136 Nev., Advance Opinion 2.0
IN THE SUPREME COURT OF THE STATE OF NEVADA
JQSE VALDEZ-JIMENEZ, No. 76417
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
FILED
CLARK; AND THE HONORABLE APR 0 9 2f320
MARK B. BAILUS, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
AARON WILLARD FRYE, No. 76845
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
JERRY A. WIESE, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petitions for writs of mandamus challenging district
court orders denying pretrial motions to reduce or vacate bail.
Petitions denied.
Darin F. Imlay, Public Defender, and Nancy M. Lemcke and Christy L.
Craig, Deputy Public Defenders, Clark County; Civil Rights Corps and
Charles Lewis Gerstein, Alec George Karakatsanis, and Olevia Boykin,
Washington, D.C.,
for Petitioners.
zy-1315-2=
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Alexander G. Chen and Krista D. Barrie, Chief Deputy
District Attorneys, Clark County,
for Real Parties in Interest.
Armstrong Teasdale LLP and Tracy A. DiFillippo, Las Vegas,
for Amicus Curiae American Bail Coalition.
Law Office of Franny Forsman and Franny Forsman, Las Vegas,
for Amicus Curiae National Law Professors of Criminal, Procedural, and
Constitutional Law.
Law Office of Lisa Rasmussen and Lisa Rasmussen, Las Vegas,
for Amicus Curiae Social Scientists.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
We are asked to consider what process is constitutionally
required when a district court sets bail in an amount that the defendant
cannot afford, resulting in pretrial detention. Though the bail issue is moot
because petitioners have been convicted and are no longer subject to pretrial
detention, we nevertheless elect to reach the issue because it is a matter of
public importance and is capable of repetition but evading review.
The right to reasonable bail is gt.iaranteed by the Nevada
Constitution for individuals who commit offenses other than capital
offenses or first-degree murder. Bail serves the important function of
allowing a defendant to be released pending trial while at the same time
ensuring that he or she will appear at future proceedings and will not pose
2
a danger to the community. When bail is set in an amount the defendant
cannot afford, however, it deprives the defendant of his or her liberty and
all its attendant benefits, despite the fact that he or she has not been
convicted and is presumed innocent. To safeguard against pretrial
detainees sitting in jail simply because they cannot afford to post bail, we
conclude that the following due process protections are constitutionally
required.
A defendant who remains in custody following arrest is
constitutionally entitled to a prompt individualized determination on his or
her pretrial custody status. The individualized determination must be
preceded by an adversarial hearing at which the defendant is entitled to
present evidence and argument concerning the relevant bail factors. The
judge must consider the factors set forth in NRS 178.4853 and may impose
bail only if the State proves by clear and convincing evidence that it is
necessary to ensure the defendant's presence at future court proceedings or
to protect the safety of the community, including the victim and the victim's
family. If the district court determines that bail, rather than nonmonetary
conditions, is necessary, the judge must consider the defendant's financial
resources as well as the other factors set forth in NRS 178.498 in setting
the amount of bail, and the judge must state his or her reasons for the bail
amount on the record. Accordingly, we elect to entertain the writ petitions,
but we deny the petitions because there is no relief we can provide to
petitioners.
FACTS AND PROCEDURAL HISTORY
Petitioners Aaron Frye and Jose Valdez-Jimenez were arrested
and charged with felony offenses. Bail was set for each petitioner in the
justice court. Rather than proceed by criminal complaint in the justice
court, the State obtained an indictment from a grand jury. Upon the
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indictment returns, the district court set bail in the amount requested by
the State. For Frye, bail was set in the amount of $250,000 based on the
States representation that he was already in custody on that amount, and
for Valdez-Jimenez, bail was set in the amount of $40,000, the amount on
which he was in custody in another case. Neither petitioner was present at
the indictment return. Each petitioner was later arraigned in district court
and subsequently filed a motion to vacate or reduce the bail amount. In
their motions, petitioners contended that the bail amounts were excessive
and that the bail process violated their right to due process and equal
protection. Relying on United States v. Salerno, 481 U.S. 739 (1987), they
argued that setting bail in an amount they could not afford was tantamount
to a detention order, and therefore, before the district court could set such
bail, it was required to hold an adversarial hearing at which it considered
their financial ability to pay and the State proved that bail was the least
restrictive means of ameliorating any risk of flight or danger to the
community.
The district court held hearings on the motions and denied
them. In denying Fryes motion, the district judge, who was not the judge
who set bail on the indictment warrant, indicated that its role was limited
to determining whether the bail amount was an abuse of discretion:
Bond was previously set by a competent judge. I
don't find there was any abuse of discretion. In
order to assure the defendant is present in court
and to protect the community, and the other things
that are considered under the various statutes
dealing with the amount of bond, I don't find that
an amount of $250,000 is unreasonable.
The district court added, "The only thing that's before me today is whether
or not the $250,000 bail that was set by a different judge was wrong; okay.
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I can't find that it was wrong. Would I have imposed the same amount of
bail? I don't know."
The district judge who considered and denied Valdez-Jimenez's
motion found that Nevada's statutory scheme, and not Salerno, controlled
and required that good cause be shown before an accused could be released
without bail. The judge stated that, in denying the motion, he had
considered the statutory factors for release with bail and without bail, but
the judge did not discuss those factors or otherwise explain the basis for the
bail amount.
