City Of Henderson v. Dist. Ct. (Cullen) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF HENDERSON, No. 81714
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
TREVOR L. ATKIN, DISTRICT JUDGE,
Respondents,
and
STEVEN CULLEN,
Real Party in Interest.
ORDER DENYING PETITION
This original petition for a writ of certiorari challenges a district
court order granting a petition for a writ of mandamus and ordering a jury
trial in municipal court. The City of Henderson (the City) charged real
party in interest Steven Cullen with misdemeanor battery constituting
domestic violence under NRS 200.485 in Henderson Municipal Court.
Cullen demanded a jury trial, relying on Andersen v. Eighth Judicial Dist.
Court, 135 Nev. 321, 322-24, 448 P.3d 1120, 1122-23, 1124 (2019), which
held that misdemeanor battery constituting domestic violence under NRS
200.485(1)(a) is a "serious offense that entitles the accused to a jury trial.
The City then amended the complaint to charge Cullen under newly enacted
municipal code provision that is basically identical to NRS 200.485. Cullen
unsuccessfully moved to dismiss the complaint. He then challenged the
municipal court's decision in an original petition for a writ of mandamus
filed in the district court, asserting that charging him under the municipal
code provision violated the Ex Post Facto Clause and that the municipal
code provision was preempted by NRS 202.360(1)(a) and NRS 266.321. The
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district court granted the petition with instructions to the municipal court
to conduct a jury trial. The City filed the instant petition to challenge the
district court's decision.
During the pendency of this petition, the Legislature passed,
and the governor signed, A.B. 42, which expressly authorizes municipal
courts to hold jury trials for "any mattee within its jurisdiction, which
includes misdemeanor battery constituting domestic violence. 2021 Nev.
Stat., ch. 253, § 8, at 1314; see also NRS 5.050(2). The Legislature also
amended NRS 202.360(1)(a) so that it no longer relies on federal law to
define what constitutes the crime of domestic violence. 2021 Nev. Stat., ch.
253, § 13, at 1320. The amended version restricts the right to possess a
firearm when a person "Has been convicted of the crime of battery which
constitutes domestic violence pursuant to NRS 200.485, or a law of any
other jurisdiction that prohibits the same or substantially similar conduct,
committed against or upon" certain persons in a domestic relationship with
the perpetrator. Id. The bill became effective on January 1, 2022, and
applies to offenses committed before that date if they are "pending or
otherwise unresolved on January 1, 2022." Id. § 17, at 1324. Because the
case against Cullen remains pending in municipal court, the 2021
amendments apply and afford him the right to a jury trial and the municipal
court authority to conduct that trial.
Given A.B. 42, we decline to exercise our discretion to intervene
in this matter. See Zarnarripa v. First Judicial Dist. Court, 103 Nev. 638,
'We note that the City could have appealed the district court's order
granting mandamus relief, see NRS 2.090(2) (providing a right to appeal
from order granting mandamus relief), and a writ of certiorari generally will
not issue if the petitioner has "any plain, speedy and adequate remedy."
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640, 747 P.2d 1386, 1387 (1987) (A writ of certiorari is an extraordinary
remedy and the decision to entertain a petition for a writ of certiorari lies
within the discretion of this court."). The passage of A.B. 42 rendered most
of the City's contentions moot. See Personhood Nev. v. Bristol, 126 Nev. 599,
602, 245 P.3d 572, 574 (2010) (holding that later events may render a once-
live controversy moot). The district court's conclusion that municipal courts
may conduct jury trials is correct under current law, and the firearm
prohibition, which was the basis for its conclusion that the ordinance
conflicted with state law, now applies equally to convictions under
municipal or state law.
The district court arguably erred in concluding that prosecuting
Cullen under the municipal ordinance violated the Ex Post Facto Clause
because Cullen's alleged conduct was already proscribed by NRS 200.485,
and the ordinance did not increase the potential punishment. See State v.
Nakata, 878 P.2d 699, 715 (Haw. 1994) (finding no ex post facto violation
when defendants were prosecuted under a statute amended after the
charged conduct that reduced the penalty for DUI and eliminated right to
jury trial for the offense); see also Weaver v. Graham, 450 U.S. 24, 29 (1981)
(explaining that a law violates the Ex Post Facto Clause when it
retroactively punishes conduct that occurred before its enactment or
disadvantages the offender). However, this error is not, in and of itself,
sufficient to warrant our intervention. The amendments contained in A.B.
42, which permit municipal courts to conduct jury trials and impose the
firearm prohibition for convictions under both the statute and ordinance,
NRS 34.020(2); Ashokan v. State, Dep't. of Ins., 109 Nev. 662, 665, 856 P.2d
244, 246 (1993) (This court has generally declined to entertain petitions for
review of a district court decision where that decision was appealable.").
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render any split in the lower courts over whether individuals can be
prosecuted under the ordinance for conduct occurring before its enactment
unlikely to persist.2 Cf. State v. Second Judicial Dist. Court (Epperson), 120
Nev. 254, 258, 89 P.3d 663, 665-66 (2004) (entertaining writ petition to
clarify important issue of law); City of Las Vegas v. Eighth Judicial Dist.
Court (Charles), 118 Nev. 859, 861 & n.4, 59 P.3d 477, 479 & n.4 (2002)
(entertaining writ petition to resolve split among lower courts), abrogated
on other grounds by State v. Castaneda, 126 Nev. 478, 245 P.3d 550 (2010).
For these reasons, we
ORDER the p on DENIED.3
Parraguirre
J. Sr.J.
Cadish
cc: Chief Judge, Eighth Judicial District Court
Department 8, Eighth Judicial District Court
Henderson City Attorney
The Pariente Law Firm, P.C.
Eighth District Court Clerk
2 Contrary to the argument in Cullen's opposition to the City's notice
of supplemental authorities, the municipal code provision says nothing
about whether a person convicted under it retains the right to possess a
firearm. That question is only addressed by NRS 202.360(1)(a), which now
encompasses convictions under the municipal code provision.
3The motion and amended motion to strike the reply brief and
appendix are denied.
The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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