Landreth v. Malik

Douglas, C.J.,

with whom Pickering, L, agrees,

dissenting:

I would deny the petition for rehearing and, therefore, I dissent.

While reasonable minds may disagree as to the plain meaning of a constitutional provision, I am concerned that the majority’s opinion short-circuits standard jurisdictional requirements by implying that a district court judge enlarges the family court’s jurisdiction simply by showing up for work. A court may exercise judicial power only when it has subject matter jurisdiction. Rhode Island v. Massachusetts, 37 U.S. 657, 718 (1838) (“Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them . . . .”). A judge’s power is not personal, as the majority’s holding seems to suggest. It is institutional. If the court has jurisdiction, a duly qualified judge can preside over a dispute brought before that court. But if the court does not have jurisdiction, the judge cannot proceed. Jurisdiction belongs to the court, in other words; it is not a personal attribute of the judge. See People v. Osslo, 323 P.2d 397, 413 (Cal. 1958) (“[T]he jurisdiction which the judge exercises is the jurisdiction of the court, not of the judge.”); White v. Superior Court, 42 P. 480, 482 (Cal. 1895) (“[T]he jurisdiction [judges] exercise in any cause is that of the court, and not the individual.”).

The majority holds that all district judges have equal power to determine all cases and controversies under the Constitution. I do not disagree with this proposition in general; district court judges elected to family court positions could, if reassigned to divisions other than family court, preside over matters outside the family *191court division’s jurisdiction. However, I disagree that a district judge sitting in the family court division can entertain disputes no piece of which lies within the original jurisdiction of that division of the district court.

Today’s holding is inconsistent with the plain language of Article 6, Section 6 of the Nevada Constitution and its pertinent history. Before the voters amended it in 1990, Article 6, Section 6 of the Nevada Constitution created the district courts and gave them their jurisdiction directly:

The District Courts in the several Judicial Districts of this State have original jurisdiction in all cases excluded by law from the original jurisdiction of justices’ courts. They also have final appellate jurisdiction in cases arising in Justices Courts and such other inferior tribunals as may be established by law. The District Courts and the Judges thereof have power to issue writs of Mandamus, Prohibition, Injunction, Quo-Warranto, Certiorari, and all other writs proper and necessary to the complete exercise of their jurisdiction. The District Courts and the Judges thereof shall also have power to issue writs of Habeas Corpus.

This provision (which remains as paragraph 1 of Article 6, Section 6 of the Nevada Constitution) did not give the Legislature the power to define or limit the district courts’ jurisdiction. This led some to conclude that the Legislature could not create a specialized court with jurisdiction limited to family law matters without amending Article 6, Section 6 of the Nevada Constitution to give the Legislature that authority. Hearing on S.J. Res. 24 Before the Senate Judiciary Comm., 65th Leg. (Nev., January 24, 1989) (testimony of Judge Charles Thompson on behalf of the District Judges’ Association noting that “in 1985 and 1987 statutes were proposed to create a [family] division of the [district] court and it was my testimony then that I didn’t think the legislature had the constitutional power to control the internal workings of the court, and that it would require a constitutional amendment” for the Legislature to create a family court division). To eliminate that argument, the 1989 Legislature prepared and submitted to the voters a proposal to amend the Nevada Constitution to allow ‘ ‘the establishment of family courts.” 1989 Nev. Stat., file no. 26, at 2222.1

*192The proposal to amend Article 6, Section 6 to allow the Legislature to create and prescribe the jurisdiction of the family court division of the district courts was tendered to Nevada voters as Ballot Question 1 at the 1990 general election. Nevada Ballot Questions 1990, Nevada Secretary of State, Question No. 1, available at http://www.leg.state.nv.us/Division/Research/VoteNV/ BallotQuestions/1990.pdf. It passed. This amendment added sub-paragraph 2(b) to Article 6, Section 6 of the Nevada Constitution. This subparagraph reads as follows:

The legislature may provide by law for: . . . [i\he establishment of a family court as a division of any district court and may prescribe its jurisdiction.

(Emphases added.) See S J. Res. 24, 64th Leg. (Nev. 1987); 1987 Nev. Stat., file no. 131, at 2444; S.J. Res. 24, 65th Leg. (Nev. 1989); 1989 Nev. Stat., file no. 26, at 2222.

