133 Nev., Advance Opinion el'
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
THOMAS KNICKMEYER, No. 71372
Appellant,
vs.
THE STATE OF NEVADA, ex. rel.
FILED
EIGHTH JUDICIAL DISTRICT COURT, NOV 1 6 2017
Respondent.
ETH A. BROWN
141
taSE
v
; CLERIC.
Appeal from a district court order denying a petition to set
aside an arbitration order. Eighth Judicial District Court, Clark County;
Nancy Becker, Senior Judge.
Affirmed.
Kirk T. Kennedy, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Clark G. Leslie, Chief Deputy
Attorney General, Carson City; D. Randall Gilmer, Senior Deputy District
Attorney, Las Vegas,
for Respondent.
BEFORE TAO and GIBBONS, JJ. 1
'The Honorable Abbi Silver, Chief Judge, voluntarily recused herself
from participation in the decision of this matter.
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OPINION
By the Court, TAO, J.:
The principal legal question addressed in this appeal is
whether certain provisions of NRS Chapter 289 (namely, NRS 289.040,
289.057 and 289.060), intended to provide job-related protections to peace
officers employed by law enforcement agencies, apply to bailiffs and
marshals employed by the Eighth Judicial District Court. We conclude
that judicial marshals are "peace officers" within the meaning of those
statutes, but the Eighth Judicial District Court is not a "law enforcement
agency" as statutorily defined. Accordingly, the provisions at issue do not
apply to Knickmeyer, and we affirm the district court's denial of his
petition to set aside the arbitration award in this case.
FACTUAL AND PROCEDURAL HISTORY
The Eighth Judicial District Court (EJDC) employed Thomas
Knickmeyer first as a bailiff, and then later as an administrative marshal.
Knickmeyer's employment was governed by the terms of a written
Memorandum of Understanding (MOU) between the Clark County
Marshal's Union and the EJDC which stipulated that adverse employment
actions, including possible termination, were to be resolved through a
series of administrative proceedings, eventually culminating in a binding
arbitration hearing if necessary.
The EJDC sought to terminate Knickmeyer's employment
after co-workers reported several incidents of insubordination, vulgar
language, and unprofessional behavior. The allegations included reports
that Knickmeyer used foul language in the presence of a co-worker,
publicly referred to an attorney who had complained about him as a
"bitch," and retaliated against her by ordering that her purse be searched
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and re-scanned even after being told it contained no suspicious items. He
also openly used an obscenity to refer to a superior officer. In seeking
termination, the EJDC noted that Knickmeyer had previously been
subject to lesser disciplinary actions in 1997, 2003, and 2013.
During the various administrative proceedings below, every
hearing officer agreed that termination was appropriate and warranted.
Knickmeyer appealed each step as outlined in the MOU, ultimately
seeking arbitration. The arbitrator upheld the EJDC's decision to
terminate Knickmeyer, finding that a preponderance of the evidence
demonstrated that Knickmeyer committed the infractions in question and
that termination was an appropriate response. The arbitrator's decision
specifically noted that his conclusion was based only upon the immediate
incidents at stake and not upon the previous complaints from 1997, 2003,
or 2013.
Knickmeyer petitioned the district court to set aside the
arbitrator's decision, arguing that the EJDC violated his statutory rights
under NRS Chapter 289 by improperly disclosing and relying upon his
prior disciplinary history as justification for termination in this case. The
district court denied the petition, and Knickmeyer appeals, repeating the
same arguments made to the district court.
ANALYSIS
This court reviews a district court decision to confirm an
arbitration award de novo. Thomas u. City of N. Las Vegas, 122 Nev. 82,
97, 127 P.3d 1057, 1067 (2006). But the scope of the district court's review
of an arbitration award (and, consequently, our own de novo review of the
district court's decision) is extremely limited, and is "nothing like the
scope of an appellate court's review of a trial court's decision." Health
Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev. 689, 695, 100 P.3d 172,
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176 (2004). "A reviewing court should not concern itself with the
'correctness' of an arbitration award and thus does not review the merits
of the dispute." Bohlmann v. Printz, 120 Nev. 543, 547, 96 P.3d 1155,
1158 (2004) (quoting Thompson v. Tega-Rand Intl, 740 F.2d 762, 763 (9th
Cir. 1984)), overruled on other grounds by Bass-Davis v. Davis, 122 Nev.
