Davis v. Parks ( 2014 )

 misconduct, WCSD re-assigned•him to Silver Lake Elementary School
(SLES). In November 2009, respondents Loretta Thomas, SLES principal,
and Maryanne Robinson, SLES Coordinator and Director, worked with
Davis to address Davis' failure to implement teaching strategies from his
supervisors. As a result, SLES placed him on a Track III focused
Professional Assistance Plan (Track 111). 2 He remained on Track III until
February 2011.
In November 2011, Davis filed a complaint against WCSD
alleging conspiracy, intentional interference with contractual relations,
abuse of process, negligence, and violation of his First Amendment and
due process rights. WCSD filed a special motion to dismiss under
Nevada's anti-SLAPP statutes, NRS 41.650 and NRS 41.660. The district
court entered an order granting WCSD's motion, dismissing all five of
Davis' claims.
Davis now appeals, arguing that: (1) Nevada's anti-SLAPP
statutes violate the separation of powers clause and the supremacy clause;
(2) the district court erred in granting WCSD's special motion to dismiss
because WCSD did not meet its burden to show that its communications
regarding Davis were in good faith and in furtherance of the right to
petition, and (3) even if WCSD met its burden, the district court should
have denied the motion because Davis demonstrated a genuine issue of
material fact for his five claims.
Track III is a program where other teachers provide assistance to
improve one's performance.
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Nevada's anti-SLAPP statutes are constitutional
We review the constitutionality of a statute de novo. Silvar v.
Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006).
"Statutes are presumed to be valid, and the challenger bears the burden of
showing that a statute is unconstitutional." Id. Further, we will not
overturn precedent 'absent compelling reasons for so doing'" Armenta-
Carpio v. State, 129 Nev. „ 306 P.3d 395, 398 (2013) (quoting Miller
v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008)). It must be more
than a mere disagreement, such that departing from the doctrine of stare
decisis "is necessary to avoid the perpetuation of error." Stocks v. Stocks,
64 Nev. 431, 438, 183 P.2d 617, 620 (1947) (internal quotations omitted);
see also Miller, 124 Nev. at 597, 118 P.3d at 1124 ("Mere disagreement
does not suffice.").
Nevada's anti-SLAPP statutes do not violate the separation of powers
clause
Davis argues that NRS 41.650 violates the separation of
powers doctrine because it interferes with discovery in a civil case by
undermining the judicial procedural mechanisms of summary judgment.
We disagree.
The Nevada Constitution divided the government• into the
Legislative, the Executive and the Judicial. Berkson v. LePome, 126 Nev.
245 P.3d 560, 564 (2010) (citing Article 3, Section 1(1) of the
Nevada Constitution). "[N]o 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.
The legislature violates the separation of powers clause if it "enact[s] a
procedural statute that conflicts with a pre-existing procedural rule." at
245 P.3d at 565 (internal quotations omitted). Further, a statute is
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unconstitutional if it "interferes with the judiciary's authority to manage
the litigation process and [the] court's ability to provide finality through
the resolution of a matter on appeal." Id. at , 245 P.3d at 566
(concluding that NRS 11.340 was unconstitutional because it acts to
"prolong previously resolved cases, resulting in unnecessary expenses for
adverse parties and the diversion of time and scarce judicial resources
away from undecided cases").
Nevada's anti-SLAPP statutes, NRS 41.635-41.670, grant
immunity to good faith communications that are "in furtherance of the
right to petition." NRS 41.650. These statutes allow a party to file a
special motion to dismiss, which the district court treats as a motion for
summary judgment. NRS 41.660(2)-(3) (requiring the moving party make
a threshold showing, then the burden shifts to the nonmoving party to
show by clear and convincing evidence a probability of prevailing on the
claim).
