JENNIFER A. DORSEY, District Judge.
In July 2017, the Clark County Board of Commissioners sought to remove North Las Vegas Constable Robert L. Eliason from office by declaring that he had forfeited the office because he failed to obtain a statutorily required certification. The Board relied on Nevada Revised Statute 258.007, which requires constables to get certified by the Nevada Commission on Peace Officer Standards and Training (POST) as a category II peace officer within a year of appointment and provides that a constable who fails to do so "forfeits his . . . office and a vacancy is created. . . ." Nevada Revised Statute 258.030 then authorizes the Board "to appoint a person to fill" that vacancy.
Eliason sued the County and POST in state court, and then-Eighth Judicial District Court Judge Elissa F. Cadish found that "a quo warranto action is the exclusive remedy to obtain a declaration that a forfeiture of public office has occurred," and she preliminarily enjoined the board from voting to declare Eliason's forfeiture or replacement. The County removed this case to federal court and asks to vacate the preliminary injunction, while Eliason seeks a declaratory judgment in his favor. Because this case turns on a question of Nevada law, and it appears that there is no controlling precedent in the decisions of the Supreme Court or the Court of Appeals of this state, I certify the following question to the Honorable Supreme Court of Nevada under Rule 5 of the Nevada Rules of Appellate Procedure:
NRS 258.007
Before the vote could occur, Eliason sued the County and POST in the Eighth Judicial District Court, asserting four causes of action: (1) declaratory relief stating that Clark County has no authority to declare a forfeiture of the office, that a quo warranto action under NRS 35.010 et seq. is the exclusive means of declaring a forfeiture of office, and that the Attorney General, at the Governor's direction, is the only party who can bring such an action; (2) injunctive relief or a writ of prohibition enjoining Clark County from adjudicating whether he had forfeited his office; (3) violation of Article IV, Section 20 of the Nevada State Constitution; and (4) violation of Article IV, Section 25 of the Nevada Constitution.
Eliason later amended his complaint to add a claim for a violation of the Americans with Disabilities Act, and the County removed the action to federal court based on federal question and supplemental jurisdiction.
Pullman abstention is unavailable because this case does not present a federal constitutional question—the federal question it presents is entirely statutory, and the constitutional questions it presents are state-based—and the Pullman doctrine is designed to avoid "the premature determination of constitutional questions" when "a federal constitutional issue might be mooted or presented in a different posture by a state court determination of pertinent state law."
No case answers the question of whether NRS 258.007 gives the Clark County Board of Commissioners the power to remove a constable from office or the constitutionality of such a procedure under the Nevada constitution. Clarification from the Supreme Court of Nevada about the applicability and constitutionality of NRS 258.007 will be outcome determinative of the central issue in this case.
Because the most recent adverse order was the preliminary injunction entered against the defendant in state court, the defendants should be the appellants.
The Court defers to the Supreme Court of Nevada to decide whether it requires any other information to answer the certified question. The Court does not intend its framing of the questions to limit the Supreme Court of Nevada's consideration of the issue. Nevertheless, for the Court's convenience, the crossbriefing by the parties is attached.
Having complied with the provisions of the Nevada Rule of Appellate Procedure 5(c), I hereby direct the Clerk of Court for the U.S. District Court for the District of Nevada to
Plaintiff ROBERT ELIASON, an individual and in his official capacity as Constable of North Las Vegas Township files this First Amended Verified Complaint as follows:
1. Of the eleven Constables in Clark County, only two in North Las Vegas and Henderson are subject to a recently-enacted law, NRS 258.007, requiring those constables to obtain a Nevada Peace Officer Standards & Training certification.
2. Plaintiff Robert Eliason, the North Las Vegas Constable, has diligently pursued this certification, but he has a documented neurological condition that prevents him from meeting one part of the physical fitness test of the certification.
3. This action is now necessary because Defendant Clark County erroneously believes it holds the power to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office." Clark County holds no such jurisdiction. Indeed, under well-establishec law, only the courts, and the courts alone, have the power to declare that an elected official has "forfeited" his office in a proceeding called a "writ quo warranto," in a civil action brought by the Attorney General of the State of Nevada. This action is necessary to restrain Clark County's excess of jurisdiction.
4. This action is also necessary because the law in question, NRS 258.007, violates both the Nevada Constitution and the Americans with Disabilities Act.
5. Plaintiff, Constable Robert E. Eliason ("Constable Eliason"), is a resident of Clark County. Nevada.
6. Constable Eliason is 55 years old.
7. Constable Eliason is the North Las Vegas Constable.
8. Constable Eliason was elected in November 2014 and entered office as North Las Vegas Constable on January 2, 2015.
9. Defendant County of Clark ("Clark County") is a political subdivision of the State of Nevada.
10. Defendant Nevada Commission on Peace Officer Standards & Training ("POST Commission") is the regulatory agency that establishes and maintains the laws, regulations, and acts as the governing authority for the behavior, hiring, basic and professional certification, course certification, and training requirements for all law enforcement officers in the state.
11. The POST Commission governing board is appointed by the Governor of the State of Nevada.
12. Six months after Constable Eliason took office, in June 2015, the Legislature passed NRS 258.007 required constables in townships with a population in excess of 100,000 residents located in a county with a population in excess of 700,000 to obtain a category II peace officer certification from the POST Commission within twelve months of taking office (the "Certification Requirements").
13. Stated otherwise, only two constables of all the constables in Nevada are required to obtain Certification Requirements.
14. Constable Eliason has a documented neurological condition that prevents him from meeting one part of the physical fitness test of the Certification Requirements.
15. Constable Eliason's neurological condition thwarted his multiple attempts to receive the Certification Requirements required by the POST Commission.
16. In September 2015 Constable Eliason initiated a series of communications with Mike Sherlock, Executive Director of the POST Commission to explore alternatives to meet the Certification Requirements.
17. In September 2015, Constable Eliason verbally requested that Sherlock put his petition for waiver under NAC 289.370 on an up-coming POST Commission public meeting. A true and correct copy memorializing this conversation is attached as Exhibit 1.
18. Sherlock refused to permit Constable Eliason to seek a medical waiver under NAC 289.370.
19. Because of Sherlock's refusal to permit Constable Eliason to seek a medical waiver, or September 18, 2015, Constable Eliason submitted a written request for an extension from the POST Commission pursuant to NRS 258.007. A true and correct copy of this written requesl is attached as Exhibit 2.
20. On November 5, 2015, Sherlock sent a letter to Constable Eliason confirming the POST Commission had considered and approved his extension request at its November 2015 public meeting. A true and correct copy of this approval is attached as Exhibit 3.
21. Subsequently, Constable Eliason received confirmation from his doctors that his neurological condition will continue to prevent him from meeting one part of the physical fitness test of the Certification Requirements that he could not do beforehand.
22. On April 5, 2016, the Clark County Board of Commissioners authorized the filing of a petition to the POST Commission on behalf of Constable Eliason for a waiver under NAC 289.370. A true and correct copy of the agenda item and some of its supporting materials for this petition is attached as Exhibit 4.
23. Upon information and belief, on June 29, 2016, Sherlock wrote to the Clark County Board of Commissioners stating that Constable Eliason had failed to meet POST Commission Certification Requirements and that Constable Eliason therefore had forfeited his office. Upon information and belief, a true and correct copy of this letter is attached as Exhibit 5.
24. Instead of simply notifying the Clark County Board of Commissioners about Constable Eliason's POST certification status, Sherlock advised and offered a legal opinion to the Clark County Board of Commissioners that it has "the authority regarding non-compliance and appointment to vacated offices.
25. Sherlock did not send a copy of Exhibit 5 to Constable Eliason. Constable Eliason received a copy of Exhibit 5 secondhand.
26. On October 3, 2016, and in light of the Clark County Board of Commissioners' request for waiver pursuant to NAC 289.370, private counsel for Constable Eliason wrote to Sherlock asking by what authority Sherlock sent his June 2016 letter. A true and correct copy of counsel's letter is attached as Exhibit 6.
27. Sherlock ignored counsel's letter.
28. Beginning in January 2017, Constable Eliason turned to the Clark County Office of Diversity to explore other alternatives under the Americans with Disabilities Act ("ADA").
29. On March 6, 2017, the Clark County Office of Diversity wrote to Constable Eliason confirming the receipt of Constable Eliason's formal request. A true and correct copy of the correspondence from the Office of Diversity is attached as Exhibit 7.
30. On or about June 30, 2017, the Office of Diversity informed Constable Eliason that although he was an individual with a disability within the meaning of the ADA, he was not eligible for an accommodation because he did not satisfy the requirements of his position. A true and correct copy of the correspondence from the Office of Diversity is attached as Exhibit 8.
31. On July 5, 2017, the Clark County Board of Commissioners met to consider Sherlock's unsolicited recommended course of action to declare Constable Eliason had forfeited his office. A true and correct copy of Agenda Item 59 is attached as Exhibit 9.
32. Exhibit 9 states, in part, that the purpose of the agenda item is for "the Board of County Commissioners [to] declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office. . . ."
33. At Constable Eliason's request, the Clark County Board of Commissioners continued its consideration of the forfeiture of office for two weeks.
34. Plaintiff incorporates by reference the allegations of the preceding paragraphs as though fully set forth herein.
35. Under NRS 30.010 et seq., this Court has jurisdiction and authority to adjudicate the rights, status, and other legal relations of the parties.
