Knickmeyer v. State of Nevada , 2017 NV 84 ( 2017 )


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  •                                                           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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