Eliason v. Clark County et al

Filing 72

ORDER Certifying Question to the Supreme Court of Nevada under NRAP 5. Signed by Judge Jennifer A. Dorsey on 3/22/2019. (Copies have been distributed pursuant to the NEF; CC: Sent to Supreme Court of the State of Nevada under official seal - DC)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Robert Eliason, an individual and in his
official capacity as Constable of North Las
4 Vegas Township,
5

Plaintiff

6 v.
7 Clark County, a political subdivision of the
State of Nevada; the State of Nevada ex rel.
8 Nevada Commission on Peace Officer
Standards and Training,
9
Defendants
10
11

Case No.: 2:17-cv-03017-JAD-CWH

Order Certifying Question
to the Supreme Court of Nevada
under NRAP 5

In July 2017, the Clark County Board of Commissioners sought to remove North Las

12 Vegas Constable Robert L. Eliason from office by declaring that he had forfeited the office
13 because he failed to obtain a statutorily required certification. The Board relied on Nevada
14 Revised Statute 258.007, which requires constables to get certified by the Nevada Commission
15 on Peace Officer Standards and Training (POST) as a category II peace officer within a year of
16 appointment and provides that a constable who fails to do so “forfeits his . . . office and a
17 vacancy is created . . . .” Nevada Revised Statute 258.030 then authorizes the Board “to appoint
18 a person to fill” that vacancy.
19

Eliason sued the County and POST in state court, and then-Eighth Judicial District Court

20 Judge Elissa F. Cadish found that “a quo warranto action is the exclusive remedy to obtain a
21 declaration that a forfeiture of public office has occurred,” and she preliminarily enjoined the
22 board from voting to declare Eliason’s forfeiture or replacement. The County removed this case
23 to federal court and asks to vacate the preliminary injunction, while Eliason seeks a declaratory

1 judgment in his favor. Because this case turns on a question of Nevada law, and it appears that
2 there is no controlling precedent in the decisions of the Supreme Court or the Court of Appeals
3 of this state, I certify the following question to the Honorable Supreme Court of Nevada under
4 Rule 5 of the Nevada Rules of Appellate Procedure:
5

Does NRS 258.007 give the Clark County Board of County Commissioners the
power to remove a constable from office, or can a constable be removed only with a
quo warranto action?

6
7
8 I.

Statement of relevant facts and the nature of this controversy

9

NRS 258.0071 states that constables in townships with populations of 100,000 or more

10 who fail to complete certification to become a category II peace officer “forfeit” their office and
11 create a vacancy that must be filled in accordance with NRS 258.030,2 which allows the board of
12 county commissioners to appoint someone to fill the vacancy. Robert F. Eliason was elected to
13 the office of North Las Vegas Constable in November 2014 and took office in January 2015.3
14
15

1

16

1.
Each constable in a township whose population is 100,000 or more which is
located in a county whose population is 700,000 or more, and each constable of a
township whose population is 250,000 or more and which is located in a county whose
population is less than 700,000 shall become certified by the Peace Officers’ Standards
and Training Commission as a category II peace officer within one year after the date on
which the constable commences his or her term of office or appointment unless the
Commission, for good cause shown, grants an extension of time, which must not exceed
6 months.

17
18
19
20

2.
If a constable does not comply with the provisions of subsection 1, the constable
forfeits his or her office and a vacancy is created which must be filled in accordance with
NRS 258.030.

21
22

NRS § 258.007 states:

2

NRS § 258.030 states that “if any vacancy exists or occurs in the office of constable in any
township, the board of county commissioners shall appoint a person to fill the vacancy pursuant
23 to NRS 245.170.”
3

ECF No. 1 at 13.
2

1 Because his office is subject to NRS 258.007, he was required to become certified by POST as a
2 category II peace officer within a year of taking office.4 As of July 4, 2016, he had not done so,
3 and POST notified the Clark County Board of Commissioners of this failure.5 A year later, the
4 Assistant County Manager placed item 67 on the agenda for the Board’s July 18, 2017, meeting.
5 This agenda item proposed declaring Eliason to have forfeited his office and proceeding to fill
6 the vacancy created by that forfeiture under NRS 258.007 and 258.030.6
7

Before the vote could occur, Eliason sued the County and POST in the Eighth Judicial

8 District Court, asserting four causes of action: (1) declaratory relief stating that Clark County has
9 no authority to declare a forfeiture of the office, that a quo warranto action under NRS 35.010 et
10 seq. is the exclusive means of declaring a forfeiture of office, and that the Attorney General, at
11 the Governor’s direction, is the only party who can bring such an action; (2) injunctive relief or a
12 writ of prohibition enjoining Clark County from adjudicating whether he had forfeited his office;
13 (3) violation of Article IV, Section 20 of the Nevada State Constitution; and (4) violation of
14 Article IV, Section 25 of the Nevada Constitution.7 Eliason successfully moved for a
15 preliminary injunction to restrain the County from removing him from office.8 In granting the
16 motion, the district court found that the Board lacks the power to remove Eliason and that the
17 exclusive mechanism to do so is a quo warranto action by the Nevada Attorney General:
18

2.
The issue before the Court . . . is whether Clark
County has the authority to declare forfeiture of Constable
Eliason’s position pursuant to NRS 258.007.

19
20

22
23

4

Id. at 12.

5

21

ECF No. 42 at 4.

6

Id. at 4.

7

ECF No. 1 at 16–20.

8

ECF No. 41 at 8–11.
3

1

...
11.
Clark County does not have the authority to
maintain a Quo Warranto action.

2
3

12.
Pursuant to Heller v. Legislature, 120 Nev. 456,
463–64, 93 P.3d 746, 751 (2004), a Quo Warrant action is the
exclusive remedy to obtain a declaration that a forfeiture of public
office has occurred by provisions of law, including that in NRS
258.007.

4
5
6

...

7

17.
This Court finds that in terms of public policy, the
Quo Warrant action is the established method to ensure due
process is afforded and all rights are protected before an elected
official is removed from office; therefore, public policy favors the
grant of the preliminary injunction on that basis.9

8
9
10
11

Eliason later amended his complaint to add a claim for a violation of the Americans with

12 Disabilities Act, and the County removed the action to federal court based on federal question
13 and supplemental jurisdiction.10 After removal, Eliason moved for a declaratory judgment,
14 arguing that I should adopt the preliminary-injunction ruling and grant the declaratory relief he
15 seeks in his first cause of action.11 The County opposes that motion and countermoves for
16 reconsideration of the state-court preliminary-injunction order.12 POST filed a response to
17 Eliason’s motion in which it requests that I either abstain from deciding the state-law issues
18 under the United States Supreme Court’s decision in Railroad Commission of Texas v. Pullman
19
20
21
9

22
23

ECF No. 41.

10

ECF No. 1.

11

ECF No. 41.

12

ECF Nos. 42, 43.
4

1 Co.13 or certify the question of Clark County’s authority under NRS 258.007 and 258.030 to the
2 Supreme Court of Nevada.14 Eliason did not respond to POST’s request.
3

Pullman abstention is unavailable because this case does not present a federal

4 constitutional question—the federal question it presents is entirely statutory, and the
5 constitutional questions it presents are state-based—and the Pullman doctrine is designed to
6 avoid “the premature determination of constitutional questions” when “a federal constitutional
7 issue might be mooted or presented in a different posture by a state court determination of
8 pertinent state law.”15 But Eliason’s state-law questions should nevertheless be resolved by
9 Nevada’s courts. Neither the Supreme Court nor the Court of Appeals of Nevada has interpreted
10 NRS 258.007 or determined its application or constitutionality. The County maintains that the
11 language of the statute is self-executing and that no judicial determination of forfeiture is
12 required if a constable fails to become certified. Eliason counters that declaring a forfeiture of
13 office is necessarily a judicial function, and a quo warranto action under NRS 35.010 et seq. is
14 the exclusive remedy to remove a constable.16 He further argues that NRS 258.007 violates
15 Article IV Sections 20 and 25 of the Nevada Constitution.
16

No case answers the question of whether NRS 258.007 gives the Clark County Board of

17 Commissioners the power to remove a constable from office or the constitutionality of such a
18 procedure under the Nevada constitution. Clarification from the Supreme Court of Nevada about
19
13

20
21

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

14

ECF No. 44; see also ECF No. 54.

15

See order denying motions and granting request to certify questions to the Supreme Court of
Nevada, ECF No. 71 (citing C-Y Dev. Co. v. City of Redlands, 703 F.2d 357, 377 (9th Cir. 1983
22 (quoting Martin v. Creasy, 360 U.S. 219, 224 (1959); County of Allegheny v. Frank Mashuda
Co., 360 U.S. 185, 189 (1959) (internal quotation marks and alterations omitted))(emphasis
23 added).
16

He also relies on Heller v. Legislature, 93 P.3d 746, 751 (Nev. 2004).
5

1 the applicability and constitutionality of NRS 258.007 will be outcome determinative of the
2 central issue in this case.
3 II.

Parties’ names and designation of appellant and appellee

4

Plaintiff/Appellee

5

Defendant/Appellant Clark County, a political subdivision
of the State of Nevada
Defendant/Appellant State of Nevada ex rel. the Nevada
Commission on Peace Officer
Standards and Training (POST)

6
7
8

Robert Eliason

Because the most recent adverse order was the preliminary injunction entered against the

9 defendant in state court, the defendants should be the appellants.
10 III.
11
12

Names and addresses of counsel for the parties
Counsel for Plaintiff/Appellee
Robert Eliason

13
14

Jeffrey E. Barr
Ashcraft & Barr | LLP
2300 W. Sahara Avenue
Suite 900
Las Vegas, NV 89102

15
16
17
18

Counsel for Defendant/Appellant
Clark County

19
20
21
22

Kelly A. Evans
Chad R. Fears
Evans Fears & Schuttert LLP
2300 W. Sahara Avenue
Suite 950
Las Vegas, NV 89102

Counsel for Defendant/Appellant
POST

Thomas D. Dillard
Olson, Cannon, Gormley, Angulo &
Stoberski
9950 W. Cheyenne Avenue
Las Vegas, NV 89129
Michael D. Jenson
Senior Deputy Attorney General
555 Wright Way
Carson City, NV 89711

23

6

1
2

IV.

3

Any other matters the certifying court deems relevant to a determination of the
questions certified
The Court defers to the Supreme Court of Nevada to decide whether it requires any other

4 information to answer the certified question. The Court does not intend its framing of the
5 questions to limit the Supreme Court of Nevada’s consideration of the issue. Nevertheless, for
6 the Court’s convenience, the crossbriefing by the parties is attached.
7
8 V.

Conclusion

9

Having complied with the provisions of the Nevada Rule of Appellate Procedure 5(c), I

10 hereby direct the Clerk of Court for the U.S. District Court for the District of Nevada to
11 FORWARD this order and its attachments under official seal to the Supreme Court of the
12 State of Nevada, 201 South Carson Street, Suite 201, Carson City, Nevada, 89701-4702.
13

Dated: March 22, 2019
_________________________________
U.S. District Judge Jennifer A. Dorsey

14
15
16
17
18
19
20
21
22
23

7

Exhibit

Document

A
B

First Amended Complaint
Eliason’s Motion for Declaratory Judgment (contains Order
Granting Preliminary Injunction at p.8)
Clark County’s Opposition and Motion to Reconsider Order
Granting Motion for Preliminary Injunction
POST’s Response to Eliason’s Motion for Declaratory
Judgment
POST’s Response to Clark County’s Motion for
Reconsideration
Eliason’s Reply in Support of Motion for Declaratory Judgment
Clark County’s Reply in Support of Motion for Reconsideration

C
D
E
F
G

Fed. Ct. Dkt. #
ECF No. 1
ECF No. 41
ECF No. 43–
43-4.
ECF No. 44
ECF No. 45
ECF No. 47
ECF No. 49

Exhibit A

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Exhibit B

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Exhibit C

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I
2
3
4
5
6

THOMAS D. DILLARD, JR., ESQ.
Nevada Bar No. 006270
OLSON, CANNON, GORMLEY,
ANGULO & STOBERSKI
9950 West Cheyenne Avenue
Las Vegas, NV 89129
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant
CLARK COUNTY

7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

****

11
12
13
14
15
16
17
18

ROBERT ELIASON, an individual and in his
official capacity as Constable of North Las
Vegas Township,

)
)
) CASE NO. 2:17-cv-3017-JAD-CWH
)
Plaintiff,
)
)
)
vs.
)
CLARK COUNTY, a political subdivision of
)
the State of Nevada; NEVADA COMMISSION )
ON PEACE OFFICER STANDARDS &
)
TRAINING,
)
)
Defendants.
)
)

19
20
21

OPPOSITION TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT AND
COUNTER MOTION FOR RECONSIDERATION OF THE ORDER GRANTING
PLAINTIFF A PRELIMINARY INJUNCTION

22
23

COMES NOW Defendant CLARK COUNTY, by and through its counsel of record,

24

THOMAS D. DILLARD, JR., ESQ., of the law firm of OLSON, CANNON, GORMLEY,

25

ANGULO & STOBERSKI and hereby opposes Plaintiff's Motion for Declaratory Judgment

26

[Doc. #41] and moves for reconsideration of the state court order dated August 18, 2018.

27
28

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.

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 2 of 16

MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
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 last
elected North Las Vegas Constable, has not become a category II, certified peace officer by the
extended deadline permitted by NRS 258.007(1) even though more than two years has elapsed
since the deadline passed.' The questions of law pertain to Clark County's potential statutory
remedies to remove the non-compliant constable from office. Plaintiff has attempted to limit
removal of public officers from office only to the procedure prescribed by NRS 35.010, or quo
warranto. Plaintiff seeks to define quo warranto as the only "proper procedure" because "Clark
County does not have the authority to maintain a Quo Warranto action." [#41, pg. 3 lines 7-10].
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.' Clark County argued that NRS 228.007(2) was a self-executing statute that caused
Plaintiff to forfeit his office after he failed to obtain a category II certification by the time allotted
set forth in NRS 228.007(1). In other words, Clark County interpreted the statute to hold that the
forfeiture of Plaintiff's office went into effect immediately at that time without the need of

'NRS 258.007(1) states:
Each constable of a township whose population is 100,000 or more and which is
located in a county whose population is 700,000 or more,. . . shall become
certified by the Peace Officers' Standards and Training Commission as a
category II police officer within 1 year after the date on which the constable
commences his or her term of office or appointment unless the commission, for
good cause shown, grants in writing an extension of time, which must not
exceed 6 months.
2

NRS 258.007(2) states:
If a constable does not comply with the provisions of subsection 1, the constable
forfeits his or her office and a vacancy is created which must be filled in
accordance with NRS 258.030 [by the board of county commissioners].
(emphasis added).

Page 2 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 3 of 16

subsequent court action. The state court disagreed with Clark County's interpretation and
concluded that NRS 228.007 was not self-executing, but required a separate judicial action to
effect a forfeiture of office. Clark County maintains this interpretation was contrary to the
legislative intent and the plain language of the statute and, thus, the state court order should be
revisited by this Honorable Court. Clark County further contends now that this misinterpretation
was aggravated by the inclusion of some dicta in the order indicating that quo warrant° is the
exclusive remedy to oust a Nevada public official from office. Plaintiff's motion seemingly
seeks a declaratory order from the court that improperly elevates the exclusive remedy dicta part
of this order to stand as the law of the case. The foregoing makes 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. The Court should now deny Plaintiff's motion for
declaratory judgment by instead declaring 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). The Court should also grant Clark
County's motion for reconsideration of the order granting the preliminary injunction by finding
the forfeiture clause of NRS 228.007 is self-executing and an independent statutory basis to
remove Plaintiff from office.
II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND
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 289.3
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

There was an amendment to NRS 258.007 made on June 9, 2015 that did not change the
requirements for Plaintiff to become a category II peace officer in Nevada that were put in place
with the original legislation effective July 1, 2013. Contrary to Plaintiff's suggestion otherwise,
the law did not place additional requirements on Plaintiff after he took office. The applicable
two versions of this statute are attached as Exhibit "A".
3

Page 3 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 4 of 16

I

population then of approximately 2,000,000.4
3.

2
3

Plaintiff Robert Eliason was elected in 2014 and took office as the North Las

Vegas Constable on January 4, 2015.5
4.

4

On November 5, 2015, Plaintiff obtained a six month extension from the State of

5

Nevada POST Commission pursuant to NRS 289.550 and consequently had until July 4, 2016 to

6

complete minimum standards of training for category II peace officers pursuant to NRS 289.150

7

to continue to hold his elected office.'
5.

8
9

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;

10

consequently, he was declared to not be a certified peace officer. The correspondence further

11

stated that this failure to complete the training results in the forfeiture of his office pursuant to

12

NRS 258.007 and provided Clark County a notification that he does not have any peace officer

13

powers.'
6.

14

On July 5, 2017, a year following the POST notification, the Assistant County

15

Manager cleared item 67 for the agenda for the July 18, 2017 meeting to proceed with Clark

16

County's statutory obligations under NRS 258.3308 to fill the vacancy of the North Las Vegas

17

Constable's office which had become forfeit pursuant to NRS 258.007(2).

