                                                    132 Nev., Advance Opinion    15
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  NEVADA DEPARTMENT OF PUBLIC                          No. 67864
                  SAFETY, DIVISION OF PAROLE AND
                  PROBATION,
                  Appellant,
                  vs.
                                                                          FOILED
                  KENNETH SCOTT COLEY, A/K/A                               MAR 0 3 2016
                  KING COLEY,
                  Respondent.



                             Appeal from a district court order granting a writ of
                  mandamus. Eighth Judicial District Court, Clark County; Kathleen E.
                  Delaney, Judge.
                             Reversed.

                  Adam Paul Laxalt, Attorney General, and Adam D. Honey, Deputy
                  Attorney General, Carson City,
                  for Appellant.

                  Gentile, Cristalli, Miller, Armeni & Savarese and Paola M. Armeni and
                  Colleen E. McCarty, Las Vegas,
                  for Respondent.




                  BEFORE HARDESTY, SAITTA and PICKERING, JJ.

                                                 OPINION
                  By the Court, PICKERING, J.:
                             "In every instance, the power to adopt regulations to carry out
                  a particular function is limited by the terms of the grant of authority
                  pursuant to which the function was assigned." NRS 233B.040(1). Here,
SUPREME COURT
        OF
     NEVADA


(0) 1947A    ep                                                                I (s7 - DcoSi
                we are asked to decide whether mandamus relief is proper to compel the
                Division of Parole and Probation to accept an application for a change in
                probation discharge status under a set of regulations adopted pursuant to
                a statute that sunsetted in 2008. We conclude that the regulations upon
                which respondent Kenneth Coley relies are invalid, rendering mandamus
                relief inappropriate. Accordingly, we reverse the district court's order
                granting Coley's writ of mandamus.
                                                       I.
                                                      A.
                            In 2005, the Legislature enacted Section 16 of Senate Bill 445
                as a three-year experiment to determine whether allowing "individuals
                who were dishonorably discharged [from probation] because of
                nonpayment of restitution, or nonpayment of their supervisory fees," to
                apply for a change in their discharge status to "honorable," as long as they
                made a good effort to pay restitution, would help make victims whole
                again, and pay down the large amount of outstanding restitution. Hearing
                on S.B. 445 Before the Assembly Judiciary Comm., 73d Leg. (Nev.,
                May 12, 2005). Section 16 provided three criteria that render an
                individual ineligible to apply for a change in discharge status:
                                  (a) The fact that he committed a new crime,
                            other than a violation of a traffic law for which he
                            was issued a citation, during the period of his
                            probation or parole;
                                  (b) The fact that his whereabouts were
                            unknown at the time of his discharge from
                            probation or parole; or
                                  (c) Any incident involving his commission of
                            a violent act or an act that threatened public
                            safety during the period of his probation or parole.
                2005 Nev. Stat., ch. 476, § 16(2), at 2360.

SUPREME COURT
     OF
   NEVADA
                                                       2
(0 1947A C(99
                              Section 16 directed the Division of Parole and Probation
                  (Division) to adopt implementing regulations:
                              [A] person who was dishonorably discharged from
                              probation or parole before the effective date of this
                              section, until July 1, 2008, may apply to the
                              Division of Parole and Probation of the
                              Department of Public Safety, in accordance with
                              the regulations adopted by the Division pursuant
                              to the provisions of this section . . . .
                  2005 Nev. Stat., ch. 476, § 16(1), at 2360 (emphasis added). On May 4,
                  2006, the Division adopted regulations for a "Change of Dishonorable
                  Discharge to Honorable Discharge."        See NAC 213.720 et seq.       The
                  regulations specifically incorporate Section 16, not only in the section
                  titles, but also in the text. For example, NAC 213.730 is titled "Applicant'
                  defined. (§ 16 of ch. 476, Stats. 2005)." Further, the text of NAC 213.730
                  defines an applicant as "a person who submits an application to the
                  Division to change his or her dishonorable discharge from probation or
                  parole to an honorable discharge from probation or parole in accordance
                  with the provisions of section 16 of chapter 476, Statutes of Nevada 2005."
                  (Emphasis added.)
                              As a three-year experiment, Section 16 included a "sunset"
                  clause that rendered Section 16 ineffective after July 1, 2008. Although
                  Section 16 included sunsetting language, the regulations adopted to
                  implement Section 16, NAC 213.720 et seq., do not.
                              At the end of the three years, Section 16, subsection 5,
                  required the Division to send a written report to the Legislative Counsel
                  Bureau including statistics about the program and whether the Division
                  recommends that the program continue. 2005 Nev. Stat., ch. 476, § 16(5),
                  at 2361. On December 8, 2008, the Division sent its written report,
                  detailing the number of applications received, granted, denied, the reasons
SUPREME COURT
        OF
     NEVADA
                                                       3
(0) 1947A    e'
                why, and its recommendation. Of the nine applications completed, only
                three individuals received a change in discharge. The other six
                individuals were denied a change in discharge because "the Dishonorable
                Discharges resulted from factors in addition to non-payment of Restitution
                and/or Supervision fees, which were not addressed in the regulation
                change." Nevertheless, the Division concluded: "This regulation, with the
                possibility of receiving additional restitution due to victims or fees due to
                the Division, should be continued." Despite the Division's
                recommendation that Section 16 continue, the Legislature never codified
                Section 16 into the Nevada Revised Statutes.
                                                       B.
                             In 2014, respondent Kenneth Coley applied to the Division for
                a change in his probation discharge status. In accordance with the
                instructions and application given by the Division, which referenced
                Section 16, Coley submitted his application and financial plan to satisfy
                his outstanding fees owed to the Division. However, the Division denied
                Coley's request because of his failure to complete community service,
                which was the same reason for his original dishonorable discharge. After
                denying Coley's application, the Division changed its website instructions
                to include that a person is ineligible if he or she fails to satisfy a condition
                of their probation, such as community service. Coley confronted the
                Division about this change, and it replied that Section 16 is no longer
                applicable law. The Division expressed that only offenders who were
                dishonorably discharged for unpaid supervision fees and restitution could
                qualify for a change of status.
                            Thereafter, Coley filed a petition for writ of mandamus
                seeking to compel the Division to comply with Section 16 and grant his

