State, Dep't of Pub. Safety v. Coley ( 2016 )

132 Nev., Advance Opinion 15
IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADA DEPARTMENT OF PUBLIC No. 67864
SAFETY, DIVISION OF PAROLE AND
PROBATION,
Appellant,
vs.
FOILED
KENNETH SCOTT COLEY, A/K/A MAR 0 3 2016
KING COLEY,
Respondent.
Appeal from a district court order granting a writ of
mandamus. Eighth Judicial District Court, Clark County; Kathleen E.
Delaney, Judge.
Reversed.
Adam Paul Laxalt, Attorney General, and Adam D. Honey, Deputy
Attorney General, Carson City,
for Appellant.
Gentile, Cristalli, Miller, Armeni & Savarese and Paola M. Armeni and
Colleen E. McCarty, Las Vegas,
for Respondent.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
"In every instance, the power to adopt regulations to carry out
a particular function is limited by the terms of the grant of authority
pursuant to which the function was assigned." NRS 233B.040(1). Here,
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we are asked to decide whether mandamus relief is proper to compel the
Division of Parole and Probation to accept an application for a change in
probation discharge status under a set of regulations adopted pursuant to
a statute that sunsetted in 2008. We conclude that the regulations upon
which respondent Kenneth Coley relies are invalid, rendering mandamus
relief inappropriate. Accordingly, we reverse the district court's order
granting Coley's writ of mandamus.
I.
A.
In 2005, the Legislature enacted Section 16 of Senate Bill 445
as a three-year experiment to determine whether allowing "individuals
who were dishonorably discharged [from probation] because of
nonpayment of restitution, or nonpayment of their supervisory fees," to
apply for a change in their discharge status to "honorable," as long as they
made a good effort to pay restitution, would help make victims whole
again, and pay down the large amount of outstanding restitution. Hearing
on S.B. 445 Before the Assembly Judiciary Comm., 73d Leg. (Nev.,
May 12, 2005). Section 16 provided three criteria that render an
individual ineligible to apply for a change in discharge status:
(a) The fact that he committed a new crime,
other than a violation of a traffic law for which he
was issued a citation, during the period of his
probation or parole;
(b) The fact that his whereabouts were
unknown at the time of his discharge from
probation or parole; or
(c) Any incident involving his commission of
a violent act or an act that threatened public
safety during the period of his probation or parole.
2005 Nev. Stat., ch. 476, § 16(2), at 2360.
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Section 16 directed the Division of Parole and Probation
(Division) to adopt implementing regulations:
[A] person who was dishonorably discharged from
probation or parole before the effective date of this
section, until July 1, 2008, may apply to the
Division of Parole and Probation of the
Department of Public Safety, in accordance with
the regulations adopted by the Division pursuant
to the provisions of this section . . . .
2005 Nev. Stat., ch. 476, § 16(1), at 2360 (emphasis added). On May 4,
2006, the Division adopted regulations for a "Change of Dishonorable
Discharge to Honorable Discharge." See NAC 213.720 et seq. The
regulations specifically incorporate Section 16, not only in the section
titles, but also in the text. For example, NAC 213.730 is titled "Applicant'
defined. (§ 16 of ch. 476, Stats. 2005)." Further, the text of NAC 213.730
defines an applicant as "a person who submits an application to the
Division to change his or her dishonorable discharge from probation or
parole to an honorable discharge from probation or parole in accordance
with the provisions of section 16 of chapter 476, Statutes of Nevada 2005."
(Emphasis added.)
As a three-year experiment, Section 16 included a "sunset"
clause that rendered Section 16 ineffective after July 1, 2008. Although
Section 16 included sunsetting language, the regulations adopted to
implement Section 16, NAC 213.720 et seq., do not.
At the end of the three years, Section 16, subsection 5,
required the Division to send a written report to the Legislative Counsel
Bureau including statistics about the program and whether the Division
recommends that the program continue. 2005 Nev. Stat., ch. 476, § 16(5),
at 2361. On December 8, 2008, the Division sent its written report,
detailing the number of applications received, granted, denied, the reasons
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why, and its recommendation. Of the nine applications completed, only
three individuals received a change in discharge. The other six
individuals were denied a change in discharge because "the Dishonorable
Discharges resulted from factors in addition to non-payment of Restitution
and/or Supervision fees, which were not addressed in the regulation
change." Nevertheless, the Division concluded: "This regulation, with the
possibility of receiving additional restitution due to victims or fees due to
the Division, should be continued." Despite the Division's
recommendation that Section 16 continue, the Legislature never codified
Section 16 into the Nevada Revised Statutes.
