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

Gibbons, J., with whom Hardesty, J., agrees,

concurring in part and dissenting in part:

I concur with the majority that the Las Vegas Police Protective Association Metro, Inc. (PPA) has appellate standing as an aggrieved party. I further agree with the majority that PPA has an adequate legal remedy through an appeal. I dissent regarding the validity and enforceability of the advisory review board’s subpoena.

NRS 289.385(l)’s language is clear and unambiguous: an advisory review board “does not have jurisdiction over any matter in which it is alleged that a crime has been committed.” The question of jurisdiction focuses on the specific allegations in the complaint and not on whether the word “crime” is used or a criminal investigation or prosecution has been instigated.

The Las Vegas Metropolitan Police Department Citizen Review Board (the citizen review board) contends that upholding such a far-reaching limitation would violate the “spirit” of the legislation that authorized the creation of advisory review boards.1 As reflected in the Clark County and Las Vegas Municipal Codes, the purpose behind the advisory review board legislation is to “provide a balance in society in general.”2 The parties acknowledge that during the legislative hearings, there were many statements made *250by some of the legislation’s advocates regarding their concerns with police departments’ treatment of citizens’ claims that they had been subjected to police officers’ criminal acts without being able to obtain any redress.3

As noted in the legislative committee minutes, numerous cities in other states have created advisory boards.4 The Legislature had available for review many of these laws. The jurisdictional limitations vary widely,5 from Baltimore, Maryland’s law limiting review “only to complaints against police personnel with respect to discourtesy and use of excessive force as defined by Police Department rules and regulations,’ ’ to Rochester, New York’s law authorizing a board to review completed investigations of police officers’ actions that “would, if proven, constitute a crime or constitute unnecessary force,” and San Diego County, California’s law providing that the board has “authority to [act on] citizen complaints filed against peace officers . . . which allege . . . criminal conduct.”6 Despite the testimony before it, the Legislature unambiguously chose to inscribe NRS 289.385(1) with language that stands in glaring contrast to those states’ laws that expressly authorize boards to review allegations of criminal conduct: Nevada advisory review boards “[do] not have jurisdiction over any matter in which it is alleged that a crime has been committed.” (Emphasis added.) While Justice Maupin may be dismayed by this decision, the judiciary cannot alter the selection of alternative approaches made by our Legislature. The choice made by the Legislature is not absurd; it just results in an overly restrictive jurisdiction for a review board.

Although the Legislature had available various less restrictive models and could have included language that would have permitted the citizen review board to examine matters involving potential crimes, it instead engrafted plain language prohibiting the board from assuming jurisdiction over any complaint that merely “alleges” criminal conduct. Thus, we cannot conclude that the Legislature intended to accomplish anything other than what it *251achieved by prescribing the plain language limitation. Therefore, we may look no further.

The advisory review board enabling legislation aims to serve an important public function in promoting law enforcement accountability and relations between law enforcement and Nevada communities. However, I cannot ignore the plain, unambiguous language that the Legislature chose to write into NRS 289.385(l)’s jurisdictional limitation, restricting the citizen review board from reviewing any complaint “in which it is alleged that a crime has been committed.’ ’

The citizen review board points to the Clark County and Las Vegas Municipal Codes’ jurisdictional limitations in support of its position. To the extent that the codes purport to expand the citizen review board’s jurisdictional limitation,71 note that county and municipal codes cannot extend authority beyond that provided in the enabling statute.8

The complaint’s factual allegations appear to fit the elements of criminal conduct.9 For instance, the citizen complaint effectively alleges that the officers committed oppression under the color of law, as set forth in NRS 197.200; false imprisonment under NRS 200.460; and the willful disregard of a person’s safety in performing an act or neglecting a duty, as delineated in NRS 202.595. The citizen complaint thereby contains allegations excluding the matter from the citizen review board’s jurisdiction. Because the citizen complaint contains allegations of criminal conduct, the citizen review board was without jurisdiction to consider the matter under NRS 289.385(1). The subpoena directing Officer Steve Leyba to appear before the hearing panel is invalid under NRS 289.390(1). The district court improperly enforced it.

The function of the judiciary is to interpret the law. When the Legislature has considered a matter and enacted a statute with plain language that does not clearly contradict any stated purpose, we need look no further into the “spirit” of the legislation.

Hearing on S.B. 39 and A.B. 112 Before the Assembly Government Affairs Comm, and the Senate Government Affairs Comm., 69th Leg. (Nev., Febru*250ary 14, 1997), at Ex. C (Senator Joseph M. Neal, Jr.’s prepared remarks); see also Clark County Code § 2.62.010; Las Yegas Municipal Code § 2.64.010.

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

Id.

Id. at Ex. J (Samuel Walker, Citizen Review Resource Manual (1995)).

Id. at Ex. J (Samuel Walker, Citizen Review Resource Manual, at Doc. 2 (Baltimore City Local Laws § 16-43(a) (1975)), Doc. 22 (Rochester Police Department General Order 320 § 11(A) (1993)), and Doc. 25 (San Diego County Citizens Law Enforcement Review Board Proposed Rules and Regulations § 4.1(g) (adopted 1992 and 1994))).

Clark County Code § 2.62.060(b)(2) (providing that the citizen review board does not have jurisdiction over a complaint involving the “[c]onduct of an officer which is the subject of an ongoing criminal investigation or prosecution”); Las Vegas Municipal Code § 2.64.060(B)(2) (same).

See Falcke v. Douglas County, 116 Nev. 583, 588, 3 P.3d 661, 664 (2000) (recognizing that “[b]ecause counties obtain their authority from the [L]egislature, county ordinances are subordinate to statutes if the two conflict”); Boulware v. State, Dep’t Human Resources, 103 Nev. 218, 219, 737 P.2d 502, 502 (1987) (noting that an entity “may not act outside the meaning and intent of [its] enabling statute”).

The district court’s order filed February 15, 2005, indicates that the court conducted an in camera review of the entire internal affairs investigation report and the court did not believe there are allegations of criminal conduct against Officer Leyba. However, this report is not part of the record for us to review.