State v. Beaudion

131 Nev., Advance Opinion 48
IN THE SUPREME COURT OF THE STATE OF NEVADA

THE STATE OF NEVADA, No. 65429
Appellant,
vs.
EARL WAYNE BEAUDION,
FILED
Respondent. JUL 0 2 2015
TRACE K LINDEMAN
CLER5-nFvSUPREME COURT
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BY
DEPUTY CLERK
Appeal from an order dismissing an indictment. Eighth
Judicial District Court, Clark County; Joe Hardy, Judge.'

Reversed and remanded.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens and Jonathan VanBoskerck, Chief
Deputy District Attorneys, and Jeffrey S. Rogan, Deputy District Attorney,
Clark County,
for Appellant.

Philip Kohn, Public Defender, and Jeffrey M Banks and Howard Brooks,
Deputy Public Defenders, Clark County,
for Respondent.

BEFORE SAITTA, GIBBONS and PICKERING, JJ.

'District Judge Hardy took office after the proceedings in the district
court concluded.

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By the Court, PICKERING, J.:
NRS 172.241 affords the target of a grand jury investigation
the opportunity to testify before them unless, after holding "a closed
hearing on the matter," the district court determines that adequate cause
exists to withhold target notice. In this case, the district judge supervising
the grand jury entered an order authorizing the State to withhold target
notice based on the district attorney's written request and supporting
affidavit, without conducting a face-to-face oral hearing. We must decide
whether this procedure satisfies NRS 172.241's "closed hearing"
requirement. We hold that it does and therefore reverse the order
dismissing the indictment that was entered by the district judge to whom
the criminal case was assigned after the indictment was returned.
I.
A.
NRS 172.241(1) provides: "A person whose indictment the
district attorney intends to seek. . . may testify before the grand jury if
the person requests to do so and executes a valid waiver in writing of the
person's constitutional privilege against self-incrimination." To facilitate
exercise of this right, NRS 172.241(2) requires the district attorney to give
the target reasonable notice, sometimes called Marc urn notice, 2 of the
grand jury proceeding, "unless the court determines that adequate cause
exists to withhold notice." Addressing the circumstances in which target
notice may be withheld, NRS 172.241(3) specifies that "[tithe district

2Sheriffv. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989), amended
790 P.2d 497 (1990).

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 attorney may apply to the court for a determination that adequate cause
exists to withhold notice, if the district attorney. ... [d]etermines" that the
target poses a flight risk, cannot be located or, as relevant here, "that the
notice may endanger the life or property of other persons."
If a district attorney applies to the court for a
determination that adequate cause exists to
withhold notice, the court shall hold a closed
hearing on the matter. Upon a finding of adequate
cause, the court may order that no notice be given.
MRS 172.241(4) (emphasis added).
B.
The State alleges that respondent Earl Wayne Beaudion
committed battery causing substantial bodily harm constituting domestic
violence against his then-girlfriend when he tied her to their bed and
poured boiling water over her exposed torso, burning her so severely that
she required skin grafts. The State further alleges that Beaudion
intimidated or threatened the victim with additional harm if she
cooperated in his prosecution.
Initially, the State attempted to proceed against Beaudion by
information, rather than indictment. Each time the date scheduled for the
preliminary hearing arrived, the victim failed to appear and, eventually,
she vanished. After three failed attempts at conducting the preliminary
hearing, the State dismissed its criminal complaint against Beaudion
without prejudice.
Several years later, detectives located the victim. The district
attorney's office renewed its efforts to charge Beaudion, this time utilizing
the grand jury, which conducts its proceedings largely in secret. See NRS
172.245. Before presenting its case against Beaudion to the grand jury,
the district attorney's office submitted a written application to the court
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 supervising the grand jury for permission to withhold target notice from
Beaudion. As grounds for withholding target notice, the application
asserted that Beaudion would threaten or harm the victim and/or her
family to prevent the victim from testifying if Beaudion knew the grand
jury was considering his indictment. The ex parte application was
supported by an affidavit from the prosecutor relating that "previously the
Defendant intimidated the Victim to the point where she would not appear
for court"; that, when the victim had to be hospitalized for her burns,
Beaudion had driven her from Nevada to California "to avoid being caught
for committing the crimes in this case"; and that "[t] here is a good faith
basis to believe that if the Defendant learns of the State's intentions of
indicting him he will again intimidate or harm the Victim. . . to
prevent her from testifying." After considering the written application
and supporting affidavit, but without holding an oral hearing, the court
entered a written order finding cause for and authorizing the State to
proceed without notice to Beaudion.
The victim testified before the grand jury, which returned a
true bill, and the State filed an indictment against Beaudion in district
court. Under local court rules, see EDCR 1.31, the case was
administratively assigned to a different department of the district court
than had impaneled the grand jury and so had issued the order dispensing
with target notice. Beaudion filed a motion to dismiss in the department
of the district court to which his criminal case was assigned. He argued
that the order authorizing the district attorney's office to withhold
Marcum notice was deficient because it had not been preceded by the
"closed hearing" required by NRS 172.241(4) and that this deficiency
invalidated the indictment.