B.
In 2014, respondent Kenneth Coley applied to the Division for
a change in his probation discharge status. In accordance with the
instructions and application given by the Division, which referenced
Section 16, Coley submitted his application and financial plan to satisfy
his outstanding fees owed to the Division. However, the Division denied
Coley's request because of his failure to complete community service,
which was the same reason for his original dishonorable discharge. After
denying Coley's application, the Division changed its website instructions
to include that a person is ineligible if he or she fails to satisfy a condition
of their probation, such as community service. Coley confronted the
Division about this change, and it replied that Section 16 is no longer
applicable law. The Division expressed that only offenders who were
dishonorably discharged for unpaid supervision fees and restitution could
qualify for a change of status.
Thereafter, Coley filed a petition for writ of mandamus
seeking to compel the Division to comply with Section 16 and grant his
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application for a request of change of probation discharge status. The
Division maintained that Section 16 expired in 2008. Coley argued that
the Division acted arbitrarily and capriciously in denying his application
because the Division granted two other applications after 2008. 1 The
district court agreed with Coley and granted his petition, ordering the
Division to proceed with Coley's application, allow him to make payments
toward his fees, and, if he satisfies his financial obligations, to recommend
a change in his discharge status to honorable.
H.
District courts have the "power to issue writs of Mandamus."
Nev. Const. art. 6, § 6(1). "A writ of mandamus is available to compel the
performance of an act that the law requires . . . 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); see NRS
34.160. "Mandamus will not lie to control discretionary action, unless
discretion is manifestly abused or is exercised arbitrarily or capriciously."
Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637
P.2d 534, 536 (1981) (citation omitted). An exercise of discretion is
considered arbitrary if it is "founded on prejudice or preference rather
than on reason" and capricious if it is "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) (quoting
Arbitrary and Capricious, Black's Law Dictionary (9th ed. 2009)). "The
burden of proof to show the capriciousness is on the applicant." Gragson v.
'The Division admitted to granting two applications after Coley's
application. However, "their only short coming in their dishonorable
discharge was lack of restitution."
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Toco, 90 Nev. 131, 133, 520 P.2d 616, 617 (1974). Generally, this court
reviews a district court's decision regarding a petition for a writ of
mandamus for an abuse of discretion. Veil v. Bennett, 131 Nev., Adv, Op.
22, 348 P.3d 684, 686 (2015). To the extent the petition depends on
statutory interpretation, though, our review is de novo. State v. Barren,
128 Nev., Adv. Op. 31, 279 P.3d 182, 184 (2012).
Here, the district court found the Division's denial of Coley's
application arbitrary and capricious because it continued to process
applications after July 1, 2008, yet denied Coley's "application on the basis
of disqualifying factors not found in Section 16 and NAC 213.720—MAC
213.790." Procedurally, the district court erred in granting Coley
mandamus relief because the law does not require the Division to accept
applications. Section 16 and NAC 213.720 et seq. are no longer valid law
because Section 16, the statutory authority upon which the regulations
were premised, sunsetted in 2008. See 1A Norman J. Singer & J.D.
Shamble Singer, Statutes & Statutory Constr. § 31:2 (7th ed. 2009) ("The
legislative act is the charter of the administrative agency and
administrative action beyond the authority conferred by the statute is
ultra vires. . . . Regulations which are not in harmony with the plain
language of the underlying statute cannot serve as a guide in statutory
construction."); see also MRS 233B.040(1) ("In every instance, the power to
adopt regulations to carry out a particular function is limited by the tei ins
of the grant of authority pursuant to which the function was assigned.").
In this case, MAC 213.720 et seq. derive from and depend on
Section 16, as demonstrated by the citation to Section 16 in the title of
each code section. See MRS 233B.040(2) ("Every regulation adopted by the
agency must include: (a) A citation of the authority pursuant to which it,
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or any part of it, was adopted. . . ."). Because Section 16 sunsetted in
2008, the Division did not have the authority to continue to accept
applications pursuant to NAC 213.720 et seq. after that date. 2
Nevertheless, the Division mistakenly accepted a total of three
applications post-2008—Coley's application and two other applications,
which were granted.