The voters were told when they passed this amendment that they were giving the Legislature authority to create and define the jurisdiction of a specialized family court.2 The “argument against passage” noted in the 1990 Ballot Question — which passed on a vote of 204,981 to 105,338 — was more or less the argument the majority revives, see supra note .l, and adopts here: “The proposal, if approved, would allow the Legislature to establish a structure of family courts, which some judges oppose as inappropriate [legislative] regulation of the judicial system. The proposal . . . does not define the jurisdiction of family courts, but would allow the Legislature to make that determination.” Nevada Ballot Questions 1990, Nevada Secretary of State, Question No. 1, available at http://www.leg.state.nv.us/Division/Research/VoteNV/ BallotQuestions/1990.pdf (emphasis added). See Strickland v. Waymire, 126 Nev. 230, 235 P.3d 605 (2010) (in interpreting a *193constitutional amendment passed by the voters, the ballot question and its accompanying literature may be consulted, as may legislation passed at or about the time of the amendment, in construing the amendment).

The Legislature enacted NRS 3.223 pursuant to the authority conferred on it by the 1990 amendment to Article 6, Section 6 of the Nevada Constitution.3 In NRS 3.223, the Legislature expressly limits the jurisdiction of the family court to the matters specified therein. Based on Article 6, Section 6(2)(b) of the Nevada Constitution and NRS 3.223,1 would hold that the family court lacks jurisdiction over matters not set forth in that statute, except to the extent they are integrally related to a dispute within that court’s statutory jurisdiction. Resolving a financial dispute between parties to a cohabitant, property-sharing relationship does not fall within any of the categories of dispute NRS 3.223 gives the family court original jurisdiction to hear. Without original jurisdiction over some aspect of the parties’ dispute, a limited jurisdiction court cannot exercise pendent or supplemental jurisdiction over matters it otherwise could not hear. See Barelli v. Barelli, 113 Nev. 873, 877-78, 944 P.2d 246, 248-49 (1997). Additionally, as to the majority’s use of Barelli, I feel an expansive reading of Barelli is incorrect; Barelli should be limited to being read as “related” matters within NRS 3.223 so as to keep our specially trained jurists of the family division in family matters instead of capital murder cases, construction defect cases, and business cases.

In interpreting our Constitution, this court should not lightly find ambiguity or irreconcilable conflict among its provisions. Cf. Governor v. Nevada State Legislature, 119 Nev. 277, 287, 71 P.3d 1269, 1275-76 (2003) (declaring the obligation to fund education in “irreconcilable conflict” with the provision requiring a supermajority to pass revenue-raising measures), clarified on denial of reh’g in Governor v. Nevada State Legislature, 119 Nev. 460, 76 P.3d 22 (2003), and overruled by Nevadans for Nevada v. Beers, 122 Nev. 930, 142 P.3d 339 (2006). Constitutional interpretation utilizes the same rules and procedures as statutory interpretation. We the People Nevada v. Secretary of State, 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008). Thus, it is imperative that, in addressing our Constitution, this Court harmonize all provisions in the Constitution, giving meaning to each. See Ex Parte Shelor, 33 Nev. 361, 373-74, 111 P. 291, 292-93 (1910) (“ ‘It is not to be supposed that any words have been employed without occasion, or *194without intent that they should have effect as part of the law. Effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the court must harmonize them, if practicable, and must lean in favor of a construction that will render every word operative, rather than one which may make some words idle and nugatory.’ ” (quoting Thomas Cooley, Constitutional Limitations 72 (6th ed. 1890))). The majority’s constitutional analysis too readily finds ambiguity and conflict in Article 6, Section 6.

The provisions in Article 6, Section 6 of the Nevada Constitution are not ambiguous. Courts and judges have power that is “necessary to the complete exercise of their jurisdiction,” Nev. Const, art. 6, § 6(1), and the Legislature was authorized to “prescribe [the family court’s] jurisdiction.” Nev. Const, art. 6, § 6(2)(b). The Legislature exercised its constitutional power to “prescribe [the] jurisdiction” of the family court division of the district court when it enacted NRS 3.223. This statute vests exclusive jurisdiction over enumerated family-law-related matters in the family courts it establishes. In so doing, it took jurisdiction over family-law-related matters away from the regular division of the district court in districts with family law divisions but left jurisdiction over all non-family-law-related matters in the regular division of the district court.