We conclude that Nevada's anti-SLAPP statutes do not
interfere with the judicial branch. Unlike in Berkson, Nevada's anti-
SLAPP statutes actually assist the judiciary in managing cases by
providing a vehicle to dismiss meritless claims. These statutes aid the
judiciary by conserving judicial resources, saving the parties from
incurring unnecessary expenses, and preventing the parties from
prolonging meritless cases. Thus, Nevada's anti-SLAPP statutes do not
violate the separation of powers clause.
Nevada's anti-SLAPP statutes do not violate the supremacy clause
Davis argues that this court should reconsider its decision in
John u. Douglas County School District, 125 Nev. 746, 219 P.3d 1276(2009), and conclude that Nevada's anti-SLAPP statutes violate the
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supremacy clause. We disagree and decline to overturn our holding in
John.
Nevada's anti-SLAPP statutes provide that "[a] person who
engages in a good faith communication in furtherance of the right to
petition. . . is immune from any civil action for claims based upon the
communication." NRS 41.650. NRS 41.637(2) defines "good faith
communication in furtherance of the right to petition" as "[c]ommunication
of information or a complaint to. . . a political subdivision of this state,
regarding a matter reasonably of concern to the respective governmental
entity." School districts are included in "political subdivision." NRS
41.0305; see also John, 125 Nev. at 761, 219 P.3d at 1286. Thus, these
statutes protect good faith communications made to the school district.
John, 125 Nev. at 761, 219 P.3d at 1286.
"[Al state law that immunizes government conduct otherwise
subject to suit under [42 U.S.C.] § 1983 is preempted, even where the
federal civil rights litigation takes place in state court, because the
application of the state immunity law would thwart the congressional
remedy." Felder v. Casey, 487 U.S. 131, 139 (1988). However, we have
distinguished Nevada's anti-SLAPP statutes from the statutes at issue in
Felder and stated that Nevada's anti-SLAPP statutes do not afford
absolute immunity from liability. John, 125 Nev. at 755, 219 P.3d at 1282.
Instead, these statutes provide immunity only against meritless claims
and "permit[] cases to proceed to discovery and trial after a nonmoving
party makes an initial demonstration of merit." Id. The Nevada
legislature intended these statutes to "filter[ ] unmeritorious claims in an
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effort to protect citizens from costly retaliatory lawsuits arising from their
right to free speech." 3 Id.A statute that is applied to federal claims in state court will
not violate the supremacy clause if the statute is neutral and procedural.
Id. at 756-58, 219 P.3d at 1283-84. In John, we determined that Nevada's
anti-SLAPP statutes were procedural in nature because "the statutes
create a procedural mechanism to prevent wasteful and abusive litigation
by requiring the plaintiff to make an initial showing of merit." 125 Nev. at
758, 219 P.3d at 1284. Further, we held that the statutes are neutral in
application because they "appl[y] to both state and federal substantive
claims raised by either a plaintiffs complaint or a defendant's
counterclaim" and only apply when "[good faith communication[s] in
furtherance of the right to petition" are at issue. Id. (quoting NRS
41.637). Thus, we concluded that Nevada's anti-SLAPP statutes applied
to federal claims in state court. Id. at 760, 219 P.3d at 1286.
However, a statute violates the supremacy clause if it defeats
a federal right or frustrates a substantive right created by Congress.
John, 125 Nev. at 758, 219 P.3d at 1284. We noted that the purposes of
anti-SLAPP statutes are to (1) dismiss meritless claims before trial, and
(2) protect a citizen's right to petition his government without
repercussion. Id. at 755, 219 P.3d at 1282. Based on these purposes and
the appellant's failure to show a genuine issue of material fact, we
concluded in John that Nevada's anti-SLAPP statutes do not
undermine[ ] or frustrate[ ] any federal substantive claims." Id. at 760,
3 Further,
we have determined that these statutes can be used by a
government agency. John, 125 Nev. at 760-61, 219 P.3d at 1286.
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219 P.3d at 1285-86 (noting that appellant "could have proceeded with his
federal substantive claims had he shown a genuine issue of material fact").