18

///

19
20
21
22

4

www.cityofnorthlasvegas.com/Departments/CityManager/PDFs/EconomicDevelopment/North
_Las_Vegas_Overview_March-2013.pdf
5

WWW.nvsos.gov/S0SelectionPages/results/2014StateWideGeneral/Clark.aspx;

23

Complaint at para. 9.

24

6

Verified

25
26
27
28

Exhibit 3 to Plaintiff's Motion for Writ of Prohibition.

'June 29, 2016 Correspondence from Execute Director Michael D. Sherlock to the Clark
County Commission and Clark County Counsel, attached as Exhibit "B".
258.030 states: "Except for those townships that the boards of county commissioners
have determined do not require the office of constable, if any vacancy exists or occurs in the
office of constable in any township, the board of county commissioners shall appoint a person
to fill the vacancy pursuant to NRS 245.170." (emphasis added).
8 NRS

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7.

1

On July 14, 2017, Plaintiff obtained an ex parte order for a temporary restraining

2

order enjoining the Board of County Commissioners ("BCC") from proceeding with item 67 on

3

the agenda for meeting on July 18, 2017.
8.

4

On August 16, 2017, the Eighth Judicial District Court of Nevada, the Honorable

declaring the forfeiture of Robert Eliason of the Office of Constable of North Las Vegas

8

Township or filling a vacancy for the office "unless such vacancy is declared pursuant to a

9

Nevada court in a writ of quo warranto."9 The district court declined to issue a writ of

9950 West Cheyenne Avenue

10
Las Vegas, Nevada 89129
[phone]
Telecopier [phone]

A Professional Corporation

and enjoined Clark County from "proceeding during the pendency of this action in voting on or

7

Law Offices of

Judge Elissa F. Cadish, entered an order granting Plaintiff's motion for a preliminary injunction

6

OLSON, CANNON, GORMLEY, ANGULO&STOBERSKI

5

prohibition on the issue, however.' The order further, in dicta, stated the following:
Pursuant to Heller v. Legislature, 120 Nev. 458, 463-64, 93 P.3d 746, 751 (2004),
Quo Warranto is the exclusive remedy to obtain a declaration that a forfeiture of
public office has occurred by provision of law including that in NRS 258.007."

11
12
13
14

The district court further concluded as a matter of law that "Clark County does not have authority

15

to maintain a Quo Warranto action.' The district court thus found that the only parties that had

16

standing to pursue such an action were the State of Nevada and a person "who claims a right to

17

hold, maintain, or assume a given public office when that right is disputed or contested."
9.

18

Clark County then removed the item from the BCC meeting agenda scheduled for

19

July 28, 2017 and has taken no action with respect to the issue since that time pursuant to the

20

court's order.
10.

21

On November 2, 2017, Plaintiff filed a First Amended Complaint and included,

22

for the first time, a federal claim for relief pursuant to the American With Disabilities Act of

23

1990, 42 U.S.C. § 1201.

24
25

9

Order Granting Preliminary Injunction, pg. 4 attached as Exhibit "C".

26
I° Id.

at pg. 2, lines 5-6.

27

"14, at pg. 3, lines 1-4.
28
12

Id. at pg. 3, line 1.
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Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 6 of 16

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.'3 In express disagreement with the court's order granting a
preliminary injunction, the summary conclusion of the AG opinion states the following:
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 failed to satisfy the requirements of NRS 258.007, may also be
challenged pursuant to NRS 283.440.'4
The AG opinion further stated:
The question here concerns the removal of a constable for failure 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. . . .
Nonfeasance, as such, is a basis for removal pursuant to NRS 283.440.15
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:
(a)
(b)

only the Nevada State courts may declare a forfeiture of an elected
official's office;
Clark County possess no unilateral authority under Nevada law "to declare
that Robert L. Eliason has forfeited his office and that a vacancy exists for

(c)

the North Las Vegas Constable; and
Agenda Item 67 which was on the BCC hearing over a year ago is illegal
under Nevada law.

14.

Plaintiff has still not obtained a Nevada POST category II certificate, despite

being 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).

State of Nevada Office of the Attorney General Opinion No. 2017-14 (issued February 5,
2018), attached as Exhibit "D".
13

14

Id at pg. 2 (emphasis added).

Is

Id. at pg. 4 (internal citations omitted).
Page 6 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 7 of 16

I

III. LEGAL ARGUMENT
A.

2

Clark County Has Standing to Pursue the Removal of the North Las Vegas
Constable from Office for "Nonfeasance" Pursuant to NRS 283.440.

3
4

The Nevada Legislature in NRS 283.440 clearly gave Clark County standing to take

5

action to remove Plaintiff as the Constable of North Las Vegas for "nonfeasance" when he failed

6

to comply with the training and certification requirements imposed by NRS 258.007(1). The

7

statute erects a procedure for persons, including municipal entities, to seek the removal of a

8

person from any office in Nevada that is not expressly exempted for both malfeasance and

9

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 and
such action is plainly inconsistent with this statute.' AG Opinion No. 2017-14 correctly
determined that NRS 283.440 is an alternative basis for removal and Clark County has standing
to file a complaint in court requesting removal of Plaintiff from the office. (Exhibit "C"). This
Court, therefore, should not effectually affirm the legally unsound dicta in the order granting a
preliminary injunction or grant Plaintiff's motion for a declaratory relief that is clearly
inconsistent with NRS 258.440 as correctly interpreted by the Attorney General's office.
NRS 283.440 (Removal of certain public officers for malfeasance or nonfeasance:

18

Procedure; appeal) is a separate procedure than quo warranto that the district court failed to

19

account for when issuing the preliminary injunction order. NRS 283.440(1), in pertinent part,

20

states the following:

21

1.

Any person who is now holding or who shall hereafter hold any
office in this State and who refuses or neglects to perform any
official act in the manner and form prescribed by law, or who is
guilty of any malpractice or malfeasance in office, may be removed
therefrom as hereinafter prescribed in this section. . . .

2.

Whenever a complaint in writing, duly verified by the oath of any
complainant, is presented to the district court alleging that any
officer within the jurisdiction of the court:

22
23
24
25
26
27
28

In fairness to the district court, the issue of exclusive remedy was dicta as the conclusion of
this language was not necessary to enjoin Clark County from declaring that the forfeiture
already occurred and taking action to appoint a replacement without seeking a court order as
would be required under either quo warranto or a complaint filed pursuant to NRS 283.440(2).
16

Page 7 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 8 of 16

1

(b)

Has refused or neglected to perform the official duties
pertaining to the officer's office as prescribed by law; or

(c)

2

Has been guilty of any malpractice or malfeasance in office,

3
4

the court shall cite the party charged to appear before it on a certain
day, not more than 10 days or less than 5 days from the day when
the complaint was presented. On that day, or some subsequent day
not more than 20 days from that on which the complaint was
presented, the court, in a summary manner, shall proceed to hear
the complaint and evidence offered by the party complained of. If,
on the hearing, it appears that the charge or charges of the
complaint are sustained, the court shall enter a decree that the party
complained of shall be deprived of the party's office.

5
6
7
8
9
10
11
12
13
14

3.

The clerk of the court in which the proceedings are had, shall,
within 3 days thereafter, transmit to the Governor or the board of
county commissioners of the proper county, as the case may be,
a copy of any decree or judgment declaring any officer deprived of
any office under this section. The Governor or the board of county
commissioners, as the case may be, shall appoint some person to
fill the office until a successor shall be elected or appointed and
qualified. . . .

(emphasis added).

15

The statute plainly gives "any complainant" standing to file a verified complaint in court

16

alleging that the constable refused or neglected to perform duties prescribed by law for failure to

17

the failure to comply with NRS 258.007(1). As summarized by the attorney general's office,

18

"any person may make a certified complaint against a constable who has refused or neglected to

19

perform his official duties as prescribed by law." (Exhibit "C" pg. 3). After the complaint if

20

filed, "the court will issue an order to show cause to consider the charges of the complaint. NRS

21

283.440(2)." Id. Therefore, the district court's order, prepared by Plaintiff, stating in dicta that

22

quo warranto was the one and only way to remove Plaintiff from office and Clark County does

23

not have standing to pursue any such action is plainly erroneous.

24

The Court should not, therefore, grant Plaintiff declaratory judgment to the extent he

25

seeks an order declaring that Clark County does not have the legal authority to seek his removal

26

from office. Nevada law does not immunize office holders from removal from office outside of

27

quo warranto, codified in NRS 35.010. Put differently, Nevada law does not limit actions to

28

remove public officials from office to those brought by the State of Nevada or those persons

Page 8 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 9 of 16

1

having an interest in the office themselves. The Court should affirmatively declare Clark County

2

may file a complaint pursuant to NRS 283.440(2) without being in violation of any order in this

3

instant action.

4

B.

North Las Vegas Constable.

5
6

Clark County Has Authority Under Nevada Law to Abolish the Office of the

Clark County also has authority under state law to abolish the office of the North Las

7

Vegas Constable on a determination that the office is "not necessary." NRS 258.010, in pertinent

8

part, states:

9

(3)

In a county whose population:

(b)

Is 700,000 or more, if the board of county
commissioners determines that the office of
constable is not necessary in one or more townships
within the county, it may, by ordinance, abolish the
office in those townships.

For a township in which the office of constable has been abolished, the board of
county commissioners may, by resolution, appoint the sheriff ex officio constable
to serve without additional compensation.
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
18

County to remove Plaintiff from office upon exercising its discretion and finding the office is not

19

necessary." The law makes clear that, contrary to Plaintiff's assertion otherwise, that only the

20

Nevada state courts may cause Plaintiff to be removed from office. Plaintiff cannot obtain a

21

declaratory judgment that stands contrary to the clear authority given to Clark County pursuant to

22

NRS 258.010. The Court should therefore deny Plaintiff's motion for declaratory judgment

23

inasmuch as Plaintiff seeks an order indicating quo warranto is the proper procedure for removal

24

and Clark County is precluded by law to remove Plaintiff from his office upon a finding that the

25

office is no longer necessary.
///

26
27
28

" Clark County exercised this authority to abolish the City of Las Vegas' Constable office in
2013.
Page 9 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 10 of 16

The Eighth Judicial District Court Erred When It Held that NRS 258.007(2)

I

Forfeiture of Office Clause for Failure of the Constable to Become POST

2

Certified is Not Self-Executing and Can Only Be Enforced Through a Quo
3

Warrant° Action.

4
5
6
7
8
9
10

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:
1.

Each constable of a township whose population is 100,000 or more
and which is located in a county whose population is 700,000 or
more, and each constable of a township whose population is less
than 700,000 shall become certified by the Peace Officers'
Standards and Training Commission as a category II police officer
within 1 year after the date on which the constable commences his
or her term of office or appointment unless the commission, for
good cause shown, grants in writing an extension of time, which
must not exceed 6 months.

2.

If a constable does not comply with the provision of subsection 1, the
constable forfeits his or her office and a vacancy is created which must be
filled in accordance with NRS 258.030. (emphasis added).

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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. See e.g., State v. Murphy, 347 Mo. 484, 148 S.W.2d 527 (S.C. 1941)(en
banc); Oakland R. Co. v. Oakland, etc., R. Co., 45 Cal. 365 (1873); In re Brooklyn, etc., Ry. Co.,
72 N. Y. 245 (1878); see also 63 Am.Jur.2d Public Officers and Employees § 188, p. 742;
McQuillin, Municipal Corporations, vol. 4, § 1796. In other words, the word expresses the
intention that the forfeiture shall take place upon the happening of the expressly identified
contingency without the necessity of a judicial declaration or imprimatur of any other municipal
entity. Los Angeles Athletic Club v. Board of Harbor Comm'rs of Los Angeles, 130 Cal.App

Page 10 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 11 of 16

376, 387-88, 20 P.2d 130, 135 (1933)("Whether a breach of conditions, by the grantee of a
franchise, works a forfeiture ipso facto depends on the language of the grant or the governing
statute. . . If the statute provides that failure to complete the work within the time specified by
the municipality works a forfeiture, the statute is self—executing, and failure to complete the work
within the time specified ipso facto forfeits its franchise.").
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 the plain
language of the statute. Clay v. Eighth Jud. Dis. Ct., 305 P.3d 898, 902 (Nev. 2013). Legislative
intent is the controlling factor in statutory construction. State v. Catanio, 120 Nev. 1030, 1033,
102 P.3d 588, 590 (2004). The courts thus avoid statutory interpretation that renders language
meaningless or superfluous and if the statute's language is clear and unambiguous, this court
should enforce the statute as written. Clay, 305 P.3d at 902. "Likewise, this court will interpret a
rule or statute in harmony with other rules and statutes." Id.
Plaintiff s interpretation would contravene a cardinal rule of statutory construction to

Page 11 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 12 of 16

avoid an interpretation that renders a statute in whole or in part superfluous or a nullity. $ee
Miller v. Ignacio, 112 Nev. 930, 937, 921 P.2d 882, 886 (1996); see also Association for Los
Angeles Deputy Sheriffs v. County of Los Angeles, 154 Cal.App.4th 1536, 1544, 65 Cal.Rptr.3d
665 (2007); In re Maricopa County Super. Ct. No., 54 P.3d 380, 383 (Ariz. App. 2002); Coon v.
City & County of Honolulu, 98 Haw. 233, 250, 47 P.3d 348, 365 (2002); State v. Beard, 22 P.3d
116, 121 (Idaho Ct.App.2001). Plaintiffs failure to give heed to the forfeiture provision
disregards the plain meaning and seeks to rewrite the statute and subvert the intent of the
legislature. Application of Pioneer Mill Co., 53 Haw. 573, 497 P.2d 549, 552 (1972) (holding
that the failure to effectuate the plain meaning of the forfeiture of judgeship provision would
"rewrite the Constitution").
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 Lueck v.
Teuton, 125 Nev. 674, 219 P.3d 895 (2009) has no legal or factual through-line connecting it to
the statute or this case. The case involves a Nevada citizen's attempt to remove a temporarily
appointed district court judge from office. The petitioner filed a writ of quo warranto to remove
Judge Teuton from office after the attorney general refused to do so. The Court examined NRS
Chapter 35, entitled Quo Warrant°, and determined the legislature did not authorize quo
warranto actions by private citizens with only a general interest in seeing state law upheld." The
Court noted that pursuant to NRS 35.050, only persons "claiming to be entitled to a public
office," or otherwise through the attorney general and "on the leave of the court," may commence
a quo warranto action against the alleged unlawful officeholder or usurper. Id. at 679, 219 P.3d
at 898. The petitioner's writ was denied because he did not claim to be entitled to the office.
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

The writ of "quo warranto generally is available to challenge an individual's right to hold
office to oust the individual from office if the individual's claim to it is invalid.
18

Page 12 of 16

•

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 13 of 16

1

universe of possibilities as to how an office holder can lose his or her office due to nonfeasance

2

or misfeasance. Clearly, the duly elected Nevada legislature is empowered to pass legislation

3

creating alternative means of removal of a state officeholder from office, just like it did when it

4

passed NRS Chapter 35 (Quo Warranto). This is of course precisely what occurred when the

5

legislature passed NRS 258.007 creating a self-executing statute removing a constable from

6

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

7
8

directly, as opposed to the general Quo Warranto statute that has application to all state public

9

offices:9 The court should not construe the general Quo Warranto statute to preempt the very

cn
i=a

10

constable specific provision of NRS 258.007. See, e.g., Hinck v. United States, 550 U.S. 501,

O
E-

11

506, 127 S.Ct. 2011(2007) (describing the "well-established principle" that "a precisely drawn,

12

detailed statute preempts more general remedies"; EC Term of Years Trust v. United States, 550

13

U.S. 429, 433, 127 S.Ct. 1763 (2007) (same); Radzanower v. Touche Ross & Co., 426 U.S. 148,

14

153, 96 S.Ct. 1989 (1976) ("Where there is no clear intention otherwise, a specific statute will

15

not be controlled or nullified by a general one, regardless of the priority of enactment.").

02;

O
•

Erlo

Z 13-¢•°°

ktaca/ 1
c40
.4

0 E.>
L'e-o9

o
z
z

g,

Plaintiff does not argue that he has complied with the POST certification requirements of

16
17

0

NRS 258.007(1). He rather only contends Clark County lacks authority to move forward on

18

replacing him as the North Las Vegas Constable under NRS 38.007(1). This argument is at odds

19

with the plain language of the statute. Plaintiff's concession that he has not obtained a category

20

II peace officer certification from Nevada POST by the extended deadline of July 4, 2016 triggers

21

the self-executing forfeiture provision of NRS 38.007(2). Plaintiff consequently forfeited his

22

office by operation of statutory law at that time. There is absolutely no statutory requirement for

23

Clark County to obtain a judicial declaration before replacing Plaintiff in this public office. Clark

24

County therefore has full authority afforded by NRS 38.007(2) and NRS 38.030 to put the matter

25

on a public meeting agenda and fulfill its ministerial duty set forth in these statutes. The Court

26
27
28

19 "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 sued
at the prerogative of the government with few exceptions." AG Opinion No. 2017-14 pg. 2
(Exhibit "C").
Page 13 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 14 of 16

I

should accordingly deny Plaintiff's motion, reverse the state court order and dismiss Plaintiff's

2

claim for declaratory judgment and a writ of prohibition.

