Appellant is a sex offender who was convicted in South
Carolina in 2000. After serving twelve months in prison, appellant
completed two years of supervised release in California. Thereafter,
appellant moved to Nevada, registered as a sex offender, and was
categorized as a Tier-I offender under Nevada's previous registration
scheme. With the enactment of A.B. 579, respondent Nevada Department
of Public Safety (DPS) sent appellant a letter notifying him that he would
be reclassified as a Tier-II offender under the new statute and, therefore,
would be subject to stricter registration and reporting requirements.
Respondent's notification prompted appellant to file a
complaint seeking injunctive relief based on his allegation that A.B. 579 is
unconstitutional as applied to him. Concurrent with filing his complaint,
appellant filed an application for a temporary restraining order and
preliminary injunction of the enforcement of A.B. 579. The district court
subsequently issued the requested preliminary injunction.
While appellant's case was pending in state court, the United
States District Court for the District of Nevada permanently enjoined the
enforcement of A.B. 579. See ACLU v. Masto, 719 F. Supp. 2d 1258, 1260
(D. Nev. 2008), rev'd in part, appeal dismissed in part sub nom., 670 F.3d
1046 (9th Cir. 2012). The parties in the instant case agreed that the state
court's injunction would remain in effect and that their case would be
stayed until the final disposition of the federal proceedings. The United
States Court of Appeals for the Ninth Circuit reversed the federal district
court's decision in 2012. See ACLU v. Masto, 670 F.3d 1046 (9th Cir.
2012). One year later, this court rejected a juvenile sex offender's due
process and ex post facto challenges to A.B. 579. Logan D., 129 Nev.
306 P.3d 369 (2013).
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Based on the recent Nevada Supreme Court and Ninth Circuit
decisions, respondent filed a brief in support of dissolving the state district
court's existing preliminary injunction prohibiting the enforcement of A.B.
579. In response, appellant filed a brief opposing respondent's request and
seeking a permanent injunction of the enforcement of A.B. 579. The
district court dissolved the existing preliminary injunction and denied
appellant's request for a permanent injunction, concluding that appellant
could not show a reasonable likelihood of success on the merits.
DISCUSSION
We review a district court's decision regarding the issuance or
dissolution of a preliminary injunction for abuse of discretion. See Finkel
v. Cashman Pron., Inc., 128 Nev. „ 270 P.3d 1259, 1262 (2012).
Accordingly, this court will reverse such a decision if based on an incorrect
legal standard or clearly erroneous finding of fact. Boulder Oaks Cmty.
Ass'n v. B & J Andrews Enters., 125 Nev. 397, 403, 215 P.3d 27, 31 (2009).
Questions of law within this context, however, are reviewed de novo. Id.
"A preliminary injunction is available when the moving party
can demonstrate that the nonmoving party's conduct, if allowed to
continue, will cause irreparable harm for which compensatory relief is
inadequate and that the moving party has a reasonable likelihood of
success on the merits."' Id. Because statutes are presumed to be valid,
'Appellant fails to cogently challenge the portion of the district
court's order denying his request for a permanent injunction, and
therefore, we need not address that issue. See Maresca v. State, 103 Nev.
669, 673, 748 P.2d 3, 6 (1987); see also NRAP 28(a)(9). Nevertheless, we
note that our analysis supports the district court's decision to deny the
permanent injunction.
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appellant also bears the burden of clearly showing that A.B. 579 is
unconstitutional. Martinez v. Maruszczak, 123 Nev. 433, 448-49, 168 P.3d
720, 730 (2007). With these standards in mind, we now consider
appellant's challenge to the district court's dissolution of the preliminary
injunction of A.B. 579 by considering his general assertions that, as
applied to him, the law violates the Due Process, Ex Post Facto, and
Double Jeopardy Clauses of the United States and Nevada Constitutions.
Procedural Due Process
In Logan D., we found that "A.B. 579 imposes registration and
community notification requirements on all juveniles age 14 and older who
are adjudicated for certain crimes; no additional facts are relevant to the
statutory scheme." 129 Nev. at , 306 P.3d at 379. We then held that,
even assuming A.B. 579 infringed on a liberty interest, the statute did not
violate a juvenile defendant's procedural due process because he "is not
entitled to procedural due process to prove a fact that is irrelevant under
the statute." Id. (citing Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7
(2003)) (additional citations omitted). This reasoning was not limited to
juvenile sex offenders and, despite appellant's appeal to the contrary, we
have never interpreted Nevada's Procedural Due Process Clause, Nev.
Const. art. 1 § 8(5), to provide any more protection than its federal
counterpart. We therefore conclude that the implementation of A.B. 579
would not violate appellant's procedural due process rights under the
United States or Nevada Constitutions.
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Inalienable Rights
Although appellant's complaint suggests otherwise, the United
States Constitution does not contain an Inalienable Rights Clause. 2
Nevada's Constitution, however, provides that "[a]1l men are by Nature
free and equal and have certain inalienable rights among which are those
of enjoying and defending life and liberty; Acquiring, Possessing and
Protecting property and pursuing and obtaining safety and happiness[d"
Art. 1, § 1.