We conclude that Nevada's anti-SLAPP statutes (1) are
neutral and procedural, and (2) do not frustrate a substantive right. This
is consistent with our holding in John. Therefore, we conclude that
Nevada's anti-SLAPP statutes do not violate the supremacy clause. 4
The district court properly granted Davis' special motion to dismiss
"[T]he district court shall treat the special motion to dismiss
as a motion for summary judgment, and its granting the motion is an
adjudication upon the merits." John, 125 Nev. at 753, 219 P.3d at 1281.
Therefore, this court reviews a district court's order granting an anti-
SLAPP special motion to dismiss de novo. Id.WCSD met its initial burden
Davis argues that WCSD failed to show good faith
communication as required to invoke the protection of the anti-SLAPP
statutes. Thus, Davis argues that the district court erred in finding that
WCSD met its burden. We disagree.
"[W]hen a party moves for a special motion to dismiss . . . it
bears the initial burden of production and persuasion." John, 125 Nev. at
754, 219 P.3d at 1282. This burden requires the moving party to "make a
threshold showing that the lawsuit is based on `[g]ood faith
communication[s made] in furtherance of the right to petition' the
4 Further, Davis' argument that his federal claims are frustrated is
meritless because he could have proceeded with these claims if he had
shown a genuine issue of material fact on these claims. However, the
district court found that he failed to meet this burden.
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government." Id. (second alteration in original) (quoting NRS 41.650).
The moving party can meet its burden by showing that the
communications were made in the furtherance of an investigation. Id. at
762, 219 P.3d at 1287 (concluding that production of documents showing
that the "communications to or by the school district [were] in the context
of various investigations" was enough to shift the burden of production to
the plaintiff).
WCSD provided the district court with evidence to show that
its statements were protected under Nevada's anti-SLAPP statute: (1) the
Collective Bargaining Agreement between Washoe Education Association
and WCSD, and the WCSD policies and regulations showing that the
school district and employees were required to participate in the
investigation; (2) a 2007 letter of admonition stating that an investigation
revealed Davis made inappropriate sexual comments to fellow teachers;
(3) a 2007 e-mail from Parks to Davis showing that Davis attempted to
make a sexual harassment complaint about Edwards during the same
time period of the school's sexual harassment investigation of him,
however Davis never formally filed a written complaint; (4) a 2008 letter of
admonition and intention to suspend stating that the investigation
revealed that Davis had inappropriately touched students; (5) an amended
intent-to-suspend letter following Davis' appeal, stating that he would be
suspended for 10 days instead of 20 days and reiterating the inappropriate
sexual actions that the investigation revealed; and (6) affidavits from
Parks, Christiansen, Edwards, Cranmer, and Dugan, among others,
showing that their investigations and statements regarding Davis were
based on the reasonable safety concerns of each individual and the
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district, were made in good faith and without malice, and were not made
with the intent to harm or harass Davis.
The district court found that "[WCSD'si communications were
all made in the context of various investigations and evaluations of
[Davis]." Further, the district court noted that the communications
regarding Davis' conduct as a teacher "were of reasonable concern to
[WCSD] because they addressed the school environment as it applied to
staff and students and they impacted [WCSD's] potential legal liability.'
(alterations in original) (quoting John, 125 Nev. at 762, 219 P.3d at 1287).
The district court found that the statements qualified as good faith
communications because they were "aimed at procuring any
government . . . action, result or outcome." (quoting NRS 41.637(1)).
We conclude that the district court properly found that WCSD
met its burden. Like the school district in John, WCSD provided the
district court with extensive documentation and evidence showing the
statements were made for the purpose of an investigation by WCSD.
Additionally, WCSD submitted affidavits that indicate good faith and are
consistent with the other investigation documents. Therefore, we conclude
that the district court did not err in finding that WCSD met its initial
burden. 5
5We note, however, that the district court incorrectly relied on NRS
41.637(1) when determining that the statements qualified as anti-SLAPP
communications because NRS 41.637(2) would have been more
appropriate pursuant to this court's analysis in John. However, this error
was harmless because the district court would have come to the same
result. See Sengel v. IGT, 116 Nev. 565, 570, 2 P.3d 258, 261 (2000)
(affirming a district court decision that reached the right result, albeit for
the wrong reasons).
