129 Nev., Advance Opinion 741
IN THE SUPREME COURT OF THE STATE OF NEVADA
HEATHER SHARMAYN PALEY, No. 61029
Petitioner,
vs.
THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF
WASHOE; AND THE HONORABLE OCT 0 3 2013
FRANCES DOHERTY, DISTRICT 441-74,
JUDGE, * tevriy7
,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Petition for a writ of mandamus challenging a juvenile court
order holding petitioner in direct contempt of court.
Petition denied.
Jennifer Lunt, Alternate Public Defender, Washoe County,
for Petitioner.
Catherine Cortez Masto, Attorney General, and Daniel M. Roche, Deputy
Attorney General, Carson City,
for Respondents.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Lori L. Plater, Deputy District Attorney,
Washoe County,
for Real Party in Interest.
SUPREME COURT
OF
NEVADA
(0) 1947A
/3 -.,9175
BEFORE PICKERING, C.J., HARDESTY and SAITTA, JJ.
OPINION
By the Court, HARDESTY, J.:
This is a petition for a writ of mandamus. Petitioner Heather
Sharmayn Paley seeks an order directing the juvenile court to vacate its
order holding her in direct contempt of court based on a positive drug test
that was taken outside of court, immediately before her court appearance.
The respondent district court judge vacated the contempt order while this
original proceeding was pending, acknowledging that Paley's actions did
not constitute direct contempt. 1 Respondents argue that this renders the
petition moot. An exception to the mootness doctrine allows judicial
review when the contested issue is likely to arise again but will evade
review. We conclude that this exception to the mootness doctrine does not
apply because it is clear that a positive drug test alone will not support a
finding of direct contempt under NRS 22.010. Thus, the issue presented is
not likely to recur.
FACTS
Paley tested positive for methamphetamines immediately
prior to a hearing before the juvenile drug court. 2 The test was
1 We originally denied this petition in an unpublished order filed on
September 27, 2012. Paley subsequently moved for publication of our
disposition as an opinion, and real party in interest the State of Nevada
joined in the motion. See NRAP 36(f). Cause appearing, we grant the
motion and publish this opinion in place of our prior unpublished order.
2The juvenile court obtained jurisdiction over Paley, who is not a
minor, pursuant to NRS 62B.350 because Paley's daughter agreed to
participate in juvenile drug court. NRS 62B.350 extends the juvenile
continued on next page...
SUPREME COURT
OF
NEVADA
2
(0) 1947A
administered outside of the court and outside of the presence of the judge.
Based on the positive drug test, the judge held Paley in direct contempt of
court for being under the influence of methamphetamines and ordered her
to be immediately remanded to the Washoe County Detention Facility for
a period of 25 days. A video of the hearing reveals that Paley was polite,
coherent, and respectful, and that she did not cause any disturbance in the
presence of the court.
Paley moved to stay the contempt order and requested an
order-to-show-cause hearing. At the hearing, Paley argued that she could
not be held in direct contempt because she did not cause any disturbance
in the immediate view and presence of the court or violate any court order.
The juvenile court concluded that it would not change its ruling that
Paley's positive drug test was a direct contempt of court. However, it did
suspend the remainder of Paley's sentence after she had already served
seven days. Paley then filed a writ petition with this court.
Approximately one month after Paley filed the petition, the juvenile court
vacated its order finding her in direct contempt.
DISCUSSION
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion." Int'l
Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008) (footnote omitted); see also NRS 34.160. But the writ
generally will not issue if the petitioner has a plain, speedy, and adequate
...continued
court's jurisdiction to "adults to the extent that such jurisdiction is
incidental and necessary to its jurisdiction over children."
SUPREME COURT
OF
NEVADA
(0) 1947A
remedy in the ordinary course of law. NRS 34.170. Because "[ill() rule or
statute authorizes an appeal from an order of contempt," we have held
that "contempt orders must be challenged by an original petition pursuant
to NRS Chapter 34." Pengilly v. Rancho Santa Fe Homeowners Ass'n, 116
Nev. 646, 649, 5 P.3d 569, 571 (2000). Mandamus, however, is an
extraordinary remedy, and it therefore is in this court's discretion to
determine whether a petition will be considered. See Poulos v. Eighth
Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also
State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d
1338, 1339 (1983). This court may exercise that discretion where "an
important issue of law needs clarification and public policy is served by
this court's invocation of its original jurisdiction.' Mineral Cnty. v. State,
Dep't of Conservation and Natural Res., 117 Nev. 235, 243, 20 P.3d 800,
805 (2001) (quoting Bus. Computer Rentals v. State Treasurer, 114 Nev.
63, 67, 953 P.2d 13, 15 (1998)).