36. A justiciable controversy exists between Plaintiff Constable Eliason and Defendants.
37. Specifically, a justiciable controversy exists between Constable Eliason and Clark County about Clark County's alleged authority to declare a "forfeiture" of the office of the North Las Vegas Township Constable, in that (1) NRS 258.007 confers no such authority on Clark County; (2) the courts are the exclusive province of declaring whether an elected officer has forfeited his office by way of a "writ quo warranto" under NRS 35.010 et seq.; and (3) only the Attorney General, when directed by the Governor, has standing to file a writ quo warranto.
38. A justiciable controversy also exists between Constable Eliason and the POST Commission because NRS 258.007 violates the Nevada Constitution and the Americans with Disabilities Act, and the POST Commission is the entity charged with enforcing NRS 258.007.
39. Plaintiff incorporates by reference the allegations of the preceding paragraphs as though fully set forth herein.
40. NRS 34.320 et seq. grants this Court the power to issue a writ of prohibition to arrest "the proceedings of any tribunal, corporation, board or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person."
41. NRS 258.007 confers no authority on Clark County to "declare a forfeiture" of the office of the Constable of North Las Vegas Township.
42. NRS 35.010 et seq., grants the courts of the State of Nevada exclusive jurisdiction to determine if Constable Eliason has forfeited his office through the filing of a writ quo warranto.
43. NRS 35.010 et seq., grants the right to bring such an action the Attorney General of the State of Nevada and only when he is directed by the Governor.
44. Clark County is without jurisdiction and does not have the authority to make a determination whether Constable Eliason has forfeited his office.
45. Constable Eliason has no plain, speedy, and adequate remedy in the ordinary course of law to redress Clark County's excess of jurisdiction.
46. The Court should issue a writ of prohibition prohibiting or enjoining Clark County from usurping the jurisdiction to adjudicate whether Constable Eliason has forfeited his office.
47. Plaintiff incorporates by reference the allegations of the preceding paragraphs as though fully set forth herein.
48. At all times relevant to this action, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA") was in force and effect in the State of Nevada.
49. The ADA expressly states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
50. Constable Eliason is a qualified individual with a disability within the meaning of the ADA because Constable Eliason has a physical impairment that substantially limits one or more of Constable Eliason's major life activities, more specifically, a documented neurological condition.
51. POST is a public entity as that term is used in Title II of the ADA.
52. NRS 258.007 imposes a duty to meet the Certification Requirements within 18 months of taking the office of constable in only two townships.
53. NRS 258.007 discriminated against Constable Eliason on the basis of disability in violation of Title II of the ADA by requiring that Constable Eliason pass the Certification Requirements notwithstanding his neurological condition.
54. By enforcing NRS 258.007, the law denies Constable Eliason's access to programs, benefits and services provided to others solely on the basis of his disability, thereby violating Title II of the ADA.
55. As a direct and proximate result of the acts, omissions, and violations alleged above. Constable Eliason has suffered damages, including but not limited to pain and suffering, inconvenience, emotional distress, and impairment of quality of life.
56. Constable Eliason has been injured and aggrieved by and will continue to be injured and aggrieved by such discrimination.
57. The Court should enjoin POST from enforcing NRS.258.007 and declare the law invalid.
58. Plaintiff incorporates by reference the allegations of the preceding paragraphs as though fully set forth herein.
59. At all times relevant herein, Article IV, of the Nevada Constitution was in full force and effect in the State of Nevada.
60. Section 20 of the Nevada Constitution prohibits the legislature from passing local or special laws regulating the duties of the constables.
61. NRS. 258.007 imposes a duty to meet the Certification Requirements within 18 months of taking the office of constable in only two townships in Clark County.
62. NRS 258.007 is a special law relating to the duties of constable.
63. NRS 258.007 should be declared unconstitutional as it violates Article IV, Section 20 of the Nevada Constitution.
64. Plaintiff incorporates by reference the allegations of the preceding paragraphs as though fully set forth herein.
65. At all times relevant herein, Article IV, of the Nevada Constitution was in full force and effect in the State of Nevada.
66. Section 25 of the Nevada Constitution requires that the legislature establish uniform laws throughout the state.
67. NRS. 258.007 imposes a duty to meet the Certification Requirements within 18 months of taking the office of constable in only two townships.
68. NRS 258.007 is not uniform as it relates to the duties of the office of constable because it does not impose the same requirements on all offices of constable within the state.
69. NRS 258.007 should be declared unconstitutional as it violates Article IV, Section 25 of the Nevada Constitution because it does not impose the same requirements on all offices of constable within the state.
WHEREFORE, Plaintiff prays for judgment in its favor and against Defendant as follows:
A. For a declaratory judgment finding that Clark County has no jurisdiction to "declare that Robert L. Eliason, the elected North Las Vegas Constable has forfeited his office";
B. For a Writ of Prohibition arresting any proceedings of the Clark County Board of County Commissioners to declare that Robert L. Eliason, the elected North Las Vegas Constable has forfeited his office";
C. For injunctive relief prohibiting any proceedings of the Clark County Board of County Commissioners to "declare that Robert L. Eliason, the elected North Las Vegas Constable has forfeited his office";
D. That this Court declare NRS 258.007 to be in violation of Title II of the Americans with Disabilities Act;
E. That this Court enter an injunction ordering POST and Clark County to cease all discrimination on the basis of disability including but not limited to Constable Eliason;
F. That this Court declare NRS 258.007 unconstitutional and invalid;
G. That this Court award Plaintiff compensatory damages;
H. For an award of reasonable attorney's fees and costs;
I. For any such other and further relief as the Court deems just and proper.
DATED this 2nd day of November, 2017.
ROBERT ELIASON, individually and in his capacity as Constable of North Las Vegas Township, declares under penalties of perjury the following:
I declare under penalty of perjury that the foregoing is true and correct Executed on the
Plaintiff ROBERT ELIASON, an individual and in his official capacity as Constable of North Las Vegas Township ("Constable Eliason") files this PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT. This Motion is made and based upon the attached points and authorities, the papers and pleadings on file herein, and any oral argument the Court may entertain at any hearing.
The gravamen of this action is that Defendant Clark County erroneously maintains that it possesses the unilateral and arbitrary power to remove a sitting, duly-elected constable from office. Nevada law confers no such judicial authority on a local board, and prior to the removal of this action, the State Court enjoined Clark County from this very action.
Constable Eliason now seeks to formalize the State Court's preliminary injunction into a permanent, declaratory judgment from this Court, declaring Clark County's actions as illegal. constable Eliason requests that the Court declare the following:
(1) Only the Nevada State courts may declare a forfeiture of an elected official's office;
(2) Clark County possesses no unilateral authority under Nevada law to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists"; and
(3) Agenda Item 67 on the July 18, 2017 County Commission Meeting, which seeks to "declare that that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists," is illegal under Nevada law.
After the State Court issued the Preliminary Injunction, Clark County removed this action to this Court.
The Declaratory Judgment Act permits a court to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 USC § 2201(a). "[Declaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Eureka Fed. Sav. & Loan Asso. v. Am. Cas. Co., 873 F.2d 229, 231 9th Cir. 1989) (internal citations and quotations omitted).
Here, the Court's declaratory judgment will serve a useful purpose in clarifying and Settling the purely legal issue of whether, under Nevada law, Clark County has the unilateral power to remove a duly-elected officer from his elected-office without any court proceeding, whatsoever. The Court's declaratory judgment will also afford relief from the uncertainty surrounding Clark County's illegal actions—actions that gave rise to the instant proceeding.
No Nevada law grants Clark County the authority to unilaterally and arbitrarily declare a forfeiture of the constable's office. Declaring a "forfeiture" of an elected office is manifestly a judicial function performed by the courts by issuing a writ quo warranto. NRS 35.010(2). The statute provides that "[a] civil action may be brought in the name of the State [a]gainst a public officer . . . who does or suffers an act which, by the provisions of law,
Moreover, Clark County does not even possess the standing to file a writ quo warranto, In this case, standing to institute a civil action for quo warranto rests solely with the Attorney General at the direction of the Governor. NRS 35.030; see also, Lueck v. Teuton (In re Teuton), 219 P.3d 895, 898 (2009) (no general standing to request writ quo warranto),
Indeed, prior to removal of this action, the Preliminary Injunction previously issued enjoined Clark County from declaring a forfeiture of the North Las Vegas Constable's Office, The State Court made, among others, the following Findings of Fact and Conclusions of Law:
In accordance with the State Court's Preliminary Injunction, Constable Eliason now seeks a judgment from this Court declaring the following: (1) only the Nevada State courts may declare a forfeiture of an elected official's office; (2) Clark County possesses no unilateral authority under Nevada law to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists"; and (3) Agenda Item 67 on the July 18, 2017 County Commission Meeting, which seeks to "declare that that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists," is illegal under Nevada law.
DATED this 17th day of August, 2018.
Plaintiff ROBERT ELIASON, an individual and in his official capacity as Constable of North Las Vegas Township ("Constable Eliason") filed his Motion for Issuance of Writ of Prohibition, or in the alternative Preliminary Injunction ("Motion"), against Defendant CLARK COUNTY ("Clark County"). Clark County filed an Opposition to the Motion, Constable Eliason filed a Reply in support of his Motion. The Court held a hearing and heard oral argument from counsel for both parties.
This Court, having reviewed and considered the papers and pleadings on file herein, and having entertained oral argument, and good cause appearing therefore, the Court hereby makes the following Findings of Facts, Conclusions of Law and Order.