442, 452 n.32, 134 P.3d 103, 109 n.32 (2006).
Rather, when a contractual agreement mandates that disputes
be resolved through binding arbitration, courts give considerable deference
to the arbitrator's decision. Judicial review is limited to inquiring only
whether a petitioner has proven, clearly and convincingly, that one of the
following is true: the arbitrator's actions were arbitrary, capricious, or
unsupported by the agreement; the arbitrator manifestly disregarded the
law; or one of the specific statutory grounds set forth in NRS 38.241(1)
was met. Clark Cty. Educ. Ass'n v. Clark Cty. Sch. Dist., 122 Nev. 337,
341, 131 P.3d 5, 8 (2006); Health Plan of Nev., 120 Nev. at 695, 100 P.3d at
176.
In this appeal, Knickmeyer asserts that the EJDC violated his
due process rights by failing to comply with certain provisions of NRS
Chapter 289 relating to discovery. He also contends that the arbitrator
manifestly disregarded relevant law and exceeded his authority by
determining that Knickmeyer's conduct violated standards not articulated
within the MOU and by failing to make required findings of
reasonableness. 2
2 Knickmeyer'sbrief also includes two other arguments that we need
not separately address. He contends that the MOU itself imposed
contractual discovery obligations above and beyond those set forth in NRS
Chapter 289, but this argument is presented only cursorily and is less
continued on next page...
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NRS Chapter 289
Knickmeyer first argues that his statutory rights under NRS
Chapter 289 were violated because he was not provided with discovery
relating to three prior disciplinary incidents (from 1997; 2003, and 2013)
that were used against him during the arbitration, in violation of the
requirements of NRS 289.040, NRS 289.057, and NRS 289.060.
As an initial observation, however, Knickmeyer waived this
objection by failing to ever request any such discovery below or object to
any failure to receive it to the arbitrator. See Carrigan v. Comm'n on
Ethics, 129 Nev. 894, 905 n.6, 313 P.3d 880, 887 n.6 (2013) ("Arguments
...continued
than cogent. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not
consider claims •that are not cogently argued or supported by relevant
authority). Moreover, Knickmeyer did not raise this argument before the
arbitrator, belatedly raising it for the first time only before the district
court. See State Bd. of Equalization v. Barta, 124 Nev. 612, 621, 188 P.3d
1092, 1098 (2008) ("Because judicial review is limited to the
administrative record, arguments made for the first time on judicial
review are generally waived by the party raising them."). Consequently,
the arbitrator did not make any factual findings relating to whether the
EJDC breached the MOU. Without these factual findings, we are unable
to address this issue—unlike his argument relating to the applicability of
NRS Chapter 289, which presents a pure question of law that does not
depend on facts outside of the appellate record. See Nev. Power Co. v.
Haggerty, 115 Nev. 353, 365 n.9, 989 P.2d 870, 877-78 n.9 (1999)
(explaining that the court would resolve an issue of statutory
interpretation not litigated below "in the interests of judicial economy").
Finally, Knickmeyer's brief also references an alleged constitutional due
process violation, but he merely re-frames his arguments about the scope
and application of NRS Chapter 289 and the MOU as due process
problems without identifying or discussing any other independent
procedural or substantive due process violation.
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not raised before the appropriate administrative tribunal and in the
district court normally cannot be raised for the first time on appeal.").
Moreover, the arbitrator expressly stated that he was not relying upon the
prior incidents in reaching his decision and that the instant incident alone
provided sufficient grounds for termination. Consequently, any discovery
relating to those incidents is entirely irrelevant to the case at hand. See
NRCP 61 ("The court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the substantial
rights of the parties."); see also Cook v. Sunrise Hosp. & Med. Ctr., LLC,
124 Nev. 997, 1006, 194 P.3d 1214, 1219 (2008) ("[W]hat is clear from our
caselaw is that prejudice must be established in order to reverse a district
court judgment; it is not presumed and is established by providing record
evidence showing that, but for the error, a different result might have
been reached.").
