-GWF Zaragoza et al v. Bennett-Haron et al, No. 2:2011cv01091 - Document 33 (D. Nev. 2011)
Court Description: ORDER Granting in Part and Denying in Part 11 Motion to Dismiss, Granting 12 Motion to Remand, and Denying as Moot 20 Motion to Intervene. Signed by Judge Philip M. Pro on 12/5/11. (Copies have been distributed pursuant to the NEF; CC: Certified copy of Order and Docket Sheet to State Court - ASB)
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-GWF Zaragoza et al v. Bennett-Haron et al Doc. 33 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 12 13 *** ) PHILLIP ZARAGOZA, MICHAEL ) FRANCO, and PETER KRUSE, ) ) Plaintiffs, ) ) v. ) ) JUDGE KAREN P. BENNETT-HARON; ) CORONER P. MICHAEL MURPHY; and ) CHIEF DEPUTY DISTRICT ATTORNEY ) CHRISTOPHER J. LAURENT, ) ) Defendants. ) ) 2:11-CV-01091-PMP-GWF ORDER Presently before the Court is Respondents Karen P. Bennett-Haron, P. Michael 14 15 Murphy, and Christopher J. Laurent’s Motion to Dismiss (Doc. #11), filed on July 22, 2011. 16 Petitioners Phillip Zaragoza, Michael Franco, and Peter Kruse filed an Opposition (Doc. 17 #18) on August 15, 2011. Respondents filed a Reply (Doc. #19) on August 19, 2011. 18 Also before the Court is Petitioners’ Motion to Remand for Lack of Federal 19 Jurisdiction or Under Pullman Abstention (Doc. #12), filed on July 23, 2011. Respondents 20 filed an Opposition (Doc. #17) on August 9, 2011. Petitioners filed a Reply (Doc. #19) on 21 August 19, 2011. Also before the Court is non-party American Civil Liberties Union of Nevada’s 22 23 (“ACLU”) Motion to Intervene Pursuant to FRCP 24(a)(2) (Doc. #20), filed on August 26, 24 2011. Petitioners filed an Opposition (Doc. #23) on September 12, 2011. ACLU filed a 25 Reply (Doc. #24) on September 22, 2011. 26 /// Dockets.Justia.com 1 This matter was reassigned to the undersigned on October 27, 2011. (Min. Order 2 (Doc. #26).) The Court held a hearing on these motions on November 30, 2011. (Mins. of 3 Proceedings (Doc. #32).) 4 I. BACKGROUND 5 This case presents a challenge to Clark County, Nevada’s recently enacted 6 ordinance establishing new procedures in coroner’s inquests involving police officer 7 involved deaths. The case originally was filed in Nevada state court by Petitioners Phillip 8 Zaragoza, Michael Franco, and Pete Kruse. (Pet. for Removal (Doc. #1), Ex. 1.) 9 Petitioners are Las Vegas Metropolitan Police Department officers who were involved in 10 the shooting death of Benjamin Bowman and are among the first officers who would be 11 subject to the new inquest procedures. (Id.) Petitioners brought a Petition in state court 12 seeking a writ of mandamus or a writ of prohibition against Respondents, who are the 13 presiding officer of the inquest, Justice of the Peace Karen P. Bennett-Haron; Coroner P. 14 Michael Murphy; and Chief Deputy District Attorney Christopher J. Laurent, to prohibit 15 these officials from utilizing the new inquest procedures with respect to Petitioners. 16 Petitioners contend the new inquest ordinance violates due process under the U.S. and 17 Nevada Constitutions, violates equal protection under the U.S. and Nevada Constitutions, is 18 void for vagueness under the U.S. and Nevada Constitutions, and violates the Nevada 19 Constitution’s separation of powers clause. Respondents removed the action to this Court 20 based on federal question jurisdiction. (Pet. for Removal.) 21 Petitioners now move to remand, arguing this Court lacks subject matter 22 jurisdiction and, even if the Court has jurisdiction, the Court ought to abstain under 23 Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). Respondents oppose, arguing 24 the Court has subject matter jurisdiction because the Petition asserts claims arising under 25 the U.S. Constitution. Respondents also contend Pullman abstention is inappropriate 26 because the state law claims mirror their federal counterparts. 2 Respondents move to dismiss the Petition, arguing the ordinance does not violate 1 2 the due process or equal protection clauses of the U.S. and Nevada Constitutions, is not 3 void for vagueness, and does not violate the Nevada Constitution’s separation of powers 4 clause. Petitioners oppose, arguing the ordinance deprives them of their due process rights, 5 distinguishes between police officers and citizens and imposes burdens on officers’ 6 fundamental rights, provides for arbitrary enforcement, and violates the separation of 7 powers clause. Finally, ACLU moves to intervene in this action. Petitioners oppose intervention. 8 9 II. MOTION TO REMAND (Doc. #12) Petitioners move to remand this case to state court, arguing no federal question 10 11 jurisdiction exists to support removal because Petitioners seek a writ of mandamus and a 12 writ of prohibition, both creations of state law. Petitioners also argue that because they 13 assert independent state law theories to support their claims, their claims do not depend on a 14 construction of federal law. Petitioners also argue that even if federal question jurisdiction 15 exists, the Court should abstain under Pullman because this case raises substantial questions 16 of state law, the Court may avoid deciding constitutional questions because resolution of the 17 state law questions may moot the federal constitutional questions, and resolution of the state 18 law questions is uncertain. 19 Respondents oppose remand, arguing that because the Petition raises due process 20 and equal protection claims under the U.S. Constitution, federal question jurisdiction exists. 21 Respondents also contend that the Court should not abstain under Pullman for the purpose 22 of allowing the state court to interpret state constitutional provisions that parallel federal 23 constitutional provisions. Respondents contend that Nevada’s due process, equal 24 protection, and separation of powers constitutional provisions mirror their federal 25 counterparts, and the Court therefore should not abstain. 