3

IV. LEGAL ARGUMENTS IN SUPPORT OF COUNTER-MOTION FOR
RECONSIDERATION OF THE STATE COURT ORDER

4
5

Although the term "Motion for Reconsideration" is not specifically mentioned in the

6

Federal Rules of Civil Procedure, motions for reconsideration are certainly permissible in Federal

7

practice. "Reconsideration, as generally used, is a reconsideration by the same Court at which the

8

original determination was made." Above-The-Belt, Inc. v. Merrill Bohannan Roofing, Inc., 99

9

F.R.D. 99, 101 (E.D. Va. 1983). A motion for reconsideration are properly considered in the

10

circumstances of a non-final order pursuant to Federal Rule of Civil Procedure 60(b)(6).2° $ee
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). There are generally three grounds
that warrant reconsideration: (1) an intervening change in controlling law; (2) the availability of

13

new evidence; and (3) the need to correct a clear error or prevent manifest injustice. See School
District No. IJ, Multnomah County v. Acands. Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
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

19

"declines to issue a writ of prohibition." (Exhibit "C" pg. 2 lines 5-6). The dicta portion of the

20

order pertaining to quo warranto is particularly appropriate for reconsideration because it was

21

included in the order even though it was not fully and fairly litigated before the district court, it is

22

in clear error because it conflicts with Nevada statutes not considered by the state court and is

23
24
25
26
27
28

2° For

purposes of reconsideration, there is no difference between Rule 59(e) and Rule 60(b)
pertinent to this instant case. The critical distinction between the two motions in a
reconsideration context is that a timely filed Rule 59(e) motion tolls the time for filing a notice
of appeal and a motion for reconsideration after the ten day period under Rule 60(b) does not.
See United States v. Nutri-Cology, Inc., 950 F.2d 394, 396-97 (9th Cir. 1992). In this case, the
order was entered on October 22, 2008 and Plaintiff's written request was received by the Court
on November 7, 2008. Whether a timely Rule 59 motion filed within 10 days or a Rule 60
motion, the outcome is the same as Plaintiff has failed to demonstrate a basis to support
reconsideration.
Page 14 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 15 of 16

1

highly prejudicial to Clark County because it may foreclose clear-cut statutory rights. In addition,

2

the portion of the order limiting the application of NRS 258.007 by misinterpreting the section

3

regarding the office being forfeited upon failure to timely comply with the peace officer training

4

requirement is also in clear error and worthy of reconsideration. Therefore, Clark County

5

respectfully submits that the clear errors in the prior court order should be reconsidered and

6

reversed by this Honorable Court.

7

V.

8
9

CONCLUSION
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

10

because state law authorizes the removal of Plaintiff from office through several procedures and

11

Clark County is not legally foreclosed from taking action to do so through the courts or by an

12

independent action. The Court should also grant Clark County's motion for reconsideration of

13

the Eighth Judicial District Court's order granting a preliminary injunction by declaring that quo

14

warranto is not the exclusive remedy to be able to remove Plaintiff from office and that NRS

15

258.007 is an independent basis to declare that Plaintiff has forfeited his office.

c.4

0

5.
13 2
'

811>42`.1
Ss'
C,
2<

OS

o
2.

cf)

16
17
18
19
20
21
22
23

RESPECTFULLY SUBMITTED this 30th day of August, 2018.
OLSON, CANNON, GORMLEY,
ANGULO & STOBERSKI

D. Data

By /s/ T40.44
THOMAS D. DILLARD, JR., ESQ.
Nevada Bar No. 006270
9950 West Cheyenne Avenue
Las Vegas, Nevada 89129
Attorneys for Defendant
Clark County

24
25
26
27
28

Page 15 of 16

Case 2:17-cv-03017-JAD-CWH Document 43 Filed 08/30/18 Page 16 of 16

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 30' day of August, 2018, I served the above

OPPOSITION TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT AND
COUNTER MOTION FOR RECONSIDERATION OF THE ORDER GRANTING
PLAINTIFF A PRELIMINARY INJUNCTION through the CM/ECF system of the United
States District Court for the District of Nevada (or, if necessary, by U.S. Mail, first class, postage
pre-paid), upon the following:
Kelly A. Evans, Esq.
Chard R. Fears, Esq.
EVANS FEARS & SCHUTTERT, LLP
2300 W. Sahara Ave., Ste. 900
Las Vegas, Nevada 89102
P: 702-805-0290
F: 702-805-0291
[e-mail]
[e-mail]
Jeffery F. Barr, Esq.
ASHCRAFT & BARR, LLP
2300 W. Sahara Ave., Ste. 900
Las Vegas, Nevada 89102
P: 702-631-7555
F: 702-631-7556
[e-mail]
Attorneys for Plaintiff
Adam Paul Laxalt, Esq.
Attorney General
Michael D. Jenson, Esq.
Senior Deputy Attorney General
555 Wright Way
Carson City, Nevada 89711
P: 775-684-4603
F: 775-684-4601
[e-mail]
Attorneys for Defendant
Nevada Commission on Peace
Officer Standards & Training
/s/

HeL444

An Employee of Olson, Cannon, Gormley,
Angulo & Stoberski

Page 16 of 16

Case 2:17-cv-03017-JAD-CWH Document 43-1 Filed 08/30/18 Page 1 of 3

EXHIBIT A
NRS 258.007

Case 2:17-cv-03017-JAD-CWH Document 43-1 Filed 08/30/18 Page 2 of 3

258.007. Certification as category I or category II peace officer..., NV ST 258.007

West's Nevada Revised Statutes Annotated
Title 20. Counties and Townships: Formation, Government and Officers (Chapters 243-260)
Chapter 258. Constables
This section has been updated. Click here for the updated version.
N.R.S. 258.007
258.007. Certification as category I or category II peace officer required in certain townships; forfeiture of office
Effective: July 1, 2013 to June 8, 2015
I. Each constable of a township whose population is 15,000 or more or a township that has within its boundaries a city
whose population is 15,000 or more shall become certified by the Peace Officers' Standards and Training Commission
as a category I or category II peace officer within 1 year after the date on which the constable commences his or her term
of office or appointment unless the Commission, for good cause shown, grants in writing an extension of time, which
must not exceed 6 months.

2. If a constable does not comply with the provisions of subsection 1, the constable forfeits his or her office and a vacancy
is created which must be filled in accordance with NRS 258.030.

Credits
Added by Laws 2013, c. 485, § 8.6, eff. July 1, 2013.
N. R. S. 258.007, NV ST 258.007
Current through the 79th Regular Session (2017) of the Nevada Legislature with all legislation operative or effective up
to and including June 16, 2017 subject to change from the reviser of the Legislative Bureau.
End of Docuincrn

WESTLAW

20 1 7 Thomson Reams. No claim to original U.S. Governme n t Works.

2017 Thomson Reuters. No claim 10 original U.S. Government Works.

Case 2:17-cv-03017-JAD-CWH Document 43-1 Filed 08/30/18 Page 3 of 3

258.007. Certification as category II peace officer required in..., NV ST 258.007

KeyCite Yellow Flag - Negative Treatment
Proposed Legislation

West's Nevada Revised Statutes Annotated
Title 20. Counties and Townships: Formation, Government and Officers (Chapters 243-260)
Chapter 258. Constables
N.R.S. 258.007
258.007. Certification as category II peace officer required in certain townships; forfeiture of office
Effective: June 9, 2015
Currentness
I. Each constable of a township whose population is 100,000 or more and which is located in a county whose population
is 700,000 or more, and each constable of a township whose population is 250,000 or more and which is located in
a county whose population is less than 700,000, shall become certified by the Peace Officers' Standards and Training
Commission as a category II peace officer within 1 year after the date on which the constable commences his or her term
of office or appointment unless the Commission, for good cause shown, grants in writing an extension of time, which
must not exceed 6 months.

2. If a constable does not comply with the provisions of subsection 1, the constable forfeits his or her office and a vacancy
is created which must be filled in accordance with NRS 258.030.

Credits
Added by Laws 2013, c. 485, § 8.6, eff. July 1, 2013. Amended by Laws 2015, c. 438, * 10, eff. June 9, 2015.

N. R. S. 258.007, NV ST 258.007
Current through the 79th Regular Session (2017) of the Nevada Legislature with all legislation operative or effective up
to and including June 16, 2017 subject to change from the reviser of the Legislative Bureau.
End of Document

2017 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW « 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Case 2:17-cv-03017-JAD-CWH Document 43-2 Filed 08/30/18 Page 1 of 3

EXHIBIT B
Correspondence dated 6/29/16

Case 2:17-cv-03017-JAD-CWH Document 43-2 Filed 08/30/18 Page 2 of 3

STATE OF NEVADA
COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING
5587 Wa Pei Shone Avenue
Carson City, Nevada 89701
[phone] FAX [phone]
BRIAN SANDOVAL
Coverwor

MICHAEL D. SHERLOCK
Executive Director

June 29, 2016
Clark County Commission
Commission Chairman Steve Sisolak
500 S. Grand Central Pk 6th Floor
Las Vegas, NV 89155
Clark County D.A., County Counsel
Mary Anne Miller'
200 Lewis Ave
Las Vegas, NV 89101
To Whom It May Concern,
Nevada POST wishes to inform Clark County the status of elected North Las Vegas Township
Constable Robert L. Eliason. As you may know, NRS 258.007 states the following: Certification as
category II peace officer required in certain townships; forfeiture of office.
1. Each constable of a township whose population is 100,000 or more and which is located in a
county whose population is 700,000 or more, and each constable of a township whose population is
250,000 or more and which is located in a county whose population is less than 700,000, shall become
certified by the Peace Officers' Standards and Training Commission as a category II peace officer
within 1 year after the date on which the constable commences his or her term of office or
appointment unless the Commission, for good cause shown, grants in writing an extension of time,
which must not exceed 6 months.
2. If a constable does not comply with the provisions of subsection 1, the constable forfeits his or
her office and a vacancy is created which must be filled in accordance with NRS 258.030.
(Added to NRS by 2013, 2946; A 2015, 2516)
In addition, NRS 289.550 states: Persons required to be certified by Peace Officers' Standards and
Training Commission; period by which certification is required.
I. Except as otherwise provided in subsection 2 and MRS 3.310, 4353, 258.007 and 258.060, a
person upon whom some or all of the powers of a peace officer are conferred pursuant to NRS 289.150
to 289.360, inclusive, must be certified by the Commission within 1 year after the date on which the
person commences employment as a peace officer unless the Commission, for good cause shown,

Case 2:17-cv-03017-JAD-CWH Document 43-2 Filed 08/30/18 Page 3 of 3

grants in writing an extension of time, which must not exceed 6 months, by which the person must
become certified. A person who fails to become certified within the required time shall not exercise
any of the powers of a peace officer after the time for becoming certified has expired.
Both statutes require a peace officer to be certified within 12. months of the date of hire or appOintment
and allow for one six month extension upon showing of good cause. Certification requires a person
appointed to a peace officer position to 1. Successfully complete a basic training course (academy),
2. Pass the state certification written exam and 3. Pass the state physical fitness test.
Records show that North Las Vegas Township exceeds the minimum population of 100,000 and Clark
County exceeds the minimum population of 700,000, meeting the requirement to be certified under
NRS 258.007. It should also be noted that even in counties or townships below the population
threshold, should the constable exercise some or all of the peace officer powers, the constable must be
certified by POST.
Mr. Eliason was granted one six month extension by the POST Commission. That extension expires
on July 4th, 2016. This was based on his taking office January 4th, 2015. At this point, it appears Mr.
Eliason has not met any of the certification requirements. We have been notified by Clark County law
enforcement academies that Mr. Eliason has not enrolled or has failed to attend a basic training course
(academy). A check with our Training Division shows Mr. Eliason has not enrolled in our academy
here at POST. In addition, he has not reported to us that he has passed the physical fitness test, nor has
he attempted to schedule the state certification test. That said, it should be noted that the physical
finless test must be passed during the basic training course (academy) and the state certification test is
only available after completion of the basic training course (academy). Clearly, he would not be able
to complete an academy before the expiration of his extension.
This letter is to inform Clark County that Mr. Eliason has not met the requirements of NRS 289.550
nor has he met the specific requirements for constables in NRS 258.007. He has not met the
certification requirements and as such, he is not a certified peace officer in Nevada. In addition, to the
requirement of the office being forfeited under NRS 258.007, it should be noted that a person who has
not fulfilled the requirements for certification, does not have peace officer powers.
POST is providing this information as it is our duty to insure peace officer standards are met and
agencies are in compliance with those standards. In this case (constables), the NRS indicates the
County Commission as the authority regarding non-compliance and appointments to vacated offices.
Should you have any questions, do not hesitate in contacting me.

Sincerely,
M Sherlock
Michael Sherlock
Executive Director, POST •

2

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 1 of 7

EXHIBIT C
Notice of Entry of Order re: Preliminary Injunction

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 2 of 7
Electronically Filed
8/21/2017 11:08 AM
Steven D. Grierson
CLERK OF THE COU

NE0
KELLY A. EVANS, ESQ.
Nevada Bar No. 7691
kevansCir)efstriallaw.com
CHAD k. FEARS, ESQ.
Nevada Bar No. 6970
efearsaefstriallaw.com
EVANS FEARS & SCHUTTERT L.L.P.

2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]
JEFFREY F. BARR, ESQ
Nevada Bar No. 7269
[e-mail]
ASHCRAFT & BARR I LLP

BA.RRI
LLP
ASHCRAFT&

2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

DISTRICT COURT
CLARK COUNTY, NEVADA
ROBERT ELIASON, an individual
Plaintiff,
V.

CASE NO. A-17-758319-C
DEPT NO:6 VI

CLARK COUNTY, a political subdivision
of the State of Nevada; MIKE SHERLOCK, NOTICE OF ENTRY OF ORDER
in his official capacity as Executive Director
of the Nevada Commission on Peace Officer
Standards & Training; NEVADA
COMMISSION ON PEACE OFFICER
STANDARDS & TRAINING,
Defendants.
NOTICE OF ENTRY OF ORDER
TO:

CLARK COUNTY.

TO:

THEIR ATTORNEYS OF RECORD.

PLEASE TAKE NOTICE that an Order was entered in the above-entitled matter on Augus
18th, 2017.
Page 1 of 2

Csè Nu'rni3er-A-17-751331'9-6-

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 3 of 7

A copy of said Order is attached hereto.
DATED this 21" day of August 2017.

ASIICRAFTSt BARRIIAA'

ASHCRAFT & BARR I LLP
/s/Jeffrey F. Barr
JEFFREY F. BARR, ESQ.
Nevada Bar No. 7269
[e-mail]
2300 West Sahara Ave.
Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

CERTIFICATE OF SERVICE BY ELECTRONIC MEANS
I hereby certify that on this 21' day of August, 2017, the foregoing Notice of Entry of
Order was electronically served to all registered parties in case number A-17-758319-C.

/s/Janelle Graft
An employee of ASHCRAFT & BARR ILLP

Page 2 of 2

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 4 of 7

ORDR
KELLY A. EVANS, ESQ.
Nevada Bar No. 7691
[e-mail]
CHAD R. FEARS, ESQ.
Nevada Bar No. 6970
[e-mail]
EVANSFEARS & SCHUTTERT L.L.P.
2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]

ASHCRAFT&
BARRI
LLP

JEFFREY F. BARR, ESQ
Nevada Bar No. 7269
bat @AshcraftBarr.com
ASHCRAFT & BARR I LLP
2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

DISTRICT COURT
CLARK COUNTY, NEVADA
ROBERT ELIASON, an individual and in his Case No.: A-17-758319-C
official capacity as Constable of North Las Dept. No.: VI
Vegas Township,
ORDER GRANTING PRELIMINARY
V.
INJUNCTION
CLARK COUNTY, a political subdivision of
the State of Nevada; MIKE SHERLOCK, in
his official capacity as Executive Director of
the Nevada Commission on Peace Officer
Standards & Training,
Defendant.
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
Page 1 of 4

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 5 of 7

having entertained oral argument, and good cause appearing therefore, the Court hereby
2

makes the following Findings of Facts, Conclusions of Law and Order.