Both defendants filed a petition for a writ of mandamus in this
court challenging the bail process and decisions. We elect to consolidate
these petitions for disposition. Cf. NR.AP 3(b)(2).
DISCUSSION
We elect to entertain the petitions for a writ of mandamus
A writ of mandamus is appropriate "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). Because a writ of mandamus is an
extraordinary remedy, it is within our complete discretion whether to
consider it. Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d
906, 908 (2008). Writ relief is generally available only in "cases where there
is not a plain, speedy and adequate remedy in the ordinary course of law."
NRS 34.170.
"We note that Frye's petition is entitled alternatively as a petition for
a writ of habeas corpus, but in light of this opinion, the request for habeas
relief is denied.
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Since filing their petitions, both Frye and Valdez-Jimenez have
pleaded guilty and are no longer subject to pretrial detention. The State
therefore contends that the petitions should be denied because the issues
have been rendered moot. However, petitioners contend that the
constitutional issues raised by their bail proceedings are important and will
likely arise again but evade review. We agree with petitioners.
As a general rule, this court will decline to hear a moot case.
See Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010).
That general rule comports with our duty "to decide actual controversies by
a judgment which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principles of law which
cannot affect the matter in issue before it." NCAA v. Univ. of Nev., 97 Nev.
56, 57, 624 P.2d 10, 10 (1981). Therefore, "a controversy must be present
through all stages of the proceeding, and even though a case may present a
live controversy at its beginning, subsequent events may render the case
moot." Personhood Nev., 126 Nev. at 602, 245 P.3d at 574 (citations
omitted).
Even where a case is moot, however, this court "may consider it
if it involves a matter of widespread importance that is capable of repetition,
yet evading review." Id. The party seeking to overcome mootness must
prove "that (1) the duration of the challenged action is relatively short,
(2) there is a likelihood that a similar issue will arise in the future, and
(3) the matter is important." Bisch v. Las Vegas Metro. Police Dep't, 129
Nev. 328, 334-35, 302 P.3d 1108, 1113 (2013).
The issues presented here are within the exception to the
mootness doctrine. First, given the time restraints inherent in criminal
cases, most bail orders are short in duration and the issues concerning bail
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and pretrial detention become moot once the case is resolved by dismissal,
guilty plea, or trial.2 See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)
("Pretrial detention is by nature temporary, and it is most unlikely that any
given individual could have his constitutional claim decided on appeal
before he is either released or convicted.").
As to the second requirement—"a likelihood that a similar issue
will arise in the future"—we take this opportunity to clarify that this does
not necessitate the similar issue to recur with respect to petitioners
personally. As the dissent highlights, federal law requires "a reasonable
expectation that the same complaining party will be subjected to the same
action again" in order to satisfy the capable-of-repetition-yet-evading-
review exception to the mootness doctrine. United States v. Sanchez-Gomez,
U.S. „ 138 S. Ct. 1532, 1540 (2018) (emphasis added). But
Nevada courts are not bound by the federal standard for determining
mootness. See State v. Glusrnan, 98 Nev. 412, 418, 651 P.2d 639, 643 (1982)
(recognizing that it is within this court's inherent discretion "to consider
issues of substantial public importance which are likely to recur," despite
any intervening events that have rendered the matters moot). And our
jurisprudence has implicitly rejected "the same complaining party"
2The dissent disagrees and cites several decisions by this court to
argue that challenges to bail proceedings do not evade review. But the
dissent ignores that two of the cases were resolved on mootness grounds
because the defendant had already been released, see Black v. Eighth
Judicial Dist. Court, Docket No. 76472 (Order Denying Petition, Sept. 14,
2018); Sherard v. Eighth Judicial Dist. Court, Docket No. 76398 (Order
Denying Petition, Sept. 14, 2018), and the other case involved the district
court's application of bail statutes and not the more complicated
constitutional questions raised here, see Cameron v. Eighth Judicial Dist.
Court, 135 Nev. 214, 445 P.3d 843 (2019).
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requirement, instead focusing on whether the issues raised by the party are
likely to recur under similar circumstances. See, e.g., Solid v. Eighth
Judicial Dist. Court, 133 Nev. 118, 120, 393 P.3d 666, 670 (2017) (reviewing
petitioner's challenge to his criminal trial where, although his conviction
rendered the issue moot, the same issue was likely to recur in other criminal
trials); Haney v. State, 124 Nev. 408, 410-11, 185 P.3d 350, 352 (2008)
("Although our ruling in this case will not benefit Haney directly because
his sentence has expired, we nonetheless address the legal questions
presented because they are capable of repetition, yet evading review.");
Miller v. State, 113 Nev. 722, 724 n.1, 941 P.2d 456, 458 n.1 (1997) (noting
that defendants sentencing claims warranted review even if "moot because
they challenge an activity that is capable of repetition yet evades review");
Binegar v. Eighth Judicial Dist. Court, 112 Nev. 544, 548, 915 P.2d 889, 892
(1996) (concluding that though petitioner's claim was moot, review was
appropriate because the issue of the constitutionality of the statute was
capable of repetition).