26 /// 3 1 Petitioners reply that while Respondents attempt to re-cast their Petition into 2 seven claims for relief, three federal and four state, that is not how Petitioners pled their 3 Petition as masters of their pleading. Rather, Petitioners contend they pled only two state 4 law claims for a writ of prohibition and a writ of mandamus, and these claims arise only 5 under Nevada state law. Petitioners also argue that because Respondents move to dismiss 6 on the basis that Petitioners lack standing, there is no jurisdiction in this Court. Finally, 7 Petitioners argue Pullman abstention is appropriate because there is no federal counterpart 8 to Nevada’s explicit constitutional provision that prohibits one branch of government from 9 impinging on the functions of another. 10 A. Subject Matter Jurisdiction 11 If the Court lacks subject matter jurisdiction, the Court must remand a removed 12 action to state court. 28 U.S.C. § 1447(c). The Court has original federal question 13 jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the 14 United States.” 28 U.S.C. § 1331. To remove based on federal question jurisdiction, the 15 federal question must be an essential element of the plaintiff’s cause of action. Gully v. 16 First Nat’l Bank, 299 U.S. 109, 112 (1936). The presence or absence of a federal question 17 is determined by the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 18 386, 392 (1987). Under the well-pleaded complaint rule, the plaintiff is the master of his or 19 her complaint, and a plaintiff may defeat removal by choosing not to plead independent 20 federal claims. ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality, 213 21 F.3d 1108, 1114 (9th Cir. 2000). This does not mean, however, that a plaintiff may defeat 22 removal by “omitting to plead necessary federal questions in a complaint.” Id. (quotation 23 omitted). If a federal question is an essential element of the relief sought, a plaintiff may 24 not avoid federal jurisdiction by choosing to ignore the federal question in the complaint. 25 Id. A state-created cause of action arises under federal law: “(1) where federal law 26 completely preempts state law; (2) where a claim is necessarily federal in character; or (3) 4 1 where the right to relief depends on the resolution of a substantial, disputed federal 2 question.” Id. (internal citations omitted). 3 The Petition here seeks relief under two Nevada statutes which grant authority to 4 certain Nevada state judicial bodies and officers to issue a writ of prohibition and writ of 5 mandamus. Specifically, the mandamus statute, Nevada Revised Statutes section 34.160, 6 provides that the Supreme Court, a district court, or a district court judge may issue a writ to 7 “compel the performance of an act which the law especially enjoins as a duty resulting from 8 an office, trust or station.” The prohibition statute, section 34.330, grants the Supreme 9 Court or a district court the power to issue a writ of prohibition under section 34.320 to an 10 inferior tribunal to “arrest[] the proceedings of any tribunal . . . when such proceedings are 11 without or in excess of the jurisdiction of such tribunal . . . .” 12 Petitioners contend they assert two causes of action: one for a writ of prohibition 13 and one for a writ of mandamus. However, under Nevada law, writs of prohibition and 14 mandamus are remedies, not causes of action. See, e.g., State v. Eighth Jud. Dist. Ct., 42 15 P.3d 233, 237 (Nev. 2002) (referring to writ relief as an “extraordinary remedy”); Mineral 16 Cnty. v. State, Dep’t of Conservation & Natural Res., 20 P.3d 800, 805 (Nev. 2001) (same); 17 Scrimer v. Eighth Jud. Dist. Ct., 998 P.2d 1190, 1193 (Nev. 2000) (same); Kussman v. 18 Eighth Jud. Dist. Ct., 612 P.2d 679, 679 (Nev. 1980) (same). Petitioners rely on cases that 19 refer to the writs as “claims” or “causes of action,” but none of those cases are Nevada 20 cases, and Nevada has stated on multiple occasions that the writs are remedies. In any 21 event, the language in the cases upon which Petitioners rely reflects how courts may refer to 22 claims for a certain remedy, like a punitive damages “claim” even though punitive damages 23 is a remedy not a claim. 24 The properly pled Petition asserts seven claims, not two, all of which seek as a 25 remedy either a writ of prohibition or mandamus. Three of those claims arise under the 26 U.S. Constitution, where Petitioners allege the inquest ordinance violates the U.S. 5 1 Constitution’s due process and equal protection clauses. Three of the Petition’s claims 2 therefore “arise under” federal law supporting removal, and the Court has remedial powers 3 comparable to Petitioners’ requested relief, including declaratory and injunctive relief, to 4 effectuate any judgment it renders in this action. This Court will deny the motion to remand 5 for lack of subject matter jurisdiction. 6 B. Standing 7 Petitioners’ argue the Court should remand because in Respondents’ 8 separately-filed motion to dismiss, Respondents argue Petitioners lack standing. At the 9 hearing in this matter, Respondents withdrew their standing argument. However, the Court 10 has an independent duty to ensure its own jurisdiction, including standing. FW/PBS, Inc. v. 11 City of Dallas, 493 U.S. 215, 231 (1990). 