IT IS HEREBY ORDERED that:
DATED this
COMES NOW Defendant CLARK COUNTY, by and through its counsel of record, THOMAS D. DILLARD, JR., ESQ., of the law firm of OLSON, CANNON, GORMLEY, ANGULO & STOBERSKI and hereby opposes Plaintiff's Motion for Declaratory Judgment [Doc. #41] and moves for reconsideration of the state court order dated August 18, 2018.
This Opposition is made and based upon all the pleadings and papers on file herein, the attached points and authorities, together with any argument that may be introduced at the time of hearing this matter.
The parties evidently agree that issues presented to the Court with regard to Plaintiff's claims against Clark County are questions of law. The facts are undisputed that Plaintiff, the las elected North Las Vegas Constable, has not become a category II, certified peace officer by die extended deadline permitted by NRS 258.007(1) even though more than two years has elapsed since the deadline passed.
Plaintiff obtained a preliminary injunction order from the state court prior to removal that should have been narrowly tailored to whether NRS 258.007 provides an independent basis for removal.
1. In 2013, the Nevada Legislature passed NRS 258.007 placing requirements on certain constables of larger townships to comply with certain Nevada Peace Officers Standard and Training ("POST") requirements set forth in NRS Chapter 289.
2. The City of North Las Vegas qualified as one of those townships at that time because it had a population well in excess of 220,000 and it is located in Clark County that had a population then of approximately 2,000,000.
3. Plaintiff Robert Eliason was elected in 2014 and took, office as the North Las Vegas Constable on January 4, 2015.
4. On November 5, 2015, Plaintiff obtained a six month extension from the State of Nevada POST Commission pursuant to NRS 289.550 and consequently had until July 4, 2016 to complete minimum standards of training for category II peace officers pursuant to NRS 289.150 to continue to hold his elected office.
5. On June 29, 2016, the State of Nevada POST Commission sent the Clark County Commission a written notice that Plaintiff had not met the requirements of NRS 289.550; consequently, he was declared to not be a certified peace officer. The correspondence further stated that this failure to complete the training results in the forfeiture of his office pursuant to NJRS 258.007 and provided Clark County a notification that he does not have any peace officer powers.
6. On July 5, 2017, a year following the POST notification, the Assistant County Manager cleared item 67 for the agenda for the July 18, 2017 meeting to proceed with Clark County's statutory obligations under NRS 258.330
7. On July 14, 2017, Plaintiff obtained an ex parte order for a temporary restraining order enjoining the Board of County Commissioners ("BCC") from proceeding with item 67 on the agenda for meeting on July 18, 2017.
8. On August 16, 2017, the Eighth Judicial District Court of Nevada, the Honorable Judge Elissa F. Cadish, entered an order granting Plaintiff's motion for a preliminary injunction and enjoined Clark County from "proceeding during the pendency of this action in voting on or declaring the forfeiture of Robert Eliason of the Office of Constable of North Las Vegas Township or filling a vacancy for the office "unless such vacancy is declared pursuant to a Nevada court in a writ of quo warranto."
The district court further concluded as a matter of law that "Clark County does not have authority to maintain a Quo Warranto action.
9. Clark County then removed the item from the BCC meeting agenda scheduled for July 28, 2017 and has taken no action with respect to the issue since that time pursuant to the court's order.
10. On November 2, 2017, Plaintiff filed a First Amended Complaint and included, or the first time, a federal claim for relief pursuant to the American With Disabilities Act of 1990, 42 U.S.C. § 1201.
11. On December 8, 2017, Defendant Clark County removed the action to the U.S. District Court of Nevada based upon federal question jurisdiction.
12. On February 5, 3018, the State of Nevada Office of the Attorney General issued AG Opinion No. 2017-14.
The AG opinion further stated:
13. On August 17, 2018, Plaintiff filed a motion for declaratory judgment pursuant to 28 U.S.C. § 2801 requesting the U.S. District Court of Nevada to declare the following:
14. Plaintiff has still not obtained a Nevada POST category II certificate, despite jeing now well over two years late, that is required to continue to officiate in the office of the North Las Vegas Constable pursuant to NRS 258.007(1).
The Nevada Legislature in NRS 283.440 clearly gave Clark County standing to take action to remove Plaintiff as the Constable of North Las Vegas for "nonfeasance" when he failed to comply with the training and certification requirements imposed by NRS 258.007(1). The statute erects a procedure for persons, including municipal entities, to seek the removal of a person from any office in Nevada that is not expressly exempted for both malfeasance and nonfeasance. The district court's order making the determination that quo warranto was the exclusive procedure to remove Plaintiff from office and Clark County had no standing to file am such action is plainly inconsistent with this statute.
NRS 283.440 (Removal of certain public officers for malfeasance or nonfeasance: procedure; appeal) is a separate procedure than quo warranto that the district court failed to account for when issuing the preliminary injunction order. NRS 283.440(1), in pertinent part, states the following:
(emphasis added).
The statute plainly gives "any complainant" standing to file a verified complaint in court alleging that the constable refused or neglected to perform duties prescribed by law for failure to he failure to comply with NRS 258.007(1). As summarized by the attorney general's office, "any person may make a certified complaint against a constable who has refused or neglected to perform his official duties as prescribed by law." (Exhibit "C" pg. 3). After the complaint if filed, "the court will issue an order to show cause to consider the charges of the complaint. NRS 583.440(2)."
The Court should not, therefore, grant Plaintiff declaratory judgment to the extent he seeks an order declaring that Clark County does not have the legal authority to seek his removal from office. Nevada law does not immunize office holders from removal from office outside of quo warranto, codified in NRS 35.010. Put differently, Nevada law does not limit actions to remove public officials from office to those brought by the State of Nevada or those persons having an interest in the office themselves. The Court should affirmatively declare Clark Count may file a complaint pursuant to NRS 283.440(2) without being in violation of any order in this instant action.
Clark County also has authority under state law to abolish the office of the North Las vegas Constable on a determination that the office is "not necessary." NRS 258.010, in pertinent part, states:
Clark County thus has lawful authority to remove Plaintiff from office, outside of quo warranto, through abolishing the office altogether. This is another avenue available for Clark County to remove Plaintiff from office upon exercising its discretion and finding the office is no necessary.
Clark County maintains Plaintiff forfeited his office as a matter of self-executing statutory law pursuant to NRS 258.007(2) when he did not obtain a category II peace officer certification from Nevada POST by July 4, 2016. The district court failed to properly interpret NRS 258 creating an independent basis for ouster of a constable from office that failed to comply with the clear-cut training requirements of the office. NRS 258.007 states:
The word forfeit in the statute is dispositive-particularly because it is directly attached with the failure to comply with obtaining a category II certificate from the Nevada Peace Officers' Standards and Training Commission.
It has been widely recognized that the word in a statute involving the failure to meet necessary and unambiguous requirements is proof positive that the drafter intended the provision to be self-executing.
In these circumstances, the courts should thus give effect to that intention whenever the question is presented in a judicial inquiry. The language of the law in question is plain and unambiguous and the court must give effect to the law according to its plain and obvious meaning. The statute affirmatively states the office is forfeited upon the failure to become a category II peace officer in the appointed time. The word forfeits makes clear that the triggering event has already occurred and requires no further action to be so. If the legislature intended that the lack of a POST certification certificate was not sufficient in and of itself, it would have used the language "may become forfeited," but it did not do so. The legislature also could have stated that the office holder "may be removed" had they intended for a separate court action be filed to effectuate the removal—as they did in NRS 283.440(1). There is no question of fact in this case that Plaintiff did not meet this requirement and so the forfeiture of his office has already occurred.
Plaintiff effectively rewrites the statute by ignoring the terms "forfeit" and "must" in an attempt to transform this mandatory, self-executing, and immediate forfeiture and office vacancy into a non-immediate, discretionary process (requiring a court to grant a petition which has limited standing). When interpreting a statutory provision, the court must first look to die plain language of the statute.
Plaintiff's interpretation would contravene a cardinal rule of statutory construction to avoid an interpretation that renders a statute in whole or in part superfluous or a nullity.
The case Plaintiff principally relied upon in his motion practice before the district court, does not suggest that there is any other way to interpret the subject statute. The case of
Plaintiff suggests this case stands for the proposition that only the Attorney General or a person claiming to be entitled to the office of North Las Vegas Constable's office represent the only persons having standing to remove him from his office. This is a fair reading of those having standing pursuant to NRS Title 35. The case however does not set the limits on the universe of possibilities as to how an office holder can lose his or her office due to nonfeasance or misfeasance. Clearly, the duly elected Nevada legislature is empowered to pass legislation creating alternative means of removal of a state officeholder from office, just like it did when it passed NRS Chapter 35 (Quo Warranto). This is of course precisely what occurred when the legislature passed NRS 258.007 creating a self-executing statute removing a constable from office upon failure to fulfill Nevada POST requirements in the allotted time.
In addition, the legislature also passed a very specific statute applying to constables directly, as opposed to the general Quo Warranto statute that has application to all state public offices.
Plaintiff does not argue that he has complied with the POST certification requirements of "JRS 258.007(1). He rather only contends Clark County lacks authority to move forward on replacing him as the North Las Vegas Constable under NRS 38.007(1). This argument is at odds with the plain language of the statute. Plaintiff's concession that he has not obtained a category II peace officer certification from Nevada POST by the extended deadline of July 4, 2016 triggers the self-executing forfeiture provision of NRS 38.007(2). Plaintiff consequently forfeited his office by operation of statutory law at that time. There is absolutely no statutory requirement for Clark County to obtain a judicial declaration before replacing Plaintiff in this public office. Clark County therefore has full authority afforded by NRS 38.007(2) and NRS 38.030 to put the matter on a public meeting agenda and fulfill its ministerial duty set forth in these statutes. The Court should accordingly deny Plaintiff's motion, reverse the state court order and dismiss Plaintiff's claim for declaratory judgment and a writ of prohibition.