FINDINGS AND CONCLUSIONS OF LAW
1. In light of the expedited nature of these proceedings, the Court addresses the Motion
for Preliminary InjunFti9n, the alternative relief sought by pzinstb,le Eliason) [ROP
aq! Ad/ VAS -fc> 1‘55(rt- WAt'i
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29:9-14.]
2. The issue before the Court on the Motion for Preliminary Injunction is whether Clark
County has the authority to declare forfeiture of Constable Eliason's position pursuant
to NRS 258.007. [ROP 29:16-19.]
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size to receive Peace Officer Standards and Training Certification. [ROP 29:25; 30:1-,

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4.
NRS 258.030 aUthorizes Clark County to fill any vacancy in Constable Eliason's
position. [ROP 30:8.]
5. NRS 258.007 does not confer upon Clark County the authority todeclare such a

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3. NRS 258.007 requires Constables in counties and townships over a certain population

18

name of the State against a public officer who does or suffers an act which by the

19

provisions of law works a forfeiture of the office." ("Quo Warranto action")

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7. A Quo Warranto action is a formal and ancient proceeding to remove a person who
has been duly elected to public office. [ROP 31:10-16.]
8. Writs quo warrant° are set out in the Nevada Constitution as a remedy that is available
to the courts of the State of Nevada and NRS ch. 35 outlines the process.
9. A Quo Warranto action is the proper procedure for determining a forfeiture of office,
including a forefiture as a matter of law. [ROP 31:21-25.]
10. NRS 35.030 confers standing to institute a Quo Warranto action solely to the Attorney
General at the direction of the Governor.
Page 2 of 4

eft,

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 6 of 7

11. Clark County does not have the authority to maintain a Quo Warranto action
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12. Quo Warranto action is t e xc sive remedy to obtain a declaration that a orfeiture
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of public office has occurred by provisions of law., ROP 1:21-25.]
13. The following four factors are considered when determining whether to order
preliminary injunctive relief: (a) The threat of immediate, irreparable harm; (b) the
likelihood that the party seeking a preliminary injunction will be successful on the
merits of the underlying action; (c) whether the balance of interests weighs in favor of
8
9

the party seeking the preliminary injunction; and (d) whether issuance of the
preliminary injunction is in the public's interest. Clark County School District v.

10

Buchanan, 112 Nev. 1146, 1150, 924 P.2d 716, 719 (1996); see also, Number One

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Rent-A-Car v. Ramada Inns, 94 Nev. 779, 780, 587 P.2d 1329, 1330 (1978).

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14. This Court finds that Constable Eliason will likely succeed on the merits. [ROP 31:2125; 32:1.]
15. This Court finds that absent an injunction, irreparable injury to Constable Eliason
would occur. [ROP 32:2-8.]
16. This Court finds that the balance of the hardships weighs in Constable Eliason's favor.

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17

There is no apparent substantial or certain irreparable injury to Clark County if an

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18

injunction is issued; however, Constable Eliason is likely to suffer substantial and

19

irreparable injury if an injunction is not issued. [ROP 32.9:14.]

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17. This Court finds that in terms of public policy, the Quo Warranto action is the

21

established method to ensure due process is afforded and all rights are protected before

22

an elected official is removed from office; therefore, public policy favors the grant of

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the preliminary injunction on that basis. [ROP 32:15-20.]

ORDER

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25

IT IS HEREBY ORDERED that:

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1. Plaintiffs Motion for Preliminary Injunction is hereby GRANTED,

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Page 3 of 4

Case 2:17-cv-03017-JAD-CWH Document 43-3 Filed 08/30/18 Page 7 of 7

2. Defendant Clark County and its governing body, the Board of County Commissioners,
and its agents and employees are enjoined and restrained 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;
3. Defendant Clark County and its governing body, the Board of County Commissioners,
and its agents and employees are enjoined and restrained from proceeding during the
pendency of this action in filling any vacancy in the Office of Constable of North Las
Vegas Township, unless such vacancy is declared pursuant to a Nevada court in a writ
quo warrant();
IOi

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ASHCRAFT&BARRI

11
12

4. Plaintiff's bond posted pursuant to NRCP 65(c) with this Court in the amount of
$1,000.00 on July 17, 2017, shall remain on file with this Court.
DATED this

(6 th day of

A

c't

2017.

13
14

DIS

L5
r 'Prepareld and submitted.
As c 1 WBARR IL
.
_ 17

JEFFREY. BR, t
Nevada Bitir No. 7269
18
[e-mail]
ASHCRAFT & BARR I LLP
19
2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
_O Telephone: [phone]
Facsimile: [phone]
KELLY A. EVANS, ESQ.
22 Nevada Bar No. 7691
kevansaefstriallaw.com
_3 CHAD R. FEARS, ESQ.
Nevada Bar No. 6970
[e-mail]
EVANS FEARS & SCHUTTERT L.L.P.
25 2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
26 Telephone: [phone]
Facsimile: [phone]
27 Attorneys for Plaintiff
Page 4 of 4

COURT JU GE

ADO.

Case 2:17-cv-03017-JAD-CWH Document 43-4 Filed 08/30/18 Page 1 of 5

EXHIBIT D
Opinion No. 2017-14 (2/5/18)

Case 2:17-cv-03017-JAD-CWH Document 43-4 Filed 08/30/18 Page 2 of 5

J. BRIN GIBSON
ADAM PAUL LAXALT

First Assistant Attorney General

Attorney General

NICHOLAS A. TRUTANICH

STATE OF NEVADA
OFFICE OF THE ATTORNEY
GENERAL

Chief of Staff

KETAN D. BHIRUD
General Counsel

100 North Carson Street

Carson City, Nevada 89701

February 5, 2018

OPINION NO. 2017-14

OFFICE OF THE GOVERNOR;
FORFEITURE OF OFFICE;
COUNTY OFFICIAL - CONSTABLE:
Quo warran,to 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.

The FIonorable Brian Sandoval
Governor, State of Nevada
State Capitol Building
101 N. Carson Street
Carson City, NV 89701
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:

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?

BACKGROUND
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
Telephone: [phone] • Fax: [phone] • Web: ag.nv.gov • E-mail: agintb@Ag,nv.gov
Twitter: @NevadaAG • Faceboolc: /NVAttorneyGeneral • YouTube: /NevadaAG

Case 2:17-cv-03017-JAD-CWH Document 43-4 Filed 08/30/18 Page 3 of 5

The Honorable Brian Sandoval
Office of the Governor
Page 2
February 5, 2018
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 warrant°
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 warran,to action to
remove the constable from office.

SUMMARY CONCLUSION
Quo wan.anto 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.

ANALYSIS
An action in quo Lvarranto 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 warran,to proceedings originated at common law, but the
right to commence an action in quo wa,rranto has since been codified at NRS
Chapter 35. As codified, quo warrant° is used at the prerogative of the
government with few exceptions.'

1 The

Attorney General is one of several persons who are expressly
authorized to bring an action in quo warranto. Other persons who may bring
an action are those who claim a right to hold, maintain, or assume a given
public office when that right is disputed or contested. See State ex rel.
McMillan v. Sadler, 25 Nev. 131, 58 P. 284 (1899). Here, our office has been
informed that the constable has already filed an action that seeks to
adjudicate whether the forfeiture statute is valid and enforceable. Although
it is not styled in the nature of an action in quo Lvarranto, it will effectively
resolve any dispute concerning the constable's authority to continue to hold

Case 2:17-cv-03017-JAD-CWH Document 43-4 Filed 08/30/18 Page 4 of 5

The Honorable Brian Sandoval
Office of the Governor
Page 3
February 5, 2018
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 theta, 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
(t an act providing for the removal from office of public officers for malfeasance or
nonfeasance in office," now codified at NRS 283.440.2 The statute provides in
pertinent part that "[any] person who holds any office in this State and who
refuses or neglects to perform any official act in the matter and form prescribed
by law, may be removed pursuant to this section." Although the statute does
not apply to judges, impeachable state officers, or state legislators, any person
may make a certified complaint against a constable who has refused or
neglected to perform his official duties as prescribed by law. Upon receipt of
such a complaint the court will issue an order to show cause to consider the
charges of the complaint. NRS 283.440(2).
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
the office. An action in quo warranto would tend to duplicate the purpose of
the litigation that is currently underway.
The Legislature adopted this statute to give effect to Article 7 of the
Nevada Constitution, to make additional provision "for the removal from
Office of any Civil Officer other than those who are subject to
impeachment]." The Governor and "other state and judicial officers" are
subject to impeachment. Nev. Const., Art. 7, § 2.
2

Case 2:17-cv-03017-JAD-CWH Document 43-4 Filed 08/30/18 Page 5 of 5

The Honorable Brian Sandoval
Office of the Governor
Page 4
February 5, 2018
Nev. 604, 607, 472 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,
164, 178 P.2d. 558, 571 (1947), so these remedies should be 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,
as 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 Lvarranto, 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.

Sincerely,
ADAM MAUL LAXALT
Attorn y General
I
f*
By:
'
-Melissa L. Flatley
1
Deputy Attorney General
Bureau of Business and State Services
Business and Taxation
MLF/kh

Exhibit D

Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 1 of 10

1
2
3
4
5
6

ADAM PAUL LAXALT
Attorney General
MICHAEL D. JENSEN
Nevada Bar No. 4642
Senior Deputy Attorney General
555 Wright Way
Carson City, Nevada 89711
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant NEVADA COMMISSION ON
PEACE OFFICERS’ STANDARDS & TRAINING

7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
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12
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ROBERT ELIASON, an individual and in his
official capacity as Constable of North Las
Vegas Township,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
CLARK COUNTY, a political subdivision of )
the State of Nevada; STATE OF NEVADA ex )
rel. NEVADA COMMISSION ON PEACE
)
OFFICER STANDARDS & TRAINING,
)
)
Defendants.
)
)

Case No. 2:17-cv-03017-JAD-CWH

RESPONSE TO PLAINTIFF’S MOTION FOR
DECLARATORY JUDGMENT

18

Comes Now Defendant, STATE OF NEVADA ex rel. its NEVADA COMMISSION ON

19

PEACE OFFICERS’ STANDARDS AND TRAINING (POST Commission), by and through its

20

counsel, ADAM PAUL LAXALT, Attorney General for the State of Nevada, and MICHAEL D.

21

JENSEN, Senior Deputy Attorney General and hereby files its Response to Plaintiff’s Motion for

22

Declaratory Judgment [Doc. #41]. The Commission’s Response is based on the attached Memorandum

23

of Points and Authorities, all relevant papers and pleading on file herein, and all relevant rules of law.

24
25

MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

26

The Plaintiff, ROBERT ELIASON, filed a First Amended Verified Complaint (Amended

27

Complaint) in Eighth Judicial District Court, Clark County, Nevada on November 12, 2017. In his

28

Amended Complaint, the Plaintiff alleges that he has a “documented neurological condition that
-1-

Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 2 of 10

1

prevents him from meeting one part of the physical fitness test for certification.” Amended Complaint,

2

page 2, lns. 1-3. The Plaintiff alleges that he has diligently pursued P.O.S.T. certification but he has not

3

been able to meet one part of the physical fitness test for P.O.S.T. certification. With regard to the

4

purpose of the lawsuit, the Plaintiff alleges:

5
6
7
8
9
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This action is 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-established 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. The
action is necessary to restrain Clark County’s excess of jurisdiction.”
Amended Complaint, p. 2, lns. 4-11. The Plaintiff also alleges the action is
necessary because the law in question, NRS 258.007, violates both the
Nevada Constitution and the Americans with Disabilities Act.

11

Id. at lns. 12-13.

12

NRS 258.007 reads as follows:

13
14
15
16
17
18

1.
Each constable in a township whose population is 100,000 or more
which is located in a county whose population is 700,000 or more, and
each constable of a township whose population is 250,000 or more and
which is located in a county whose population is less than 700,000, shall
become certified by the Peace Officers’ Standards and Training
Commission as a category II peace officer within one year after the date
on which the constable commences his or her term of office or
appointment unless the Commission, for good cause shown, grants an
extension of time, which must not exceed 6 months.
2.
If a constable does not comply with the provisions of subsection 1,
the constable forfeits his or her office and a vacancy is created which must
be filled in accordance with NRS 258.030.

19
NRS 258.030 reads as follows:
20
21
22

Except for those townships that the boards of county commissioners have
determined to require an office of constable, if any vacancy exists or
occurs in the office of constable in any township, the board of county
commissioners shall appoint a person to fill the vacancy pursuant to NRS
245.170.

23
24

In the “Parties and Jurisdiction” section of Plaintiff’s Amended Complaint, he states that he was

25

elected in November 2014 and entered office as North Las Vegas Constable on January 2, 2015.

26

Amended Complaint, p. 2, lns. 19-20. The POST Commission, at its meeting in November 2015,

27

granted the Plaintiff a six-month extension of time to obtain POST certification up to July 2016.

28

The Plaintiff did not receive POST certification by July 2016. The Plaintiff alleges that on July 5, 2017,
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 3 of 10

1

“the Clark County Board of Commissioners met to consider Sherlock’s unsolicited recommended

2

course of action to declare Constable Eliason had forfeited his office.” The agenda item for the Board’s

3

meeting is alleged to provide as follows: “the Board of County Commissioner [to] declare that Robert

4

L. Eliason, the elected North Las Vegas Constable, has forfeited his office…” Amended Complaint,

5

p. 5, lns. 6-12. At Constable Eliason’s request, the Clark County Board of Commissioners continued its

6

consideration of the forfeiture of office for two weeks.

7

The Plaintiff’s Amended Complaint contains five claims for relief: (1) First Claim for Relief -

8

Declaratory Relief – Clark County and POST, pursuant to NRS 30.010 et seq. seeking a declaration that

9

NRS 258.007 confers no authority on Clark County to declare a forfeiture of the office of the North Las

10

Vegas Township Constable, that the courts are the exclusive province of declaring whether an elected

11

official has forfeited his office by way of a “writ quo warranto,” under NRS 35.010 et seq., and that

12

only the Attorney General, when directed by the Governor, may bring such an action. Additionally,

13

under this Claim for Relief, the Plaintiff alleges NRS 258.007 violates the Nevada Constitution and the

14

American with Disabilities Act and that the POST Commission is the entity charged with enforcing

15

NRS 258.007; (2) Second Claim for Relief - Injunctive Relief, or in the alternative, a Writ of

16

Prohibition – pursuant to NRS 34.320 et seq., seeking a writ of prohibition enjoining Clark County

17

from “usurping the jurisdiction to adjudicate whether Constable Eliason has forfeited his office;”

18

(3) Third Claim for Relief – Title II of the Americans with Disabilities Act, State and Local

19

Governments - seeking to enjoin the POST Commission from enforcing NRS 258.007 and declaring the

20

law invalid; (4) Fourth Claim for Relief – Article IV, Section 20 of Nevada Constitution, Certain Local

21

and Special Laws Prohibited seeking a declaration that NRS 258.007 is a local or special law relating to

22

the duties of the constable, and a declaration that the law is unconstitutional as it violates Article IV,

23

Section 20 of the Nevada Constitution as a local or special law; and (5) Fifth Claim for Relief – Article

24

IV Section 25 of the Nevada Constitution – Uniform County and Township Government – seeking a

25

declaration that NRS 258.007 should be declared unconstitutional because it violates Article IV,

26

Section 25 of the Nevada Constitution because it does not impose the same requirements on all offices

27

of constable within the state. Amended Complaint, p. 5-9.

28

///
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 4 of 10

1

In the State District Court, the Plaintiff sought and obtained an Order Granting Preliminary

2

Injunction through which the Court enjoins and restrains Clark County and its governing body, the

3

Board of County Commissioners, from proceeding during the pendency of this action in voting or

4

declaring the forfeiture of Robert Eliason from the Office of Constable for the North Las Vegas

5

Township, enjoins Clark County and its governing body, the Board of County Commissioners, and its

6

agents and employees from proceeding during the pendency of the action in filling any vacancy in the

7

Office of the Constable of North Las Vegas Township, unless such vacancy is declared pursuant to a

8

Nevada court in a writ quo warranto. The Order Granting Preliminary Injunction was issued on August

9

16, 2017.

10

On December 8, 2017, Clark County filed a Notice of Removal of Civil Action to the United

11

States District Court for the District of Nevada. The removal to Federal District Court is supported by

12

the single Federal law claim alleging NRS 458.007, by its own terms, violates Title II of the Americans

13

with Disabilities Act. The parties are currently engaged in discovery, which ends on November 5,

14

2018. [Doc. #37].

15

On August 17, 2018, the Plaintiff filed his Motion for Declaratory Judgment, pursuant to

16

28 U.S.C. § 2201(a), through which he seeks a judgment from this Court declaring (1) only the Nevada

17

State Courts may declare a forfeiture of an elected official’s office; (2) Clark County possesses no

18

unilateral authority, under Nevada law, to declare Robert L. Eliason, the elected North Las Vegas

19

Constable, has forfeited his office and that the vacancy for such office exists; and (3) the agenda item,

20

on the July 18, 2017 Clark County Commission meeting agenda, through which the Commission seeks

21

to declare that the Plaintiff has forfeited his office and that a vacancy in such office exists is illegal

22

under Nevada law.

23

The POST Commission files this response for the sole purpose of requesting the Court abstain

24

from issuing a Federal Declaratory Judgment on these purely state law questions, and requests the

25

Court certify these Nevada statutory and Nevada Constitutional questions to the Nevada Supreme

26

Court.

