Hill (Kenneth) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
KENNETH WILLIAM HILL, III, No. 66529
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. FEB 1 2 2016
K. LINDEMAN
US
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, puranant to a
guilty plea, of one count of possession of more than one ounce of
marijuana. Fourth Judicial District Court, Elko County; Nancy L. Porter,
Judge.
Appellant Kenneth Hill argues that Nevada's diversion
programs preclude his placement in an out-of-state treatment program
and thus violate the Privileges and Immunities Clause, see U.S. Const. art.
IV, § 2, cl. 1, and the dormant Commerce Clause, see U.S. Const. art. I, § 8,
cl. 3. Hill applied for admission into an NRS 453.3363 diversion program,
and the district court denied the application on the assumption that an
out-of-state program would not be approved by the Division of Public and
Behavioral Health. In response, Hill made only a bare statement that he
intended to appeal the ruling; he provided no basis for the implicit
objection. Issues not preserved below will generally not be considered on
appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991),
overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103
P.3d 25, 33 (2004). While we may consider constitutional issues sua
sponte, we "will not do so unless the record is developed sufficiently both
to demonstrate that fundamental rights are, in fact, implicated and to
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provide an adequate basis for review." Wilkins v. State, 96 Nev. 367, 372,
609 P.2d 309, 312 (1980). The record and arguments before this court do
not provide an adequate basis for review.
Hill has not specified any provision of law that meets the
threshhold requirement for a privileges-and-immunities claim: that there
be discrimination against nonresidents. See United Bldg. St Constr.
Trades Council of Camden Cty. & Vicinity v. Mayor of Camden, 465 U.S.
208, 218 (1984). Hill summarizes the district court's conclusion as a
holding "that the facility be located in Nevada," then states simply that
"[a] tedious review of the Nevada administrative code supports the court's
finding" with a footnote to "[s]ee NAC 449 and NAC 458." 2 Assuming
without deciding that a prohibition against out-of-state treatment
programs is discriminatory against nonresidents—a proposition of which
we are highly dubious in this penological setting—Hill nevertheless fails
to identify any part of the diversion laws that support the district court's
conclusion.
Hill has not identified any provision of the law that violates
the dormant Commerce Clause. The dormant Commerce Clause serves to
"prohibit[ ] States from advancing their own commercial interests by
curtailing the movement of articles of commerce, either into or out of the
'While the State implicitly questions the validity of this conclusion
when it argues that the statutes are not discriminatory either facially or
in effect, Hill elected not to challenge the district court's conclusion in
favor of presenting his current arguments against the statute's
constitutionality. As it has not been presented to us, we do not reach the
question of whether the district court's conclusion was correct.
his reply brief, Hill narrows the scope of regulations to NAC
2 In
458.103 through NAC 458.138.
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state." Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 560-61,
170 P.3d 508, 514-15 (2007) (internal quotation marks omitted). Statutes
that burden interstate commerce are divided into two categories: those
that affirmatively discriminate either facially or in practical effect, and
those that only incidentally burden interstate commerce. Maine v. Taylor,
477 U.S. 131, 138 (1986). Hill argues only the first category and fails to
identify any portion of the relevant laws that would prevent out-of-state
treatment programs from applying for or obtaining certification. He thus
fails to identify any facial or practical discrimination.
For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED. 3
3 The parties filed a joint motion to remand this case to the district
court for an evidentiary hearing in order to create a record as to the basis
for the district court's ruling and to obtain testimony from the division
responsible for certifying treatment programs as to what their policies and
guidelines are regarding out-of-state programs. The motion was denied
with a comment that "No the extent the parties believe that a remand for
such a hearing is the appropriate relief in this matter, they may so argue
in their briefs." Hill v. State, Docket No. 66529 (Order Denying Motion,
March 20, 2015). While the State noted that such a hearing would have
been helpful, Hill did not, and neither party argued in their briefs for
remand for an evidentiary hearing, nor did they request one in the district
court.
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cc: Hon. Nancy L. Porter, District Judge
Elko County Public Defender
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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