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Davis failed to establish a genuine issue of material fact
Davis argues that even if this court concludes that WCSD met
its burden, the district court erred in granting the special motion to
dismiss because he pleaded sufficient facts in his complaint to create a
genuine issue of material fact. We disagree.
Once the moving party has met its burden of showing that
Nevada's anti-SLAPP statutes apply, the burden of production shifts to
the nonmoving party, who must demonstrate a genuine issue of material
fact. John, 125 Nev. at 754, 219 P.3d at 1282. If the district court
determines that the nonmoving party has demonstrated a genuine issue of
material fact, the case will then proceed to discovery. Id. However, if the
nonmoving party fails to establish a genuine issue of material fact, the
district court must dismiss the action. Id.; see also NRS 41.660(4) (noting
that "the dismissal operates as an adjudication upon the merits").
When responding to a special motion to dismiss, the
nonmoving party must provide evidence and may not merely present a
narrative disagreement with the moving party. John, 125 Nev. at 762,
219 P.3d at 1287. In John, this court concluded that the plaintiffs
opposition to the defendant school district's special motion to dismiss (1)
did not establish a genuine issue of material fact and "merely disagreed in
narrative form with [the school district's] credible evidence," and (2) failed
to "provide[ ] any evidence that the communications were untruthful or
made with knowledge of falsehood." Id. Therefore, the district court
properly granted the school district's special motion to dismiss. Id. at 763,
219 P.3d at 1287.
Further, in order to meet its burden of production, the
nonmoving party must show that the communications were not a matter
of reasonable concern to the moving party. Id. at 762, 219 P.3d at 1287.
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In John, the school district's communications were part of an investigation
of a school security officer for unprofessional conduct. Id. at 750, 219 P.3d
at 1279. This court concluded that "[t]he matters communicated to the
[school district] were of reasonable concern to the district because they
addressed the school environment as it applied to staff and students and
they impacted the school district's potential legal liability." Id. at 762, 219
P.3d at 1287. When the burden shifted to the security officer to establish
a genuine issue of material fact, he failed to show that "the
communications were not matters of reasonable concern to the school
district." Id. Therefore, this court concluded that the district court
properly granted the school district's special motion to dismiss. Id. at 762-
63, 219 P.3d at 1287.
Davis has five claims that are the subject of his appeal: (1)
Davis supports his conspiracy claim by arguing that the facts "create a
reasonable inference of concerted action among [WCSD]", (2) he supports
his intentional interference claim by arguing that the doctrine of equitable
tolling applies, (3) he supports his abuse of process claim by arguing that
WCSD "possessed an ulterior purpose" when investigating him, (4) he
supports his negligence claim by arguing that the discretionary function
immunity does not apply to WCSD, (5) he supports his First Amendment
claim by arguing that his "expressive activity was of public concern" and
his due process claim by arguing that the claim "survives under the
conspiracy theory." The district court found that Davis failed to establish
a genuine issue of material fact for any of his five claims.
We conclude the district court properly found that Davis failed
to demonstrate a genuine issue of material fact for his claims. Davis
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merely presents narrative disagreements with WCSD. Therefore, the
district court did not err in dismissing Davis' claims.
Accordingly, we ORDER the judgment of the district court
AFFIRMED. 6
, CA.
Gibbons
J.
Hardesty
titA)k oz-52C-
Parraguirre
J.
J.
Saitta
6 Wehave considered Davis' remaining arguments and conclude they
are without merit.
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cc: Hon. Steven R. Kosach, District Judge
Second Judicial District Court Dept. 8
David Wasick, Settlement Judge
Jeffrey A Dickerson
Washoe County School District Legal Department
Washoe District Court Clerk
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