12 Petitioners are making a facial attack on the ordinance and the new inquest 13 procedures already have begun or are threatening to begin against them. The inquest 14 hearing was scheduled for July 2011, but was halted pending resolution of this federal case. 15 Petitioners already have been subjected to the new procedures because an ombudsman for 16 the deceased’s family has been appointed and the ombudsman has participated in 17 pre-hearing conferences and motion practice. Petitioners’ injury in the context of a facial 18 attack on the ordinance therefore is not speculative, hypothetical, or unripe; is fairly 19 traceable to Respondents’ conduct given Respondents’ role in the inquest process; and is 20 redressable by this Court through declaratory and injunctive relief. See Friends of the 21 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Petitioners 22 therefore have standing. 23 C. Pullman Abstention 24 Petitioners argue that even if this Court has jurisdiction, it should abstain under 25 Pullman and either dismiss entirely, or sever and remand the state law claims and stay the 26 federal claims pending resolution by the state court. Petitioners argue that given the local 6 1 importance and novelty of the issues and a means to avoid deciding federal constitutional 2 questions which may be unnecessary, the Court should abstain. Respondents argue that 3 Pullman abstention is inappropriate because Pullman abstention should apply only where 4 the state will interpret a provision of its own constitution which has no federal counterpart. 5 Respondents argue Petitioners’ due process, equal protection, and separation of powers 6 state law claims are based on state constitutional provisions which have federal 7 counterparts. 8 9 Pullman abstention “is a narrow exception to the district court’s duty to decide cases properly before it.” Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 10 801 (9th Cir. 2001) (quotation omitted). A district court may abstain “when difficult and 11 unsettled questions of state law must be resolved before a substantial federal constitutional 12 question can be decided.” Id. (quotation omitted). The policy considerations behind 13 Pullman abstention are avoiding unnecessary adjudication of federal constitutional 14 questions and serving state comity considerations. Id. at 801-02. Pullman thus reflects “an 15 equitable doctrine that allows federal courts to refrain from deciding sensitive federal 16 constitutional questions when state law issues may moot or narrow the constitutional 17 questions.” Spoklie v. Montana, 411 F.3d 1051, 1055 (9th Cir. 2005) (quotation omitted). 18 The Court applies a three-part test to determine whether to abstain under 19 Pullman. “First, the case must touch on a sensitive area of social policy upon which federal 20 courts ought not to enter unless no alternative to its adjudication is open.” Columbia Basin, 21 268 F.3d at 802. “Second, it must be plain that the constitutional adjudication can be 22 avoided if a definite ruling on the state issue would terminate the controversy.” Id. 23 “Finally, the possible determinative issue of state law must be uncertain.” Id. 24 Pullman abstention is “particularly appropriate” when the state law question at 25 issue “implicates a state constitutional provision that differs significantly” from its federal 26 counterpart. Id. at 806; see also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 237 n.4 (1984) 7 1 (“The Court has previously determined that abstention is not required for interpretation of 2 parallel state constitutional provisions.”). However, the Court need not remand if doing so 3 “would simply impose expense and long delay upon the litigants without hope of its bearing 4 fruit.” Potrero Hills Landfill, Inc. v. Cty. of Solano, 657 F.3d 876, 889-90 (9th Cir. 2011) 5 (quotation omitted). 6 Pullman abstention is not a jurisdictional question; rather, whether to abstain lies 7 within the district court’s discretion. Smelt v. Cnty. of Orange, 447 F.3d 673, 679 (9th Cir. 8 2006). If the Court abstains under Pullman, the proper course is to retain jurisdiction but 9 stay the action pending resolution of the state law questions in state court, rather than 10 dismissing the case entirely. Columbia Basin, 268 F.3d at 802, 807. Here, the first Pullman factor favors abstention. A community’s relationship with 11 12 its police force and its determination of how unnatural deaths ought to be investigated are 13 matters of local concern. The subject of officer involved deaths in Las Vegas and the 14 subsequent coroner’s inquests have been the subject of significant controversy in the local 15 community, and how to respond to that controversy is an area of sensitive local social 16 policy. 17 The second factor also favors abstention because the Court can avoid deciding 18 the federal constitutional questions by obtaining a definitive ruling on the state issues. If 19 the Nevada courts strike the ordinance on any of the state constitutional grounds, the Court 20 will not have to address the federal constitutional claims. The third factor also supports abstention, as the possible determinative issue of 21 22 state law is uncertain. Because the inquest ordinance is newly enacted, the Nevada state 23 courts have had little opportunity to construe it first. There is currently one state court 24 ruling addressing the ordinance, but it is unclear how the Nevada Supreme Court would 25 resolve the challenges to the ordinance which Petitioners raise in this action. 