We must decide, therefore, whether the Division's mistake in
processing two applications under invalid regulations can sustain the
district court's holding that the Division acted arbitrarily and capriciously
in denying Coley's application. We conclude it cannot and that the
Division did not abuse its discretion because no authority existed that
granted the Division any discretion. The Division's processing of the
applications post-2008 was ultra vires. Mandamus relief is, therefore,
inappropriate because it would require thefl Division to process an
application that it lacks authority to process. Even adopting the district
court's view, however, that the Division exercised discretion when it
continued to process applications, the district court erred because the
Division did not act arbitrarily or capriciously.
In resolving the petition below, the district court committed
two further errors. By negative implication, the district court incorrectly
interpreted Section 16's disqualifying factors to mean that because Coley's
discharge was not based on one of the disqualifying factors, he was
automatically eligible for a change in discharge. This interpretation
frustrates the legislative purpose behind Section 16, which was "for
2Moreover, NRS Chapter 176A does not provide legal authority for
changing one's discharge status. Rather, it specifies the criteria for
receiving an honorable discharge. See NRS 176A.850; infra note 3.
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individuals who were dishonorably discharged because of nonpayment of
restitution, or nonpayment of their supervisory fees." Hearing on S.B. 445
Before the Assembly Judiciary Comm., 73d Leg. (Nev., May 12, 2005).
Section 16 was not created as a mechanism to allow individuals to avoid
court-imposed probation obligations, other than restitution or payment of
fees, such as community service or drug court.
Second, the Division did not act arbitrarily or capriciously in
denying Coley's application. Even before the sunset provision of Section
16 went into effect, the Division consistently denied applicants whose
"Dishonorable Discharges resulted from factors in addition to non-
payment of Restitution and/or Supervision fees." Moreover, the district
court relied heavily on the Division's admission that it granted two
applications after 2008 but refused to grant Coley's application. However,
the Division distinguished those applications at the hearing, stating that
those dishonorable discharges only resulted from failure to pay restitution,
not the failure to complete any other probation obligations. Therefore, the
Division has consistently only granted applications if the dishonorable
discharge resulted from nonpayment of restitution or supervision fees and
has consistently denied applications if the dishonorable discharge resulted
from other factors.
This consistent treatment hardly rises to the level of being
"founded on prejudice or preference rather than on reason" or "contrary to
the evidence or established rules of law." Armstrong, 127 Nev. at 931-32,
267 P.3d at 780 (quotations and citations omitted). Rather, the denial of
Coley's application was based on reason—Coley's dishonorable discharge
resulted from factors in addition to the failure to pay restitution or
supervision fees. This reason is not contrary to established rules of law, as
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Section 16 does not state that if a dishonorable discharge was not based on
one of the disqualifying factors, it must be granted. 3 Further, the
Division's denial of Coley's application was not contrary to established
rules of law because the law under which the Division had authority to
process the applications sunsetted in 2008.
As the burden of proof is on Coley to establish that the
Division acted arbitrarily or capriciously, Gragson, 90 Nev. at 133, 520
P.2d at 617, Coley has failed to meet that burden for extraordinary relief.
Despite the procedural barrier to mandamus relief, Coley has not shown
that the Division was granting applications for individuals who failed to
satisfy probation obligations, such as community service. Rather, the
3 This
interpretation is consistent with NRS 176A.850(1), which lists
when an individual may be granted an honorable discharge from
probation:
1. A person who:
(a) Has fulfilled the conditions of probation
for the entire period thereof;
(b) Is recommended for earlier discharge by
the Division; or
(c) Has demonstrated fitness for honorable
discharge but because of economic hardship,
verified by the Division, has been unable to make
restitution as ordered by the court,
may be granted an honorable discharge from
probation by order of the court.
(Emphases added.) NRS 176A.850 demonstrates that the Legislature
intended individuals to satisfy their probation obligations to be eligible for
an honorable discharge. See also MRS 176A.870(3) (stating that an
individual who "failed to qualify for an honorable discharge as provided in
NRS 176A.850 is not eligible for an honorable discharge and must be given
a dishonorable discharge").
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record before this court clearly evinces that the Division consistently
denied such applications. Thus, the district court erred in concluding that
the Division acted arbitrarily and capriciously, such that mandamus relief
was necessary. We, therefore, reverse the district court's grant of
mandamus relief.
We concur:
Hardesty
Saitta
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