To overcome these defects, Knickmeyer argues on appeal that,
under NRS Chapter 289, all discovery relating to prior disciplinary actions
must automatically be provided whether any party individually requests it
or not, and whether or not the arbitrator ultimately ended up relying upon
it in his final decision. Knickmeyer's argument hinges on two contentions:
first, that the statutes in question apply to him as a judicial marshal
employed by the EJDC and, second, if they do apply, that they were
violated by the EJDC in this case despite his never having requested
discovery or objected to its absence. Both contentions must be true for
Knickmeyer to win this appeal; if either fails, then we must decide the
issue against him.
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NRS Chapter 289 grants certain procedural protections to
"peace officers" whenever adverse employment actions are initiated
against them by their employers. See NRS 289.010(3). See generally
Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 336-37, 302 P.3d
1108, 1114 (2013). Judicial marshals are specifically identified as peace
officers in NRS 289.150(4). Knickmeyer thus argues that all of the
protections of NRS Chapter 289 must apply to him. Knickmeyer is
partially correct in that judicial marshals are "peace officers" covered by
the statute and therefore certain sections of NRS Chapter 289
indisputably apply to judicial marshals such as him.
This, however, doesn't quite resolve the question at hand.
Peace officer or not, portions of Chapter 289 apply only to petitioners who
are employed by a "law enforcement agency." See, e.g., NRS 289.020(1) ("A
law enforcement agency shall not use punitive action . . . ."); NRS 289.025
("the home address of a peace officer and any photograph in the possession
of a law enforcement agency are not public information"). Other portions
of this chapter do not contain this limitation. See, e.g., NRS 289.810(1) ("A
peace officer shall not use a choke hold on any other person"); NRS
289.820(1) ("A peace officer shall not engage in racial profiling"). We must
presume that the inclusion or omission of these words from different parts
of the statute was purposeful. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170 (2012) NA] material
variation in terms suggests a variation in meaning."). Consequently, the
plainest and most obvious meaning of Chapter 289 is that many portions
of it apply broadly to any peace officer employed by any entity, but other
portions apply in a more limited way only to peace officers employed by a
"law enforcement agency."
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The statutes that Knickmeyer alleges that the EJDC violated
in this case are NRS 289.040, NRS 289.057, and NRS 289.060, 3 which set
forth procedures that must be employed before a peace officer can be
subjected to adverse employment action. NRS 289.040 prohibits law
enforcement agencies from inserting unfavorable comments into the peace
officer's administrative file unless certain requirements are met. NRS
289.057 governs how a law enforcement agency may investigate
allegations of misconduct and initiate discipline, including discovery
procedures. NRS 289.057(3)(a) permits the peace officer to review any
recordings, notes, and interview transcripts pertaining to the investigation
after the investigation has concluded. NRS 289.060 describes how law
enforcement agencies may conduct disciplinary hearings.
But all of these statutes expressly apply only when a "law
enforcement agency" seeks to impose discipline against one of its peace
officers. Thus, these provisions can apply to Knickmeyer only if his
employer, the EJDC, can be considered a "law enforcement agency" within
the meaning of NRS Chapter 289. This presents a question of statutory
interpretation.
We review questions of statutory meaning de novo. Hobbs v.
State, 127 Nev. 234, 237, 251 P.3d 177, 179 (2011). In interpreting a
statute, we begin with its plain meaning and consider the statute as a
whole, awarding meaning to each word, phrase, and provision, while
striving to avoid interpretations that render any words superfluous or
meaningless. Haney v. State, 124 Nev. 408, 411-12, 185 P.3d 350, 353
3 Knickmeyer also mentions NRS 289.080 in his brief as a statute
that applies to him, but doesn't allege that 289.080 was violated.
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(2008). If the Legislature has independently defined any word or phrase
contained within a statute, we must apply that definition wherever the
Legislature intended it to apply because "[a] statute's express definition of
a term controls the construction of that term no matter where the term
appears in the statute." Williams v. Clark Cty. Dist. Attorney, 118 Nev.