The dissent's strict reliance on federal law ignores our
precedent defining the contours of our mootness exception.3 Though the
3We are not unique in allowing this "capable of repetition" factor to be
met even where the issue is not likely to recur with respect to the same
complaining party. See, e.g., In re Webb, 440 P.3d 1129, 1131 (Cal. 2019)
(addressing bail issue, which was moot as to the defendant, because it was
an important issue likely to recur); Dutkiewicz v. Dutkiewicz, 957 A.2d 821,
828 (Conn. 2008) (recognizing mootness exception where there is "a
reasonable likelihood that the question presented in the pending case will
arise again in the future, and that it will affect either the same complaining
party or a reasonably identifiable group for whom that party can be said to
act as surrogate (internal quotation marks omitted)); State v. Mercedes,
183 A.3d 914, 924 (N.J. 2018) (reviewing moot pretrial detention issue that
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dissent suggests that our three-factor test in Bisch presents an inexplicable
departure from the federal mootness exception, our jurisprudence reveals
that Bisch did not alter our capable-of-repetition-yet-evading-review
exception to the mootness doctrine but rather delineated the three factors
that must be met. See, e.g., Traffic Control Servs., Inc. v. United Rentals
Nw., Inc., 120 Nev. 168, 171-72, 87 P.3d 1054, 1057 (2004) (recognizing the
exception applies when the duration of the challenged action is "relatively
short" and there is a "likelihood that a similar issue will arise in the
future); State v. Washoe Cty. Pub. Def., 105 Nev. 299, 301, 775 P.2d 217,
218 (1989) (explicitly recognizing the "capable of repetition, yet evading
review" exception to address an important question of law). And while the
dissent urges us not to apply our capable-of-repetition exception as set forth
in Bisch, the dissent fails to provide any compelling reason for departing
from our long-standing precedent. See Miller v. Burk, 124 Nev. 579, 597,
188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine of stare decisis, we will
not overturn [precedent] absent compelling reasons for so doing. Mere
disagreement does not suffice." (footnotes omitted)).
To reiterate, the second factor of the mootness exception
requires that the question presented is likely to arise in the future with
respect to the complaining party or individuals who are similarly situated
to the complainant. We conclude that petitioners have satisfied this
was "'capable of repetition in countless detention hearings yet may evade
review if other defendants plead guilty before similar challenges can be
resolved"); Saunders v. Hornecker, 344 P.3d 771, 775 (Wyo. 2015)
(addressing challenge to bail where defendant had already been convicted
because the issue was capable of repetition with respect to other
defendants).
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requirement. Petitioners have provided documents from other criminal
cases in which defendants have raised similar arguments before the justice
court or district court about the process of setting bail. Because the
constitutional issues concerning the inquiries and findings required for
setting bail are relevant in many criminal cases, they will arise in the
future.4
Finally, petitioners have demonstrated that these are issues of
widespread importance, as they affect many arrestees and involve the
constitutionality of Nevada's bail system. Deciding these issues would
provide guidance to judges who are responsible for assessing an arrestee's
custody status. Because the petitions raise legal questions of first
impression and statewide importance that are likely to recur in other cases,
we choose to consider the issues on the merits. See Archon Corp. v. Eighth
Judicial Dist. Court, 133 Nev. 816, 822-23, 407 P.3d 702, 708 (2017)
(permitting advisory mandamus "to address the rare question that is likely
of significant repetition prior to effective review, so that our opinion would
assist other jurists, parties, or lawyers" (internal quotation marks
4The dissent also contends that the questions raised in the petitions
are unlikely to recur because Clark County has recently established an
"Initial Appearance Court" and has also modified its bail and pretrial
release procedures in response to the COVID-19 pandemic. While Clark
County's Initial Appearance Court is laudable and a significant step toward
addressing an arrestee's custody status in a timely manner, it applies solely
to the Eighth Judicial District and is not available to all arrestees. And,
any court order that was entered to address the pandemic is temporary in
nature and would not permanently alter the process for pretrial release.
The dissent further points out that the Legislature recently formed an
interim committee to study and report on pretrial detention. Though
legislative amendments warrant consideration, the issue here is whether
the legislation as it exists today comports with constitutional requirements.
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omitted)). Furthermore, we conclude that a writ of mandamus is the
appropriate vehicle for raising these issues, as petitioners have no other
adequate remedy. See NRS 34.160; NRS 34.170.
The constitutionality of the bail process
Petitioners challenge the process by which bail is set following
an indictment. Petitioners argue that Nevada's statutory bail scheme and
the district court's imposition of money bail in an amount they could not pay
denied them substantive and procedural due process and equal protection
under the Nevada and United States Constitutions. Petitioners argue that
because unaffordable bail is equivalent to a pretrial detention order, and
the liberty interest of an arrestee is a fundamental right, they were entitled
to an adversarial hearing at which the State demonstrated that the amount
of bail was necessary to further the States interests—i.e., to ensure the
defendant's appearance in court and to protect the safety of the community.
They contend that because Nevada's current statutory scheme for pretrial
release makes money bail the presumption, requires the defendant to show
good cause for release on nonmonetary conditions, and lacks procedural
safeguards, it is unconstitutional. We review each of these contentions in
turn.