26 /// 8 1 However, Pullman abstention generally is not appropriate if the state 2 constitutional provision is a mirror image of a federal constitutional provision. Nevada’s 3 equal protection and due process clauses mirror their federal counterparts, and Nevada 4 looks to federal authority for guidance on these provisions. In re Candelaria, 245 P.3d 518, 5 523 (Nev. 2010) (“The standard for testing the validity of legislation under the equal 6 protection clause of the state constitution is the same as the federal standard.” (quotation 7 omitted)); Reinkemeyer v. Safeco Ins. Co. of Am., 16 P.3d 1069, 1072 (Nev. 2001) (stating 8 the Nevada Constitution’s due process clause uses “virtually mirror” language to the U.S. 9 Constitution and Nevada therefore “look[s] to federal caselaw for guidance”). However, 10 the U.S. Constitution does not contain an explicit separation of powers clause. Rather, the 11 federal separation of powers doctrine is based on the structure of the three branches of 12 government within Articles I, II, and III. Crater v. Galaza, 508 F.3d 1261, 1263 (9th Cir. 13 2007). The Nevada Constitution contains the same structural separation of powers in 14 Articles 4, 5, and 6. Comm’n on Ethics v. Hardy, 212 P.3d 1098, 1103 (Nev. 2009). But 15 the Nevada Constitution goes further and contains an explicit separation of powers clause: 16 The powers of the Government of the State of Nevada shall be divided into three separate departments,--the Legislative,--the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution. 17 18 19 Nev. Const. art. 3, § 1. The Nevada Supreme Court has characterized its constitutional 20 separation of powers as “probably the most important single principle of government.” 21 Comm’n on Ethics, 212 P.3d at 1108 (quotation omitted). 22 Nevada’s separation of powers clause has no federal counterpart. While the U.S. 23 Constitution structurally incorporates separation of powers, it has no explicit textual 24 provision like the Nevada Constitution which directs that persons in one branch may not 25 exercise the powers belonging to another branch. Nevada has not indicated that its 26 9 1 separation of powers clause is the mirror image of the U.S. Constitution’s separation of 2 powers achieved only through structure. Nevada also has not stated it will look to federal 3 law for guidance on separation of powers questions. Nor has it done so regularly in 4 practice. See, e.g., Stromberg v. Second Jud. Dist. Ct., 200 P.3d 509, 512-13 (Nev. 2009) 5 (looking to California law); Blackjack Bonding v. City of Las Vegas Mun. Ct., 14 P.3d 6 1275, 1279-80 (Nev. 2000) (citing Nevada and other state law); City of N. Las Vegas v. 7 Daines, 550 P.2d 399, 400 (Nev. 1976) (same); Galloway v. Truesdell, 422 P.2d 237, 242- 8 47 (Nev. 1967) (same); but see Comm’n on Ethics, 212 P.3d at 1103-09 (relying on both 9 state and federal law); Guinn v. Legislature of State of Nev., 76 P.3d 22, 30 (Nev. 2003) 10 (citing federal law). Consequently, Pullman abstention is particularly appropriate with 11 respect to the separation of powers claim. 12 While Pullman abstention is particularly appropriate with respect to the 13 separation of powers claim, it is not favored for the due process and equal protection 14 claims. Therefore, the Court, in its discretion, will keep and decide the equal protection and 15 due process claims under both the U.S. and Nevada Constitutions. Because, as discussed 16 below, the Court will grant Respondents’ motion to dismiss those claims, the Court will 17 sever and remand the separation of powers claim and decline to exercise supplemental 18 authority over that remaining state law claim. See 28 U.S.C. § 1367(c)(1), (c)(3). The 19 Court rejects Respondents’ implication at the hearing that the state court is not suited to 20 hear this case. The Nevada state courts are entirely capable of fairly resolving Nevada 21 constitutional questions, and indeed, those courts are especially suited to do so. The Court 22 therefore will sever and remand the separation of powers claim. 23 III. MOTION TO DISMISS (Doc. #11) 24 Respondents move to dismiss, arguing that as a matter of law, the ordinance 25 survives facial attacks under the due process and equal protection clauses of the U.S. and 26 Nevada Constitutions, and under the separation of powers clause of the Nevada 10 1 Constitution. Petitioners oppose dismissal. Petitioners’ attack on the ordinance is a facial attack which seeks to declare the 2 3 entire ordinance unconstitutional.1 The Court starts with the presumption that the ordinance 4 is constitutional. SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 669 (9th 5 Cir. 2002). A party making a facial challenge to an ordinance must meet a “high burden of 6 proof.” S.D. Myers, Inc. v. City & Cnty. of S.F., 253 F.3d 461, 467 (9th Cir. 2001). The 7 party must establish there is “no set of circumstances” under which the ordinance would be 8 valid. Id. (quotation omitted). The ordinance is not wholly invalid even if it “might operate 9 unconstitutionally under some conceivable set of circumstances.” Id. (quotation omitted). 10 Should such circumstances arise, the aggrieved party then could mount an as-applied 11 challenge to the ordinance. Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). 12 “Facial invalidation is, manifestly, strong medicine that has been employed by the Court 13 sparingly and only as a last resort.” Gospel Missions of Am. v. City of L.A., 419 F.3d 14 1042, 1047 (9th Cir. 2005) (quotation omitted). 15 A. Due Process 16 Respondents argue the Court should dismiss the due process claims because the 17 due process clause is not implicated by the inquest ordinance. Respondents contend that 18 because the inquest ordinance does not make any ultimate finding of guilt or impose any 19 penalty, it does not deprive anyone of life, liberty, or property to trigger application of the 20 due process clause. Respondents also argue that hypothetical harm to Petitioners’ 21 reputation does not amount to a due process violation, both because it is hypothetical and 22 because reputation is not life, liberty, or property protected by the due process clause. 