Although the term "Motion for Reconsideration" is not specifically mentioned in the Federal Rules of Civil Procedure, motions for reconsideration are certainly permissible in Federal practice. "Reconsideration, as generally used, is a reconsideration by the same Court at which the original determination was made."
In the instant case and as set forth in section III, there are clear errors of law with the state court order granting the motion for preliminary injunction to warrant reconsideration of the issues now. In fact, the district court judge entered the order fully intending that it was not to be a permanent order and that reconsideration of the issues was expected because the court "declines to issue a writ of prohibition." (Exhibit "C" pg. 2 lines 5-6). The dicta portion of the order pertaining to quo warranto is particularly appropriate for reconsideration because it was included in the order even though it was not fully and fairly litigated before the district court, it i in clear error because it conflicts with Nevada statutes not considered by the state court and is highly prejudicial to Clark County because it may foreclose clear-cut statutory rights. In addition, the portion of the order limiting the application of NRS 258.007 by misinterpreting the section regarding the office being forfeited upon failure to timely comply with the peace officer training requirement is also in clear error and worthy of reconsideration. Therefore, Clark County respectfully submits that the clear errors in the prior court order should be reconsidered and reversed by this Honorable Court.
IN ACCORDANCE WITH THE FOREGOING, the Court should deny Plaintiff's motion for a declaratory judgment pursuant to the Declaratory Judgment Act of 28 U.S.C. § 2201 because state law authorizes the removal of Plaintiff from office through several procedures and Clark County is not legally foreclosed from taking action to do so through the courts or by an independent action. The Court should also grant Clark County's motion for reconsideration of the Eighth Judicial District Court's order granting a preliminary injunction by declaring that quo warranto is not the exclusive remedy to be able to remove Plaintiff from office and that NRS 258.007 is an independent basis to declare that Plaintiff has forfeited his office.
RESPECTFULLY SUBMITTED this
TO: CLARK COUNTY.
TO: THEIR ATTORNEYS OF RECORD.
PLEASE TAKE NOTICE that an Order was entered in the above-entitled matter on August 18th, 2017.
A copy of said Order is attached hereto.
I hereby certify that on this 21
Plaintiff ROBERT ELIASON, an individual and in his official capacity as Constable of North Las Vegas Township ("Constable Eliason") filed his Motion for Issuance of Writ of Prohibition, or in the alternative Preliminary Injunction ("Motion"), against Defendant CLARK COUNTY ("Clark County"). Clark County filed an Opposition to the Motion. Constable Eliason filed a Reply in support of his Motion. The Court held a hearing and heard oral argument from counsel for both parties.
This Court, having reviewed and considered the papers and pleadings on file herein, and having entertained oral argument, and good cause appearing therefore, the Court hereby makes the following Findings of Facts, Conclusions of Law and Order.
IT IS HEREBY ORDERED that:
Dear Governor Sandoval:
By letter dated September 29, 2017, you have requested an opinion from the Office of the Attorney General, under NRS 228.150, on one question:
What legal mechanisms exist by which a county may remove a constable or other official who has failed to fulfill the statutory requirements of office?
A constable in a township whose population is 100,000 or more, when located in a county whose population is 700,000 or more, must be certified as a category II peace officer within one year after the date on which the constable commenced his or her term of office or appointment, unless the Peace Officers' Standards and Training Commission (POST), for good cause shown, grants an extension of time not to exceed 6 months. When the constable of such a township fails to become POST certified, the board of county commissioners may declare a forfeiture of the office. NRS 258.007, 289.550. Your question concerns the legal process by which a county must formalize or adjudicate the forfeiture of office. In this case, a district court has concluded that the constable may not be removed from office except by way of a quo warranto action filed at the request of the Governor and prosecuted by the Attorney General pursuant to NRS 35.030. The county in question has now requested the Governor to direct that the Attorney General file a quo warranto action to remove the constable from office.
Quo warranto is not the exclusive remedy to challenge the authority of a county official to hold office. Because a constable is not a state officer, his right to hold a public office, after having failed to satisfy the requirements of NRS 258.007, may also be challenged pursuant to NRS 283.440.
An action in quo warranto is an action directed against a person who usurps or unlawfully holds a public office, or against a public officer who does or suffers an act which, by the provisions of law, works a forfeiture of the office. NRS 35.010. Quo warranto proceedings originated at common law, but the right to commence an action in quo warranto has since been codified at NRS Chapter 35. As codified, quo warranto is used at the prerogative of the government with few exceptions.
It has been argued that quo warranto is the exclusive means of challenging a county officer's right to hold office. Although cited as authority for this proposition, Heller v. Legislature, 120 Nev. 456, 93 P.3d 746 (2004), is not on point. Heller stands for the simple proposition that the separation of powers doctrine bars the exercise of quo warranto powers as a means to remove a legislator from his or her position in the legislature. Id. at 463-64, 93 P.3d. at 751. In Heller, the Secretary of State had filed a petition for writ of mandamus, and, in dicta, the Court said the proper vehicle to challenge a legislator's title to public office is a writ of quo warranto. However, the Court did not hold that an action in quo warranto is the exclusive means by which to challenge a person's right to hold public office.
In fact, the Legislature has provided additional means to challenge the authority of an individual to hold public office. In 1909, the Legislature passed "an act providing for the removal from office of public officers for malfeasance or nonfeasance in office," now codified at NRS 283.440.
Both NRS Chapter 35, which addresses actions in quo warranto, and NRS 283.440 provide methods to enforce a right that existed in the common law, namely the right of the public to ensure that public officers are qualified and fulfilling their duties under the law. A statute creating a method of enforcing a right which existed before the statute's enactment is regarded as cumulative rather than exclusive of preexisting remedies. Ewing v. Fahey, 86 Nev. 604, 607, 47 P.2d 347, 349-50 (1970). Furthermore, there is no language in current statutes that suggests a legislative intent to abrogate common law remedies or replace them with mutually exclusive statutory remedies, Orr Ditch & Water Co. v. Justice Court of Reno Tp., Washoe County, 64 Nev. 138, 34, 178 P.2d 558, 571. (1947), so these remedies should he considered cumulative.
The question here concerns the removal of a constable for failing to fulfill a statutory duty, that is, becoming POST certified within the time required by statute or the reasonable extension of time. A constable's failure to become POST certified within the time required by statute is reasonably defined as "nonfeasance" or the "total neglect" of a duty necessary for the position. See Schumacher v. State ex rel. Furlong, 78 Nev. 167, 171, 370 P.2d 209, 211 (1962), citing Moulton v. Scully, 111 Me. 428, 434, 89 A. 944, 947 (1914). Nonfeasance, such, is a basis for removal pursuant to NRS 283.440. Id.
It does not change the analysis that a constable's failure to become POST certified results in a "forfeiture" of the office of constable. See NRS 258.007(2) (stating that "the constable forfeits his or her office and a vacancy is created which must be filled in accordance with NRS 258.030"). Whether there has been a forfeiture of office is a question of fact that must be adjudicated by a court of competent jurisdiction. The commencement of a civil action would ordinarily, but not necessarily, lead to a finding by the court that the office is vacant and available for appointment. The civil action may be commenced as an action in quo warranto, pursuant to NRS 35.010, or as an action alleging nonfeasance in violation of NRS 283.440, as made applicable by operation of NRS 258.007.
Comes Now Defendant, STATE OF NEVADA ex rel. its NEVADA COMMISSION ON PEACE OFFICERS' STANDARDS AND TRAINING (POST Commission), by and through its counsel, ADAM PAUL LAXALT, Attorney General for the State of Nevada, and MICHAEL D. JENSEN, Senior Deputy Attorney General and hereby files its Response to Plaintiff's Motion for Declaratory Judgment [Doc. #41]. The Commission's Response is based on the attached Memorandum of Points and Authorities, all relevant papers and pleading on file herein, and all relevant rules of law.
The Plaintiff, ROBERT ELIASON, filed a First Amended Verified Complaint (Amended Complaint) in Eighth Judicial District Court, Clark County, Nevada on November 12, 2017. In his Amended Complaint, the Plaintiff alleges that he has a "documented neurological condition that prevents him from meeting one part of the physical fitness test for certification." Amended Complaint, page 1. lns. 1-3. The Plaintiff alleges that he has diligently pursued P.O.S.T. certification but he has not been able to meet one part of the physical fitness test for P.O.S.T. certification. With regard to the purpose of the lawsuit, the Plaintiff alleges:
Id. at lns. 12-13.
NRS 258.007 reads as follows:
NRS 258.030 reads as follows:
In the "Parties and Jurisdiction" section of Plaintiff's Amended Complaint, he states that he was elected in November 2014 and entered office as North Las Vegas Constable on January 2, 2015. Amended Complaint, p. 2, lns. 19-20. The POST Commission, at its meeting in November 2015, granted the Plaintiff a six-month extension of time to obtain POST certification up to July 2016. The Plaintiff did not receive POST certification by July 2016. The Plaintiff alleges that on July 5, 2017, "the Clark County Board of Commissioners met to consider Sherlock's unsolicited recommend course of action to declare Constable Eliason had forfeited his office." The agenda item for the Board's meeting is alleged to provide as follows: "the Board of County Commissioner [to] declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office. . ." Amended Complaint, p. 5, lns. 6-12. At Constable Eliason's request, the Clark County Board of Commissioners continued its consideration of the forfeiture of office for two weeks.
