceedings.
"Determinations on intervention lie within the district court's
discretion," and we generally defer to the court's exercise of its discretion.
Nalder v. Eighth Judicial Dist. Court, 136 Nev. 200, 203, 462 P.3d 677, 682
(2020). However, "Whis court reviews a district court's interpretation of the
Nevada Rules of Civil Procedure and statutory construction de novo."
Humphries v. Eighth Judicial Dist. Court, 129 Nev. 788, 792, 312 P.3d 484,
487 (2013).
An entity3 has a right to intervene in an action where it "shows
that (1) it has a sufficient interest in the subject matter of the litigation,
(2) its ability to protect its interest would be impaired if it does not
3Thiscourt uses "person" or "entity" interchangeably as appropriate
when discussing nonparties in a case. See Valley Bank of Nev. v. Ginsburg,
110 Nev. 440, 448, 874 P.2d 729, 735 (1994).
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intervene, (3) its interest is not adequately represented, and (4) its
application is timely." Nalder, 136 Nev. at 206, 462 P.3d at 684 (emphasis
added); see also NRCP 24(a) (discussing intervention of right). Additionally,
"[o]n timely motion, the court may permit anyone to intervene who: (A) is
given a conditional right to intervene by a state or federal statute; or
(B) has a claim or defense that shares with the main action a common
question of law or fact." NRCP 24(b)(1) (discussing permissive intervention)
(emphasis added). NRS 12.130(1)(a) further outlines that intervention may
be permitted "[IA efore the trial," which we have held "does not permit
intervention subsequent to the entry of a final judgment," Lopez v. Merit
Ins. Co., 109 Nev. 553, 556, 853 P.2d 1266, 1268 (1993); see also Nalder, 136
Nev. at 201, 462 P.3d at 680 (holding that "intervention after final judgment
is impermissible under NRS 12.130"). When possible, we interpret similar
statutes and rules in harmony, see generally State, Div. of Ins. v. State Farm
Mut. Auto. Ins. Co., 116 Nev. 290, 295, 995 P.2d 482, 486 (2000) ("Whenever
possible, this court will interpret a rule or statute in harmony with other
rules or statutes."), and therefore timeliness under NRCP 24 must at least
mean before entry of final judgment to accord with our previous
interpretations of NRS 12.130.
Here, LVPPA sought to intervene after the district court
ordered the permanent injunction that constituted the final judgment in the
proceedings below. Based on the foregoing authorities, the district court
properly denied LVPPA's motion to intervene because the motion was
untimely. Indeed, our previous interpretation of the relevant rule and
statute makes plain that the district court does not have the discretion to
allow intervention after it has entered final judgment in the action.
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LVPPA was not a necessary party to the action
LVPPA alternatively argues that writ relief is warranted
because it was a necessary party that the district court failed to join to the
proceedings under NRCP 19. LVPPA represents that "the permanent
injunction severely impairs its ability to protect its statutory and
contractual interests under" NRS Chapter 288 and the collective bargaining
agreement between itself and LVMPD. LVPPA asserts that it has a right
to represent peace officers in disciplinary matters, including internal
investigations, under the collective bargaining agreement. Travers
responds that LVPPA was not a necessary party because the cause of action
was between an aggrieved peace officer and his employer under NRS
Chapter 289.
Under NRCP 19, a district court is required to join an entity if
(1) in the entity's absence, "the court cannot accord complete relief among
existing parties"; or (2) the entity has an interest relating to the subject of
the action and its absence may "impair or impede the [entityrs ability to
protect the interest" or subject an existing party to the action "to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest." NRCP 19(a)(1). If an entity required
by NRCP 19 is not joined as a party, a district court should not enter a final
order. Univ. of Nev. v. Tarkanian, 95 Nev. 389, 396, 594 P.2d 1159, 1163
(1979) ("If the interest of the absent parties may be affected or bound by the
decree, they must be brought before the court, or it will not proceed to a
decree." (internal quotation marks omitted)).
Travers brought the underlying action pursuant to NRS
289.120, which allows a peace officer who is aggrieved by an action of their
employer in violation of NRS Chapter 289 to seek relief in the district court.
See Ruiz v. City of North Las Vegas, 127 Nev. 254, 262-64, 255 P.3d 216,
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222-23 (2011) (explaining that a peace officer has standing under NRS
289.120 to bring claims for judicial relief regarding violations of the Peace
Officer Bill of Rights in NRS Chapter 289). Travers specifically alleged that
LVMPD violated his rights under NRS 289.080(2), which provides that
a peace officer who is a witness in an investigation
conducted pursuant to NRS 289.057 may upon
request have two representatives of the peace
officer's choosing present with the peace officer
during an interview relating to the investigation,
including, without limitation, a lawyer, a
representative of a labor union or another peace
officer.
The only explicit limitation on a peace officer choosing their
representatives, which does not exist in this situation, is that "[a]
representative rnust not otherwise be connected to, or the subject of, the
same investigation." NRS 289.080(5).
In Bisch v. Las Vegas Metropolitan Police Department, this
court interpreted rights and obligations stemming from NRS Chapter 289,
including whether any entity is required to represent a peace officer during
an internal investigation pursuant to NRS 289.080. 129 Nev. 328, 302 P.3d
1108. In that matter, LVPPA refused to represent a peace officer in an
investigation because it had a policy that it would provide representation
only to peace officers who did not procure their own attorney, and the peace
officer had retained private counsel. Id. at 332, 302 P.3d at 1111. The peace
officer argued that in doing so LVPPA violated her right under NRS 289.080
to have two representatives of her choice at her interview. Id. at 335, 302
P.3d at 1113.