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 The district court granted Beaudion's motion to dismiss. It
accepted that, on the merits, the application and supporting affidavit
established more than adequate cause to withhold Marcum notice from
Beaudion under NRS 172.241(3)(b) (permitting target notice to be
withheld if giving notice "may endanger the life or property of other
persons"). And, it rejected Beaudion's argument that the "closed hearing"
needed to include him and his lawyer as participants. Nonetheless, the
district court deemed it a violation of NRS 172.241(4)'s "closed hearing"
requirement for the court to have dispensed with target notice based on
the prosecutor's written submissions, without conducting an oral, face-to-
face hearing In the district court's view, the failure to hold the hearing
required by NRS 172.241(4) invalidated the order authorizing the State to
withhold target notice from Beaudion and rendered the indictment
procedurally defective, requiring dismissal. The dismissal was effectively
with prejudice since by then the statute of limitations had run. The State
appeals, and we reverse.

A.
The State makes a threshold argument that it did not make in
the district court challenging the district court's jurisdiction over
Beaudion's motion to dismiss. It contends that the district judge assigned
to Beaudion's criminal case lacked authority to "overrule" the grand jury
judge's decision to waive target notice, and that instead of asking the
former to "overrule" the latter, Beaudion should have challenged the
grand jury judge's decision by way of an extraordinary writ from this
court. We disagree. NRS 174.105 allows a defendant to challenge
procedural defects in the indictment by pretrial motion, and the State
offers no authority that makes an original action in this court the
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 exclusive means for a criminal defendant to contest compliance with MRS
172.241. Nor are we persuaded that the district judge assigned to
Beaudion's criminal case improperly reexamined or second-guessed the
grand jury judge's substantive determination that adequate cause existed
to withhold target notice. On the contrary, the district judge examined the
procedure followed, specifically, whether it deviated from MRS 172.241(4)
in such a way as to require dismissal of the indictment—questions neither
tendered to nor decided by the district judge charged with supervising the
grand jury's preindictment activities. While one district judge may not
directly overrule the decision of another district judge on the same matter
in the same case, see State v. Babayan, 106 Nev. 155, 165, 787 P.2d 805,
812-13 (1990), this rule does not prohibit a second district judge who is
assigned to a matter by operation of administrative court rules from
deciding a matter related but not identical to another regularly assigned
judge's earlier rulings Rohlfing v. Second Judicial Dist. Court, 106 Nev.
902, 906-07, 803 P.2d 659, 662-63 (1990) (while invalidating a third
district judge's order reinstating a case a second district judge had
dismissed on double jeopardy grounds, this court found no infirmity in the
second judge's order of dismissal, even though the order of dismissal
implicitly conflicted with the yet-earlier order of the first district judge,
who tried the case and had granted a mistrial over defense objection that
manifest necessity for a mistrial had not been shown); see Major v. State,
130 Nev., Adv. Op. 70, 333 P.3d 235, 237-38 (2014).
B.
Although we normally "review a district court's decision to
grant or deny a motion to dismiss an indictment for abuse of discretion,"
Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008), this appeal
concerns the proper interpretation of NRS 172.241(4), specifically, its
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 "closed hearing" requirement. "Statutory [interpretation] involves a
question of law, and this court reviews the statute under scrutiny de novo,
without deference to the district court's conclusions." Schuster V. Eighth
Judicial Dist. Court, 123 Nev. 187, 190-91, 160 P.3d 873, 875 (2007)
(interpreting NRS 172.145(2)).
The question we must decide is what MRS 172.241(4) means
by its "closed hearing" requirement. The statute does not define the term
"closed hearing." Beaudion argued in the district court that the "closed
hearing" excludes the public but includes the target—in other words, that
before granting an application to withhold notice, the court must conduct
an adversarial hearing, with the target present, so the target can
challenge the factual and legal bases for withholding Marcum notice. The
district court rejected this reading of MRS 172.241(4), and so do we. A
defendant's rights to Marcum notice and to testify before the grand jury
are statute-based, not constitutional in origin. See Gordon v. Ponticello,
110 Nev. 1015, 1020-21, 879 P.2d 741, 745 (1994) ("[T]he Nevada
Legislature has chosen to extend the right to testify to grand jury targets
[through MRS 172.2411, a grant of grace that it was not constitutionally
required to make."); Gier v. Ninth Judicial Dist. Court, 106 Nev. 208, 212,
789 P.2d 1245, 1248 (1990) ("Although Marcum announced a new rule, the
rule was not of constitutional dimensions. Marcum did not address a
constitutional right because the creation of grand juries is not
constitutionally required."). This being so, the defendant has no right to
participate in the "closed hearing" beyond that conferred by statute and
here, the statute does not confer the right to notice of the "closed hearing"
on the defendant. After all, the point of the hearing is to determine
whether "adequate cause" exists to withhold notice of the grand jury

