Kemp (Ezra) v. Dist. Ct. (State) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
EZRA KEMP,, No. 84639
Petitioner,
vs.
THE FIFTH JUDICIAL DISTRICT
COURT OF THE STATE OF
NEVADA, IN AND FOR THE
COUNTY OF ESMERALDA; AND
THE HONORABLE KIMBERLY A.
WANKER, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This original petition for a writ of mandamus seeks an order
directing the district court to remand Count 3 to the justice court for a
. preliminary hearing after the district court rejected the plea negotiations.
A writ of mandamus is available to compel the performance of
an act which the law requires as a duty resulting from an office or to control
a manifest abuse or arbitrary or capricious exercise of discretion. NRS
34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-
04, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue when there
is a plain, speedy, and adequate remedy at law, NRS 34.170, and it is within
the discretion of this court to determine if a petition for extraordinary relief
will be considered, Poulos v. Kighth Judicial Dist. Court, 98 Nev. 453, 455,
652 P.2d 1177, 1178 (1982).
Although no particular deadline is specified for filing a
mandamus petition that challenges a lower court’s decision, the doctrine of
SupReme Court
OF
Nevapa
os 21 oo
laches applies.! State v. Eighth Judicial Dist. Court (Hedland), 116 Nev.
127, 135, 994 P.2d 692, 697 (2000). In considering whether to apply the
doctrine of laches, this court will consider “whether ‘(1) there was an
inexcusable delay in seeking the petition; (2) an implied waiver arose from
petitioners’ knowing acquiescence in existing conditions; and, (3) there were
circumstances causing prejudice to respondent.” Id. (quoting Buckholt v.
Eighth Judicial Dist. Court, 94 Nev. 631, 633, 584 P.2d 672, 673-74 (1978)).
Applying these factors, we conclude that petitioner’s delay
militates against entertaining this petition. In July 2015, petitioner
unconditionally waived a preliminary hearing on Count 3, one of many drug
charges set forth in the criminal complaint, pursuant to plea negotiations.”
After the district court rejected the plea agreement, petitioner moved to
have Count 3 remanded for a preliminary hearing.? The district court
denied petitioner's motion on March 1, 2016, aad a motion to reconsider on
October 4, 2016, because the waiver was unconditional. In September
2021, the district court scheduled trial for May 2022, with a calendar call in
April. In April 2022, petitioner filed this mandamus petition challenging
1The State addresses laches in its answer to the petition. Petitioner
did not respond to that argument.
2The bind-over order was limited to Count 3 and made no mention of
the other charges in the criminal complaint.
3The decision to reject the plea agreement is not before this court.
4The district court entered two orders of remand for a preliminary
hearing as to the other charges in the criminal complaint. As the other
charges had not been bound over to the district court, it is not clear that an
order of remand was necessary. However, we share the district court's
concern that no action had been taken on those counts in the justice court
after the negotiations were rejected. It further appears that when the
petition was filed with this court, the justice court still had not conducted a
supnene Court preliminary hearing on the other charges.
OF
NEVADA
0) 167A