23 /// 24 25 26 1 At the hearing, Petitioners argued they are mounting an as applied challenge, but Petitioners have not identified anything that has happened in the proceedings so far that has denied them of any due process or equal protection rights beyond the asserted facial deficiencies in the ordinance. 11 1 Petitioners respond that because the inquest process is akin to a criminal 2 adjudication and has the power to brand Petitioners as criminals, the due process clause is 3 implicated. Petitioners argue that through the interrogatories presented to the inquest jury, 4 the inquest will find the factual predicate for a criminal adjudication. 5 The Fourteenth Amendment’s procedural due process clause applies only when a 6 constitutionally protected liberty or property interest is imperiled. Bd. of Regents v. Roth, 7 408 U.S. 564, 569 (1972). Consequently, a plaintiff must show deprivation of a liberty or 8 property interest protected by the Constitution to state a due process claim. Wedges/Ledges 9 of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994). 10 The parties dispute which of two U.S. Supreme Court cases govern this dispute, 11 Hannah v. Larche, 363 U.S. 420 (1960) or Jenkins v. McKeithen, 395 U.S. 411 (1969). In 12 Hannah, certain individuals involved in running local elections challenged subpoenas to 13 appear at a hearing before the Commission on Civil Rights regarding alleged voting rights 14 violations. 363 U.S. at 421-22. The Commission was acting pursuant to a “statutory 15 mandate to investigate allegations in writing under oath or affirmation that certain citizens 16 of the United States are being deprived of their right to vote and have that vote counted by 17 reason of their color, race, religion, or national origin.” Id. at 423 (quotation omitted). The 18 Supreme Court concluded that no due process rights were implicated because the 19 Commission’s-- 20 21 22 23 24 function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action. 25 Id. at 441. Hannah set forth the general principles that “when governmental agencies 26 adjudicate or make binding determinations which directly affect the legal rights of 12 1 individuals, it is imperative that those agencies use the procedures which have traditionally 2 been associated with the judicial process.” Id. at 442. However, “when governmental 3 action does not partake of an adjudication, as for example, when a general fact-finding 4 investigation is being conducted, it is not necessary that the full panoply of judicial 5 procedures be used.” Id. The Supreme Court specifically rejected the proposition that 6 collateral consequences, such as the objects of the investigation being subjected to “public 7 opprobrium and scorn,” or the possibility they might lose their jobs or face criminal 8 prosecution, would trigger procedural due process protections. Id. at 442-43. Rather, those 9 individuals would be entitled to the full panoply of procedural protections if and when any 10 11 adjudicatory proceeding was initiated. Id. at 446. Several years later, the Supreme Court addressed whether subjects of an 12 investigation by a special body created by Louisiana statute, the Labor-Management 13 Commission of Inquiry, were entitled to procedural due process protections. In Jenkins, the 14 Commission was created by Louisiana statute with the specific purpose of investigating and 15 finding facts “relating to violations or possible violations of criminal laws of the state of 16 Louisiana or of the United States arising out of or in connection with matters in the field of 17 labor-management relations.” 395 U.S. at 414 (quotation omitted). The Commission could 18 act only upon referral from the Governor when, in his opinion, there was or could be 19 criminal law violations affecting labor-management relations. Id. at 415. The Commission 20 then would hold public hearings to determine the facts relating to the alleged criminal 21 violations. Id. The Commission had to make public findings regarding whether probable 22 cause existed to believe criminal violations occurred. Id. at 416. It had no power to 23 adjudicate criminal violations, but it could make findings with respect to specific 24 individuals and make recommendations to the Governor. Id. at 416-17. The Commission 25 was required to refer the matter to state or federal authorities if it found probable cause a 26 criminal violation had occurred. Id. 13 1 The Supreme Court concluded that under these circumstances, Hannah did not 2 control. Id. at 425. The Supreme Court acknowledged that the Commission did not, strictly 3 speaking, adjudicate rights, but “the Commission exercises a function very much akin to 4 making an official adjudication of criminal culpability.” Id. at 427. Specifically, the 5 Supreme Court noted that the Commission was limited to investigating criminal law 6 violations, it was required to make specific findings of guilt, it was not an independent body 7 of citizens, and it could not act without a referral from the Governor. Id. at 428, 431. The 8 Supreme Court concluded the Commission therefore exercised “an accusatory function; it is 9 empowered to be used and allegedly is used to find named individuals guilty of violating 10 the criminal laws of Louisiana and the United States and to brand them as criminals in 11 public.” Id. at 427-28. The Supreme Court thus held that “where the Commission allegedly 12 makes an actual finding that a specific individual is guilty of a crime, . . . due process 13 requires the Commission to afford a person being investigated the right to confront and 14 cross-examine the witnesses against him, subject only to traditional limitations on those 15 rights.” Id. at 429. 