27

///

28

///
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 5 of 10

1
2
3

II.

ARGUMENT
A.

Pursuant to Pullman, the Court Should Abstain From Issuing a Federal
Declaratory Judgment in These Purely State Law Matters.

4

In R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941), the United States

5

Supreme Court held that federal courts should abstain from exercising jurisdiction in a matter when an

6

unsettled area of state law has an effect on the outcome of a federal constitutional claim or would

7

render a decision on the federal claim unnecessary. See also, San Remo Hotel v. City and County of

8

San Francisco, 145 F.3d 1095, 1104-1105 (9th Cir. 1998). The equitable considerations of Pullman

9

abstention are typically applied when an unsettled state law question is best decided by or is already

10

pending in state court. See, Harris City Commissioner’s Court v. Moore, 420 U.S. 77, 83-84, 95 S.Ct.

11

870 (1975). In the face of novel questions of state law, many federal courts rely on state certification

12

procedures, which avoid the significant financial and time burdens associated with Pullman abstention.

13

Jones v. Coleman, 848 F.3d 744, 750 (6th Cir. 2017).

14

Plaintiff’s request for a declaratory judgment involves unsettled questions of state law. While

15

the State District Court entered a preliminary injunction, the Court’s finding, for purposes of the

16

preliminary injunction, was only that Plaintiff had a substantial likelihood of success on these state law

17

matters. Significantly, the Nevada Supreme Court has not interpreted NRS 458.007.

18

language of the statute provides for the forfeiture of office if a constable fails to become certified by the

19

POST Commission within one year of taking office, or within any extension granted by the POST

20

Commission not to exceed 6 months.

The plain

21

The Nevada Office of the Attorney General has opined on a related question. See Nevada

22

Attorney General Opinion 2017-14. By letter dated September 29, 2017, the Governor requested an

23

opinion from the Office of the Attorney General on the following question: “What legal mechanisms

24

exist by which a county may remove a constable or other official who has failed to fulfill the statutory

25

requirements of office?” The section of the Opinion entitled “Summary of Conclusion” reads: “Quo

26

warranto is not the exclusive remedy to challenge the authority of a county official to hold office.

27

Because a constable is not a state office, his right to hold a public office, after failing to satisfy the

28
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 6 of 10

1

requirements of NRS 258.007, may also be challenged pursuant to NRS 283.440.” Id. at p. 2. In the

2

concluding two paragraphs of the Opinion, the Nevada Office of the Attorney General opines:

3

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, Schmacher v. State ex rel. Furlong, 78 Nev. 167, 171, 370
P.2d 209, 211 (1962), citing Moulton v. Scully, 111 Me. 428, 89 A. 944,
947 (1914). Nonfeasance, as such, is a basis for removal pursuant to
NRS 283.440. Id.

4
5
6
7
8

It does not change the analysis that a constable’s failure to become POST
certified results in the “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 250.030”). 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.

9
10
11
12
13
14

Id. at p. 4.

15

The Attorney General Opinion is not binding legal authority on this issue. Cannon v. Taylor, 88

16

Nev. 89, 91, 493 P.2d 1313, 1314 (1972). Additionally, the legal analysis in this opinion underscores

17

the point that the legal issues related to the legal mechanisms to remove an elected constable from

18

office, who fails to meet the statutory mandate set out in NRS 458.007, is far from settled law in

19

Nevada. Per the Amended Complaint, the Plaintiff is seeking a declaration, pursuant to the state

20

declaratory relief statutes, that the Clark County Commission does not have the authority to unilaterally

21

declare he has forfeited his office for failure to meet the statutory POST certification mandate and it

22

does not have authority to fill a vacancy in the office without a court declaration that he has forfeited

23

his office. Per the Preliminary Injunction, the Plaintiff is protected from any action by the Clark

24

County Commission to declare he has forfeited his office and filling his office during the pendency of

25

this action. Additionally, the primary state law declarations the Plaintiff is seeking through this action

26

are novel and unsettled. Through his Amended Complaint, Plaintiff is primarily seeking declarations,

27

pursuant to the Nevada declaratory relief statutes (NRS Chapter 30), that NRS 258.007 is

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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 7 of 10

1

unconstitutional under two provisions of the Nevada State Constitution (Article IV, Section 20 and

2

Article IV Section 25).

3

In determining whether to abstain under the Pullman abstention doctrine, the Ninth Circuit

4

follows a three part test: (1) the complaint touches a sensitive area of social policy upon which federal

5

courts ought not to enter unless no alternative to its adjudication is open; (2) such constitutional

6

adjudication plainly can be avoided if a definitive ruling on the state law issue would terminate the

7

controversy; (3) the possibly determinative issue of state law is doubtful. Canton v. Spokane Sch. Dist.

8

# 81, 498 F.2d 840, 845 (9th Cir. 1974), overruled on other grounds as recognized by Heath v. Cleary,

9

708 F.2d 1376, 1378 n.2 (9th Cir. 1983).

10

The first prong of the test is met. The process through which an elected constable “forfeits” his

11

or her office and the constitutionality of a statute enacted by the Nevada Legislature related to the

12

forfeiture of office of an elected constable touch upon sensitive areas of social policy upon which the

13

federal courts ought not to enter unless no alternative to its adjudication exists. See, People ex rel.

14

Lockyer v. County of Santa Cruz, 416 F.Supp.2d 797 (N.D. Cal. 2006) (The Federal court declined to

15

exercise supplemental jurisdiction over a Californian Elections Code Cause of Action. “The cause of

16

action qualifies as an exceptional circumstance under 28 U.S.C. § 1367(c)(4). The case is essentially an

17

internal dispute between two segments of the California state government, the Attorney General and the

18

County of Santa Cruz. Although economy and convenience favor having Lockyer’s two causes of

19

action heard before the same court, comity overwhelmingly favors allowing California to handle its

20

internal disputes in its own court system. Remand of the Elections Code § 12280 cause of action is

21

appropriate here.”). The second prong of the test is met. The declarations sought by the Plaintiff relate

22

purely to the interpretation of State law and the State Constitution. There is no U.S. Constitutional

23

adjudication to avoid. Additionally, a state court ruling that NRS 458.007 violates the Nevada

24

Constitution would moot the Plaintiff’s Title II ADA claim. The state court proceeding need not fully

25

moot the federal issues; changing or narrowing the issues is enough. Sinclair Oil Corp. v. City of Santa

26

Barbara, 96 F.3d 401, 409 (9th Cir 1996) (“[I]t is sufficient if the state law issues might narrow the

27

federal constitutional question.”). Finally, the state law on the matters for which the Plaintiff seeks

28

declarations from this Court are novel and unsettled. An issue of state law is doubtful if a federal court
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 8 of 10

1

cannot predict with any confidence how the state’s highest court would decide the issue of state law.

2

Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1464, 1465 (9th Cir. 1995).

3

“Resolution of an issue of state law might be uncertain because the particular [state] statute is

4

ambiguous, or because the precedents conflict, or because the question is novel and of sufficient

5

importance that it ought to be addressed first by a state court.” Id. The POST Commission could not

6

find any case law through which the Nevada Supreme Court has interpreted the proper application of

7

NRS 258.007. Finally, abstention on these state constitutional and statutory issues would substantially

8

further important principles of federalism and comity underlying Pullman and it progeny.

9
10

B.

The POST Commission Requests the Court Certify the State Law Questions to the
Nevada Supreme Court.

11

While Pullman abstention on the state statutory and constitutional questions is warranted, the

12

state law questions can be properly certified to the Nevada Supreme Court. Nevada Rule of Appellate

13

Procedure 5 reads in relevant part as follows:

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15
16
17
18
19
20
21
22
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24
25
26
27
28

(a)
Power to Answer. The Supreme Court may answer questions of
law certified to it by the Supreme Court of the United States, a Court of
Appeals of the United States or the District of Columbia, a United States
District Court, or a United States Bankruptcy Court when requested by the
certifying court, if there are involved in any proceeding before those
courts questions the law of this state which may be determinative of the
cause then pending in the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the decision of the
Supreme Court or Court of Appeals of this state.
(b)
Method of Invoking. The Rule may be invoked by an order of any
of the courts referred to in Rule 5(a) upon the court’s own motion or upon
the motion of any party to the cause.
(c)
Contents of Certification Order. A certification order shall set
forth:
(1) The question of law to be answered;
(2) A statement of all facts relevant to the question certified;
(3) The nature of the controversy in which the question arose;
(4) A designation of the party or parties who will be the appellant(s)
and the party or parties who will be the respondent(s) in the Supreme
Court;
(5) The names and addresses of counsel for the appellant and
respondent; and
(6) Any other matters the certifying court deems relevant to a
determination of the questions certified.
(d)
Preparation of Certification Order. The certification order shall be
prepared by the certifying court, signed by the judge presiding at the
hearing, and forwarded to the Supreme Court by the clerk of the certifying
court under its seal. The Supreme Court may require the original or copies
of all or of any portion of the record before the certifying court to be filed
-8-

Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 9 of 10

with the certification order, if, in the opinion of the Supreme Court, the
record or a portion thereof may be necessary in answering the questions.
(e)
Costs of Certification. Fees and costs shall be the same as civil
appeals docketed before the Supreme Court and shall be equally divided
between the parties unless otherwise ordered by the certifying court in its
order of certification.
…
(h) Opinion. The written opinion of the Supreme Court stating the law
governing the questions certified shall be sent by the clerk under the seal
of the Supreme Court to the certifying court and to the parties and shall be
res judicata as to the parties.

1
2
3
4
5
6
7

The State statutory and constitutional law questions raised by the Plaintiff meet the requirements

8

of the Nevada Supreme Court Certification Rule. As discussed more fully above, the questions are

9

determinative of the primary relief sought by the Plaintiff and there is no controlling precedent from the

10

Nevada Supreme Court on the application and constitutionality of NRS 258.007. Certification of these

11

purely state law questions related to the application and constitutionality of NRS 258.007 is appropriate

12

in this case.

13

Pursuant to Pullman abstention, the POST Commission respectfully requests that the Court

14

abstain from issuing a Federal Declaratory Judgment on these novel, important and unsettled matters of

15

State law.

16

constitutional questions to the Nevada Supreme Court.

17

DATED this 31st day of August, 2018.

18
19
20
21
22

The POST Commission also requests the Court to certify these state statutory and

ADAM PAUL LAXALT
Attorney General
By:

/s/ Michael D. Jensen
MICHAEL D. JENSEN
Senior Deputy Attorney General
Attorneys for Defendant NEVADA COMMISSION
ON PEACE OFFICER STANDARDS & TRAINING

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25
26
27
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Case 2:17-cv-03017-JAD-CWH Document 44 Filed 08/31/18 Page 10 of 10

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the Office of the Attorney General, State of Nevada, and that

3

on August 31, 2018, I filed the foregoing document via this Court’s electronic filing system. Parties that

4

are registered with this Court’s EFS will be served electronically. For those parties not registered,

5

service was made by depositing a copy of the above-referenced document for mailing in the United

6

States Mail, first-class postage prepaid, at Carson City, Nevada to the following:

7
8
9

Kelly A. Evans, Esq.
Chad R. Fears, Esq.
Evans Fears & Schuttert L.L.P.
2300 West Sahara Avenue, Suite 900
Las Vegas NV 89102
Attorneys for Plaintiff

10
11
12

Jeffrey F. Barr, Esq.
Ashcraft & Barr LLP
2300 West Sahara Avenue, Suite 900
Las Vegas NV 89102
Attorneys for Plaintiff

13
14
15

Thomas D. Dillard, Jr., Esq.
Olson, Cannon, Gormley, Angulo &Stoberski
9950 W. Cheyenne Ave.
Las Vegas, NV 89129
Attorneys for Clark County

16
17
18

/s/ Barbara D. Cozens
Barbara D. Cozens

19
20
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22
23
24
25
26
27
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-10-

Exhibit E

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 1 of 10

1
2
3
4
5
6

ADAM PAUL LAXALT
Attorney General
MICHAEL D. JENSEN
Nevada Bar No. 4642
Senior Deputy Attorney General
555 Wright Way
Carson City, Nevada 89711
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant NEVADA COMMISSION ON
PEACE OFFICERS’ STANDARDS & TRAINING

7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12
13
14
15
16
17

ROBERT ELIASON, an individual and in his
official capacity as Constable of North Las
Vegas Township,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
CLARK COUNTY, a political subdivision of )
the State of Nevada; STATE OF NEVADA ex )
rel. NEVADA COMMISSION ON PEACE
)
OFFICER STANDARDS & TRAINING,
)
)
Defendants.
)
)

Case No. 2:17-cv-03017-JAD-CWH

RESPONSE TO DEFENDANT CLARK
COUNTY’S COUNTER MOTION FOR
RECONSIDERATION OF THE ORDER
GRANTING PLAINTIFF A
PRELIMINARY INJUNCTION

18

Comes Now Defendant, STATE OF NEVADA ex rel. its NEVADA COMMISSION ON

19

PEACE OFFICERS’ STANDARDS AND TRAINING (POST Commission), by and through its

20

counsel, ADAM PAUL LAXALT, Attorney General for the State of Nevada, and MICHAEL D.

21

JENSEN, Senior Deputy Attorney General and hereby files its Response to Defendant Clark County’s

22

Counter Motion for Reconsideration of the Order Granting Plaintiff a Preliminary Injunction [DOC 43].

23

The Commission’s Response is based on the attached Memorandum of Points and Authorities, all

24

relevant papers and pleading on file herein, and all relevant rules of law.

25
26

MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

27

The Plaintiff, ROBERT ELIASON, filed a First Amended Verified Complaint (Amended

28

Complaint) in Eighth Judicial District Court, Clark County, Nevada on November 12, 2017. In his
-1-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 2 of 10

1

Amended Complaint, the Plaintiff alleges that he has a “documented neurological condition that

2

prevents him from meeting one part of the physical fitness test for certification.” Amended Complaint,

3

page 2, lns. 1-3. The Plaintiff alleges that he has diligently pursued P.O.S.T. certification but he has not

4

been able to meet one part of the physical fitness test for P.O.S.T. certification. With regard to the

5

purpose of the lawsuit, the Plaintiff alleges:

6
7
8
9
10
11

This action is 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-established 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. The
action is necessary to restrain Clark County’s excess of jurisdiction.”
Amended Complaint, p. 2, lns. 4-11. The Plaintiff also alleges the action is
necessary because the law in question, NRS 258.007, violates both the
Nevada Constitution and the Americans with Disabilities Act.

12

Id. at lns. 12-13.

13

NRS 258.007 reads as follows:

14
15
16
17
18
19

1.
Each constable in a township whose population is 100,000 or more
which is located in a county whose population is 700,000 or more, and
each constable of a township whose population is 250,000 or more and
which is located in a county whose population is less than 700,000, shall
become certified by the Peace Officers’ Standards and Training
Commission as a category II peace officer within one year after the date
on which the constable commences his or her term of office or
appointment unless the Commission, for good cause shown, grants an
extension of time, which must not exceed 6 months.
2.
If a constable does not comply with the provisions of subsection 1,
the constable forfeits his or her office and a vacancy is created which must
be filled in accordance with NRS 258.030.

20
NRS 258.030 reads as follows:
21
22
23

Except for those townships that the boards of county commissioners have
determined to require an office of constable, if any vacancy exists or
occurs in the office of constable in any township, the board of county
commissioners shall appoint a person to fill the vacancy pursuant to NRS
245.170.

24
25

In the “Parties and Jurisdiction” section of Plaintiff’s Amended Complaint, he states that he was

26

elected in November 2014 and entered office as North Las Vegas Constable on January 2, 2015.

27

Amended Complaint, p. 2, lns. 19-20. The POST Commission, at its meeting in November 2015,

28

granted the Plaintiff a six-month extension of time to obtain POST certification up to July 2016.
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Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 3 of 10

1

The Plaintiff did not receive POST certification by July 2016. The Plaintiff alleges that on July 5, 2017,

2

“the Clark County Board of Commissioners met to consider Sherlock’s unsolicited recommended

3

course of action to declare Constable Eliason had forfeited his office.” The agenda item for the Board’s

4

meeting is alleged to provide as follows: “the Board of County Commissioner [to] declare that Robert

5

L. Eliason, the elected North Las Vegas Constable, has forfeited his office…” Amended Complaint,

6

p. 5, lns. 6-12. At Constable Eliason’s request, the Clark County Board of Commissioners continued its

7

consideration of the forfeiture of office for two weeks.