The Plaintiff's Amended Complaint contains five claims for relief: (1) First Claim for Relief — Declaratory Relief — Clark County and POST, pursuant to NRS 30.010 et seq. seeking a declaration that NRS 258.007 confers no authority on Clark County to declare a forfeiture of the office of the North Las Vegas Township Constable, that the courts are the exclusive province of declaring whether an elected official has forfeited his office by way of a "writ quo warranto," under NRS 35.010 et seq., and that only the Attorney General, when directed by the Governor, may bring such an action. Additionally, under this Claim for Relief, the Plaintiff alleges NRS 258.007 violates the Nevada Constitution and the American with Disabilities Act and that the POST Commission is the entity charged with enforcing NRS 258.007; (2) Second Claim for Relief — Injunctive Relief, or in the alternative, a Writ of Prohibition — pursuant to NRS 34.320 et seq., seeking a writ of prohibition enjoining Clark County from "usurping the jurisdiction to adjudicate whether Constable Eliason has forfeited his office;" (3) Third Claim for Relief — Title II of the Americans with Disabilities Act, State and Local Governments — seeking to enjoin the POST Commission from enforcing NRS 258.007 and declaring the law valid; (4) Fourth Claim for Relief — Article IV, Section 20 of Nevada Constitution, Certain Local and Special Laws Prohibited seeking a declaration that NRS 258.007 is a local or special law relating to the duties of the constable, and a declaration that the law is unconstitutional as it violates Article IV, Section 20 of the Nevada Constitution as a local or special law; and (5) Fifth Claim for Relief — Article IV Section 25 of the Nevada Constitution — Uniform County and Township Government — seeking a declaration that NRS 258.007 should be declared unconstitutional because it violates Article IV, Section 25 of the Nevada Constitution because it does not impose the same requirements on all offices of constable within the state. Amended Complaint, p. 5-9.
In the State District Court, the Plaintiff sought and obtained an Order Granting Preliminary Injunction through which the Court enjoins and restrains Clark County and its governing body, the Board of County Commissioners, from proceeding during the pendency of this action in voting or declaring the forfeiture of Robert Eliason from the Office of Constable for the North Las Vegas Township, enjoins Clark County and its governing body, the Board of County Commissioners, and its agents and employees from proceeding during the pendency of the action in filling any vacancy in the Office of the Constable of North Las Vegas Township, unless such vacancy is declared pursuant to a Nevada court in a writ quo warranto. The Order Granting Preliminary Injunction was issued on August 16, 2017.
On December 8, 2017, Clark County filed a Notice of Removal of Civil Action to the United States District Court for the District of Nevada. The removal to Federal District Court is supported by the single Federal law claim alleging NRS 458.007, by its own terms, violates Title II of the Americans with Disabilities Act. The parties are currently engaged in discovery, which ends on November 5, 2018. [Doc. #37].
On August 17, 2018, the Plaintiff filed his Motion for Declaratory Judgment, pursuant to 28 U.S.C. § 2201(a), through which he seeks a judgment from this Court declaring (1) only the Nevada State Courts may declare a forfeiture of an elected official's office; (2) Clark County possesses no unilateral authority, under Nevada law, to declare Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that the vacancy for such office exists; and (3) the agenda item, on the July 18, 2017 Clark County Commission meeting agenda, through which the Commission seeks to declare that the Plaintiff has forfeited his office and that a vacancy in such office exists is illegal under Nevada law.
The POST Commission files this response for the sole purpose of requesting the Court abstain from issuing a Federal Declaratory Judgment on these purely state law questions, and requests the Court certify these Nevada statutory and Nevada Constitutional questions to the Nevada Supreme Court.
In R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941), the United States Supreme Court held that federal courts should abstain from exercising jurisdiction in a matter when an unsettled area of state law has an effect on the outcome of a federal constitutional claim or would render a decision on the federal claim unnecessary. See also, San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1104-1105 (9
Plaintiff's request for a declaratory judgment involves unsettled questions of state law. While the State District Court entered a preliminary injunction, the Court's finding, for purposes of the preliminary injunction, was only that Plaintiff had a substantial likelihood of success on these state law matters. Significantly, the Nevada Supreme Court has not interpreted NRS 458.007. The plain language of the statute provides for the forfeiture of office if a constable fails to become certified by the POST Commission within one year of taking office, or within any extension granted by the POST Commission not to exceed 6 months.
The Nevada Office of the Attorney General has opined on a related question. See Nevada Attorney General Opinion 2017-14. By letter dated September 29, 2017, the Governor requested an opinion from the Office of the Attorney General on the following question: "What legal mechanisms exist by which a county may remove a constable or other official who has failed to fulfill the statutory requirements of office?" The section of the Opinion entitled "Summary of Conclusion" reads: "Quo warranto is not the exclusive remedy to challenge the authority of a county official to hold office. Because a constable is not a state office, his right to hold a public office, after failing to satisfy the requirements of NRS 258.007, may also be challenged pursuant to NRS 283.440." Id. at p. 2. In the concluding two paragraphs of the Opinion, the Nevada Office of the Attorney General opines:
Id. at p. 4.
The Attorney General Opinion is not binding legal authority on this issue. Cannon v. Taylor, 88 Nev. 89, 91, 493 P.2d 1313, 1314 (1972). Additionally, the legal analysis in this opinion underscores the point that the legal issues related to the legal mechanisms to remove an elected constable from office, who fails to meet the statutory mandate set out in NRS 458.007, is far from settled law in Nevada. Per the Amended Complaint, the Plaintiff is seeking a declaration, pursuant to the state declaratory relief statutes, that the Clark County Commission does not have the authority to unilaterally declare he has forfeited his office for failure to meet the statutory POST certification mandate and it does not have authority to fill a vacancy in the office without a court declaration that he has forfeited his office. Per the Preliminary Injunction, the Plaintiff is protected from any action by the Clark County Commission to declare he has forfeited his office and filling his office during the pendency of this action. Additionally, the primary state law declarations the Plaintiff is seeking through this action are novel and unsettled. Through his Amended Complaint, Plaintiff is primarily seeking declarations, pursuant to the Nevada declaratory relief statutes (NRS Chapter 30), that NRS 258.007 is unconstitutional under two provisions of the Nevada State Constitution (Article IV, Section 20 and Article IV Section 25).
In determining whether to abstain under the Pullman abstention doctrine, the Ninth Circuit follows a three part test: (1) the complaint touches a sensitive area of social policy upon which federal courts ought not to enter unless no alternative to its adjudication is open; (2) such constitutional adjudication plainly can be avoided if a definitive ruling on the state law issue would terminate the controversy; (3) the possibly determinative issue of state law is doubtful. Canton v. Spokane Sch. Dist. #81, 198 F.2d 840, 845 (9
The first prong of the test is met. The process through which an elected constable "forfeits" his of her office and the constitutionality of a statute enacted by the Nevada Legislature related to the forfeiture of office of an elected constable touch upon sensitive areas of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication exists. See, People ex rel. Lockyer v. County of Santa Cruz, 416 F.Supp.2d 797 (N.D. Cal. 2006) (The Federal court declined to exercise supplemental jurisdiction over a Californian Elections Code Cause of Action. "The cause of action qualifies as an exceptional circumstance under 28 U.S.C. § 1367(c)(4). The case is essentially an internal dispute between two segments of the California state government, the Attorney General and the County of Santa Cruz. Although economy and convenience favor having Lockyer's two causes of action heard before the same court, comity overwhelmingly favors allowing California to handle its internal disputes in its own court system. Remand of the Elections Code § 12280 cause of action is appropriate here."). The second prong of the test is met. The declarations sought by the Plaintiff relate purely to the interpretation of State law and the State Constitution. There is no U.S. Constitutional adjudication to avoid. Additionally, a state court ruling that NRS 458.007 violates the Nevada Constitution would moot the Plaintiff's Title II ADA claim. The state court proceeding need not fully moot the federal issues; changing or narrowing the issues is enough. Sinclair Oil Corp. v. City of Santa Barbara, 96 F.3d 401, 409 (9
While Pullman abstention on the state statutory and constitutional questions is warranted, the state law questions can be properly certified to the Nevada Supreme Court. Nevada Rule of Appellate Procedure 5 reads in relevant part as follows:
The State statutory and constitutional law questions raised by the Plaintiff meet the requirements of the Nevada Supreme Court Certification Rule. As discussed more fully above, the questions are determinative of the primary relief sought by the Plaintiff and there is no controlling precedent from the Nevada Supreme Court on the application and constitutionality of NRS 258.007. Certification of these purely state law questions related to the application and constitutionality of NRS 258.007 is appropriate in this case.
Pursuant to Pullman abstention, the POST Commission respectfully requests that the Court abstain from issuing a Federal Declaratory Judgment on these novel, important and unsettled matters of State law. The POST Commission also requests the Court to certify these state statutory and constitutional questions to the Nevada Supreme Court.