SUPREME COURT
        OF
     NEVADA
                                                       4
(01 I947A
                    application for a request of change of probation discharge status. The
                    Division maintained that Section 16 expired in 2008. Coley argued that
                    the Division acted arbitrarily and capriciously in denying his application
                    because the Division granted two other applications after 2008. 1 The
                    district court agreed with Coley and granted his petition, ordering the
                    Division to proceed with Coley's application, allow him to make payments
                    toward his fees, and, if he satisfies his financial obligations, to recommend
                    a change in his discharge status to honorable.
                                                         H.
                                District courts have the "power to issue writs of Mandamus."
                    Nev. Const. art. 6, § 6(1). "A writ of mandamus is available to compel the
                    performance of an act that the law requires . . . or to control an arbitrary
                    or capricious exercise of discretion."    Int'l Game Tech., Inc. v. Second
                    Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see NRS
                    34.160. "Mandamus will not lie to control discretionary action, unless
                    discretion is manifestly abused or is exercised arbitrarily or capriciously."
                    Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637
                    P.2d 534, 536 (1981) (citation omitted). An exercise of discretion is
                    considered arbitrary if it is "founded on prejudice or preference rather
                    than on reason" and capricious if it is "contrary to the evidence or
                    established rules of law."        State v. Eighth Judicial Dist. Court
                    (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (quoting
                    Arbitrary and Capricious, Black's Law Dictionary (9th ed. 2009)). "The
                    burden of proof to show the capriciousness is on the applicant." Gragson v.

                          'The Division admitted to granting two applications after Coley's
                    application. However, "their only short coming in their dishonorable
                    discharge was lack of restitution."

SUPREME COURT
       OF
    NEVADA
                                                          5
(th 1947A 741D444
                    Toco, 90 Nev. 131, 133, 520 P.2d 616, 617 (1974). Generally, this court
                    reviews a district court's decision regarding a petition for a writ of
                    mandamus for an abuse of discretion. Veil v. Bennett, 131 Nev., Adv, Op.
                    22, 348 P.3d 684, 686 (2015). To the extent the petition depends on
                    statutory interpretation, though, our review is de novo.     State v. Barren,
                    128 Nev., Adv. Op. 31, 279 P.3d 182, 184 (2012).
                                Here, the district court found the Division's denial of Coley's
                    application arbitrary and capricious because it continued to process
                    applications after July 1, 2008, yet denied Coley's "application on the basis
                    of disqualifying factors not found in Section 16 and NAC 213.720—MAC
                    213.790." Procedurally, the district court erred in granting Coley
                    mandamus relief because the law does not require the Division to accept
                    applications. Section 16 and NAC 213.720 et seq. are no longer valid law
                    because Section 16, the statutory authority upon which the regulations
                    were premised, sunsetted in 2008.           See 1A Norman J. Singer & J.D.
                    Shamble Singer, Statutes & Statutory Constr. § 31:2 (7th ed. 2009) ("The
                    legislative act is the charter of the administrative agency and
                    administrative action beyond the authority conferred by the statute is
                    ultra vires. . . . Regulations which are not in harmony with the plain
                    language of the underlying statute cannot serve as a guide in statutory
                    construction."); see also MRS 233B.040(1) ("In every instance, the power to
                    adopt regulations to carry out a particular function is limited by the tei ins
                    of the grant of authority pursuant to which the function was assigned.").
                                In this case, MAC 213.720 et seq. derive from and depend on
                    Section 16, as demonstrated by the citation to Section 16 in the title of
                    each code section. See MRS 233B.040(2) ("Every regulation adopted by the
                    agency must include: (a) A citation of the authority pursuant to which it,