8

The Plaintiff’s Amended Complaint contains five claims for relief: (1) First Claim for Relief -

9

Declaratory Relief – Clark County and POST, pursuant to NRS 30.010 et seq. seeking a declaration that

10

NRS 258.007 confers no authority on Clark County to declare a forfeiture of the office of the North Las

11

Vegas Township Constable, that the courts are the exclusive province of declaring whether an elected

12

official has forfeited his office by way of a “writ quo warranto,” under NRS 35.010 et seq., and that

13

only the Attorney General, when directed by the Governor, may bring such an action. Additionally,

14

under this Claim for Relief, the Plaintiff alleges NRS 258.007 violates the Nevada Constitution and the

15

American with Disabilities Act and that the POST Commission is the entity charged with enforcing

16

NRS 258.007; (2) Second Claim for Relief - Injunctive Relief, or in the alternative, a Writ of

17

Prohibition – pursuant to NRS 34.320 et seq., seeking a writ of prohibition enjoining Clark County

18

from “usurping the jurisdiction to adjudicate whether Constable Eliason has forfeited his office;”

19

(3) Third Claim for Relief – Title II of the Americans with Disabilities Act, State and Local

20

Governments - seeking to enjoin the POST Commission from enforcing NRS 258.007 and declaring the

21

law invalid; (4) Fourth Claim for Relief – Article IV, Section 20 of Nevada Constitution, Certain Local

22

and Special Laws Prohibited seeking a declaration that NRS 258.007 is a local or special law relating to

23

the duties of the constable, and a declaration that the law is unconstitutional as it violates Article IV,

24

Section 20 of the Nevada Constitution as a local or special law; and (5) Fifth Claim for Relief – Article

25

IV Section 25 of the Nevada Constitution – Uniform County and Township Government – seeking a

26

declaration that NRS 258.007 should be declared unconstitutional because it violates Article IV,

27

Section 25 of the Nevada Constitution because it does not impose the same requirements on all offices

28

of constable within the state. Amended Complaint, p. 5-9.
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Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 4 of 10

1

In the State District Court, the Plaintiff sought and obtained an Order Granting Preliminary

2

Injunction through which the Court enjoins and restrains Clark County and its governing body, the

3

Board of County Commissioners, from proceeding during the pendency of this action in voting or

4

declaring the forfeiture of Robert Eliason from the Office of Constable for the North Las Vegas

5

Township, enjoins Clark County and its governing body, the Board of County Commissioners, and its

6

agents and employees from proceeding during the pendency of the action in filling any vacancy in the

7

Office of the Constable of North Las Vegas Township, unless such vacancy is declared pursuant to a

8

Nevada court in a writ quo warranto. The Order Granting Preliminary Injunction was issued on August

9

16, 2017.

10

On December 8, 2017, Clark County filed a Notice of Removal of Civil Action to the United

11

States District Court for the District of Nevada. The removal to Federal District Court is supported by

12

the single Federal law claim alleging NRS 458.007, by its own terms, violates Title II of the Americans

13

with Disabilities Act. The parties are currently engaged in discovery, which ends on November 5,

14

2018. [Doc. #37].

15

On August 17, 2018, the Plaintiff filed his Motion for Declaratory Judgment, pursuant to

16

28 U.S.C. § 2201(a), through which he seeks a judgment from this Court declaring (1) only the Nevada

17

State Courts may declare a forfeiture of an elected official’s office; (2) Clark County possesses no

18

unilateral authority, under Nevada law, to declare Robert L. Eliason, the elected North Las Vegas

19

Constable, has forfeited his office and that the vacancy for such office exists; and (3) the agenda item,

20

on the July 18, 2017 Clark County Commission meeting agenda, through which the Commission seeks

21

to declare that the Plaintiff has forfeited his office and that a vacancy in such office exists is illegal

22

under Nevada law.

23

The POST Commission files this response for the sole purpose of requesting the Court abstain

24

from issuing a Federal Declaratory Judgment on these purely state law questions, and requests the

25

Court certify these Nevada statutory and Nevada Constitutional questions to the Nevada Supreme

26

Court.

27

///

28

///
-4-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 5 of 10

1
2
3

II.

ARGUMENT
A.

Pursuant to Pullman, the Court Should Abstain From Issuing a Federal
Declaratory Judgment in These Purely State Law Matters.

4

In R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941), the United States

5

Supreme Court held that federal courts should abstain from exercising jurisdiction in a matter when an

6

unsettled area of state law has an effect on the outcome of a federal constitutional claim or would

7

render a decision on the federal claim unnecessary. See also, San Remo Hotel v. City and County of

8

San Francisco, 145 F.3d 1095, 1104-1105 (9th Cir. 1998). The equitable considerations of Pullman

9

abstention are typically applied when an unsettled state law question is best decided by or is already

10

pending in state court. See, Harris City Commissioner’s Court v. Moore, 420 U.S. 77, 83-84, 95 S.Ct.

11

870 (1975). In the face of novel questions of state law, many federal courts rely on state certification

12

procedures, which avoid the significant financial and time burdens associated with Pullman abstention.

13

Jones v. Coleman, 848 F.3d 744, 750 (6th Cir. 2017).

14

Plaintiff’s request for a declaratory judgment involves unsettled questions of state law. While

15

the State District Court entered a preliminary injunction, the Court’s finding, for purposes of the

16

preliminary injunction, was only that Plaintiff had a substantial likelihood of success on these state law

17

matters. Significantly, the Nevada Supreme Court has not interpreted NRS 458.007.

18

language of the statute provides for the forfeiture of office if a constable fails to become certified by the

19

POST Commission within one year of taking office, or within any extension granted by the POST

20

Commission not to exceed 6 months.

The plain

21

The Nevada Office of the Attorney General has opined on a related question. See Nevada

22

Attorney General Opinion 2017-14. By letter dated September 29, 2017, the Governor requested an

23

opinion from the Office of the Attorney General on the following question: “What legal mechanisms

24

exist by which a county may remove a constable or other official who has failed to fulfill the statutory

25

requirements of office?” The section of the Opinion entitled “Summary of Conclusion” reads: “Quo

26

warranto is not the exclusive remedy to challenge the authority of a county official to hold office.

27

Because a constable is not a state office, his right to hold a public office, after failing to satisfy the

28
-5-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 6 of 10

1

requirements of NRS 258.007, may also be challenged pursuant to NRS 283.440.” Id. at p. 2. In the

2

concluding two paragraphs of the Opinion, the Nevada Office of the Attorney General opines:

3

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, Schmacher v. State ex rel. Furlong, 78 Nev. 167, 171, 370
P.2d 209, 211 (1962), citing Moulton v. Scully, 111 Me. 428, 89 A. 944,
947 (1914). Nonfeasance, as such, is a basis for removal pursuant to
NRS 283.440. Id.

4
5
6
7
8

It does not change the analysis that a constable’s failure to become POST
certified results in the “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 250.030”). 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.

9
10
11
12
13
14

Id. at p. 4.

15

The Attorney General Opinion is not binding legal authority on this issue. Cannon v. Taylor, 88

16

Nev. 89, 91, 493 P.2d 1313, 1314 (1972). Additionally, the legal analysis in this opinion underscores

17

the point that the legal issues related to the legal mechanisms to remove an elected constable from

18

office, who fails to meet the statutory mandate set out in NRS 458.007, is far from settled law in

19

Nevada. Per the Amended Complaint, the Plaintiff is seeking a declaration, pursuant to the state

20

declaratory relief statutes, that the Clark County Commission does not have the authority to unilaterally

21

declare he has forfeited his office for failure to meet the statutory POST certification mandate and it

22

does not have authority to fill a vacancy in the office without a court declaration that he has forfeited

23

his office. Per the Preliminary Injunction, the Plaintiff is protected from any action by the Clark

24

County Commission to declare he has forfeited his office and filling his office during the pendency of

25

this action. Additionally, the primary state law declarations the Plaintiff is seeking through this action

26

are novel and unsettled. Through his Amended Complaint, Plaintiff is primarily seeking declarations,

27

pursuant to the Nevada declaratory relief statutes (NRS Chapter 30), that NRS 258.007 is

28
-6-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 7 of 10

1

unconstitutional under two provisions of the Nevada State Constitution (Article IV, Section 20 and

2

Article IV Section 25).

3

In determining whether to abstain under the Pullman abstention doctrine, the Ninth Circuit

4

follows a three part test: (1) the complaint touches a sensitive area of social policy upon which federal

5

courts ought not to enter unless no alternative to its adjudication is open; (2) such constitutional

6

adjudication plainly can be avoided if a definitive ruling on the state law issue would terminate the

7

controversy; (3) the possibly determinative issue of state law is doubtful. Canton v. Spokane Sch. Dist.

8

# 81, 498 F.2d 840, 845 (9th Cir. 1974), overruled on other grounds as recognized by Heath v. Cleary,

9

708 F.2d 1376, 1378 n.2 (9th Cir. 1983).

10

The first prong of the test is met. The process through which an elected constable “forfeits” his

11

or her office and the constitutionality of a statute enacted by the Nevada Legislature related to the

12

forfeiture of office of an elected constable touch upon sensitive areas of social policy upon which the

13

federal courts ought not to enter unless no alternative to its adjudication exists. See, People ex rel.

14

Lockyer v. County of Santa Cruz, 416 F.Supp.2d 797 (N.D. Cal. 2006) (The Federal court declined to

15

exercise supplemental jurisdiction over a Californian Elections Code Cause of Action. “The cause of

16

action qualifies as an exceptional circumstance under 28 U.S.C. § 1367(c)(4). The case is essentially an

17

internal dispute between two segments of the California state government, the Attorney General and the

18

County of Santa Cruz. Although economy and convenience favor having Lockyer’s two causes of

19

action heard before the same court, comity overwhelmingly favors allowing California to handle its

20

internal disputes in its own court system. Remand of the Elections Code § 12280 cause of action is

21

appropriate here.”). The second prong of the test is met. The declarations sought by the Plaintiff relate

22

purely to the interpretation of State law and the State Constitution. There is no U.S. Constitutional

23

adjudication to avoid. Additionally, a state court ruling that NRS 458.007 violates the Nevada

24

Constitution would moot the Plaintiff’s Title II ADA claim. The state court proceeding need not fully

25

moot the federal issues; changing or narrowing the issues is enough. Sinclair Oil Corp. v. City of Santa

26

Barbara, 96 F.3d 401, 409 (9th Cir 1996) (“[I]t is sufficient if the state law issues might narrow the

27

federal constitutional question.”). Finally, the state law on the matters for which the Plaintiff seeks

28

declarations from this Court are novel and unsettled. An issue of state law is doubtful if a federal court
-7-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 8 of 10

1

cannot predict with any confidence how the state’s highest court would decide the issue of state law.

2

Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1464, 1465 (9th Cir. 1995).

3

“Resolution of an issue of state law might be uncertain because the particular [state] statute is

4

ambiguous, or because the precedents conflict, or because the question is novel and of sufficient

5

importance that it ought to be addressed first by a state court.” Id. The POST Commission could not

6

find any case law through which the Nevada Supreme Court has interpreted the proper application of

7

NRS 258.007. Finally, abstention on these state constitutional and statutory issues would substantially

8

further important principles of federalism and comity underlying Pullman and it progeny.

9
10

B.

The POST Commission Requests the Court Certify the State Law Questions to the
Nevada Supreme Court.

11

While Pullman abstention on the state statutory and constitutional questions is warranted, the

12

state law questions can be properly certified to the Nevada Supreme Court. Nevada Rule of Appellate

13

Procedure 5 reads in relevant part as follows:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(a)
Power to Answer. The Supreme Court may answer questions of
law certified to it by the Supreme Court of the United States, a Court of
Appeals of the United States or the District of Columbia, a United States
District Court, or a United States Bankruptcy Court when requested by the
certifying court, if there are involved in any proceeding before those
courts questions the law of this state which may be determinative of the
cause then pending in the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the decision of the
Supreme Court or Court of Appeals of this state.
(b)
Method of Invoking. The Rule may be invoked by an order of any
of the courts referred to in Rule 5(a) upon the court’s own motion or upon
the motion of any party to the cause.
(c)
Contents of Certification Order. A certification order shall set
forth:
(1) The question of law to be answered;
(2) A statement of all facts relevant to the question certified;
(3) The nature of the controversy in which the question arose;
(4) A designation of the party or parties who will be the appellant(s)
and the party or parties who will be the respondent(s) in the Supreme
Court;
(5) The names and addresses of counsel for the appellant and
respondent; and
(6) Any other matters the certifying court deems relevant to a
determination of the questions certified.
(d)
Preparation of Certification Order. The certification order shall be
prepared by the certifying court, signed by the judge presiding at the
hearing, and forwarded to the Supreme Court by the clerk of the certifying
court under its seal. The Supreme Court may require the original or copies
of all or of any portion of the record before the certifying court to be filed
-8-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 9 of 10

with the certification order, if, in the opinion of the Supreme Court, the
record or a portion thereof may be necessary in answering the questions.
(e)
Costs of Certification. Fees and costs shall be the same as civil
appeals docketed before the Supreme Court and shall be equally divided
between the parties unless otherwise ordered by the certifying court in its
order of certification.
…
(h) Opinion. The written opinion of the Supreme Court stating the law
governing the questions certified shall be sent by the clerk under the seal
of the Supreme Court to the certifying court and to the parties and shall be
res judicata as to the parties.

1
2
3
4
5
6
7

The State statutory and constitutional law questions raised by the Plaintiff meet the requirements

8

of the Nevada Supreme Court Certification Rule. As discussed more fully above, the questions are

9

determinative of the primary relief sought by the Plaintiff and there is no controlling precedent from the

10

Nevada Supreme Court on the application and constitutionality of NRS 258.007. Certification of these

11

purely state law questions related to the application and constitutionality of NRS 258.007 is appropriate

12

in this case.

13

Pursuant to Pullman abstention, the POST Commission respectfully requests that the Court

14

abstain from issuing a Federal Declaratory Judgment on these novel, important and unsettled matters of

15

State law.

16

constitutional questions to the Nevada Supreme Court.

17

DATED this 31st day of August, 2018.

18
19
20
21
22

The POST Commission also requests the Court to certify these state statutory and

ADAM PAUL LAXALT
Attorney General
By:

/s/ Michael D. Jensen
MICHAEL D. JENSEN
Senior Deputy Attorney General
Attorneys for Defendant NEVADA COMMISSION
ON PEACE OFFICER STANDARDS & TRAINING

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24
25
26
27
28
-9-

Case 2:17-cv-03017-JAD-CWH Document 45 Filed 08/31/18 Page 10 of 10

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of the Office of the Attorney General, State of Nevada, and that

3

on August 31, 2018, I filed the foregoing document via this Court’s electronic filing system. Parties that

4

are registered with this Court’s EFS will be served electronically. For those parties not registered,

5

service was made by depositing a copy of the above-referenced document for mailing in the United

6

States Mail, first-class postage prepaid, at Carson City, Nevada to the following:

7
8
9

Kelly A. Evans, Esq.
Chad R. Fears, Esq.
Evans Fears & Schuttert L.L.P.
2300 West Sahara Avenue, Suite 900
Las Vegas NV 89102
Attorneys for Plaintiff

10
11
12

Jeffrey F. Barr, Esq.
Ashcraft & Barr LLP
2300 West Sahara Avenue, Suite 900
Las Vegas NV 89102
Attorneys for Plaintiff

13
14
15

Thomas D. Dillard, Jr., Esq.
Olson, Cannon, Gormley, Angulo &Stoberski
9950 W. Cheyenne Ave.
Las Vegas, NV 89129
Attorneys for Clark County

16
17
18

/s/ Barbara D. Cozens
Barbara D. Cozens

19
20
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22
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24
25
26
27
28
-10-

Exhibit F

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 1 of 8

1 KELLY A. EVANS, ESQ.

Nevada Bar No. 7691

2 [e-mail]

CHAD R. FEARS, ESQ.

3 Nevada Bar No. 6970

[e-mail]

4 EVANS FEARS & SCHUTTERT L.L.P.

2300 West Sahara Avenue, Suite 900

5 Las Vegas, NV 89102

Telephone: [phone]

6 Facsimile: [phone]
7 JEFFREY F. BARR, ESQ
8

2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

ASHCRAFT & BARR |
LLP

9
10
11

Nevada Bar No. 7269
[e-mail]
ASHCRAFT & BARR | LLP
2300 West Sahara Avenue, Suite 900
Las Vegas, NV 89102
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF NEVADA

14
15
16
17
18
19
20
21
22
23
24
25
26

ROBERT ELIASON, an individual and in his Case No.: 2:17-cv-03017-JAD-CWH
official capacity as Constable of North Las
Vegas Township,
PLAINTIFF’S REPLY IN SUPPORT
Plaintiff,
OF MOTION FOR DECLARATORY
v.
JUDGMENT [ECF Nos. 41, 42 and 44]
CLARK COUNTY, a political subdivision of
the State of Nevada; et al.,
Defendants.
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
pleadings on file herein, and any oral argument the Court may entertain at any hearing.
I.

INTRODUCTION

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

27

Page 1 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 2 of 8

1

to the removal of this action, the State Court agreed and enjoined Clark County from this very

2

action.

3

Clark County argues that it has the plenary power to remove a duly-elected State officer

4

from office without an order or input or even an iota of due process from a Nevada state court.

5

The State Court in this case previously rejected Clark County’s arguments.