I certify that I am an employee of the Office of the Attorney General, State of Nevada, and that on August 31, 2018, I filed the foregoing document via this Court's electronic filing system. Parties that are registered with this Court's EFS will be served electronically. For those parties not registered, service was made by depositing a copy of the above-referenced document for mailing in the United State Mail, first-class postage prepaid, at Carson City, Nevada to the following:
Comes Now Defendant, STATE OF NEVADA ex rel. its NEVADA COMMISSION ON PEACE OFFICERS' STANDARDS AND TRAINING (POST Commission), by and through its counsel, ADAM PAUL LAXALT, Attorney General for the State of Nevada, and MICHAEL D. JENSEN, Senior Deputy Attorney General and hereby files its Response to Defendant Clark County's Counter Motion for Reconsideration of the Order Granting Plaintiff a Preliminary Injunction [DOC 43]. The Commission's Response is based on the attached Memorandum of Points and Authorities, all relevant papers and pleading on file herein, and all relevant rules of law.
The Plaintiff, ROBERT ELIASON, filed a First Amended Verified Complaint (Amended Complaint) in Eighth Judicial District Court, Clark County, Nevada on November 12, 2017. In his Amended Complaint, the Plaintiff alleges that he has a "documented neurological condition that prevents him from meeting one part of the physical fitness test for certification." Amended Complaint, page 2, lns. 1-3. The Plaintiff alleges that he has diligently pursued P.O.S.T. certification but he has not been able to meet one part of the physical fitness test for P.O.S.T. certification. With regard to the purpose of the lawsuit, the Plaintiff alleges:
Id. at lns. 12-13.
NRS 258.007 reads as follows:
NRS 258.030 reads as follows:
In the "Parties and Jurisdiction" section of Plaintiff's Amended Complaint, he states that he was elected in November 2014 and entered office as North Las Vegas Constable on January 2, 2015. Amended Complaint, p. 2, lns. 19-20. The POST Commission, at its meeting in November 2015, granted the Plaintiff a six-month extension of time to obtain POST certification up to July 2016. The Plaintiff did not receive POST certification by July 2016. The Plaintiff alleges that on July 5, 2017, "the Clark County Board of Commissioners met to consider Sherlock's unsolicited recommended course of action to declare Constable Eliason had forfeited his office." The agenda item for the Board's meeting is alleged to provide as follows: "the Board of County Commissioner [to] declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office . . ." Amended Complaint, p. 5, lns. 6-12. At Constable Eliason's request, the Clark County Board of Commissioners continued its consideration of the forfeiture of office for two weeks.
The Plaintiff's Amended Complaint contains five claims for relief: (1) First Claim for Relief — Declaratory Relief — Clark County and POST, pursuant to NRS 30.010 et seq. seeking a declaration that NRS 258.007 confers no authority on Clark County to declare a forfeiture of the office of the North Las Vegas Township Constable, that the courts are the exclusive province of declaring whether an elected official has forfeited his office by way of a "writ quo warranto," under NRS 35.010 et seq., and that only the Attorney General, when directed by the Governor, may bring such an action. Additionally, under this Claim for Relief, the Plaintiff alleges NRS 258.007 violates the Nevada Constitution and the American with Disabilities Act and that the POST Commission is the entity charged with enforcing NRS 258.007; (2) Second Claim for Relief — Injunctive Relief, or in the alternative, a Writ of Prohibition — pursuant to NRS 34.320 et seq., seeking a writ of prohibition enjoining Clark County from "usurping the jurisdiction to adjudicate whether Constable Eliason has forfeited his office;" (3) Third Claim for Relief — Title II of the Americans with Disabilities Act, State and Local Governments — seeking to enjoin the POST Commission from enforcing NRS 258.007 and declaring to law invalid; (4) Fourth Claim for Relief — Article IV, Section 20 of Nevada Constitution, Certain Local and Special Laws Prohibited seeking a declaration that NRS 258.007 is a local or special law relating to the duties of the constable, and a declaration that the law is unconstitutional as it violates Article IV, Section 20 of the Nevada Constitution as a local or special law; and (5) Fifth Claim for Relief — Article IV Section 25 of the Nevada Constitution — Uniform County and Township Government — seeking a declaration that NRS 258.007 should be declared unconstitutional because it violates Article IV, Section 25 of the Nevada Constitution because it does not impose the same requirements on all offices of constable within the state. Amended Complaint, p. 5-9.
In the State District Court, the Plaintiff sought and obtained an Order Granting Preliminary Injunction through which the Court enjoins and restrains Clark County and its governing body, the Board of County Commissioners, from proceeding during the pendency of this action in voting or declaring the forfeiture of Robert Eliason from the Office of Constable for the North Las Vegas Township, enjoins Clark County and its governing body, the Board of County Commissioners, and its agents and employees from proceeding during the pendency of the action in filling any vacancy in the Office of the Constable of North Las Vegas Township, unless such vacancy is declared pursuant to a Nevada court in a writ quo warranto. The Order Granting Preliminary Injunction was issued on August 16, 2017.
On December 8, 2017, Clark County filed a Notice of Removal of Civil Action to the United States District Court for the District of Nevada. The removal to Federal District Court is supported by the single Federal law claim alleging NRS 458.007, by its own terms, violates Title II of the Americans with Disabilities Act. The parties are currently engaged in discovery, which ends on November 5, 2018. [Doc. #37].
On August 17, 2018, the Plaintiff filed his Motion for Declaratory Judgment, pursuant to 28 U.S.C. § 2201(a), through which he seeks a judgment from this Court declaring (1) only the Nevada State Courts may declare a forfeiture of an elected official's office; (2) Clark County possesses no unilateral authority, under Nevada law, to declare Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that the vacancy for such office exists; and (3) the agenda item, on the July 18, 2017 Clark County Commission meeting agenda, through which the Commission seeks to declare that the Plaintiff has forfeited his office and that a vacancy in such office exists is illegal under Nevada law.
The POST Commission files this response for the sole purpose of requesting the Court abstain from issuing a Federal Declaratory Judgment on these purely state law questions, and requests the Court certify these Nevada statutory and Nevada Constitutional questions to the Nevada Supreme Court.
In R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941), the United States Supreme Court held that federal courts should abstain from exercising jurisdiction in a matter when an unsettled area of state law has an effect on the outcome of a federal constitutional claim or would render a decision on the federal claim unnecessary. See also, San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1104-1105 (9
Plaintiff's request for a declaratory judgment involves unsettled questions of state law. While the State District Court entered a preliminary injunction, the Court's finding, for purposes of the preliminary injunction, was only that Plaintiff had a substantial likelihood of success on these state law matters. Significantly, the Nevada Supreme Court has not interpreted NRS 458.007. The plain language of the statute provides for the forfeiture of office if a constable fails to become certified by the POST Commission within one year of taking office, or within any extension granted by the POST Commission not to exceed 6 months.
The Nevada Office of the Attorney General has opined on a related question. See Nevada Attorney General Opinion 2017-14. By letter dated September 29, 2017, the Governor requested an opinion from the Office of the Attorney General on the following question: "What legal mechanisms exist by which a county may remove a constable or other official who has failed to fulfill the statutory requirements of office?" The section of the Opinion entitled "Summary of Conclusion" reads: "Quo warranto is not the exclusive remedy to challenge the authority of a county official to hold office. Because a constable is not a state office, his right to hold a public office, after failing to satisfy the requirements of NRS 258.007, may also be challenged pursuant to NRS 283.440." Id. at p. 2. In the concluding two paragraphs of the Opinion, the Nevada Office of the Attorney General opines:
Id. at p. 4.
The Attorney General Opinion is not binding legal authority on this issue. Cannon v. Taylor, 88 Nev. 89, 91, 493 P.2d 1313, 1314 (1972). Additionally, the legal analysis in this opinion underscores the point that the legal issues related to the legal mechanisms to remove an elected constable from office, who fails to meet the statutory mandate set out in NRS 458.007, is far from settled law in Nevada. Per the Amended Complaint, the Plaintiff is seeking a declaration, pursuant to the state declaratory relief statutes, that the Clark County Commission does not have the authority to unilaterally declare he has forfeited his office for failure to meet the statutory POST certification mandate and it does not have authority to fill a vacancy in the office without a court declaration that he has forfeited his office. Per the Preliminary Injunction, the Plaintiff is protected from any action by the Clark County Commission to declare he has forfeited his office and filling his office during the pendency of this action. Additionally, the primary state law declarations the Plaintiff is seeking through this action are novel and unsettled. Through his Amended Complaint, Plaintiff is primarily seeking declarations, pursuant to the Nevada declaratory relief statutes (NRS Chapter 30), that NRS 258.007 is unconstitutional under two provisions of the Nevada State Constitution (Article IV, Section 20 and Article IV Section 25).
