v. Masto, 670 F.3d 1046, 1052-66 (9th Cir. 2012) (Masto II). The federal
district court entered a clarifying order in 2013 recognizing overly broad
language in the original injunction in Masto I and clarifying that the
injunction had only related to those provisions actually litigated by the
parties. Because these latter decisions occurred after the district court's
order granting relief in this case, this court vacated the order of the
district court and remanded for reconsideration in light of the 2013
clarifying order. State v. Reyes, Docket No. 60273 (Order Vacating
Judgment and Remanding, May 15, 2013). The district court was to
consider the effect of the 2013 clarifying order, the effect of any
uncertainty regarding the law concerning NRS 213.1243(8) at the time
Reyes was charged and convicted, Reyes' liability under the prior version
of NRS 213.1243 (allowing for a misdemeanor or felony offense depending
upon the violations alleged), and any other issues the parties may raise.
Upon remand, Reyes argued that consideration of the 2013
clarifying order amounted to an ex post facto violation. Reyes further
argued that he was not provided fair notice in violation of due process that
his offense could be charged as a felony in light of the alleged uncertainty
regarding the law after the injunction in Masto I. The district court again
granted the motion and dismissed the charges, concluding that (1) the
effect of the clarifying order in 2013 was prospective only because the 2008
injunction enjoined the entirety of SB 471, (2) there was substantial
uncertainty regarding the law because of the language in the injunction in
Masto I and the legal authority cited to by Reyes, (3) applying the 2013
clarifying order retroactively would be an ex post facto violation, and (4)
Reyes could only be charged and convicted of a misdemeanor offense. The
State again appeals.
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The State argues that the district court erred in concluding
that the 2008 injunction in Masto I enjoined the amendment to NRS
213.1243 that eliminated the misdemeanor/minor violation of lifetime
supervision. We agree.
Injunctions are to be narrowly tailored to the constitutional
violation at issue and portions of challenged legislation that are
constitutionally valid, capable of functioning independently, and
consistent with the objectives of the legislation must be retained. See
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29
(2006); United States v. Booker, 543 U.S. 220, 258-59 (2005). Further,
because the violation of an injunction is subject to punishment, an
injunction must provide "explicit notice of precisely what conduct is
outlawed." Schmidt v. Lessard, 414 -U.S. 473, 476 (1974).
The principles in drafting an injunction are informative in how to
read an injunction. An injunction should be read "intelligently and in
context." Dan B. Dobbs, Law of Remedies § 2.8(7), 220 (2d ed. 1993). To
give effect to the intent of the court issuing the injunction, an injunction
should be reasonably construed and read as a whole. Norwest Mortgage,
Inc. v. Ozuna, 706 N.E.2d 984, 989 (III. App. Ct. 1998). And "[t]o ascertain
the meaning of any part of an injunction, the entire injunction must be
looked to; and its language, like that of all other instruments, must have a
reasonable construction with reference to the subject about which it is
employed." Old Homestead Bread Co. v. Marx Baking Co., 117 P.2d 1007,
1009-10 (Colo. 1941) (quoting 32 CJ 370, § 624). In discussing the narrow
interpretation of a decree, the Massachusetts Supreme Court has stated
that "[a] decree is always to be construed in reference to the facts stated in
the bill and proved or admitted at the hearing. For its effect, it rests upon
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the averments of the bill, and it has no relation to matters not included in
the litigation." Att'y Gen. v. New York, New Haven and Hartford R.R. Co.,
87 N.E. 621, 622 (Mass. 1909). Likewise, the Mississippi Supreme Court
has stated that in determining whether an action falls within the scope of
an injunction one must look to the "injunction itself, read in view of the
relief sought and the issues made in the case before the court which
rendered it, and the injunction will not be given a wider scope than is
warranted by such construction." Arbuckle v. Robinson, 134 So. 2d 737,
741 (Miss. 1961). An injunction would not prohibit acts not within its
terms as reasonably construed. Citizens Against Range Expansion v.
Idaho Fish and Game Dep't, 289 P.3d 32, 37 (Idaho 2012). This court has
likewise looked to the record when an injunction failed to set forth the
reasons for its issuance. See Sowers v. Forest Hills Subdivision, 129 Nev.