Reviewing the district court's interpretation of NRS 289.080 de
novo, we concluded that the statute did "not expressly impose any
affirmative duties" on entities to provide representation and instead only
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gave the employee a right to choose two representatives to be present during
an investigation interview. Id. at 336, 302 P.3d at 1114. Looking beyond
the plain meaning to the statutory scheme of NRS Chapter 289, we observed
that NRS Chapter 289 concerns rights peace officers retain when dealing
with their employers and duties imposed on those employers. Id. at 336-37,
302 P.3d at 1114. Therefore, this court concluded that "nothing in NRS
289.080 or the rest of the Peace Officer Bill of Rights governs [LVPPA's]
responsibility toward [s] its members" and that NRS 289.080 did not impose
any duties on LVPPA regarding representing peace officers in internal
investigations. Id. at 337, 302 P.3d at 1114.
The language of NRS 289.080 providing that a peace officer
may have two representatives of the peace officer's choosing present during
an internal investigation has not changed since we decided Bisch.
Therefore, we reaffirm our conclusions that NRS 289.080 does not impose
any affirmative duties on LVPPA and that the right to choose
representatives during an investigation belongs to the peace officer. See id.
at 336-37, 302 P.3d at 1114. As NRS 289.080 neither imposes a duty nor
gives LVPPA a right to represent peace officers during NRS 289.057
investigations, it follows that a district court decision resolving a complaint
concerning a peace officer's selected representatives does not "impair or
impede" any interest held by LVPPA under that statute. See NRCP
19(a)(1)(B)(i).
We recognize that LVPPA has certain rights under NRS
Chapter 288, which governs relations between governments and public
employees and gives public employees bargaining rights. See Truckee
Meadows Fire Prot. Dist. v. Int'l Ass'n of Firefighters, Local 2487, 109 Nev.
367, 374, 849 P.2d 343, 348 (1993). Indeed, NRS Chapter 288 gives LVPPA
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the exclusive right to represent LVMPD peace officers for purposes of
collective bargaining, including negotiating disciplinary procedures. See
NRS 288.150(2)(i) (indicating that disciplinary procedures are a mandatory
bargaining subject); see also NRS 288.133 (defining "bargaining agent" as
"an employee organization recognized by the local government employer as
the exclusive representative of all local government employees in the
bargaining unit for purposes of collective bargaining").
However, NRS Chapter 289 is a distinct chapter affording
separate rights to peace officers. See Ruiz, 127 Nev. at 264 n.9, 255 P.3d at
223 n.9 (explaining that "the Peace Officer Bill of Rights represents the
Nevada Legislature's recognition that peace officers, because of the
important role they play in maintaining public safety, deserve additional
protections that are unavailable to other public employees"). "When our
Legislature enacts statutes purporting to grant a group of people certain
rights, we will construe the statutes in a manner consistent with the
enforceability of those rights." Id.; see also Cable v. State ex. rel. Einp'rs Ins.
Co. of Nev., 122 Nev. 120, 125, 127 P.3d 528, 531 (2006) ("This court
presumes that the Legislature, when enacting statutes, is aware of other
similar statutes."). The right to choose representatives to be present and to
assist them during internal investigations pursuant to NRS 289.057
belongs to the peace officers and no other party. NRS 289.080; see also
Bisch, 129 Nev. at 336-37, 302 P.3d at 1114.
With no obligations or rights under NRS Chapter 289, LVPPA
did not have a valid interest that made it a necessary party to the
underlying litigation between Travers and LVMPD. See NRCP
19(a)(1)(B)(i); cf. Tarkanian, 95 Nev. at 396, 594 P.2d at 1163 (explaining
that the NCAA was a necessary party in the litigation because "the interest
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of the NCAA in the subject matter of this litigation was such that either the
university would be affected, or the NCAA's ability to protect its interests
would be impaired, and . . . further litigation of the controversy would be
l.ikely, should it proceed without joinder of the NCAA"). Accordingly, we
conclude extraordinary relief is not warranted and deny LVPPA's petition.
CONCLUSION
The district court properly denied LVPPA's rnotion to intervene
after final judgment was en.tered in the underlying matter between Travers
and LVMPD. And, as we explained in .Bisch, NRS 289.080 does not impose
affirmative duties on or otherwise grant any rights to the recognized.
bargaining agent. Nor has LVPPA demonstrated that its right to
exclusively represent nonsupervisory peace officers for purposes of NRS
Chapter 288 extends to limit peace officers' rights under NRS 289.080 such
that it had an impairable interest subject to the outcome of the case. As
provided by the Legislature, a peace officer such as Travers subject to an
investigation conducted pursuant to NRS 289.057 has a right to choose their
own representatives, regardless of the representatives' affiliations, so long
as the representatives are not connected to, or the subject of, the same
investigation and the representatives follow the guidelines set forth in NRS
Chapter 289. Therefore, we conclude LVPPA was not a necessary party in
the underlying matter and deny LVPPA's petition for writ relief.
Stiglich
We concur:
Herndon
(74'.
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