16 Following Jenkins, the Courts of Appeals have reaffirmed the principle in 17 Hannah that where a governmental body performs investigatory, rather than adjudicatory, 18 functions, the procedural due process clause is not triggered. See Trentadue v. Integrity 19 Comm., 501 F.3d 1215, 1237 (10th Cir. 2007) (stating that “[w]hen agencies conduct 20 ‘nonadjucative, fact-finding investigations, rights such as apprisal, confrontation, and 21 cross-examination generally do not obtain.’” (quoting Hannah, 363 U.S. at 446)); Aponte v. 22 Calderon, 284 F.3d 184, 193 (1st Cir. 2002) (“[I]t is clear that investigations conducted by 23 administrative agencies, even when they may lead to criminal prosecutions, do not trigger 24 due process rights.”). 25 26 Here, the coroner’s inquest is more like Hannah than Jenkins. The inquest performs an investigatory function to inquire into the cause of death where a person has 14 1 died by unnatural means. Clark County, Nev., Code § 2.12.080(a). Although a prosecutor 2 is assigned to the inquest, his or her duty is to “serve as a neutral presenter of facts. In this 3 role, the prosecutor shall not act as advocate for any of the interested parties.” Id. 4 § 2.12.080(g). The presiding officer “shall insure that the inquest is conducted as an 5 investigatory and fact finding proceeding and not an adversarial proceeding.” Id. 6 § 2.12.080(m). The interrogatories presented to the inquest jury “shall deal only with 7 questions of fact and shall not deal with questions of fault or guilt.” Id. §§ 2.12.080(m)(7), 8 2.12.140(a). The panel’s findings are not binding on the district attorney’s office and they 9 have no “preclusive effect on any future civil or criminal proceedings.” Id. § 2.12.140(a). 10 The inquest is designed to be an investigatory body, not an adjudicatory or 11 accusatory body. It does not adjudicate any legal rights. It does not recommend any 12 particular action to any other entity, including the district attorney’s office. Whether to 13 initiate criminal charges following an inquest remains solely within the discretion of the 14 prosecuting authorities. The fact that officers may face reputational harms, may suffer 15 adverse employment actions, or may become the subject of a future civil or criminal 16 proceeding are speculative collateral consequences that do not trigger due process 17 guarantees. Any officers who face criminal prosecution or a civil suit will be entitled to the 18 full panoply of due process protections in those proceedings, including any challenge that 19 they cannot obtain a fair trial due to pre-trial publicity occasioned by the fact that the 20 inquest is aired on television. See id. § 2.12.080(k) (requiring officer involved inquests to 21 be aired on the county’s government access television channel). Because the inquest does 22 not adjudicate any legal rights, the due process clause is not triggered, and Petitioners fail to 23 state a due process claim under either the U.S. or Nevada Constitutions. 24 Moreover, the harms Petitioners identify are purely speculative. Petitioners 25 contend the inquest will result in factual interrogatories laying the predicate for criminal 26 charges, such as second degree murder. However, the interrogatories Petitioners present are 15 1 hypothetical interrogatories and thus it is speculation whether any inquest proceeding will 2 ask the questions in the manner Petitioners present. Petitioners also contend they will suffer 3 harm to their reputations and suffer collateral consequences such as adverse employment 4 actions, but that assumes the inquest process will result in a suggestion that they may have 5 engaged in wrongdoing. Even if that is true for some officers, it surely is not the case in all 6 circumstances, and therefore the ordinance survives a facial attack. And because 7 Petitioners do not allege they in fact have suffered any such harms, an as applied challenge 8 is not ripe. 9 The officers also speculate that they may be held in contempt if they invoke their 10 Fifth Amendment right not to testify at the inquest, but that has not happened nor is it 11 certain to occur. The officers contend that they may be limited to a single attorney 12 representing them at the inquest even if there are multiple officers involved and sometimes 13 the officers will have competing interests. The ordinance provides that the officers be 14 represented by one attorney “unless the presiding officer determines otherwise.” Id. 15 § 2.12.080(h)(2). Thus, if such a situation arose, the presiding officer could determine that 16 a single attorney representative would be inadequate. The fact that in some circumstances a 17 single attorney representative would be inadequate does not support facial invalidity, and 18 the ordinance permits the presiding officer discretion to address this scenario. Petitioners 19 also do not have an as applied challenge on this basis. They have not alleged that they 20 requested separate representation and were denied, and they admit that their interests 21 currently are aligned such that a single attorney adequately may represent their interests. 22 (Pet’rs’ Mot. to Remand (Doc. #12), Ex. 1 at 23-24.) The Court therefore will dismiss the 23 due process claims under the U.S. and Nevada Constitutions. 24 B. Equal Protection 25 Pursuant to the equal protection clause, the government must treat all similarly 26 situated persons alike. Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 16 1 2002). The initial step in evaluating an equal protection claim is to identify the asserted 2 classification of groups. Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 3 2005). “The groups must be comprised of similarly situated persons so that the factor 4 motivating the alleged discrimination can be identified.” Id. “[T]he Constitution does not 5 require things which are different in fact or opinion to be treated in law as though they were 6 the same.