Item 67 on July 18, 2017 (“Item 67”). Significantly, nothing in its Opposition changes the

8

Nevada State Court’s legal conclusion that Clark County acted unlawfully by trying to remove

9
2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

Nothing in the Opposition changes Clark County’s attempted illegal action to pass Agenda

7

ASHCRAFT & BARR |
LLP

6

Constable Eliason from office.

10

Instead, Clark County engages in misdirection by taking issue with the Nevada Court’s

11

legal conclusion that “A Quo Warranto action is the proper procedure for determining a

12 forfeiture of office, including a forfeiture as a matter of law.”1

Despite the County’s misdirection, the sole issue in this Motion remains whether NRS

13

14 258.007 grants Clark County the sole and unfettered power to remove an elected and sitting
15 State Constable. Clark County manifestly does not possess this power.

Constable Eliason seeks to formalize the State Court’s preliminary injunction into a

16

17 permanent, declaratory judgment from this Court, declaring Clark County’s actions as illegal.
18 Constable Eliason requests that the Court declare the following:

(1)

19

Only the Nevada State courts may declare a forfeiture of an elected official’s

20 office;
21
22

23
24
25
26
27

1

Notably, Clark County has done nothing since August 2017 to redress this alleged legal
error:
 It failed to timely move the State Court to reconsider its order pursuant to Rule 2.24
of the Eighth Judicial District Court Rules.
 It failed to appeal this determination as was its right under Rule 3A(b)(3) of the
Nevada Rules of Appellate Procedure.
 It failed to ask this Court to reconsider the propriety of the State Court injunction
when it removed this case in November 2017.
Page 2 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 3 of 8

1

(2)

Clark County possesses no unilateral authority under Nevada law to “declare that

2

Robert L. Eliason, the elected North Las Vegas Constable, has forfeited his office and that a

3

vacancy in such office exists”; and

4

(3)

Agenda Item 67 on the July 18, 2017 County Commission Meeting, which seeks

5

to “declare that that Robert L. Eliason, the elected North Las Vegas Constable, has forfeited

6

his office and that a vacancy in such office exists,” is illegal under Nevada law.

7
8

2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

ASHCRAFT & BARR |
LLP

9
10
11
12

II.

UNDISPUTED FACTS and PROCEDURAL HISTORY

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.

13
14
15

III.

LEGAL ANALYSIS: DECLARATORY JUDGMENT IS STILL
WARRANTED

Clark County has no legal authority to “declare that Robert L. Eliason, the elected North

16 Las Vegas Constable, has forfeited his office” or to “declare…that a vacancy in such office
17 exists.” Nothing in its Opposition changes this conclusion.
18

No statute specifically grants Clark County the authority to declare a forfeiture of the

19 constable’s office.

Contrary to Clark County’s assertion, no language in NRS 258.007

20 specifically authorizes Clark County to “declare” a forfeiture of any elected office. If there is
21 any fair or reasonable doubt concerning the existence of a county’s authority, the court must
22 resolve that doubt against the board of county commissioners, and Nevada law denies the
23 county that power. See NRS 244.137(4). See also, First Nat'l Bank v. Nye County, 145 P.
24 932, 936-37 (1914); Lyon County v. Ross, 50 P. 1, 3 (1897); and Waitz v. Ormsby County, 1
25 Nev. 370, 377 (1865). See generally, B. Chally, Dillon’s Rule in Nevada, 21 Nev. L. 6 (2013).
26

Here, NRS 258.007(2)’s silence creates doubt as to whether Clark County possesses the

27 authority it claims. Therefore, Nevada law denies Clark County that power. The statute

Page 3 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 4 of 8

1

makes no mention of a county commission whatsoever, and Clark County makes no reference

2

to any specific authority in its Opposition. The statute is utterly silent as to who has the

3

authority to declare a forfeiture of an elective office. This is no accident, because other

4

provisions of Nevada law supply the procedure.

the courts by issuing a writ quo warranto. NRS 35.010 et seq. From its first days as a State,

7

the Nevada Supreme Court has consistently affirmed the right of the courts to declare a

8

forfeiture under a writ quo warranto. See e.g., State ex rel. Haydon v. Curry, 1 Nev. 251-52

9
2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

Declaring a “forfeiture” of an elected office is manifestly a judicial function performed by

6

ASHCRAFT & BARR |
LLP

5

(1865) (adjudicating statute passed by NV Territorial Legislature calling for automatic

10

forfeiture of franchise by way of quo warranto); see also, State v. Haskell, 14 Nev. 209, 210

11

(1879) (state bears burden of proof to have court declare forfeiture of franchise under quo

12 warranto).
13

More recently, NRS 35.010(2) codifies this unique power and provides that “[a] civil

14 action may be brought in the name of the State [a]gainst a public officer…who does or suffers
15 an act which, by the provisions of law, works a forfeiture of the office.” (Emphasis added.)
16

The modern Nevada Supreme Court has been remarkably consistent and protective of the

17 solitary power of the judiciary to declare the forfeiture of an elected office. “Quo warranto
18 generally is available to challenge an individual’s right to hold office and to oust the individual
19 from the office if the individual's claim to it is invalid or has been forfeited.” Lueck v. Teuton
20 (In re Teuton), 219 P.3d 895, 897 (2009). “Quo warranto is an ancient common law writ and
21 remedy to determine the right to the use or exercise of a franchise or office and to oust the
22 holder from its enjoyment…if he or she has forfeited his or her right to enjoy the privilege.”
23 Heller v. Legislature, 93 P.3d 746, 751 (2004) (citations and quotations omitted; emphasis
24 added); see also, Halverson v. Hardcastle, 163 P.3d 428, 437 n. 8 (2007). The Heller Court
25 further elaborated on the ancient judicial authority to issue a writ quo warranto, asserting that
26 not even the Legislature can infringe upon the court’s power. Heller, 93 P.3d at 751.
27

Page 4 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 5 of 8

1

Clark County, however, asserts that it somehow has this power by talismanically invoking

2

the word, “forfeit,” in NRS 258.007(2), as if the Legislature’s mere use of the word confers

3

on the Board some judicial authority because the Legislature allegedly “intended the provision

4

to be self-executing.” [Opp. 10:21-22.] For this dubious proposition, Clark County references

5

a 1941 Missouri case, an 1873 California case, and an 1878 New York case, notably failing

6

to cite to a single Nevada opinion. [Opp. 10:20-28.]

7
8

In addition to the dearth of Nevada authorities in support of its position, Clark County’s
argument fails for five reasons:

2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

ASHCRAFT & BARR |
LLP

9

First, this line of reasoning ignores the plain language of NRS 35.010(2) that “[a] civil

10

action may be brought in the name of the State [a]gainst a public officer…who does or suffers

11

an act which, by the provisions of law, works a forfeiture of the office.” Indeed, the phrase,

12 “by the provisions of law,” can fairly mean “self-executing.” Thus, NRS 35.010(2) applies
13 to “self-executing” forfeitures, like NRS 258.007(2), that arise by operation of law.
14

In addition, it further ignores the modern interpretation of the powers of the courts set out

15 in Heller and Lueck. It also completely disregards examples stretching back to the State’s
16 earliest days in the Union that the courts hold the power to declare a forfeiture.
17

Second, Clark County’s position also ignores a canon of statutory construction that

18 statutes must be read to make them “consistent and harmonious.” Rose v. First Federal Sav.
19 & Loan Ass’n, 777 P.2d 1318, 1319 (1989) (internal quotations and citations omitted). Clark
20 County’s position is this: an allegedly “self-executing” statute somehow grants Clark County
21 the judicial power to “declare that Robert L. Eliason…has forfeited his office.” But this
22 position directly contravenes NRS 35.010(2)’s requirement that the courts adjudicate a civil
23 action “against a public officer…who does or suffers an act which, by the provisions of law,
24 works a forfeiture of the office.” Clark County’s reading of NRS 258.007(2) cannot be
25 reconciled with NRS 35.010(2). Indeed, there is nothing consistent or harmonious here. In
26 contrast, Mr. Eliason’s argument does. The Nevada Attorney General has standing to fill a
27

Page 5 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 6 of 8

1

writ; the Court has the power to adjudicate that writ once it is filed; and Clark County can fill

2

a vacancy if the Court so declares.

3

Third, Clark County’s position belies its own actions. Clark County nakedly asserts that

4

NRS 258.007(2) is “self-executing.” By “self-executing,” Clark County means that the

5

purported forfeiture occurs “without the necessity of a judicial declaration or imprimatur of

6

any other municipal entity.” [Opp. 10:27 (emphasis added).] Agenda Item 67--declaring

7

“that Robert L. Eliason has forfeited his office”—is exactly an “imprimatur” that Clark

8

County argues is unnecessary.

2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

ASHCRAFT & BARR |
LLP

9

If Clark County truly believed that the forfeiture occurred without the necessity of any

10

other action, then there is no reason for Item 67. If NRS 258.007(2) operates like Clark

11

County insists, there is no reason for Clark County or anyone to “declare” anything.

12

But Clark County’s action belies its current argument: arguing on one hand that there is

13 no need for a declaration of a forfeiture because such forfeiture is “self-executing,” and then
14 arguing on the other hand, that the statute grants Clark County, alone (and not the courts), the
15 authority to declare a forfeiture.
16

Fourth, Clark County’s reliance on a recent Attorney General’s Opinion, AGO 2017-14

17 is misplaced. As a preliminary matter, opinions of the Nevada Attorney General are not
18 binding on the Nevada Judiciary. Univ. & Cmty. Coll. Sys. v. DR Ptnrs, 18 P.3d 1042, 1048
19 (2001). In addition to the extent it applies at all, AGO 2017-14 serves only to confirm that
20 the Nevada courts--and only the Nevada courts--have the power to remove an elected official
21 from office; Clark County does not possess that authority.

Thus, AGO 2017-14 further

22 weakens Clark County’s position in this case.
23

Finally, Clark County’s position defies public policy considerations.

Declaring a

24 forfeiture of an elected officer’s office disrupts the democratic process. In this case, it nullifies
25 the votes of 220,000 residents of North Las Vegas, and the action should not be undertaken
26 lightly. Nevertheless, there are legitimate occasions for doing so. The wisdom of the writ
27 quo warranto (gained by centuries of application) balances these competing interests. Quo

Page 6 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 7 of 8

passes legislation to enumerate when an elected office is forfeit. The state executive branch

3

determines when to bring a judicial action to declare an elected office forfeit under the

4

legislature’s laws. The state judicial branch adjudicates the fairness of the forfeiture, with all

5

of its attendant procedural protections (rules of evidence, burden of proof, etc.). Clark

6

County’s unilateral action implicates none of these checks and balances. “Quo warranto

7

generally is available to challenge an individual's right to hold office and to oust the individual

8

from the office if the individual's claim to it is invalid or has been forfeited. Lueck v. Teuton

9
2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

warranto properly implicates all three branches of government: The state legislative branch

2

ASHCRAFT & BARR |
LLP

1

(In re Teuton), 219 P.3d 895, 898 (Nev. 2009) (emphasis added.)

10

Moreover, Clark County does not even possess the standing to file a writ quo warranto.

11

In this case, standing to institute a civil action for quo warranto rests solely with the Attorney

12 General at the direction of the Governor. NRS 35.030; see also, Lueck v. Teuton (In re
13 Teuton), 219 P.3d 895, 898 (2009) (no general standing to request writ quo warranto).
14
15

IV.

CONCLUSION

In accordance with the State Court’s Preliminary Injunction, a judgment from this Court

16 is appropriate to declare the following: (1) only the Nevada State courts may declare a
17 forfeiture of an elected official’s office; (2) Clark County possesses no unilateral authority
18 under Nevada law to “declare that Robert L. Eliason, the elected North Las Vegas Constable,
19 has forfeited his office and that a vacancy in such office exists”; and (3) Agenda Item 67 on
20 the July 18, 2017 County Commission Meeting, which seeks to “declare that that Robert L.
21 Eliason, the elected North Las Vegas Constable, has forfeited his office and that a vacancy in
22 such office exists,” is illegal under Nevada law.
23
24
25
26

DATED this 7th day of September, 2018.
ASHCRAFT & BARR | LLP
/s/ Jeffrey F. Barr
JEFFREY F. BARR, ESQ.
Nevada Bar No. 7269
Attorneys for Plaintiff Robert Eliason

27

Page 7 of 8 

Case 2:17-cv-03017-JAD-CWH Document 47 Filed 09/07/18 Page 8 of 8

1
2
3
4
5

CERTIFICATE OF SERVICE
I certify that on this 7th day of September, 2018, I served the foregoing PLAINTIFF’S
REPLY IN SUPPORT OF MOTION FOR DECLARATORY JUDGMENT, to those
parties registered and listed on the CM/ECF electronic case filing, and for those not listed, by
first class mail, postage pre-paid, to the following:

6
7 Thomas D. Dillard, Esq.

OLSON, CANNON, GORMLEY,
ANGULO & STOBERSKI
9950 W. Cheyenne Ave.
9
Las Vegas, NV 89129
Attorneys for Defendant Clark County
10

2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102
702.631.7555
ASHCRAFTBARR.COM

ASHCRAFT & BARR |
LLP

8

11 Michael D. Jensen, Sr. Deputy Atty. General

OFFICE OF THE ATTORNEY GENERAL

12 555 Wright Way

Carson City, NV 89711

13 Attorneys for Defendant State of Nevada ex rel.
14

Nevada Commission on Peace Officers’ Standards & Training

15

/s/ Michelle Harrell
An Employee of ASHCRAFT & BARR | LLP

16
17

18
19
20
21
22
23
24
25
26
27

Page 8 of 8 

Exhibit G

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 1 of 11

1
2
3
4
5
6

THOMAS D. DILLARD, JR., ESQ.
Nevada Bar No. 006270
OLSON, CANNON, GORMLEY,
ANGULO & STOBERSKI
9950 West Cheyenne Avenue
Las Vegas, NV 89129
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant
CLARK COUNTY

7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

****

11
12
13
14
15
16
17
18

ROBERT ELIASON, an individual and in his
official capacity as Constable of North Las
Vegas Township,

)
)
) CASE NO. 2:17-cv-3017-JAD-CWH
)
Plaintiff,
)
)
)
vs.
)
CLARK COUNTY, a political subdivision of
)
the State of Nevada; NEVADA COMMISSION )
ON PEACE OFFICER STANDARDS &
)
TRAINING,
)
)
Defendants.
)
)

19
20
21

REPLY TO CLARK COUNTY'S COUNTER MOTION FOR RECONSIDERATION
OF THE ORDER GRANTING PLAINTIFF A PRELIMINARY INJUNCTION

22

COMES NOW Defendant CLARK COUNTY, by and through its counsel of record,
23

THOMAS D. DILLARD, JR., ESQ., of the law firm of OLSON, CANNON, GORMLEY,
24

ANGULO & STOBERSKI and hereby replies to Plaintiff's Opposition to the Counter Motion for
25

Reconsideration of the State Court Order [#48].
26

This Reply is made and based upon all the pleadings and papers on file herein, the
27

attached points and authorities, together with any argument that may be introduced at the time of
28

hearing this matter.

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 2 of 11

MEMORANDUM OF POINTS AND AUTHORITIES

1
2

I.

INTRODUCTION
Clark County maintains that the state district court misinterpreted NRS 258.007 by

3
4

viewing it through the lens of quo warranto alone and markedly aggravated this error when it

5

embraced the unnecessary dicta placed in the order by Plaintiff; to wit, stating that quo warranto

6

is the exclusive remedy to oust a Nevada public official from office. Plaintiff continues to

7

employ this same tactic by requesting an order that arguably elevates the exclusive remedy dicta

8

to immunize Plaintiff for his failure to become a category II peace officer. Plaintiff has made no

9

argument to support the assertion that quo warranto is the only "proper procedure for

10

determining a forfeiture of office ." The Court should now grant Clark County's counter motion

11

by making clear that at least a portion of the state court order is legally unsound and that Clark

12

County has alternative statutory authority to take action to remove Plaintiff from office pursuant

13

to both NRS 283.440 (removal for nonfeasance) and NRS 258.010(3) (abolishing the office).

14

II.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

LEGAL ARGUMENT
A.

The District Court's Order Granting a Preliminary Injunction is Still an
Appealable Determination.

Plaintiff suggests the District Court is constrained from reaching any different conclusion
than did the Eighth Judicial District Court when it granted Plaintiffs 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. See Securities and Exchange Commission v. Murphy, 626 F.2d 633, 637 n. 1 (9th Cir.
1980)("Once an order of permanent injunction is entered, the preliminary injunction merges with
it and appeal may be had only from the order of permanent injunction."); Alliance for Americas
Future v. State, 128 Nev. 878, 381 P.3d 588 (2012)(unpublished)("On an appeal from a final,
fully litigated judgment, rather than a hastily wrought preliminary injunction, this court's analysis
would be fully informed, not piecemeal, which is of benefit to the public and the parties alike.").

Page 2 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 3 of 11

1

Therefore, Plaintiff is simply incorrect in his assertion that Clark County has waived its appeal

2

rights and therefore the order is immune from appellate review notwithstanding the fact that the

3

case is still pending with this Honorable Court. Clark County can appeal the order if it becomes

4

part of a permanent injunction as Plaintiff is attempting to do right now.

