State v. Dist. Ct. (Plumlee (Jennifer)) C/W 82249 ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA THE STATE OF NEVADA, No. 82236 Petitioner, Ys. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, FILED IN AND FOR THE COUNTY OF CLARK: i AND THE HONORABLE CARLI LYNN MAY 19 2029 KIERNY, DISTRICT JUDGE, ELIZABETH A. BROWN and CLERIC OF § PREME COURT Respondents, BY — San JENNIFER LYNN PLUMLEE, Real Party in Interest. THE STATE OF NEVADA, No. 82249 Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE CARLI LYNN KIERNY, DISTRICT JUDGE, Respondents, and MATTHEW HANEY MOLEN, Real Party in Interest. ORDER GRANTING PETITIONS These original petitions for writs of mandamus challenge the district court’s decisions to grant relief in the misdemeanor appeals filed by real parties in interest Jennifer Plumlee and Matthew Molen based on a separation-of-powers violation relating to Deputy District Attorney Melanie Supreme Court OF Nevapa ©) 19474 EBS Supreme Court OF Nevapa (D) 1947A gE Scheible’s dual service as a prosecutor and legislator.1 The State argues that the district court abused its discretion because Plumlee and Molen forfeited their separation-of-powers claims by not raising them in the trial court. We agree. 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 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 manifest abuse of discretion occurs when there is a clearly erroneous interpretation or application of the law, and “[a]n arbitrary or capricious exercise of discretion is one founded on prejudice or preference rather than 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) Gnternal citations and quotation marks omitted). A writ of mandamus usually will not issue when there is a plain, speedy, and adequate remedy at law. NRS 34.170. It is within the discretion of this court to determine if a petition for extraordinary relief will be considered. Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). We choose to entertain these petitions because they assert a manifest abuse of discretion based on a legal error and the State has no other remedy to challenge the district court’s decisions. See City of 'The State alternatively seeks writs of prohibition. However, “[a] writ of prohibition ... will not issue if the court sought to be restrained had jurisdiction to hear and determine the matter under consideration.” Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980). As the district court had jurisdiction over Plumlee’s and Molen’s appeals, writs of prohibition are not the way to challenge the district court’s decisions. Supreme Court OF Nevapa (0) 19478 We see no reason to treat a dual service separation-of-powers violation differently from the other constitutional errors that may be forfeited if not properly raised before the trial court. Although this court previously stated that “structural protections [like the separation-of-powers doctrine] cannot be waived,” this statement was made in the context of a separation-of-powers violation ‘Our dissenting colleague suggests that it was appropriate for the district court to consider an unpreserved constitutional issue that affects judicial integrity. However, as stated above, the correction of forfeited error, even when the error is deemed structural constitutional error, requires the appellate court to apply plain-error analysis, and the burden is on the appellant to demonstrate there was a plain error that affected his or her substantial rights. Here, the real parties in interest never argued plain error in the district court, and the district court, acting as an appellate court, ignored the State’s forfeiture argument and did not apply plain-error analysis in resolving the appeals. 5Plumlee and Molen mistakenly rely upon Del Papa v. Steffen, 112 Nev. 369, 915 P.2d 245 (1996), to argue that any actions taken by Scheible are void due to a separation-of-powers violation. Actions taken by the court were void in Steffen because the court lacked subject matter jurisdiction to take the challenged actions at all. Jd. at 375, 915 P.2d at 249. But subject matter jurisdiction is not at issue in these cases where the challenges were based on a dual service separation-of-powers violation. See Walcott uv. Wells, 21 Nev. 47, 63, 24 P. 367, 373 (1890) (observing that the question of whether a court has jurisdiction is entirely separate from a challenge to the right of a particular person to hold the office). The justice courts had subject matter jurisdiction over the criminal cases. NRS 4.370(3). Thus, Plumlee and Molen were required to demonstrate actual prejudice or a miscarriage of justice as discussed above. SuPREME Court OF NEVADA (O) IS4TA a rag: ct aS tate 93, 95 (2003) (quoting Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001)); see NRS 178.602 (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). And the majority’s reading of Jeremias v. State, 134 Nev. 46, 50-51, 412 P.3d 43, 49 (2018), to invariably require the appellant to show case-outcome prejudice to satisfy this standard is not one that our caselaw supports. See Barral v. State, 131 Nev. 520, 525, 353 P.3d 1197, 1200 (2015) (noting that an unpreserved structural error—in Barral, the failure to swear in a jury panel before voir dire—was “reversible per se” and that “defendant need not prove prejudice to obtain relief’); Green, 119 Nev. at 545, 80 P.3d at 95 (adopting United States v. Olano, 507 U.S. 725, 735 (1993) for the purposes of plain-error review); cf. Olano, 507 U.S. at 735 (explaining that there “may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome”); Carroll v. State, 132 Nev. 269, 279, 371 P.3d 1023, 1030 (2016) (recognizing that this court may address an unpreserved constitutional issue). One need only briefly consider the issue of discrimination in jury selection—a constitutional error under Batson uv. Kentucky, 476 U.S. 79 (1986)—to see how troubling it would be to require the appellant to show actual prejudice stemming from the State’s plain violation of that standard in every instance. See Olano, 507 U.S. at 743-44 (Stevens, J., dissenting) (citing the example of racial discrimination in the selection of a grand jury and explaining that “[a]t least some defects bearing on the jury’s deliberative function are subject to reversal regardless of whether prejudice can be shown, not only because it is so difficult to measure their effects on a jury’s decision, but also because such defects ‘undermin[e] the structural integrity of the criminal tribunal itself”) (second alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)). Supreme Court OF NEVADA (0) 1N7A