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (quotation omitted). 7 Once the classification is identified, the Court then determines the proper level of 8 scrutiny to apply. Honolulu Weekly, Inc., 298 F.3d at 1047. The Court applies strict 9 scrutiny if the classification at issue “targets a suspect class or burdens the exercise of a 10 fundamental right.” Id. (quotation omitted). If the distinction is based on a semi-suspect 11 classification, such as gender, the Court applies intermediate scrutiny. Green v. City of 12 Tucson, 340 F.3d 891, 896 (9th Cir. 2003). If neither strict nor intermediate scrutiny 13 applies, the Court reviews for a rational basis. Id. 14 Petitioners’ equal protection claim fails at the first step. The classification at 15 issue is between a death being investigated through the inquest process where a police 16 officer is involved and where no officer is involved. In this context, police officers and 17 private citizens are not similarly situated. Police officers are given extraordinary powers on 18 behalf of the citizenry that private citizens do not have, particularly in the use of force. As 19 stated by the Supreme Court, police officers “are clothed with authority to exercise an 20 almost infinite variety of discretionary powers. The execution of the broad powers vested 21 in them affects members of the public significantly and often in the most sensitive areas of 22 daily life.” Foley v. Connelie, 435 U.S. 291, 297 (1978) (footnote omitted). The public has 23 special interests in ensuring police officer accountability, fostering a trust relationship 24 between police officers and the community they serve, and providing a balanced and 25 transparent investigative process in situations where the police department is called upon to 26 investigate its own officers. These concerns do not arise with respect to the average citizen. 17 1 Even if police officers and private citizens were similarly situated such that equal 2 protection is triggered, only rational basis review applies. Petitioners argue strict scrutiny 3 applies because the ordinance burdens fundamental rights. However, as discussed above, 4 the ordinance does not burden due process rights. Petitioners argue the ordinance burdens 5 the fundamental rights “to cross examine witnesses, to present evidence, to be represented 6 by counsel, to exercise the privilege against self-incrimination, and to be free from 7 unwarranted prosecution.” (Opp’n to Mot. to Dismiss (Doc. #18) at 18.) However, these 8 rights apply only in the context of criminal proceedings. U.S. Const. amend. V, VI. The 9 inquest process is not a criminal proceeding. Consequently, these rights are not implicated 10 11 by the inquest ordinance. To the extent those rights are implicated, the ordinance does not burden those 12 rights. With respect to the rights to cross examine witnesses, present evidence, and be 13 represented by counsel, the ordinance provides for the participation of the officers’ counsel 14 in the pre-hearing conferences to discuss the evidence and witness list, provides for 15 compulsory process by the presiding officer, and provides that the officers’ counsel may 16 question witnesses at the hearing. Clark County, Nev., Code § 2.12.080(h), (j), (m)(2). As 17 to the right against self-incrimination, as discussed above, it is not clear from the face of the 18 ordinance that a Fifth Amendment challenge to a contempt ruling would not prevail. 19 Finally, with respect to the right to be free from unwarranted prosecution, the inquest is not 20 a prosecution and does not necessarily compel a prosecution. The inquest does not refer 21 matters for prosecution and has no binding effect on any future proceeding. Whether to 22 prosecute remains solely within the discretion of prosecuting authorities. Because the 23 ordinance does not burden a fundamental right, rational basis review applies. 24 Under rational basis review, the county commission rationally could have 25 concluded that because the citizenry vests substantial authority in its police officers, an 26 open, transparent, and balanced inquest process would facilitate public confidence both in 18 1 the police and in the inquest process itself. Moreover, the county commission rationally 2 could have concluded that because police officers in essence investigate themselves in an 3 officer involved death, and because the district attorney’s office has either a real or 4 perceived relationship with police officers that it does not have with the average citizen, 5 different procedures are required to ensure both actual meaningful review of police conduct 6 and to preserve the appearance of balanced, meaningful review. The Court therefore will 7 grant the motion to dismiss the equal protection claims under both the U.S. and Nevada 8 Constitutions. 9 10 C. Void for Vagueness (Due Process) Petitioners argue the ordinance is unconstitutionally vague because the presiding 11 officer has unfettered discretion over various aspects of the proceeding, including the 12 burden of proof and the number of votes required for valid findings. Respondents argue 13 that because the hearing does not result in the adjudication of any legal right, the due 14 process clause does not apply. 15 “A law is unconstitutionally vague if it fails to provide a reasonable opportunity 16 to know what conduct is prohibited, or is so indefinite as to allow arbitrary and 17 discriminatory enforcement.” Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1019 18 (9th Cir. 2010) (quotation omitted). However, the law does not require “perfect clarity.” 