5

This Court is therefore not handcuffed in any way in independently reviewing the

6

pertinent legal issues involving statutory interpretation because the preliminary injunction order

7

is not final and is still subject to appellate review. In fact, Clark County further has no objection

8

to the position of the Nevada Peace Officer Standards & Training to certify the pertinent legal

9

issues regarding statutory interpretation to the Nevada Supreme Court now for review and

10
11
12

instruction.
B.

Plaintiff Made No Argument to Support the Position that Quo Warranto is
the Exclusive Remedy to Challenge the Authority of a County Official to
Hold Office.

13
14

Throughout the state court case and with his motion for a declaratory judgment, Plaintiff

15

attempts to exclusively limit the procedure for the removal of the North Las Vegas Constable

16

from office to the procedure prescribed by NRS 35.010, or quo warrant° because Clark County

17

does not have standing under that statute to remove Plaintiff from office. Clark County's

18

opposition made clear that quo warranto is not the only "proper procedure for determining a

19

forfeiture of office" and this argument is plainly inconsistent with Nevada statutory law because

20

Clark County has alternative statutory authority to take action to remove Plaintiff from office

21

pursuant to both NRS 283.440 (removal for nonfeasance) and NRS 258.010(3) (abolishing the

22

office). Plaintiff failed to address either of these statutes and instead makes the generalized

23

assertion that Clark County lacks standing to declare forfeiture of the office. Plaintiff seemingly

24

is being purposefully vague in an attempt to extend the state court order and seek an order from

25

this Court that stands contrary to the law with regard to these other statutes or that, at least, raises

26

the prospect that Clark County will be in violation of a court order if it moves forward on the

27

rights it has under either NRS 283.330 or NRS 258.010.

28

Regardless of this Court's view of the meaning and scope of NRS 258.007(2)(stating "[i]f

Page 3 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 4 of 11

1

a constable does not comply [with the mandatory training requirements of subsection 1], the

2

constable forfeits his or her office and a vacancy is created which must be filled"), any order in

3

this case should be careful not to embrace the error-filled dicta in the state court order and make

4

clear that Clark County's statutory rights under these other two statutes remain unimpaired.

5

Plaintiff's intentional failure to address these legal arguments make clear that there is no

6

colorable argument to suggest that Plaintiff can only be removed pursuant to quo warranto and

7

the only persons with standing to do so is the State and a person holding some right to the office

8

itself.

9

C.

The Nevada Legislature Mandated Plaintiff Had to Become a Category II
Police Officer Within 1.5 Years of Being Elected at the Latest or His Office

10

Would Be Forfeited and the BCC Must Then Fill The Vacant Office.
11
12

The plain text of NRS 258.007 states that the Constable ipso facto forfeits his office when

13

he does not have a category II police officer certification by the time period set forth in the

14

statute. NRS 258.007 states:

15

(1)

Each constable of a township whose population is 100,000 or more and
which is located in a county whose population is 700,000 or more,.. .
shall become certified by the Peace Officers' Standards and Training
Commission as a category II police officer within 1 year after the date on
which the constable commences his or her term of office or appointment
unless the commission, for good cause shown, grants in writing an
extension of time, which must not exceed 6 months.

(2)

If a constable does not comply with the provisions of subsection 1, the
constable forfeits his or her office and a vacancy is created which must
be filled in accordance with NRS 258.030 [by the board of county
commissioners]. (emphasis added).

16
17
18
19
20
21

Plaintiff immediately forfeited office when he failed to become certified by Nevada POST as a
22

category II police officer after his six month extension lapsed (facts which are undisputed).
23

Plaintiff has insisted that the language in this statute that was initially introduced in 2013

24

and amended in 2015 must nonetheless be governed by the codification of the common law
25

doctrine of quo warranto in NRS 35.010 (which is based upon limited standing extended only to
26

the State and a person with a personal interest in holding the office). However, the automatic
27

forfeiture meaning of the word "forfeits" in section (2) is consistent with other more applicable
28

common law; specifically, common law held that residency is a requirement of election to office
Page 4 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 5 of 11

1

and the requirement is continuous. As such, any change of residency automatically vacates the

2

county office.' See, e.g., Salamanca Township v. Wilson, 109 U.S. 627, 628-29 (1883) (ceasing

3

to be a resident results in vacancy). A myriad of jurisdictions have followed suit by enacting

4

statutes that holding that a public officer automatically forfeits his or her office and can no longer

5

serve the public upon the occurrence of a particular condition. Public official being convicted of

6

a felony offense or announcing candidacy for another office are examples of types of

7

disqualifying conditions utilized in office forfeiture statutes. See Stipe v. State ex rel. Bd. of

8

Trustees of Oklahoma Public Employees Retirement System,188 P.3d 120, 123 (Okla. 2003);

9

State v. Musto, 188 N.J. Super. 106, 108, 456 A.2d 114, 115 (1983); Pioneer Mill Co., Ltd., 53

10

Haw. 496, 498, 497 P.2d 549, 551 (1972); Matsen v. Kaiser, 74 Wash.2d 231, 235, 443 P.2d

11

843, 846 (1968)(en bane); Commonwealth v. Knox, 172 Pa. Super. 510, 523, 94 A.2d 128, 134

12

(1953); State ex rel. Giles v. Burke,101 Utah 48, 117 P.2d 454, 455 (1941).

13

Plaintiffs argument that the case law supporting Clark County's position is sparse is not

14

well taken. Plaintiff fails to identify any other jurisdiction that has rejected the interpretation of

15

the word forfeit in similar statutes. Several other jurisdictions are in accord.

16

For example, the case of Lipscomb v. Randall, 985 S.W.2d 601 (Tex. Ct. App. 1999) is

17

directly on point. In Lipscomb, the court held that similar "forfeiture" language indicated

18

immediate, instantaneous, and self-executing loss of office without the necessity of further

19

action. In that case, the city charter- like NRS 258.007(2)--provided "a Councilperson shall

20

forfeit his office if he... is convicted of a crime." Id. at 603. A council member was arrested for

21

assaulting his wife, and was convicted. The town council found he had forfeited office by virtue

22

of his conviction, and appointed another person to fill the vacant seat. Id. at 604. The former

23

council member sought and was granted a writ of mandamus, and the trial court ordered that he

24

continue as a council member. Id. The other members of the council appealed, asserting "the

25

charter provision at issue authorizes automatic forfeiture of office upon conviction of a crime

26
27
28

'See also case citations on pages 10-11 of Clark County's Opposition to Plaintiffs Motion for
Declaratory Judgment and Counter Motion for Reconsideration of the Order Granting Plaintiff
a Preliminary Injunction [#42 & #43].
Page 5 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 6 of 11

involving moral turpitude." Id. The court of appeals agreed and reversed, holding the forfeiture
provision was self-enacting and automatic:
[the] charter provides that "[a] Councilperson shall forfeit his office if he... is
convicted of a crime involving moral turpitude." It is undisputed that this
provision is self-enacting. Thus, if applicable to [the former council member], the
charter provision makes the forfeiture of office automatic upon conviction.
Id. at 605 (citing City of Alamo v. Garcia, 960 S.W.2d 221, 222 (Tex. Ct. App. 1997) (automatic
forfeiture based on violation of absenteeism requirement); Harrison v. Chesshir, 316 S.W.2d 909,
914 (Tex. Ct. App. 1958) (automatic forfeiture when officeholder moved out of county), rev'd on
other grounds, 320 S.W.2d 814 (Tex. 1959)). The court rejected the forfeited council member's
argument that his appeal of the conviction suspended the forfeiture or made it contingent on
some future event. The court, therefore, held that under the express provisions of the charter and
applicable Texas law, the convicted councilman's seat on the city council was instantly forfeited
when he was convicted in municipal court of assaulting his wife. His subsequent appeal to
county court did not automatically restore him to office or otherwise entitle him to reclaim the
forfeited seat. Lipscomb, 985 S.W.2d at 608.
A similar result occurred in the case of Dalton v. Mosley, 286 S.W.2d 721 (Mo. 1956).
The case involved a state statute that provided that an officer who shall "fail or refuse to do or
perform any official act or duty which by law it is his duty to do or perform with respect to the
execution or enforcement of the criminal laws of the state, shall thereby forfeit his office." Id. at
731. A sheriff was adjudicated guilty of failing to enforce state law, and the court held that by
force of this statute "the respondent had automatically lost his right to the office of Sheriff of St.
Louis County prior to the institution of this proceeding." Id. The court further explained that after
committing the forbidden act and forfeiting the office, the official became a mere "usurper, and
thus his ouster must go as a matter of course." Id. at 731-32.
Also, in In re Simmons, 395 P.2d 1013 (Wash. 1964), the pertinent statute, like the
instant case, provided that a felony conviction carried with it the automatic forfeiture of a
judgeship and created an immediate vacancy in that office. The court held that legal proceedings
to remove the official were merely ancillary to and in aid of the forfeiture, and not a condition
precedent to the forfeiture. Id. at 1017. See also Alamo v. Strohm, 545 N.Y.S.2d 1 (N.Y.A.D.),
Page 6 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 7 of 11

1

affd, 544 N.E.2d 608 (N.Y. 1989) (senator who automatically forfeited seat under state law after

2

conviction of a felony was ineligible to run in the election to fill out his remaining term); 63c

3

Am. Jur. 2d Public Officers and Employees § 165 (2009) ("A provision that an officer who is

4

guilty of specified conduct 'shall thereby forfeit his or her office' is self-executing.") (citing State

5

ex rel. McKittrick v Whittle, 63 S.W.2d 100 (Mo.1933) (state constitution's requirement that

6

official "shall thereby forfeit his or her office" upon some act was self-executing), superseded by

7

statute on other grounds as stated in State ex rel. Attorney Gen. v Shull, 887 S.W.2d 397 (Mo.

8

1994)).2
The reasoning of these authorities and those cited in the opposition brief [#42] are in

9
10

accord with the text of NRS 258.007(2) stating that failure to become trained and state certified

11

sufficiently to hold the office of constable in the permitted time period causes "the constable

12

forfeits his or her office and a vacancy is created." The statute further makes clear that the Clark

13

County Board of County Commissioners also was doing nothing more than was required under

14

state law which is to fill the vacancy in accordance with NRS 258.030. The state court

15

committed a plain error of law when it superimposed the general quo warranto statute over the

16

specific statute aimed at ensuring constables in urban areas become trained and certified to hold

17

the office—which is clearly directly applicable to the facts here. The court should therefore grant

18

Clark County's counter motion for reconsideration as to the order granting a preliminary

19

injunction only by the state court. Alternatively, the court should certify the legal question to the

20

Nevada Supreme Court as raised by Defendant Nevada Commission On Peace Officer Standards

21

& Training.

22
23

Just as these cases recognized that a subsequent court proceeding was merely ancillary to and
in furtherance of the forfeiture as opposed to a condition precedent to the forfeiture, Plaintiff's
argument predicated upon the Board setting this for a public hearing to declare the office
forfeited is impertinent as well. The fact that the Board set this matter for a public hearing to
discuss and here comment regarding the legal consequences of NRS 258.007 certainly does not
negate the legitimacy of the argument that the statute itself was self-executing and triggered
when Plaintiff did not get certified 18 months after taking office. The belt and suspender
approach taken by the BCC, in affording additional process to Plaintiff than was due, which
was obviously beneficial for Plaintiff as well, does not operate as a waiver of the statutory
interpretation argument raised in this instant case.
2

24
25
26
27
28

Page 7 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 8 of 11

1

D.

Plaintiff's Participation in a Law Enforcement Function Without Fulfilling
POST Training Requirements Presents a Danger to the Public.

2
3

Plaintiff admittedly has failed to complete academy training to become at least a category
4

II peace officer despite the clear mandate to do so within a year of taking office as required by
5

NRS 258.007(1). Plaintiff has argued that public policy is negatively impacted by the forfeiture
6

provision of NRS 258.007(2) because it will "disrupt the democratic process" by interfering with
7

the North Las Vegas voter's right to select by majority vote the candidate of their choice. It
8

stands to reason, of course, that those that voted for Plaintiff expected him to follow the law.
9

Moreover, Plaintiff ignores the public policy argument that he poses a risk to the public by acting
'-'
CA
CL
G17
(XI

0
E^
V)

10

a law enforcement function without fulfilling the state training requirements to do so.
a;
-

t•-•
0

11

Plaintiff accordingly is ill-equipped to handle a litany of law enforcement functions while
12

serving in one of the highest populated urban areas in Nevada. Pursuant to NAC 289.150, the
13

State of Nevada has deemed at least 200 hours of training necessary to fulfill this law
14

enforcement function in the following areas:
15

1. Law and legal procedures, specifically:
16
17
18
19
20
21
22
23
24
25

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
0)
(k)
(1)

2. Operations and investigations, specifically:
(a)
(b)
(c)
(d)

26
27

Civil liability;
Constitutional law;
Crimes against persons;
Crimes against property;
Juvenile law;
Laws relating to arrest;
Laws relating to drugs, including, without limitation, current trends in drugs;
Miscellaneous crimes;
Probable cause;
Rights of victims;
Search and seizure; and
Use of force.

(e)
(f)

Abuse of elderly persons;
Child abuse and sexual abuse of a child;
Domestic violence and stalking;
Investigation of crime scenes, collection and preservation of evidence and
fingerprinting;
Principles of investigation; and
Techniques of interviewing and interrogation.

28

Page 8 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 9 of 11

3. Performance skills, specifically:

I

(a)
(b)
(c)
(d)

2
3
4

(e)
(f)
(g)

5

Health, fitness and wellness;
Interpersonal communications;
Provision of emergency first aid and cardiopulmonary resuscitation;
Tactics for the arrest and control of suspects, including, without limitation,
methods for arrest and the use of less than lethal weapons;
Training concerning active assailants;
Training in the use of firearms; and
Writing of reports.

6

4. The functions of a peace officer, specifically:
7

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(i)
(k)
(1)

8
9
10
11
12
13

Care of persons in custody;
Counter-terrorism and weapons of mass destruction;
Courtroom demeanor, including, without limitation, the giving of testimony;
Crisis intervention;
Ethics in law enforcement;
Handling of persons with mental illness;
History and principles of law enforcement;
Management of stress;
National Crime Information Center procedures;
Survival of peace officers;
Systems of criminal justice; and
The realities of law enforcement.

14

5. Course administration and examinations.
15

Plaintiffs public policy argument about the right of franchise in support of his position of

16
17

statutory authority is not well taken. To be sure, the acute danger to the public in permitting a

18

person acting in a law enforcement function to carry a service weapon and take actions that

19

directly affects the property and liberty interests of the public without the requisite training in

20

these key areas is axiomatic. The Nevada legislature certainly shared this view when it required

21

constables serving in urban areas in the State to receive this training on penalty of office

22

forfeiture. Functioning as an untrained peace officer poses a much greater risk of harm to the

23

public than simply not having an elected candidate complete a full term in office.

24

///

25

///

26

///

27

///

28

///

Page 9 of 11

Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 10 of 11

III.

CONCLUSION
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.

RESPECTFULLY SUBMITTED this 19th day of September, 2018.
OLSON, CANNON, GORMLEY,
ANGULO & STOBERSKI
By isi T441
,44 D. Ddie.va
THOMAS D. DILLARD, JR., ESQ.
Nevada Bar No. 006270
9950 West Cheyenne Avenue
Las Vegas, Nevada 89129
Attorneys for Defendant
Clark County

C

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Case 2:17-cv-03017-JAD-CWH Document 49 Filed 09/19/18 Page 11 of 11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 19th day of September, 2018, I served the above

REPLY TO CLARK COUNTY'S COUNTER MOTION FOR RECONSIDERATION
OF THE ORDER GRANTING PLAINTIFF A PRELIMINARY INJUNCTION through the
CM/ECF system of the United States District Court for the District of Nevada (or, if necessary,
by U.S. Mail, first class, postage pre-paid), upon the following:
Kelly A. Evans, Esq.
Chard R. Fears, Esq.
EVANS FEARS & SCHUTTERT, LLP
2300 W. Sahara Ave., Ste. 900
Las Vegas, Nevada 89102
P: 702-805-0290
F: 702-805-0291
[e-mail]
cfears efstriallaw.com
Jeffery F. Barr, Esq.
ASHCRAFT & BARR, LLP
2300 W. Sahara Ave., Ste. 900
Las Vegas, Nevada 89102
P: 702-631-7555
F: 702-631-7556
[e-mail]
Attorneys for Plaintiff
Adam Paul Laxalt, Esq.
Attorney General
Michael D. Jenson, Esq.
Senior Deputy Attorney General
555 Wright Way
Carson City, Nevada 89711
P: 775-684-4603
F: 775-684-4601
[e-mail]
Attorneys for Defendant
Nevada Commission on Peace
Officer Standards & Training

Is! Ivittz444 E4.4g444
An Employee of Olson, Cannon, Gormley,
Angulo & Stoberski

Page 11 of 11