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 proceeding from its target because, under NRS 172.241(3), giving such
notice might cause the target to flee or endanger the lives or property of
others. We do not read statutes to produce absurd or unreasonable
results, see Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1136
(2001), and it would indeed be absurd to read NRS 172.241(4) to require
that the target be given notice and opportunity to be heard on whether
notice should be withheld because he or she presents a flight risk or threat
to others if given notice. The district court correctly rejected this
argument.
The harder question is whether the reference in NRS
172.241(4) to a "closed hearing" requires an oral presentation to the court
by the prosecutor or permits the court to decide whether to approve
withholding target notice based on the prosecutor's written submission if
the written submission is adequate to the task. That the hearing must be
"closed" does not affect the analysis; the adjective "closed" signifies only
that the hearing, whatever it may entail, be "conducted in secrecy," Black's
Law Dictionary 310 (10th eel. 2014), which is consistent with the
obligations of secrecy stated in NRS 172.245. The difficulty lies in the
term "hearing."
The word "hearing" derives from the word "hear" and thus
seems to carry an "auditory component." Lewis v. Superior Court, 970
P.2d 872, 883 (Cal. 1999). This suggestion of an oral or auditory
component also inheres in general dictionary definitions of "hearing," for
example, Black's Law Dictionary, which defines "hearing" as "A judicial
session, usu. open to the public, held for the purpose of deciding issues of
fact or of law, sometimes with witnesses testifying." Id. at 836. But this
does not answer the question whether, invariably, a hearing must be oral

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 or can be achieved by written submissions. On this point, "[t] he term
'hearing' in its legal context undoubtedly has a host of meanings," United
States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 239 (1973); see also U.S. ex
rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1350 (4th Cir. 1994)
(observing "the fluidity in the meaning of the term 'hearing"), superseded
by statute on other grounds as stated in U.S. ex rel. Black v. Health &
Hosp. Corp. of Marion Cnty., 49 Fed. Appx. 285 (2012), making etymology
and dictionary definitions less helpful than other indicia of statutory
meaning, including the context in which the hearingS requirement arises
and the object of the review process involved. 3 See Chanos v. Nev. Tax
Comm'n, 124 Nev. 232, 241, 181 P.3d 675, 681 (2008) (noting multiple,
competing dictionary definitions of "hearing" and deeming the hearing
requirement in former NIBS 360.247 ambiguous, requiring resort to
legislative history to determine its meaning in context).
The majority of courts to have considered the question "have
concluded that the use of the term 'hearing' in a statute does not confer a
[mandatory] right to oral argument [or oral presentation] unless
additional statutory language or the context indicates otherwise." Lewis,
970 P.2d at 884 (collecting cases); Chan v. Gantner, 464 F.3d 289, 296 (2d
Cir. 2006) ("Absent some otherwise expressed Congressional intent, the

3Article 6, Section 2(2)(a) of the Nevada Constitution, for example,
authorizes the Legislature to provide for the "hearing and decision of cases
by panels of no fewer than three justices." Neither in its rules nor its
practice has this court allowed oral argument in all panel cases, yet that
would be the effect of interpreting "hearing" to invariably require an oral
presentation or exchange.