19 Id. (quotation omitted). “[S]peculation about possible vagueness in hypothetical situations 20 not before the Court will not support a facial attack on a statute when it is surely valid in the 21 vast majority of its intended applications.” Id. at 1021 (quotations omitted). 22 The ordinance is not unconstitutionally vague on its face. First, the ordinance 23 does not prohibit any conduct and therefore it is not unconstitutionally vague for failing to 24 provide a reasonable opportunity to know what conduct is prohibited. Further, while the 25 ordinance leaves some matters to the discretion of the presiding officer, it is not so 26 indefinite as to allow arbitrary and discriminatory enforcement in all of its applications. 19 1 Because the inquest process does not adjudicate any legal rights as discussed above, it is 2 doubtful the ordinance allows for any “enforcement” at all, much less arbitrary or 3 discriminatory enforcement. But to the extent that conducting the proceeding itself 4 constitutes “enforcement,” the ordinance is not so vague and indefinite as to be 5 unconstitutional on a facial attack. The presiding officer is commanded to conduct the 6 proceedings as a fact finding proceeding not as an adversarial proceeding, to limit collateral 7 evidence, to present interrogatories that deal only with questions of fact not questions of 8 fault or guilt, and to conduct a fair and just hearing. 9 Petitioners argue there are no limits on the presiding officer’s selection of an 10 ombudsman for the family of the deceased, and there are no standards on the burden of 11 proof or how many votes constitute valid findings. However, neither of these challenges 12 support a void for vagueness challenge. As to the identity of the appointed ombudsman, 13 Petitioners fail to identify how that has any constitutional significance. Moreover, the 14 ordinance provides that the presiding officer may appoint an ombudsman only from an 15 ombudsperson group established by the board of county commissioners. Clark County, 16 Nev. Code § 2.12.075(b). Consequently, it is not completely at the presiding officer’s whim 17 whom to appoint as ombudsperson. As to the standard of proof or voting protocols, 18 because the inquest does not adjudicate any rights, Petitioners do not show how the burden 19 of proof or voting has constitutional significance. 20 Petitioners rely on Fitzgerald v. Jordan to argue that where an enactment provides 21 for arbitrary enforcement, it is unconstitutionally vague. In Fitzgerald, an Illinois statute 22 permitted a court to deny bail to a criminal defendant for “compelling reasons” pending 23 resolution of the State’s appeal. 747 F.2d 1120, 1129 (7th Cir. 1984). The United States 24 Court of Appeals for the Seventh Circuit upheld the statute against a void for vagueness 25 facial attack, concluding that the statute provided for internal protections through the 26 possibility of appeal and offered some guidance through use of a presumption against 20 1 denying bail. Id. at 1129-31. The Seventh Circuit also rejected the petitioner’s as applied 2 challenge, finding that compelling reasons existed to deny bail pending the State’s appeal. 3 Id. at 1132-33. 4 Fitzgerald does not alter the Court’s analysis. Unlike the inquest ordinance at 5 issue here, the bail statute in Fitzgerald implicated a due process right–the right to liberty. 6 Moreover, the ordinance, like the bail statute in Fitzgerald, provides some guidance to 7 presiding officers on how to conduct the proceedings such that the ordinance is not vague in 8 all its applications. Finally, because Petitioners can identify no constitutionally significant 9 harm that they actually have suffered as yet, there is no basis to find the ordinance 10 unconstitutionally vague as applied. The Court will deny the void for vagueness challenge 11 under both the U.S. and Nevada Constitutions. 12 IV. ACLU’s MOTION TO INTERVENE (Doc. #20) 13 Because the Court is dismissing the due process and equal protection claims and 14 remanding the separation of powers claim, there is nothing left in this Court in which the 15 ACLU can intervene. Accordingly, the Court will deny the ACLU’s motion to intervene as 16 moot, without prejudice to seek intervention in the remanded proceedings in state court. 17 V. CONCLUSION 18 IT IS THEREFORE ORDERED that Respondents Karen P. Bennett-Haron, P. 19 Michael Murphy, and Christopher J. Laurent’s Motion to Dismiss (Doc. #11) is hereby 20 GRANTED in part and DENIED in part. The motion is granted as to the Petition’s claims 21 for due process, equal protection, and void for vagueness under the U.S. and Nevada 22 Constitutions. The motion is denied with respect to the separation of powers claim under 23 the Nevada Constitution, without prejudice to renew in the remanded state court 24 proceedings. 25 26 IT IS FURTHER ORDERED that Petitioners’ Motion to Remand for Lack of Federal Jurisdiction or Under Pullman Abstention (Doc. #12) is hereby GRANTED to the 21 1 extent that Petitioners’ separation of powers claim under the Nevada Constitution is hereby 2 SEVERED and REMANDED to the Eighth Judicial District Court in and for the County of 3 Clark, State of Nevada in Case No. A-11-643622-W. Petitioners’ Motion (Doc. #12) is 4 hereby DENIED in all other respects. 5 IT IS FURTHER ORDERED that American Civil Liberties Union of Nevada’s 6 Motion to Intervene Pursuant to FRCP 24(a)(2) (Doc. #20) is hereby DENIED as moot, 7 without prejudice to renew in the remanded state court proceedings. 8 9 10 11 DATED: December 5, 2011 _______________________________ PHILIP M. PRO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22
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