Las Vegas Police Protective Ass'n Metro, Inc. v. Eighth Judicial District Court of the State of Nevada Ex Rel. County of Clark

Rose, C. J.,

concurring and dissenting:

I dissent because I do not agree that PPA’s rights have been “ ‘adversely and substantially affected’ ” sufficient to render it an aggrieved • party for purposes of appeal.1 The plurality opinion concludes that PPA is an aggrieved party because the district *246court’s order “affects its ability to defend PPA members against citizen review board subpoenas.” However, the issue before us is fact determinative — whether the specific complaint involved alleges that a crime was committed. As a result, the district court appears to have limited its consideration of the allegations to those made against Officer Leyba. PPA only suffers or benefits from a general rule or interpretation of NRS 289.385 that applies to all complaints. Such was not the district court’s formulation, and I conclude that PPA is not an aggrieved party properly before this court.

I do agree with the plurality opinion’s interpretation that the citizen review board has jurisdiction in this matter, but I have difficulty determining what standard the plurality opinion is using to define the limits placed on the citizen review board. Does it limit the citizen review board’s inquiry into anything that could be considered “criminal conduct,” or should the limitation be determined by the “nature of the investigation,” or both? In any event, I believe the limitation should only begin when a formal criminal charge has been made.

NRS 289.380 enables the governing body of a city or county to create a citizen review board to advise on issues concerning police officers within the city or county.2 Presumably, this broad grant of authority is coupled with the ability to carry out the mission assigned. However, this authority to act is limited by NRS 289.385(1), which states that the citizen review board does not have jurisdiction over any matter “in which it is alleged that a crime has been committed.” As stated in the plurality opinion, “allegation” is defined in Black’s Law Dictionary as the “assertion, claim, declaration, or statement of a party to an action, made in a pleading.”3 The definition of an allegation is a statement made in a formal document such as a pleading or charging criminal document. Therefore, it necessarily follows that NRS 289.385(l)’s prohibition extends only to matters where a crime has been formally charged. Statutory language that is clear and unambiguous should be enforced unless it leads to an absurd or truly unreasonable result.4 Since there is no ambiguity in the statute and “alleged” has a specific definition, I would limit the jurisdiction of the citizen review board in matters where a crime has been specifically charged in a pleading or in a charging criminal document.

But even if we conclude that the language limiting jurisdiction is ambiguous or in conflict with the broad grant of power given by *247the preceding statute that created the citizen review board, statutory construction principles dictate that we interpret NRS 289.385(l)’s “alleged crime” language to require a specific formal written criminal charge as opposed to general statements that can be interpreted to be accusing someone of a crime. Effort should be made to see that all parts of an ambiguous statute are given meaning and that all sections are read in harmony and given effect if possible.5 This can easily be accomplished by interpreting the jurisdictional limitation to mean crimes alleged in a formal court document or pleading. This would harmonize the statute giving the citizen review board a broad grant of authority with the statute limiting that authority, thus reaching a reasonable result.

And in interpreting statutes that are ambiguous or in conflict, the guiding principle should be the intent of the Legislature.6 The legislative history of the statutes at issue in this case supports that the provision narrowly limits the citizen review board’s jurisdiction.

During the legislative hearings, Senator Neal, a drafter of this legislation, described the purpose of this legislation, stating that it ‘ ‘was drafted as a result of a shooting by a police officer in which an individual was killed. The measure was ... an attempt to create a police review board to investigate the actions of police officers.”7 Further, the citizen review board was necessary because “of many incidents of police misconduct that had happened in the past which led to beatings and killings.”8 These incidents resulted in a “rift” between the police department and the public; thus it was necessary for the Legislature to act “to help the citizens control the police to the extent that the citizen would be able to review police misconduct.”9 Senator Neal also described the history of citizen review boards, noting that many review boards had developed since the Rodney King situation.10

In briefly discussing limits on the citizen review board’s jurisdiction, Stan Olsen, a lieutenant with the Las Vegas Metropolitan Police Department, stated that the citizen review board “should not have any jurisdiction over criminal matters, but if in the process of the criminal act, policy violations occurred, it could and would have jurisdiction over the policy violations.”11 There was also tes*248timony regarding the existing limits on the Reno Police Review Board. With the Reno Police Review Board, a citizen complaint “could not be taken if criminal charges were pending which involved the officer and the complainant . . . [because] the outcome of criminal charges in court needed to be heard.”12 Las Vegas Metropolitan Police Department Sheriff Keller described the existing process for review of LVMPD misconduct and stated, “if the allegations [in a citizen complaint] are determined to be criminal the administrative investigation is parallel with a criminal investigation; and . . . when criminal actions are discovered, appropriate charges are filed with the district attorney’s office.”13

Those testifying before the Legislature stated that the citizen review board would be able to review police misconduct even if the conduct may constitute a crime as long as no criminal charges were pending. It was further recognized that dual inquiries by the police and the citizen review board were possible until formal charges were filed. Therefore, the citizen review board was not precluded from reviewing conduct that might constitute a crime, at least not until formal charges were filed.

The plurality opinion would apparently permit the citizen review board to investigate matters concerning civilian but not criminal conduct. When investigating matters involving the police and their interaction with citizens, this interpretation of NRS 289.385(1) will, in all probability, prove to be too restrictive. A police department need only declare a matter ‘ ‘under investigation’ ’ and the citizen review board’s authority to investigate would evaporate. Requiring that a formal criminal charge or allegation be asserted before the citizen review board is prohibited from inquiring into a matter will give the citizen review board greater authority to act, as I believe the Legislature intended, and also provide a bright line test to determine if the citizen review board has authority to investigate.

The purpose of the citizen review board is to provide citizens with an impartial board to remedy citizens’ current “mistrust, lack of confidence, and ill feelings” toward their police department.14 The Legislature intended to establish a citizen review board that could meaningfully investigate issues and conduct concerning police officers. Stripping the citizen review board of jurisdiction whenever an inquiry is made into conduct that might involve some criminal activity would seriously limit the very purposes for which the citizen review board was created. It is very doubtful that such was the Legislature’s intent, to grant broad authority to the citizen *249review board on the one hand and then completely hobble that authority on the other.

Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994) (quoting Estate of Hughes v. First Nat’l Bank, 96 Nev. 178, 180, 605 P.2d 1149, 1150 (1980)); NRAP 3A(a).

See also NRS 289.383 (enabling the metropolitan police committee on fiscal affairs to request that the political subdivisions create a review board to advise the department on issues concerning its police employees).

Black’s Law Dictionary 74 (6th ed. 1990).

See Lowe Enterprises v. Dist. Ct., 118 Nev. 92, 102, 40 P.3d 405, 411-12 (2002).

Metz v. Metz, 120 Nev. 786, 792, 101 P.3d 779, 783 (2004); Langon v. Washoe County, 116 Nev. 115, 118, 993 P.2d 718, 720 (2000).

State, Dep’t Human Res. v. Estate of Ullmer, 120 Nev. 108, 114, 87 P.3d 1045, 1049 (2004).

Hearing on S.B. 39 Before the Senate Government Affairs Comm., 69th Leg., at 9 (Nev., March 12, 1997).

Hearing on S.B. 39 and A.B. 112 Before the Assembly Government Affairs Comm., 69th Leg., at 12 (Nev., May 13, 1997).

Id.

Id. at 13.

Id. at 20.

Id. at 11 (emphasis added).

Hearing on S.B. 39 and A.B. 112 Before the Assembly Government Affairs Comm, and the Senate Government Affairs Comm., 69th Leg., at 17 (Nev., February 14, 1997).

Id. at 7.