294 P.3d 427, 434 (2013).
In concluding that the 2008 injunction enjoined the entirety of
SB 471, including the amendment to NRS 213.1243 that eliminated the
misdemeanor/minor violation of lifetime supervision, the district court
acknowledged that the injunction as drafted used overly broad language,
but the district court felt constrained to give plain meaning to the final
sentence in the injunction that enjoined SB 471. Although the injunction
in Masto I included broad language in the final sentence, and other legal
authorities repeated this language when describing the injunction, the
injunction read as a whole and in context made it clear that the only
provisions of SB 471 challenged and enjoined related to residence and
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movement restrictions; provisions which are not at issue here.' Reviewing
the litigation documents, there was never a cause of action based on the
amendment to NRS 213.1243 that eliminated the misdemeanor/minor
violation of lifetime supervision and none of the plaintiff Does alleged that
they had been charged with any violation of lifetime supervision. Further,
the federal court's order specifically stated that it was the retroactive
application of the amendments in AB 579 and SB 471 that was at issue in
the case. Masto I, 719 F. Supp. 2d at 1259-60. The amendment to NRS
213.1243 was not applied retroactively in this case: Reyes was placed on
lifetime supervision in 2010 and violated the conditions in 2011, after the
amendment took effect. And supporting a limited reading of the
injunction is the opinion in Masto II which recognizes that the injunction
was limited to the residence and movement restrictions set forth in SB
471. Masto II, 670 F.3d at 1051 n.3, 1061-66. The 2013 federal district
order clarifying the injunction also supports this reading of the injunction
as the federal district court expressly recognized the limited scope of the
injunction and stated that lain other sections or sub-sections contained in
S.B. 471 (2007), other than those specified . . . are subject to the enacting
provisions set forth in S.B. 471 . . . and were in full force and effect as of
the effective date of the bill." Thus, the 2008 injunction did not enjoin the
amendment to NRS 213.1243 that eliminated the misdemeanor/minor
'The injunction appeared to also refer to G.P.S. monitoring, but the
decision in Masto II makes it clear that this provision was not part of the
original litigation and thus was not before the federal court. 670 F.3d at
1051 n.3.
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violation of lifetime supervision and Reyes was properly charged with and
convicted of a felony violation of lifetime supervision. 2
In light of our conclusion that the 2008 injunction in Masto I
did not include the amendment to NRS 213.1243 that eliminated the
misdemeanor/minor violation of lifetime supervision, Reyes' argument
that consideration of the 2013 clarifying order constitutes an ex post facto
violation is without merit as the clarifying order did not change or alter
the terms of the injunction as reasonably read. See Mikel v. Gourley, 951
F.2d 166, 169 (8th Cir. 1991) ("The distinction between modification and
clarification is that a clarification 'does not change the parties' original
relationship, but merely restates that relationship in new terms." (quoting
Motorola Inc. v. Computer Displays Int?, Inc., 739 F.2d 1149, 1155 (7th
Cir. 1984))); Cunningham v. David Special Commitment Ctr., 158 F.3d
1035, 1037 (9th Cir. 1998) (recognizing that a modification of an injunction
substantially alters the relationship of the parties); Con v. First State Ins.
Co., 871 F.2d 863, 866 (9th Cir. 1989) (recognizing that a modification of
an injunction "substantially change[s] the terms and force of the
injunction").
We further conclude that Reyes' argument that he did not
have fair notice that his conduct could be charged as a felony was without
merit as he was provided notice of the severity of the penalty. See
Gollehon v. Mahoney, 626 F.3d 1019, 1023 (9th Cir. 2010) (providing that
2 Iteyes'argument that the weight of legal authority supported his
reading of the injunction is without merit. None of the authorities were
asked to address whether the elimination of the misdemeanor/minor
violation was enjoined by Masto I and the authorities appear to simply
repeat the final line in the injunction. We are not convinced that repeating
overly broad language gives effect to that language.
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due process requires that a defendant receive fair notice of the severity of
the penalty that may be imposed). At the time Reyes was placed on
lifetime supervision, violated the terms of lifetime supervision, entered a
guilty plea to a felony offense for the violation of lifetime supervision, and
was convicted of the felony offense, NRS 213.1243(8) provided notice that
a violation of the conditions of lifetime supervision was a felony offense
and thus his due process rights were not violated. 3
For the reasons set forth in this order, we
ORDER the judgment of the district court REVERSED.
PW
Parraguirre
W°
J.
43
J.
Douglas
, J.
Cherry
cc: Hon. Jessie Elizabeth Walsh, District Judge
Attorney GenerallCarson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
3 We need not reach the State's argument regarding amending the
charges in light of our disposition.
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State v. Reyes (Mike)
Combined Opinion