473, 485, 50 P.3d 536, 544 (2002); 1A Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 20:8 (7th ed. 2009). The
words of a statute must be given their plainest and most ordinary
meaning unless the Legislature clearly used them differently, or the words
are used in an ambiguous way. See State v. Catanio, 120 Nev. 1030, 1033,
102 P.3d 588, 590 (2004) ("We must attribute the plain meaning to a
statute that is not ambiguous." (citing Firestone v. State, 120 Nev. 13, 16,
83 P.3d 279, 281 (2004)); see also Scalia & Garner, supra, at 56 ("The
words of a governing text are of paramount concern . . . .").
NRS Chapter 289 does not contain its own definition of "law
enforcement agency." However, NRS 179D.050 and NRS 62A.200 both
define the phrase "local law enforcement agency" as referring to a sheriffs
office or police department. Furthermore, the word "agency" is typically
used by the Nevada Supreme Court and in administrative regulations to
refer to subdivisions of the executive branch, not divisions of the judiciary.
Cf. NAC 239.690; Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc.,
131 Nev. , n.4, 343 P.3d 608, 613 n.4 (2015). 'We presume that the
Legislature enactEs a] statute with full knowledge of existing statutes
relating to the same subject." Nev. Attorney for Injured Workers v. Nev.
Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d 1265, 1271 (2010) (internal
quotation marks omitted). Thus, the plain text of the relevant statutes
makes clear that the term "law enforcement agency" does not encompass a
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judicial court such as the EJDC. We ought to conclude that the
Legislature said what it meant and meant what it said, and we could end
our inquiry there.
But there's more. Knickmeyer's argument betrays a
fundamental misunderstanding of the respective roles of the three
branches of Nevada government. To conclude that the EJDC is a "law
enforcement agency" is to conflate the roles of the judicial and executive
branches and to presume that the Legislature used words in a most
unnatural way. See Nev. Const. art III, § 1 ("The powers of the
Government of the State of Nevada shall be divided into three separate
departments, the Legislative, the Executive and the Judicial; and no
persons charged with the exercise of powers properly belonging to one of
these departments shall exercise any functions, appertaining to either of
the others, except in the cases expressly directed or permitted in this
constitution.").
Under our state constitution, the Legislature writes the laws.
See Nev. Const. art. 4, § 1; Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d
237, 242 (1967). The Judiciary hears justiciable controversies and issues
judgments and decrees in individual cases. See Nev. Const. art 6, § 6;
Galloway, 83 Nev. at 20, 422 P.2d at 242. And the Executive "enforces"
the laws. Galloway, 83 Nev. at 20, 422 P.2d at 242 ("The executive power
extends to the carrying out and enforcing the laws enacted by the
Legislature."); see Nev. Const. art. 5, § 7 (the Governor "shall see that the
laws are faithfully executed"); see also Morrison v. Olson, 487 U.S. 654,
706 (1988) (Scalia, J., dissenting) (prosecuting crimes is a
"quintessentially executive function"). The separation of these powers
between three independent branches of government with the power to
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check-and-balance each other is a central tenet of our constitutional
structure and a fundamental bulwark of democratic freedom. See
Morrison, 487 U.S. at 706 (Scalia, J., dissenting) (citing The Federalist No.
47 (James Madison) (Random House 1941)); Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 635, 640 (1952) (Jackson, J., concurring) ("[T]he
Constitution diffuses power the better to secure liberty"; "The purpose of
the Constitution was not only to grant power, but to keep it from getting
out of hand."); cf. Comm'n on Ethics v. Hardy, 125 Nev. 285, 292, 212 P.3d
1027, 1103-04 (2009) (discussing differences between Nevada Constitution
and U.S. Constitution). The powers of the EJDC are enumerated in
Article 6, Section 6 of the Nevada Constitution, and Knickmeyer does not
contend that the EJDC engages in investigating and prosecuting crimes as
part of its constitutionally-assigned judicial functions.