Bail in an amount greater than necessary to ensure the defendant's
appearance and the safety of the community is unconstitutional
Typically, a pretrial release decision is a matter within the
sound discretion of the trial court. See In re Wheeler, 81 Nev. 495, 500, 406
P.2d 713, 716 (1965). However, the issues raised by the petitioners involve
the meaning or applicability of constitutional provisions, which present
questions of law we review de novo. Manning v. State, 131 Nev. 206, 209-
10, 348 P.3d 1015, 1017-18 (2015).
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Article 1, section 7 of the Nevada Constitution creates a right
to bail before conviction: "All persons shall be bailable by sufficient sureties;
unless for Capital Offenses or murders punishable by life imprisonment
without possibility of parole when the proof is evident or the presumption
great." Article 1, section 6 of the Nevada Constitution proscribes excessive
bail, which we have explained means that "Nail must not be in a
prohibitory amount, more than the accused can reasonably be expected
under the circumstances to give, for if so it is substantially a denial of bail."
Ex parte Malley, 50 Nev. 248, 253, 256 P. 512, 514 (1927) (quoting 6 C.J.
Bail § 222 (1916)), rejected on other grounds by Wheeler, 81 Nev. 495, 406
P.2d 713. Thus, under our constitution, individuals such as petitioners, who
are accused of committing noncapital, non-first-degree-murder offenses,
have a right to bail in a reasonable amount. See id.; Wheeler, 81 Nev. at
498-99, 406 P.2d at 715.
The amount of bail that is reasonable will depend on the
circumstances of the individual. However, because the right of an
individual to reasonable bail before trial is a fundamental one, see Salerno,
481 U.S. at 750 (describing "the individual's strong interest in liberty" as
"fundamentar), bail must not be in an amount greater than necessary to
serve the States interests. As the United States Supreme Court said, "This
traditional right to freedom before conviction permits the unhampered
preparation of a defense, and serves to prevent the infliction of punishment
prior to conviction. Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle, would
lose its meaning." Stack v. Boyle, 342 U.S. 1, 4 (1951) (citation omitted); see
also Salerno, 481 U.S. at 755 ("In our society liberty is the norm, and
detention prior to trial . . . is the carefully limited exception.").
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The purpose of bail in Nevada is twofold: to ensure "the
presence of one charged at all times when demanded," Malley, 50 Nev. at
253-55, 256 P. at 514, and to protect the community, including the victim
and the victim's family, see Nev. Const. art. 1, § 8A(1)(c) (requiring
consideration of the safety of the victim and the victim's family in setting
bail). Thus, the right to release before trial is conditioned on adequate
assurance that the defendant will appear at all court proceedings and that
he or she will not be a danger to other persons. Accordingly, for bail to be
reasonable, it must relate to one of these two purposes—to ensure the
appearance of the accused at all stages of the proceedings or to protect the
safety of the victim and the community. Otherwise, it will necessarily be
excessive in violation of the Nevada Constitution's bail provisions.
Our conclusion that bail may be imposed only where necessary
to ensure the defendant's appearance or to protect the community is also
mandated by substantive due process principles. Because bail may be set
in an amount that an individual is unable to pay, resulting in continued
detention pending trial, it infringes on the individual's liberty interest. And
given the fundamental nature of this interest, substantive due process
requires that any infringement be necessary to further a legitimate and
compelling governmental interest. Cf. Salerno, 481 U.S. at 746, 750 (stating
that a government action violates substantive due process when it
"interferes with rights implicit in the concept of ordered liberty" (internal
quotation marks omitted)); Bearden v. Georgia, 461 U.S. 660, 668-69 (1983)
(holding that due process and equal protection principles preclude a court
from ordering a person incarcerated for failing to pay a fine or restitution
"through no fault of his own" without first "considering whether adequate
alternative methods of punishing the defendant are available). Thus, to
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comport with substantive due process, bail must be necessary to further the
States compelling interests in bail—that is, to prevent the defendant from
being a flight risk or a danger to the community.
Having established the substantive inquiries the district court
must make in assessing a defendant's custody status before trial, we now
turn to the procedural requirements attendant to that decision.
An individualized bail hearing must be held within a reasonable time
after arrest for defendants who remain in custody
Petitioners challenge the procedure for setting bail following
the return of an indictment. Nevada's statutes provide that upon return of
an indictment, the district court may fix the amount of bail in the arrest
warrant, NRS 173.155, and the arrested person shall be brought promptly
before a magistrate for the purpose of admission to bail, NRS 173.195.
Though petitioners contend that they should have been present and a
hearing should have been held before bail was set in the arrest warrant,
none of the cases they cite require such a conclusion. Rather, the United
States Supreme Court decisions on which petitioners rely do not suggest
that a hearing must be held before any detention can occur. See, e.g.,
Salerno, 481 U.S. at 747 (stating that an arrestee is entitled to "a prompe
hearing under the federal Bail Reform Act). Furthermore, courts generally
have recognized that an initial bail amount may be set pursuant to a
standardized bail schedule, as long as the accused is given the opportunity
soon after arrest to have an individualized determination where the
accused's financial ability to pay is considered. See, e.g., Walker v. City of
Calhoun, 901 F.3d 1245 (11th Cir. 2018), cert. denied, U.S. , 139 S.