In determining whether to abstain under the Pullman abstention doctrine, the Ninth Circuit follows a three part test: (1) the complaint touches a sensitive area of social policy upon which federal courts ought not to enter unless no alternative to its adjudication is open; (2) such constitutional adjudication plainly can be avoided if a definitive ruling on the state law issue would terminate the controversy; (3) the possibly determinative issue of state law is doubtful. Canton v. Spokane Sch. Dist. #81, 198 F.2d 840, 845 (9
The first prong of the test is met. The process through which an elected constable "forfeits" his or her office and the constitutionality of a statute enacted by the Nevada Legislature related to the forfeiture of office of an elected constable touch upon sensitive areas of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication exists. See, People ex rel. Lockyer v. County of Santa Cruz, 416 F.Supp.2d 797 (N.D. Cal. 2006) (The Federal court declined to exercise supplemental jurisdiction over a Californian Elections Code Cause of Action. "The cause of action qualifies as an exceptional circumstance under 28 U.S.C. § 1367(c)(4). The case is essentially an internal dispute between two segments of the California state government, the Attorney General and the County of Santa Cruz. Although economy and convenience favor having Lockyer's two causes of action heard before the same court, comity overwhelmingly favors allowing California to handle its internal disputes in its own court system. Remand of the Elections Code § 12280 cause of action is appropriate here."). The second prong of the test is met. The declarations sought by the Plaintiff relate purely to the interpretation of State law and the State Constitution. There is no U.S. Constitutional adjudication to avoid. Additionally, a state court ruling that NRS 458.007 violates the Nevada Constitution would moot the Plaintiff's Title II ADA claim. The state court proceeding need not fully moot the federal issues; changing or narrowing the issues is enough. Sinclair Oil Corp. v. City of Santa Barbara, 96 F.3d 401, 409 (9
While Pullman abstention on the state statutory and constitutional questions is warranted, the state law questions can be properly certified to the Nevada Supreme Court. Nevada Rule of Appellate Procedure 5 reads in relevant part as follows:
The State statutory and constitutional law questions raised by the Plaintiff meet the requirements of the Nevada Supreme Court Certification Rule. As discussed more fully above, the questions are determinative of the primary relief sought by the Plaintiff and there is no controlling precedent from the Nevada Supreme Court on the application and constitutionality of NRS 258.007. Certification of these purely state law questions related to the application and constitutionality of NRS 258.007 is appropriate in this case.
Pursuant to Pullman abstention, the POST Commission respectfully requests that the Court abstain from issuing a Federal Declaratory Judgment on these novel, important and unsettled matters of State law. The POST Commission also requests the Court to certify these state statutory and constitutional questions to the Nevada Supreme Court.
I certify that I am an employee of the Office of the Attorney General, State of Nevada, and that on August 31, 2018, I filed the foregoing document via this Court's electronic filing system. Parties that are registered with this Court's EFS will be served electronically. For those parties not registered, service was made by depositing a copy of the above-referenced document for mailing in the United State Mail, first-class postage prepaid, at Carson City, Nevada to the following:
Plaintiff ROBERT ELIASON, an individual and in his official capacity as Constable of North Las Vegas Township ("Constable Eliason") files this PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR DECLARATORY JUDGMENT [ECF Nos. 41, 42 and 44]. This Reply is made and based upon the attached points and authorities, the papers and pleandings on file herein, and any oral argument the Court may entertain at any hearing.
The sole issue in the instant Motion for Declaratory Judgment is whether Clark County had the unilateral and arbitrary power to remove a sitting, duly-elected constable from office on July 18, 2017. Nevada law confers no such judicial authority on a local board, and prior to the removal of this action, the State Court agreed and enjoined Clark County from this very action.
Clark County argues that it has the plenary power to remove a duly-elected State officer from office without an order or input or even an iota of due process from a Nevada state court. The State Court in this case previously rejected Clark County's arguments.
Nothing in the Opposition changes Clark County's attempted illegal action to pass Agenda Itam 67 on July 18, 2017 ("Item 67"). Significantly, nothing in its Opposition changes the Nevada State Court's legal conclusion that Clark County acted unlawfully by trying to remove Constable Eliason from office.
Instead, Clark County engages in misdirection by taking issue with the Nevada Court's legal conclusion that "A Quo Warranto action is the proper procedure for determining a forfeiture of office, including a forfeiture as a matter of law."
Despite the County's misdirection, the sole issue in this Motion remains whether NRS 258.007 grants Clark County the sole and unfettered power to remove an elected and sitting State Constable. Clark County manifestly does not possess this power.
Constable Eliason seeks to formalize the State Court's preliminary injunction into a permanent, declaratory judgment from this Court, declaring Clark County's actions as illegal. Constable Eliason requests that the Court declare the following:
(1) Only the Nevada State courts may declare a forfeiture of an elected official's office;
(2) Clark County possesses no unilateral authority under Nevada law to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists"; and
(3) Agenda Item 67 on the July 18, 2017 County Commission Meeting, which seeks to "declare that that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists," is illegal under Nevada law.
In August 2017, the Nevada State Court enjoined Clark County from taking any action to unilaterally declare that Constable Eliason had forfeited his office.
In November 2017, Clark County removed this action to this Court.
In August 2018, Constable Eliason filed the instant Motion for Declaratory Judgment, seeking to formalize the State Court's injunction.
Clark County has no legal authority to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office" or to "declare . . . that a vacancy in such office exists." Nothing in its Opposition changes this conclusion.
No statute specifically grants Clark County the authority to declare a forfeiture of the constable's office. Contrary to Clark County's assertion, no language in NRS 258.007 specifically authorizes Clark County to "declare" a forfeiture of any elected office. If there is any fair or reasonable doubt concerning the existence of a county's authority, the court must resolve that doubt against the board of county commissioners, and Nevada law denies the county that power. See NRS 244.137(4). See also, First Nat'l Bank v. Nye County, 145 P. 932, 936-37 (1914); Lyon County v. Ross, 50 P. 1, 3 (1897); and Waitz v. Ormsby County, 1 Nev. 370, 377 (1865). See generally, B. Chally, Dillon's Rule in Nevada, 21 Nev. L. 6 (2013).
Here, NRS 258.007(2)'s silence creates doubt as to whether Clark County possesses the authority it claims. Therefore, Nevada law denies Clark County that power. The statute makes no mention of a county commission whatsoever, and Clark County makes no reference to any specific authority in its Opposition. The statute is utterly silent as to who has the authority to declare a forfeiture of an elective office. This is no accident, because other provisions of Nevada law supply the procedure.
Declaring a "forfeiture" of an elected office is manifestly a judicial function performed by the courts by issuing a writ quo warranto. NRS 35.010 et seq. From its first days as a State, the Nevada Supreme Court has consistently affirmed the right of the courts to declare a forfeiture under a writ quo warranto. See e.g., State ex rel. Haydon v. Curry, 1 Nev. 251-52 (1865) (adjudicating statute passed by NV Territorial Legislature calling for automatic forfeiture of franchise by way of quo warranto); see also, State v. Haskell, 14 Nev. 209, 210 (1979) (state bears burden of proof to have court declare forfeiture of franchise under quo warranto).
More recently, NRS 35.010(2) codifies this unique power and provides that "[a] civil action may be brought in the name of the State [a]gainst a public officer . . . who does or suffers an act which, by the provisions of law,
The modern Nevada Supreme Court has been remarkably consistent and protective of the solitary power of the judiciary to declare the forfeiture of an elected office. "Quo warranto generally is available to challenge an individual's right to hold office and to oust the individual from the office if the individual's claim to it is invalid or
Clark County, however, asserts that it somehow has this power by talismanically invoking the word, "forfeit," in NRS 258.007(2), as if the Legislature's mere use of the word confers on the Board some judicial authority because the Legislature allegedly "intended the provision to be self-executing." [Opp. 10:21-22.] For this dubious proposition, Clark County references a 1941 Missouri case, an 1873 California case, and an 1878 New York case, notably failing to cite to a single Nevada opinion. [Opp. 10:20-28.]
In addition to the dearth of Nevada authorities in support of its position, Clark County's argument fails for five reasons:
First, this line of reasoning ignores the plain language of NRS 35.010(2) that "[a] civil action may be brought in the name of the State [a]gainst a public officer . . . who does or suffers an act which, by the provisions of law, works a forfeiture of the office." Indeed, the phrase, "by the provisions of law," can fairly mean "self-executing." Thus, NRS 35.010(2) applies to "self-executing" forfeitures, like NRS 258.007(2), that arise by operation of law.
In addition, it further ignores the modern interpretation of the powers of the courts set out in Heller and Lueck. It also completely disregards examples stretching back to the State's earliest days in the Union that the courts hold the power to declare a forfeiture.
Second, Clark County's position also ignores a canon of statutory construction that statutes must be read to make them "consistent and harmonious." Rose v. First Federal Sav. & Loan Ass'n, 777 P.2d 1318, 1319 (1989) (internal quotations and citations omitted). Clark County's position is this: an allegedly "self-executing" statute somehow grants Clark County the judicial power to "declare that Robert L. Eliason . . . has forfeited his office." But this position directly contravenes NRS 35.010(2)'s requirement that the courts adjudicate a civil action "against a public officer . . . who does or suffers an act which, by the provisions of law, works a forfeiture of the office." Clark County's reading of NRS 258.007(2) cannot be reconciled with NRS 35.010(2). Indeed, there is nothing consistent or harmonious here. In contrast, Mr. Eliason's argument does. The Nevada Attorney General has standing to fill a writ; the Court has the power to adjudicate that writ once it is filed; and Clark County can fill a vacancy if the Court so declares.
Third, Clark County's position belies its own actions. Clark County nakedly asserts that NRS 258.007(2) is "self-executing." By "self-executing," Clark County means that the purported forfeiture occurs "without the necessity of a judicial declaration or
If Clark County truly believed that the forfeiture occurred without the necessity of any other action, then there is no reason for Item 67. If NRS 258.007(2) operates like Clark County insists, there is no reason for Clark County or anyone to "declare" anything.
But Clark County's action belies its current argument: arguing on one hand that there is no need for a declaration of a forfeiture because such forfeiture is "self-executing," and then arguing on the other hand, that the statute grants Clark County, alone (and not the courts), the authority to declare a forfeiture.
