The ACLU sued in federal district court to enjoin
implementation of the 2007 amendments, and in 2008, the federal district
court issued an injunction against implementation. Based on that
injunction, the district court in this case determined that Griego's guilty
plea must be withdrawn and the conviction set aside.
Meanwhile, the Ninth Circuit Court of Appeals overturned the
injunction as to A.B. 579 and remanded the injunction as to S.B. 471 to
the federal district court. ACLU of Nevada v. Masto, 670 F.3d 1046 (9th
Cir. 2012). In February 2013, the federal district court issued an order
narrowing the scope of the injunction against S.B. 471. The 2013 order
clarifies the scope of the injunction over NRS 213.1243(8), the statute
under which Griego was charged.
In this appeal, which was docketed before the February 2013
order narrowing the injunction, the parties devote the majority of their
efforts to arguing the scope of the 2008 injunction. These arguments are
significantly affected, if not eliminated, by the 2013 order clarifying that
the 2008 injunction does not reach NRS 213.1243(8). Although Griego
briefly raises constitutional and fairness concerns about his lack of notice
that his conduct could subject him to a felony charge, especially given the
Attorney General's Office and the Legislative Counsel Bureau opinions
that the statute's operation had been suspended, these concerns were
neither fully briefed to, nor decided by, the district court. These issues
should be developed in the first instance in the district court. We
therefore vacate the district court's order granting the motion to set aside
an illegal conviction and sentence and remand to the district court to
determine: (1) the effect of the 2013 federal district court order, which
clarified the scope of the injunction; (2) the effect of the uncertainty, if any,
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of the law concerning NRS 213.1243(8) at the time Griego was charged
and convicted; (3) Griego's liability under the pre-2008 statutory scheme if
the amendments cannot be enforced against Griego; and (4) such other
issues as the parties may raise on remand.'
It is so ORDERED.
Dougl
Saitta
cc: Hon. Jerome T. Tao, District Judge
Attorney General/Carson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
"This order constitutes our final disposition of this appeal. Any
subsequent appeal shall be docketed as a new matter.
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