Ct. 1446 (2019); ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018); see
also In re Humphrey, 228 Cal. Rptr. 3d 513, 540-41 (Ct. App. 2018), appeal
pending, 417 P.3d 769 (Cal. 2018). Petitioners provide no authority
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requiring an adversarial hearing to be held before bail can be set in an
arrest warrant. Thus, we conclude that the district court's initial bail
setting in the post-indictment arrest warrant did not run afoul of the
Nevada or United States Constitutions.
We recognize, however, that an accused is entitled to a prompt
individualized hearing on his or her custody status after arrest. Generally,
such a hearing occurs at the initial appearance, or arraignment. Though
"[t]here is no statutory designation of a specific time within which an
arraignment shall be held after the arrest of an accused under an
indictment," this court presumes that an arraignment will be conducted
within "a reasonable time." Tellis v. Sheriff of Clark Cty., 85 Nev. 557, 559-
60, 459 P.2d 364, 365 (1969). We have explained that one of the primary
reasons for a speedy arraignment is to protect the defendant's "right to due
process of law and to assure that he is not left to languish in jail." Id. at
559, 459 P.2d at 365. Accordingly, we stress that where a defendant
remains in custody following indictment, he or she must be brought
promptly before the district court for an individualized custody status
determination.5 We next address what procedures are constitutionally
required in making such a determination.
5The State asserts that petitioners already received an individualized
hearing in justice court, implying that they were not entitled to an
individualized hearing in the district court. However, the bail proceedings
and amount set in the justice court do not alleviate the need for an
individualized determination in the district court following indictment. See
Cameron, 135 Nev. at 216, 445 P.3d at 844 (noting that the district court is
"not constrained by the justice court's bail determinatioe when a case is
transferred to the district court as a result of a grand jury indictment and
is not bound over from the justice court).
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I
II.
WRIP
Heightened procedural due process requirements apply when bail is
set in an amount the defendant cannot afford
Petitioners contend that the current statutory bail scheme lacks
sufficient procedural protections to ensure that bail is necessary and not
excessive. In determining what procedural due process requires, it is
helpful to review the process for setting bail in Nevada. In doing so, we
stress that for many individuals who are arrested, bail will not be necessary.
Where the defendant presents little to no flight risk or danger to the
community, release on personal recognizance or nonmonetary conditions
will likely be appropriate, in which case bail in any amount would be
excessive. On the other hand, where the defendant has an extensive history
of failing to appear for court proceedings and few ties to the community, bail
will likely be necessary.
In order to determine whether bail is necessary, the district
court should consider first whether, given the individual circumstances of
the defendant, including his or her character and ties to the community, his
or her criminal history, and the nature of and potential sentence for the
alleged offenses, release on personal recognizance or subject to
nonmonetary conditions would be sufficient to reasonably ensure the
purposes of bail are met. See NRS 178.4853 (setting forth factors for the
district court to consider in determining what pretrial release conditions
should be imposed). If so, then no bail should be set, as any amount of bail
would be excessive. But if, after a consideration of all of the relevant factors,
the court finds that no combination of nonmonetary conditions would be
sufficient to reasonably ensure the defendanes appearance or the safety of
the community, then the court must determine the amount of bail that is
necessary. For this determination, the court must take into consideration
the defendant's financial resources as well as the other factors relevant to
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the purposes of bail. See NRS 178.498 (setting forth factors to consider in
setting the amount of bail). Though there is no constitutional requirement
that bail be in an amount the defendant can afford to pay, see Malley, 50
Nev. at 253-55, 256 P. at 514 (stating "a mere inability to procure bail in a
certain amount does not of itself make such amount excessive"),
consideration of how much the defendant can afford is essential to
determining the amount of bail that will reasonably ensure his or her
appearance and the safety of the community.
Petitioners challenge to this bail process focuses on the
situation where the court imposes bail in an amount that is beyond the
defendant's ability to pay, resulting in the defendant remaining in jail
before trial. Relying heavily on Salerno, 481 U.S. 739, they argue that
because bail in an amount a person cannot afford has the same result as a
detention order, it necessitates heightened procedural due process
protections.
In Salerno, the United States Supreme Court upheld the
constitutionality of pretrial detention provisions in the Bail Reform Act of
1984, which allowed a federal court to detain an individual if no release
conditions would reasonably ensure the safety of the community. Under
those provisions, a judicial officer could order an arrestee detained only
after holding "a full-blown adversary hearing," at which the defendant had
the right to be represented by counsel and present evidence and the
government proved by clear and convincing evidence "that no conditions of
pretrial release can reasonably assure the safety of other persons and the
community," and the judicial officer stated his or her findings of fact in
writing. Id. at 742, 750. The Supreme Court found that the Bail Reform
Act was constitutional because it was "narrowly focuse[dr on the
17
government's overwhelming interest in crime prevention and provided
extensive procedural safeguards, particularly the State's burden of proof by
clear and convincing evidence. Id. at 750-51.