The majority’s reading fails to harmonize these provisions. Instead, it leaves district court judges not assigned to the family court division with less authority to hear cases than district court judges who are assigned to the family court division and by law have exclusive jurisdiction over all family-law-related matters. This result violates the very constitutional holding the majority declares. If Article 6, Section 6, Subsection 1 imbues every district court judge with complete jurisdiction over all matters enumerated in that paragraph, then how is it constitutional that a district court judge in a district with a family court cannot exercise jurisdiction over family court matters, because such jurisdiction is exclusively vested in the family court division? The result is that the Legislature cannot, in fact, “prescribe [the] jurisdiction” of the family court division of the district court because every district judge, as a matter of constitutional law, must have the same jurisdiction as every other. Thus does the majority’s construction of Article 6, Section 6 in effect read Paragraph 2(b) out of the Constitution.

Amici curiae offer the argument that rehearing is necessary because our prior holding closed the family court’s doors to actions that appear to belong in the family court. For example, it was argued that actions arising under NRS Chapters 122A (regulating domestic partnerships), 125D (the Uniform Child Abduction Act), and other family matters clearly should be in family court though were omitted from its grant of jurisdiction. NRS 3.223. The solu*195tion to these complaints is not through an expansive interpretation of district court judge’s constitutional powers, but legislative amendment of the jurisdiction-granting statute. Our family courts should not be exercising jurisdiction in situations not covered by legislative enactment. See Nev. Const. art. 6, § 6(2).

Since the complaint lays jurisdiction in the family court based solely on the parties’ failed cohabitant relationship, the default judgment was invalid because the court lacked subject matter jurisdiction over their dispute. State Indus. Ins. System v. Sleeper, 100 Nev. 267, 269, 679 P.2d 1273, 1274 (1984) (noting that when the district court lacks subject matter jurisdiction, the judgment rendered is void); Restatement (Second) of Judgments § 65 cmt. b (1982). With no subject matter jurisdiction to sustain it, the judgment should have been vacated on motion under NRCP 60(b)(4), assuming the motion was otherwise unobjectionable under Matter of Harrison Living Trust, 121 Nev. 217, 112 P.3d 1058 (2005). As this comports with the holding of Landreth v. Malik, 125 Nev. Adv. Op. 61, 221 P.3d 1265 (2009), I believe this petition for rehearing should be denied.

In 1989, the District Judges’ Association opposed the proposed constitutional amendment on the grounds that the courts, not the Legislature, should determine “which cases [are] assigned to which judges.” Hearing on S.J. 24 Before the Senate Judiciary Comm., 65th Leg. (Nev., January 24, 1989). This argument was noted and rejected by the 1989 Legislature. Id. (Assemblywoman Myrna T. Williams stating that the constitutional amendment was needed even though “some judges felt family court was a constitutional issue”; Senator Wagner disagreeing that “a constitutional amendment that would specifically delineate every single type of jurisdiction in the Constitu*192tion” was needed; “a constitution is not a document which one burdens with specifics, but uses it as a general guideline of government, and then the statutes take over in terms of spelling out that jurisdiction”).

The 1990 voters who passed Ballot Question No. 1 were given this explanation of its purpose:

District courts have general jurisdiction over most civil and criminal matters. In general, district court judges do not specialize in a particular area. They hear all cases filed in their courts. If this amendment is adopted, the Legislature would be authorized to establish a family court in each judicial district of the state and determine those matters which the family court could consider. ... If the Legislature establishes a family court, it would be required to establish which cases the court could hear, such as divorce, ‘child support, child custody, adoption and the termination of parental rights.

Nevada Ballot Questions 1990, Nevada Secretary of State, Question No. 1, available at http://www.leg.state.nv.us/Division/Research/VoteNV/ BallotQuestions/1990.pdf.

The statute was passed as a companion to the constitutional amendment. Both the statute and the ballot materials by which Article 6, Section 6(2)(b) became part of our Nevada Constitution are directly relevant to its inteipretation. I believe that the majority’s holding, which in essence is that NRS 3.223 is unconstitutional, is contrary to the express mandate of the voters and the Legislature.