We have regularly refused to address constitutional claims
under Article 1, section 1, of the Nevada Constitution that lack sufficient
argument and authority. See Rogers v. State, 101 Nev. 457, 465, 705 P.2d
664, 669-70 (1985) (refusing to consider a criminal defendant's
unsupported argument that the death penalty violated Article 1, section 1
of the Nevada Constitution); Atteberry v. State, 84 Nev. 213, 218, 438 P.2d
789, 791 (1968) (rejecting the argument that the Registration of Convicted
Persons Act violated Article 1, section 1 of the Nevada Constitution
because appellant failed to demonstrate by authority or argument how his
constitutional rights were violated). While we can dismiss appellant's
unsubstantiated assertion under Rogers and Atteberry, we nevertheless
conclude that the assertion, even if properly made, lacks merit. See
Norman v. City of Las Vegas, 64 Nev. 38, 39-56, 177 P.2d 442, 443-451
(1947) (concluding that the right to privacy is not absolute and that
2 We assume that appellant was actually referring to his substantive
due process rights under the United States Constitution, arguing that
A.B. 579 violated those rights. That argument, however, lacks merit
because A.B. 579 does not implicate a fundamental right and survives
rational basis scrutiny. See Logan D., 129 Nev. at , 306 P.3d at 377-79.
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limitations on said right do not automatically violate Nevada's
constitutional guarantees of life, liberty, and the pursuit of happiness
under Article 1, section 1, of the Nevada Constitution).
Ex Post Facto
The United States Constitution provides that no "ex post facto
Law shall be passed" by either the United States Legislature or an
individual state's legislature. Art. 1, §§ 9-10. Similarly, Nevada's
Constitution provides that "[il]° . . ex post facto law . . . shall ever be
passed." Art. 1, § 15. As inferable from our analysis in Logan D., the
Nevada Constitution's Ex Post Facto Clause provides the same protection
as the United States Constitution's corresponding clause. See 129 Nev. at
, 306 P.3d at 382-88 (mirroring the United States Supreme Court's
constitutional analysis of ex post facto issues when addressing an ex post
facto challenge under both the United States and Nevada Constitutions).
In Logan D., we held "that retroactive application of A.B. 579
to juvenile sex offenders does not violate the Ex Post Facto Clauses of the
United States and Nevada Constitutions." 129 Nev. at , 306 P.3d at
388. In reaching this conclusion, we first determined that the
Legislature's intent in passing A.B. 579 was nonpunitive. Id. at 306
P.3d at 382. We then analyzed the seven factors used to determine
whether the effects of a nonpunitive civil regulatory scheme are
sufficiently punitive to negate the State's intention to deem it civil. Id. at
382-88 (internal quotations omitted). Following this analysis we
determined that the effects of A.B. 579 were not so punitive as to negate
the Legislature's intent to deem the act civil. Id. at 306 P.3d at 388.
Because appellant has provided no convincing evidence that our decision
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in Logan D. regarding the Ex Post Facto Clause merits a different outcome
when A.B. 579 is applied to his circumstances, we reject his argument.
Double Jeopardy
No person shall "be subject for the same offense to be twice put
)1
in jeopardy of life or limb U.S. Const. amend. V. Nevada's
Constitution likewise provides that Inio person shall be subject to be
twice put in jeopardy for the same offense . . . ." Nev. Const. art. 1 § 8(1).
When assessing an alleged violation of the Double Jeopardy Clause in
these circumstances, we apply the same two-step threshold analysis that
we used for appellant's ex post facto challenge to determine whether a
punishment is criminal and double jeopardy can apply. See ACLU v.
Masto, 670 F.3d at 1053 (citing Smith v. Doe, 538 U.S. 84, 92 (2003)).
Because we have determined that A.B. 579 is a civil act as applied to
appellant, we reject his double jeopardy challenge.
Our analysis shows that appellant did not and could not meet
his burden of clearly demonstrating that A.B. 579 is unconstitutional as
applied to him and, thus, could not show a reasonable likelihood of success
on the merits to maintain his preliminary injunction. Accordingly, we
conclude that the district court did not abuse its discretion by dissolving
the injunction.
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We therefore ORDER the judgment of the district court
AFFIRMED.
16.4,9" , C.J.
Hardesty
I ei}t _51 ov_
Parraguirre
J.
Saitta Gibbons
cc: Hon. Rob Bare, District Judge
Chesnoff & Schonfeld
Attorney General/Transportation Division/Las Vegas
Eighth District Court Clerk
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CHERRY, J., dissenting:
I respectfully dissent for the same reasoning set forth in my
dissent in State v. Eighth Judicial Dist. Court (Logan D.), 129 Nev. ,
, 306 P.3d 369, 390-92 (2013) (Cherry, J. dissenting).
J.
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