We agree with petitioners that when bail is set in art amount
that results in continued detention, it functions as a detention order, and
accordingly is subject to the same due process requirements applicable to a
deprivation of liberty. Procedural due process requires that any
government action depriving a person of liberty must I3e implemented in a
fair manner." See id. at 746. We conclude that to ensure the accuracy of
the court's bail assessment and to comport with procedural due process,
additional procedural safeguards are necessary before bail may be set in an
amount that results in continued detention. We find several protections
identified by Salerno in the federal Bail Reform Act to be of particular
importance in safeguarding against erroneous de facto detention orders.
See United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991)
(holding that a court may impose a financial condition the defendant cannot
meet but, in such a situation, the court "must satisfy the procedural
requirements for a valid detention order"); Hernandez v. Bennett-Haron, 128
Nev. 580, 587, 287 P.3d 305, 310 (2012) (stating that this court looks to
federal precedent for guidance in determining what procedures satisfy due
process).
First, as we stated earlier, when the State requests bail to be
set following an indictment, the defendant is entitled to a prompt
individualized hearing on his or her custody status. At the hearing, the
defendant shall have the right to be represented by counsel and shall be
afforded the right to testify and present evidence. See McCarty v. State, 132
Nev. 218, 222-24, 371 P.3d 1002, 1005-06 (2016) (discussing defendant's
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M-E;
right to counsel at an initial appearance and during critical stages). Second,
given the important nature of the liberty interest at stake, the State has the
burden of proving by clear and convincing evidence that no less restrictive
alternative will satisfy its interests in ensuring the defendant's presence
and the community's safety. See Foucha v. Louisiana, 504 U.S. 71, 81 (1992)
(holding that a state's confinement scheme for individuals found to be not
guilty by reason of insanity violated due process because it did not provide
for an adversarial hearing at which the State proved by clear and convincing
evidence that the individual presented a danger to the community);
Santosky v. Kramer, 455 U.S. 745, 756 (1982) ("This Court has mandated
an intermediate standard of proof—`clear and convincing evidence'—when
the individual interests at stake in a state proceeding are both 'particularly
important and 'more substantial than mere loss of money.'" (quoting
Addington v. Texas, 441 U.S. 418, 424-25 (1979))). And third, the district
court must make findings of fact and state its reasons for the bail decision
on the record. Transcribed oral findings will satisfy this requirement as
long as those findings provide a sufficient basis for the decision. Cf. United
States v. Sesma-Hernandez, 253 F.3d 403, 405-06 (9th Cir. 2001).
Lastly, we consider petitioners' constitutional challenge to NRS
178.4851(1), which requires a showing of "good cause" before a person may
be released without bail.6 We agree that this "good cause" requirement to
6NRS 178.4851(1) states:
Upon a showing of good cause, a court may release
without bail any person entitled to bail if it appears
to the court that it can impose conditions on the
person that will adequately protect the health,
safety and welfare of the community and ensure
that the person will appear at all times and places
ordered by the court.
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release a person on nonmonetary conditions undermines the constitutional
right to nonexcessive bail, as it excuses the court from considering less
restrictive conditions before determining that bail is necessary.
Furthermore, it effectively relieves the State of its burden of proving that
bail is necessary to ensure the defendant's appearance or protect the
community. Accordingly, we conclude that the "good cause requirement in
NRS 178.4851(1) is unconstitutional. Because the remaining portion of the
statute may be given legal effect and accords with the legislative intent that
an individual may be released without bail if other nonmonetary conditions
are sufficient, the "good cause" language may be severed from NRS
178.4851(1). See Cty. of Clark v. City of Las Vegas, 92 Nev. 323, 336-37, 550
P.2d 779, 788 (1976) (setting forth the severability test).
CONCLUSION
When bail is set at an amount greater than necessary to serve
the purposes of bail, it effectively denies the defendant his or her rights
under the Nevada Constitution to be "bailable by sufficient sureties" and for
bail not to be excessive. Thus, bail may be imposed only where it is
necessary to reasonably ensure the defendant's appearance at court
proceedings or to protect the commimity, including the victim and the
victim's family. Because of the important liberty interest at stake when bail
has the effect of detaining an individual pending trial, we hold that a
defendant who remains in custody after arrest is entitled to an
individualized hearing at which the State must prove by clear and
convincing evidence that bail, rather than less restrictive conditions, is
necessary to ensure the defendant's appearance at future court proceedings
or to protect the safety of the community, and the district court must state
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its findings and reasons for the bail decision on the record. Because
petitioners in these cases are no longer subject to pretrial detention, we
deny these petitions for writs of mandamus.
Hardesty
We concur:
J.
Parra guirre
4 LQ J.
Stiglich
Cadish
aAD J.
Silver
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PICKERING, C.J., concurring in part and dissenting in part:
This court should deny these writ petitions as moot, without
venturing an unconstitutionally advisory opinion on legal issues that
cannot affect the parties to this case. The Nevada Constitution separates
the powers of Nevada government into three departments, "the
Legislative,—the Executive and the Judicial," and provides that "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." Nev. Const. art. 3, § 1(1). "Judicial Power is the authority to hear
and determine justiciable controversies." Galloway v. Truesdell, 83 Nev. 13,
20, 422 P.2d 237, 242 (1967) (emphasis and internal quotation omitted).