Fourth, Clark County's reliance on a recent Attorney General's Opinion, AGO 2017-14 is misplaced. As a preliminary matter, opinions of the Nevada Attorney General are not binding on the Nevada Judiciary. Univ. & Cmty. Coll. Sys. v. DR Ptnrs, 18 P.3d 1042, 1048 (2001). In addition to the extent it applies at all, AGO 2017-14 serves only to confirm that the Nevada courts—and only the Nevada courts—have the power to remove an elected official from office; Clark County does not possess that authority. Thus, AGO 2017-14 further weakens Clark County's position in this case.
Finally, Clark County's position defies public policy considerations. Declaring a forfeiture of an elected officer's office disrupts the democratic process. In this case, it nullifies the votes of 220,000 residents of North Las Vegas, and the action should not be undertaken lightly. Nevertheless, there are legitimate occasions for doing so. The wisdom of the writ quo warranto (gained by centuries of application) balances these competing interests. Quo Warranto properly implicates all three branches of government: The state legislative branch passes legislation to enumerate when an elected office is forfeit. The state executive branch determines when to bring a judicial action to declare an elected office forfeit under the legislature's laws. The state judicial branch adjudicates the fairness of the forfeiture, with all of its attendant procedural protections (rules of evidence, burden of proof, etc.). Clark County's unilateral action implicates none of these checks and balances. "Quo warranto generally is available to challenge an individual's right to hold office and to oust the individual from the office if the individual's claim to it is invalid or has been forfeited. Lueck v. Teuton (In re Teuton), 219 P.3d 895, 898 (Nev. 2009) (emphasis added.)
Moreover, Clark County does not even possess the standing to file a writ quo warranto. In this case, standing to institute a civil action for quo warranto rests solely with the Attorney General at the direction of the Governor. NRS 35.030; see also, Lueck v. Teuton (In re Teuton), 219 P.3d 895, 898 (2009) (no general standing to request writ quo warranto).
In accordance with the State Court's Preliminary Injunction, a judgment from this Court is appropriate to declare the following: (1) only the Nevada State courts may declare a forfeiture of an elected official's office; (2) Clark County possesses no unilateral authority under Nevada law to "declare that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists"; and (3) Agenda Item 67 on the July 18, 2017 County Commission Meeting, which seeks to "declare that that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in such office exists," is illegal under Nevada law.
I certify that on this 7th day of September, 2018, I served the foregoing
COMES NOW Defendant CLARK COUNTY, by and through its counsel of record, THOMAS D. DILLARD, JR., ESQ., of the law firm of OLSON, CANNON, GORMLEY, ANJGULO & STOBERSKI and hereby replies to Plaintiff's Opposition to the Counter Motion for Reconsideration of the State Court Order [#48].
This Reply is made and based upon all the pleadings and papers on file herein, the attached points and authorities, together with any argument that may be introduced at the time of hearing this matter.
Clark County maintains that the state district court misinterpreted NRS 258.007 by viewing it through the lens of quo warranto alone and markedly aggravated this error when it embraced the unnecessary dicta placed in the order by Plaintiff; to wit, stating that quo warranto is the exclusive remedy to oust a Nevada public official from office. Plaintiff continues to employ this same tactic by requesting an order that arguably elevates the exclusive remedy dicta to immunize Plaintiff for his failure to become a category II peace officer. Plaintiff has made no argument to support the assertion that quo warranto is the only "proper procedure for determining a forfeiture of office." The Court should now grant Clark County's counter motion by making clear that at least a portion of the state court order is legally unsound and that Clark County has alternative statutory authority to take action to remove Plaintiff from office pursuant to both NRS 283.440 (removal for nonfeasance) and NRS 258.010(3) (abolishing the office).
Plaintiff suggests the District Court is constrained from reaching any different conclusion than did the Eighth Judicial District Court when it granted Plaintiff's motion for preliminary injunction and also denied his petition for a writ without prejudice. Plaintiff's argument that the order granting the preliminary injunction is final because Clark County did not file a notice of interlocutory appeal is not well taken. Clark County, to be sure, has the legal right to appeal the propriety of the order granting a preliminary injunction following the issuance of a final order in this case.
This Court is therefore not handcuffed in any way in independently reviewing the pertinent legal issues involving statutory interpretation because the preliminary injunction order is not final and is still subject to appellate review. In fact, Clark County further has no objection to the position of the Nevada Peace Officer Standards & Training to certify the pertinent legal issues regarding statutory interpretation to the Nevada Supreme Court now for review and instruction.
Throughout the state court case and with his motion for a declaratory judgment, Plaintiff attempts to exclusively limit the procedure for the removal of the North Las Vegas Constable from office to the procedure prescribed by NRS 35.010, or quo warranto because Clark County does not have standing under that statute to remove Plaintiff from office. Clark County's opposition made clear that quo warranto is not the only "proper procedure for determining a forfeiture of office" and this argument is plainly inconsistent with Nevada statutory law because Clark County has alternative statutory authority to take action to remove Plaintiff from office pursuant to both NRS 283.440 (removal for nonfeasance) and NRS 258.010(3) (abolishing the office). Plaintiff failed to address either of these statutes and instead makes the generalized assertion that Clark County lacks standing to declare forfeiture of the office. Plaintiff seemingly is being purposefully vague in an attempt to extend the state court order and seek an order from this Court that stands contrary to the law with regard to these other statutes or that, at least, raises the prospect that Clark County will be in violation of a court order if it moves forward on the rights it has under either NRS 283.330 or NRS 258.010.
Regardless of this Court's view of the meaning and scope of NRS 258.007(2) (stating "[i]f a constable does not comply [with the mandatory training requirements of subsection 1], the constable forfeits his or her office and a vacancy is created which must he filled"), any order in this case should be careful not to embrace the error-filled dicta in the state court order and make clear that Clark County's statutory rights under these other two statutes remain unimpaired. Plaintiff's intentional failure to address these legal arguments make clear that there is no colorable argument to suggest that Plaintiff can only be removed pursuant to quo warranto and the only persons with standing to do so is the State and a person holding some right to the office itself.
The plain text of NRS 258.007 states that the Constable ipso facto forfeits his office when he does not have a category II police officer certification by the time period set forth in the statute. NRS 258.007 states:
Plaintiff immediately forfeited office when he failed to become certified by Nevada POST as a category 11 police officer after his six month extension lapsed (facts which are undisputed).
Plaintiff has insisted that the language in this statute that was initially introduced in 2013 and amended in 2015 must nonetheless be governed by the codification of the common law doctrine of quo warranto in NRS 35.010 (which is based upon limited standing extended only to the State and a person with a personal interest in holding the office). However, the automatic forfeiture meaning of the word "forfeits" in section (2) is consistent with other more applicable common law; specifically, common law held that residency is a requirement of election to office and the requirement is continuous. As such, any change of residency automatically vacates the county office.
Plaintiff's argument that the case law supporting Clark County's position is sparse is not well taken. Plaintiff fails to identify any other jurisdiction that has rejected the interpretation of the word forfeit in similar statutes. Several other jurisdictions are in accord.
For example, the case of
A similar result occurred in the case of
Also, in
The reasoning of these authorities and those cited in the opposition brief (#42] are in accord with the text of NRS 258.007(2) stating that failure to become trained and state certified sufficiently to hold the office of constable in the permitted time period causes "the constable forfeits his or her office and a vacancy is created." The statute further makes clear that the Clark County Board of County Commissioners also was doing nothing more than was required under state law which is to fill the vacancy in accordance with NRS 258.030. The state court committed a plain error of law when it superimposed the general quo warranto statute over the specific statute aimed at ensuring constables in urban areas become trained and certified to hold the office—which is clearly directly applicable to the facts here. The court should therefore grant Clark County's counter motion for reconsideration as to the order granting a preliminary injunction only by the state court. Alternatively, the court should certify the legal question to the Nevada Supreme Court as raised by Defendant Nevada Commission On Peace Officer Standards & Training.
Plaintiff admittedly has failed to complete academy training to become at least a category II peace officer despite the clear mandate to do so within a year of taking office as required by NRS 258.007(1). Plaintiff has argued that public policy is negatively impacted by the forfeiture provision of NRS 258.007(2) because it will "disrupt the democratic process" by interfering with the North Las Vegas voter's right to select by majority vote the candidate of their choice. It stands to reason, of course, that those that voted for Plaintiff expected him to follow the law. Moreover, Plaintiff ignores the public policy argument that he poses a risk to the public by acting a law enforcement function without fulfilling the state training requirements to do so.
Plaintiff accordingly is ill-equipped to handle a litany of law enforcement functions while serving in one of the highest populated urban areas in Nevada. Pursuant to NAC 289.150, the State of Nevada has deemed at least 200 hours of training necessary to fulfill this law enforcement function in the following areas:
Plaintiff's public policy argument about the right of franchise in support of his position of statutory authority is not well taken. To be sure, the acute danger to the public in permitting a person acting in a law enforcement function to carry a service weapon and take actions that directly affects the property and liberty interests of the public without the requisite training in these key areas is axiomatic. The Nevada legislature certainly shared this view when it required constables serving in urban areas in the State to receive this training on penalty of office forfeiture. Functioning as an untrained peace officer poses a much greater risk of harm to the public than simply not having an elected candidate complete a full term in office.
IN ACCORDANCE WITH THE FOREGOING, the Court should grant the counter motion for reconsideration [#43] and issue an order that is both compliant with Nevada law and furthers the actual text and the important public policy issues that underlie NRS 258.007.
I HEREBY CERTIFY that on the