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 mere use of the word 'hearing' in a statute does not mandate an
evidentiary hearing be held."). And as one commentator has recognized,
Determination whether or not an oral hearing
is required should depend on the susceptibility
of the particular subject matter to written
presentation, on the ability of the complainant to
understand the case against him and to present
his arguments effectively in written form, and on
the administrative costs.
Henry J. Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281
(1975), cited with approval in Mathews v. Eldridge, 424 U.S. 319, 343, 348
(1976), and Lewis, 970 P.2d at 884. Thus, depending on context, a
statutory hearing requirement may be satisfied by providing the parties
the opportunity to present arguments and evidence through written
submissions. See, e.g., Florida K Coast Ry. Co., 410 U.S. at 241-42
(holding that a hearing requirement contained in the Administrative
Procedure Act could be satisfied by allowing interested parties to file
written submission of argument and evidence and did not require oral
testimony or argument); Anchorage Assocs. v. Virgin Islands Bd. of Tax
Review, 922 F.2d 168, 176-77 (3d Cir. 1990) ("While [former Federal Rule
of Civil Procedure] Rule 56 speaks of a 'hearing,' we do not read it to
require that an oral hearing be held before judgment is entered. An
opportunity to submit written evidence and argument satisfies the
requirements of the rule."); Hower v. Wal-Mart Stores, Inc., Civil Action
No. 08-1736, 2009 WL 2047892, at *3 (E.D. Pa. July 10, 2009)
(unpublished disposition) (collecting cases). CI Ott-Young v. Roberts, No.
C-13-4442 EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 2013)
(unpublished disposition) (a "notice and opportunity to be heard" in the
vexatious litigation context requires only "that the litigant be given an

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 opportunity to oppose the order before it is entered," and does not require
an in-person hearing).
Given the ex parte nature of the procedure here, if the district
court has determined that the State's written submissions provide
sufficient grounds to support withholding notice, nothing further would be
accomplished by requiring the prosecuting attorney to appear before the
district court to orally argue what is already provided in the written
materials. And as long as the State's written submissions and the district
court's order memorialize the reasons underlying the district court's
decision, the target, if later indicted, would be able to challenge the basis
upon which the notice was withheld, serving another purpose of the notice
withholding procedure. Hearing on S.B. 82 Before the Assembly
Committee on Judiciary, 66th Leg. (Nev., May 30, 1991) (testimony
discussing the addition of the "closed hearing" language and other
amendments to NRS 172.241, and confirming that if "the district
attorney's office abused the process the defense had the remedy of filing a
motion to dismiss the indictment").
Thus, the more reasonable interpretation of "closed hearing,"
as used in NRS 172.241, does not mandate an oral hearing in all
instances, as that would require use of court resources and time for
essentially no reason in cases such as this, see Westpark Owners' Ass'n u.
Eighth Judicial Dist. Court, 123 Nev. 349, 357, 167 P.3d 421, 427 (2007)
("[T]his court will resolve any doubt as to [a statute's fair meaning] in
favor of what is reasonable."), but instead requires in camera review by
the court of the State's submission, with or without the prosecutor
present. Indeed, this is consistent with ABA Model Grand Jury Act of
1982, section 102(3), which, like NRS 172.241, affords a target notice and

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 the opportunity to testify unless "the prosecutor demonstrates to the court
in camera that there are reasonable grounds to believe that giving such
notice would create an undue risk of danger to other persons, flight of the
target or other obstruction of justice," requiring judicial review but not an
in-person meeting between the prosecutor and the judge. And we see no
reason to impose a blanket oral hearing requirement when NRS 172.241's
purposes can be met without the prosecuting attorney meeting in-person
ex parte with the district court judge. See Markowitz v. Saxon Special
Servicing, 129 Nev., Adv. Op. 69, 310 P.3d 569, 572 (2013) ("When a party
accomplishes such actual compliance as to matters of substance, technical
deviations from form requirements do not rise to the level of
noncompliance."); see also Citizens for Allegan Cnty., Inc. v. Fed. Power
Comm'n, 414 F.2d 1125, 1128 (D.C. Cir. 1969) ("Mhe right of opportunity
for hearing does not require a procedure that will be empty sound and
show, signifying nothing."). Thus, NRS 172.241's procedure for
withholding notice is met if the State presents sufficient evidence to the
district court, through written application and/or at oral argument, should
the court require it, to allow the court to conclude by written order that
that adequate cause to withhold notice of the grand jury proceedings
exists As the State did so here, we reverse the order dismissing the
indictment and remand.
J.

We concur:

J.
GibboKs
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