Once a controversy becomes moot, it is no longer justiciable. Personhood
Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). Without a
justiciable controversy, the power of the court to pronounce on the law ends:
"Mlle duty of every judicial tribunal is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principles of law which
cannot affect the matter in issue before it." Nat'l Collegiate Athletic Ass'n
v. Univ. of Nev., 97 Nev. 56, 57, 624 P.2d 10, 10 (1981).
Both Valdez-Jimenez and Frye pleaded guilty in 2019. They
are in prison, serving the sentences of imprisonment their judgments of
conviction imposed. Petitioners confinement pursuant to their judgments
of conviction renders their challenge to the bail proceedings by which they
had been confined—pretrial—moot and nonjusticiable. Compare United
States v. Sanchez-Gomez, U.S. „ 138 S. Ct. 1532, 1540-41 (2018)
(holding defendants' challenge to their pretrial custody restraints moot and
nonjusticiable because their guilty pleas ended their pretrial custody), with
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United States v. Salerno, 481 U.S. 739, 744 n.2 (1987) (holding that case
remained justiciable where the defendant remained confined pursuant to
the pretrial detention order he challenged); but see id. at 758 (questioning
majority's justiciability determination given the defendant's conviction on
another charge) (Marshall, J., dissenting).
Because this court cannot grant relief to Valdez-Jimenez or
Frye with respect to their now-terminated pretrial confinement, it should
deny their petitions as moot. See, e.g., Black v. Eighth Judicial Dist. Court,
Docket No. 76472, at 1* (Order Denying Petition, Sept. 14, 2018) (denying
writ petition challenging bail proceeding as moot since "petitioner is no
longer in custody and fails to demonstrate that this issue is capable of
repetition yet evading review"); Sherard v. Eighth Judicial Dist. Court,
Docket No. 76398 (Order Denying Petition, Sept. 14, 2018) (same); accord
Valdez-Jimenez v. Lombardo, Case No. 2:19-cv-00581-RFB-VCF (Order
Granting Motion to Dismiss (ECF Nos. 25, 27) and Dismissing Action, D.
Nev., June 26, 2019) (dismissing as moot Valdez-Jimenez's parallel federal
writ proceeding challenging his pretrial bail proceedings after he pleaded
guilty and was incarcerated on his judgment of conviction).
The law makes an exception to mootness for disputes that are
capable of repetition yet evading review. But, to guard against the judicial
exercise of generally applicable executive and legislative power, the
capable-of-repetition mootness exception has strict limits. It applies "only
if (1) the challenged action is in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there is a reasonable expectation
that the same complaining party will be subjected to the same action again."
Sanchez-Gomez, U.S. at , 138 S. Ct. at 1540 (emphasis added)
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(internal quotation omitted). The test is conjunctive—both standards must
be met—and these petitions do not satisfy either.
In-custody defendants in Nevada have, as recently as last year,
litigated pretrial-bail-proceeding challenges to appellate conclusion before
release or incarceration mooted the bail dispute. See Cameron v. Eighth
Judicial Dist. Court, 135 Nev. 214, 445 P.3d 843 (2019) (mandating that the
district court reconsider and explain its decision, following an indictment
return, to increase bail beyond the amount the justice court had set on the
original criminal complaint); In re Application of Wheeler, 81 Nev. 495, 500,
406 P.2d 713, 716 (1965) (holding that the district court did not abuse its
discretion in denying the defendant's release on bail in a murder case). The
challenged action thus is not "in its duration too short to be fully litigated
prior to its cessation or expiration." Sanchez-Gomez, U.S. at , 138 S.
Ct. at 1540. And, for Valdez-Jimenez and Frye to face the same action
again, they would have to serve their prison sentences, be released,
reoffend, and again be arrested, jailed, and subjected to the same bail
procedures they challenge. For policy reasons, courts do not presume future
criminal conduct in applying the capable-of-repetition mootness exception.
Compare Lane v. Williams, 455 U.S. 624, 632-33 n.13 (1982) (concluding
that case was moot where the challenged parole revocation could not "affect
a subsequent parole determination unless respondents again violate state
law, are returned to prison, and become eligible for parole"), with Sanchez-
Gomez , U.S. at , 138 S. Ct. at 1541 (in analyzing mootness, courts
"assume[ ] that [litigants] will conduct their activities within the law and so
avoid prosecution and conviction as well as exposure to the challenged
course of conduce) (second alteration in original) (internal quotation
omitted). See Spencer v. Kemna, 523 U.S. 1, 17-18 (1998) (holding that
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"Mlle capable-of-repetition doctrine applies only in exceptional situations"
such that petitioner's challenge to his parole revocation was moot and
nonjusticiable) (internal quotation omitted).
Quoting Bisch v. Las Vegas Metropolitan Police Department,
129 Nev. 328, 334-35, 302 P.3d 1108, 1113 (2013), the majority offers a
stripped-down statement of the capable-of-repetition mootness exception.
It suggests that, to overcome mootness, it is enough "that (1) the duration
of the challenged action is relatively short, (2) there is a likelihood that a
similar issue will arise in the future, and (3) the matter is important."
Majority op., supra, at 6 (emphasis added) (internal quotation omitted). As
precedent, Bisch is questionable for two reasons. First, Bisch does not
acknowledge much less explain its departure from the federal caselaw on
the capable-of-repetition exception, which this court has endorsed and
followed for years. See, e.g., Stephens Media, LLC v. Eighth Judicial Dist.