Thus, the judiciary is not empowered to engage in "law
enforcement" functions any more than the executive or legislative
branches are empowered to engage in judicial functions. See generally
John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke
L.J. 1219, 1230 (1993) ("Separation of powers is a zero-sum game If one
branch unconstitutionally aggrandizes itself, it is at the expense of one of
the other branches."). The phrase "law enforcement agency" as used in
NRS Chapter 289 therefore cannot be naturally read to encompass the
EJDC, and the statutes cited by Knickmeyer—NRS 289.040, NRS 289.057,
and NRS 289.060, all of which apply only to "law enforcement agencies"—
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do not apply to the EJDC. 4 See Mangarella v. State, 117 Nev. 130, 134-35,
17 P.3d 989, 992 (2001) (holding that Nevada courts must interpret
statutes so that they do not conflict with the state or federal
constitutions). The EJDC could not have violated statutes that do not
apply to it, and consequently the EJDC committed no discovery violations
that would entitle Knickmeyer to relief.
Whether the arbitrator exceeded his authority
Knickmeyer also argues that the arbitrator exceeded his
authority by relying upon the Clark County Marshal's Division Policy and
Procedure Manual, and upon certain law review articles, as guidelines for
acceptable conduct when the MOU makes no explicit reference to either.
When reviewing whether an arbitrator exceeded his powers,
this court begins by presuming that arbitrators act within the scope of
their authority. Health Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev.
689, 697, 100 P.3d 172, 178 (2004). Arbitrators can exceed their authority
when they act outside the scope of the governing contract, but this court
will not vacate an arbitrator's award—even if erroneous—if the
arbitrator's interpretation is rationally grounded in the agreement or
there is "colorable justification" for construing and applying the contract
the way the arbitrator did. Id. at 698, 100 P.3d at 178. Thus, the central
question is "whether the arbitrator had the authority under the agreement
to decide an issue, not whether the issue was correctly decided." Id.
4A potentially interesting question exists relating to whether, by
signing the MOU, the EJDC contractually agreed to assume some of the
responsibilities outlined in those statutes even if they otherwise would not
have applied. But as noted above in footnote 2, Knickmeyer did not argue
this issue before the arbitrator, the arbitrator made no factual findings
relating to it, and therefore we need not address it.
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The parties agree that the governing agreement here is the
MOU. Knickmeyer argues that the MOU did not allow the arbitrator to
consider the Clark County Marshal's Division Policy and Procedure
Manual, or any other sources such as law review articles, because the
MOU did not explicitly reference them. But the arbitrator could have
rationally interpreted those sources to represent accurate summaries of
the "established rules, regulations or policies of the Courts" that the MOU
permits to be considered. See id. ("Arbitrators do not exceed their powers
if their interpretation of an agreement, even if erroneous, is rationally
grounded in the agreement."). Consequently, "[t]he arbitrator's total
findings demonstrate that he was construing the contract, and the record
supports more than a colorable justification for the outcome." Id. at 698-
99, 100 P.3d at 179. Accordingly, Knickmeyer has not met his burden of
demonstrating, by clear and convincing evidence, that the arbitrator
exceeded his authority.
Whether the arbitrator disregarded the law
Knickmeyer's final argument is that the arbitrator consciously
disregarded relevant law by failing to determine whether the termination
was reasonable in light of less severe forms of discipline. A court may
vacate an arbitration decision if the arbitrator manifestly disregarded
relevant law. Bohlmann v. Printz, 120 Nev. 543, 545-47, 96 P.3d 1155,
1156-58 (2004), overruled on other grounds by Bass—Davis v. Davis, 122
Nev. 442, 452 n.32, 134 P.3d 103, 109 n.32 (2006). Relief is "extremely
limited" and manifest disregard occurs only when an arbitrator
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"recognizes that the law absolutely requires a given result and nonetheless
refuses to apply the law correctly." Id.
Here, Knickmeyer's argument is belied by the record. The
arbitrator's decision contains numerous references to the available options
of progressive discipline and explains quite clearly why Knickmeyer's
conduct was "sufficiently egregious" to justify termination without first
imposing less severe forms of discipline. Thus, Knickmeyer has not met
his heavy burden of showing, by clear and convincing evidence, that the
arbitrator consciously ignored applicable law in deciding that termination
was appropriate.
CONCLUSION
For the foregoing reasons, Knickmeyer has failed to
demonstrate that the arbitrator either exceeded his authority Or
manifestly disregarded the law, and we affirm the district court's denial of
his petition to set aside the arbitration order.
J.
Tao
I concur:
c.
, J.
cZan't
Gi bons
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