Because the juvenile court vacated the order of contempt,
there is no longer an actual controversy for this court to adjudicate. As
the parties acknowledge, this renders the petition moot. We generally will
not exercise our discretion to consider a moot case because our duty is "to
resolve actual controversies by an enforceable judgment." Personhood
Nev. v. Bristol, 126 Nev. „ 245 P.3d 572, 574 (2010). However, "we
will exercise our discretion to adjudicate a moot case when (1) the
contested issue is likely to arise again, and (2) the challenged action is 'too
short in its duration to be fully litigated prior to its natural expiration.'
Stephens Media, L.L.C. v. Eighth Judicial Dist. Court, 125 Nev. 849, 858,
221 P.3d 1240, 1247 (2009) (quoting Jason S. v. Valley Hosp. Med. Ctr. (In
re Guardianship of L.S. & H.S.), 120 Nev. 157, 161, 87 P.3d 521, 524
(2004)).
We conclude that Paley's petition does not fall under an
exception to the mootness doctrine. This issue is not likely to arise again
because it is abundantly clear that "a positive drug test result alone is not
a sufficient basis to sustain a finding of direct contempt." In re J.H., 213
P.3d 545, 549 (Okla. 2008). While being under the influence may
sometimes result in behavior that disrupts court proceedings, direct
contempt requires that the contemptuous conduct actually occur in the
"immediate view and presence" of the judge. NRS 22.030(1). 3 And "when
3 Pursuant to NRS 22.010 the following conduct constitutes
contempt:
1. Disorderly, contemptuous or insolent
behavior toward the judge while the judge is
holding court, or engaged in judicial duties at
chambers, or toward masters or arbitrators while
sitting on a reference or arbitration, or other
judicial proceeding.
2. A breach of the peace, boisterous conduct
or violent disturbance in the presence of the court,
or in its immediate vicinity, tending to interrupt
the due course of the trial or other judicial
proceeding.
3. Disobedience or resistance to any lawful
writ, order, rule or process issued by the court or
judge at chambers.
4. Disobedience of a subpoena duly served,
or refusing to be sworn or answer as a witness.
5. Rescuing any person or property in the
custody of an officer by virtue of an order or
process of such court or judge at chambers.
continued on next page...
SUPREME COURT
OF
NEVADA
5
(0) 1947A
we say immediate view and presence of the court we mean in t4, ocular
view of the court." Ex parte Hedden, 29 Nev. 352, 374, 90 P. 737, 744
(1907) (emphasis added).
Absent evidence of conduct that actually disrupts the court
proceeding, a positive out-of-court drug test is not a sufficient basis for
holding a party in contempt of court because no contemptuous conduct
occurs in the "immediate view and presence" of the judge. See NRS
22.030(1); see also Cameron v. State, 650 A.2d 1376, 1381-82 (Md. Ct.
Spec. App. 1994) (reversing a finding of direct contempt against a party
who appeared drunk in court because "[hie was in no way disruptive of the
proceedings" and "was not rebellious or insubordinate" or "willfully
disobedient or openly disrespectful"); In re J.H. , 213 P.3d at 548-49
(reversing a finding of direct contempt against parties who tested positive
for cocaine prior to appearing in court because the parties were not
"disorderly or insolent" and did not "disturb [1 or willfully obstruct [1 the
judicial proceedings").
Here, the juvenile court held Paley in direct contempt because
she tested positive for methamphetamines prior to the hearing. However,
...continued
6. Disobedience of the order or direction of
the court made pending the trial of an action, in
speaking to or in the presence of a juror
concerning an action in which the juror has been
impaneled to determine, or in any manner
approaching or interfering with such juror with
the intent to influence the verdict.
7. Abusing the process or proceedings of the
court or falsely pretending to act under the
authority of an order or process of the court.
SUPREME COURT
OF
NEVADA
6
(0) 1947A
a positive drug test for methamphetamines prior to a court proceeding is
not an act or omission that constitutes contempt under NRS 22.010. And
the record reveals that Paley was polite, coherent, and respectful at the
hearing and did not engage in any disorderly, insolent, boisterous, or
violent conduct, nor did she commit a breach of peace. NRS 22.010(1)-(2).
The district court rectified its error when it vacated its
contempt order. This rendered the proceeding moot, and no applicable
exception to the mootness doctrine applies. Accordingly, we deny the
petition as moot. 4
i<=14.4,&ea t j.
Hardesty
We concur:
C.J.
J.
Saitta
4 Paley
further argues that she was unconstitutionally deprived of
counsel and a due process hearing because the juvenile court's direct
contempt order was criminal in nature. However, we do not address
constitutional questions unless it is necessary to do so, Cortes v. State, 127
Nev. , 260 P.3d 184, 192 (2011), and it is not necessary to reach
this issue because we deny the petition as moot.
SUPREME COURT
OF
NEVADA
7
(0) 1947A
12SZRZWEBE