Court, 125 Nev. 849, 858, 221 P.3d 1240, 1247 (2009) (applying the United
States Supreme Court's capable-of-repetition mootness exception to resolve
a Nevada case) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 546-47
(1976)); Langston v. State, Dep't of Motor Vehicles, 110 Nev. 342, 344, 871
P.2d 362, 363 (1994) (same) (citing S. Pac. Terminal Co. v. Interstate
Commerce Comm'n, 219 U.S. 498 (1911), and DeFunis v. Odegaard, 416 U.S.
312 (1974)). Second, Bisch's reformulation of the capable-of-repetition
mootness exception is dictum—although Bisch's employer had removed her
disciplinary write-up from her file by the time she appealed, the discipline
carried collateral consequences so "an actual controversy still exist[ed] for
us to decide. Bisch, 129 Nev. at 335, 302 P.3d at 1113.
More fundamentally, the Bisch version of the capable-of-
repetition exception does not provide adequate separation-of-powers
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guardrails—especially since the judiciary is applying the standard to itself,
with no other checks or balances. Relying on the interests of nonparties to
save a case from mootness exponentially expands what is meant to be a very
narrow exception. Nonparties with similar interests exist outside almost
every case this court decides. Yet, the "judicial power exists only to redress
or otherwise to protect against injury to the complaining party, even though
the court's judgment may benefit others collaterally." Warth v. Seldin, 422
U.S. 490, 499 (1975) (emphasis added). Replacing the requirement that "the
same [complained ofl action" be likely to repeat, Sanchez-Gomez, U.S.
at , 138 S. Ct. at 1540 (emphasis added), with a mere "likelihood that a
similar issue will arise in the future," Bisch, 129 Nev. 334-35, 302 P.3d at
1113, invites judicial review of questions that did not and cannot affect the
parties to the original dispute, which the separation of powers doctrine
forbids. Compare Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 334,
419 P.3d 136, 140 (2018) (denying as moot an extraordinary writ petition
where "interpreting the statute in the requested manner when it is unclear
whether this issue is likely to reoccur in the future would render any opinion
advisory at bese), with Personhood, 126 Nev. at 602, 245 P.3d at 574 ("This
court's duty is not to render advisory opinions but, rather, to resolve actual
controversies by an enforceable judgment.").
To be clear: I agree with my colleagues as to the importance of
prompt and constitutionally conducted pretrial detention and release
decisions. But Valdez-Jimenez's and Fryes bail proceedings took place in
Clark County's justice and district courts in 2018. In January of 2019, Clark
County established its Initial Appearance Court, which revamped the
County's pretrial custody and bail determination procedures, reportedly
resulting in defendants appearing and having their custody and bail status
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reviewed in a matter of hours. See Clark County, Nevada, News Releases,
In the Face of Increased Bookings, Inmates Move through Streamlined
Judicial System Faster (Feb. 24, 2020). And effective July 1, 2019, the
Nevada Legislature created an interim committee to examine and
recommend legislation relating to the pretrial release of defendants in
criminal cases to the 2021 Nevada Legislature. Senate Concurrent
Resolution No. 11, 80th Leg. (Nev. 2019).1 These measures, combined with
the changes wrought by the judicial and executive branches in the face of
the COVID-19 pandemic, mean that, to the extent the record in this case
frames the issues the court addresses,2 those issues do not exist in the same
form today.
Cases seeking extraordinary writ relief are fully subject to
mootness and justiciability constraints. Sanchez-Gomez, U.S. at ,
1Senate Concurrent Resolution No. 11 directs the interim committee
to examine and recommend changes to existing statutes concerning, among
other matters, "Mlle timeliness and conduct of hearings to consider the
pretrial release of defendants," "Mlle circumstances under which
defendants should be released on their own recognizance," and "[t]he
imposition of monetary bail as a condition of pretrial release and the
considerations relating to the setting of the amount of any monetary bail."
2Va1dez-Jimenez and Frye did not include the record of their bail
proceedings in justice court in the appendices to their writ petitions, so we
cannot say precisely how Clark County's establishment of its Initial
Appearance Court in 2019 would affect what they experienced in 2018.
While the indictment returns in district court started new criminal cases,
that did not render irrelevant the bail proceedings had in justice court on
Valdez-Jimenez's and Frye's initial charges. Cf. Cameron, 135 Nev. at 215,
445 P.3d at 844 (holding that the district court properly considered justice
court bail proceedings in setting bail post-indictment-return and abused its
discretion in later increasing the bail amount without explaining its
departure from the amount the justice court originally set).
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138 S. Ct. at 1540; Mesagate Homeowners' Ass'n v. City of Fernley, 124 Nev.
1092, 1097, 194 P.3d 1248, 1251 (2008). With an incomplete record, parties
whom our judgment cannot affect, and the changes that have occurred and
are occurring in Nevada's bail procedures since the petitioners 2018 bail
proceedings, I would deny their petitions as moot. To do otherwise raises
serious "concern about the proper—and properly limited—role of the courts
in a democratic society." Warth, 422 U.S. at 498.
, C.J.
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