SUPREME COURT
       OF
    NEVADA
                                                           6
(0) 1947A .914/99


                                                      `;g1Tc"
                       or any part of it, was adopted. . . ."). Because Section 16 sunsetted in
                       2008, the Division did not have the authority to continue to accept
                       applications pursuant to NAC 213.720                et seq.   after that date. 2
                       Nevertheless, the Division mistakenly accepted a total of three
                       applications post-2008—Coley's application and two other applications,
                       which were granted.
                                    We must decide, therefore, whether the Division's mistake in
                       processing two applications under invalid regulations can sustain the
                       district court's holding that the Division acted arbitrarily and capriciously
                       in denying Coley's application. We conclude it cannot and that the
                       Division did not abuse its discretion because no authority existed that
                       granted the Division any discretion. The Division's processing of the
                       applications post-2008 was ultra vires. Mandamus relief is, therefore,
                       inappropriate because it would require thefl Division to process an
                       application that it lacks authority to process. Even adopting the district
                       court's view, however, that the Division exercised discretion when it
                       continued to process applications, the district court erred because the
                       Division did not act arbitrarily or capriciously.
                                    In resolving the petition below, the district court committed
                       two further errors. By negative implication, the district court incorrectly
                       interpreted Section 16's disqualifying factors to mean that because Coley's
                       discharge was not based on one of the disqualifying factors, he was
                       automatically eligible for a change in discharge. This interpretation
                       frustrates the legislative purpose behind Section 16, which was "for

                             2Moreover, NRS Chapter 176A does not provide legal authority for
                       changing one's discharge status. Rather, it specifies the criteria for
                       receiving an honorable discharge. See NRS 176A.850; infra note 3.

SUPREME COURT
        OF
     NEVADA
                                                              7
(0) 1947A    .26e4a,
                  individuals who were dishonorably discharged because of nonpayment of
                  restitution, or nonpayment of their supervisory fees." Hearing on S.B. 445
                  Before the Assembly Judiciary Comm., 73d Leg. (Nev., May 12, 2005).
                  Section 16 was not created as a mechanism to allow individuals to avoid
                  court-imposed probation obligations, other than restitution or payment of
                  fees, such as community service or drug court.
                              Second, the Division did not act arbitrarily or capriciously in
                  denying Coley's application. Even before the sunset provision of Section
                  16 went into effect, the Division consistently denied applicants whose
                  "Dishonorable Discharges resulted from factors         in addition to non-
                  payment of Restitution and/or Supervision fees." Moreover, the district
                  court relied heavily on the Division's admission that it granted two
                  applications after 2008 but refused to grant Coley's application. However,
                  the Division distinguished those applications at the hearing, stating that
                  those dishonorable discharges only resulted from failure to pay restitution,
                  not the failure to complete any other probation obligations. Therefore, the
                  Division has consistently only granted applications if the dishonorable
                  discharge resulted from nonpayment of restitution or supervision fees and
                  has consistently denied applications if the dishonorable discharge resulted
                  from other factors.
                              This consistent treatment hardly rises to the level of being
                  "founded on prejudice or preference rather than on reason" or "contrary to
                  the evidence or established rules of law." Armstrong, 127 Nev. at 931-32,
                  267 P.3d at 780 (quotations and citations omitted). Rather, the denial of
                  Coley's application was based on reason—Coley's dishonorable discharge
                  resulted from factors in addition to the failure to pay restitution or
                  supervision fees. This reason is not contrary to established rules of law, as

SUPREME COURT
      OF
    NEVADA
                                                        8
(0) 1947A '4494
                 Section 16 does not state that if a dishonorable discharge was not based on
                 one of the disqualifying factors, it must be granted. 3 Further, the
                 Division's denial of Coley's application was not contrary to established
                 rules of law because the law under which the Division had authority to
                 process the applications sunsetted in 2008.


                                As the burden of proof is on Coley to establish that the
                 Division acted arbitrarily or capriciously, Gragson, 90 Nev. at 133, 520
                 P.2d at 617, Coley has failed to meet that burden for extraordinary relief.
                 Despite the procedural barrier to mandamus relief, Coley has not shown
                 that the Division was granting applications for individuals who failed to
                 satisfy probation obligations, such as community service. Rather, the

                       3 This
                            interpretation is consistent with NRS 176A.850(1), which lists
                 when an individual may be granted an honorable discharge from
                 probation:

                                       1. A person who:
                                       (a) Has fulfilled the conditions of probation
                                for the entire period thereof;
                                       (b) Is recommended for earlier discharge by
                                the Division; or
                                       (c) Has demonstrated fitness for honorable
                                discharge but because of economic hardship,
                                verified by the Division, has been unable to make
                                restitution as ordered by the court,
                                may be granted an honorable discharge from
                                probation by order of the court.
                 (Emphases added.) NRS 176A.850 demonstrates that the Legislature
                 intended individuals to satisfy their probation obligations to be eligible for
                 an honorable discharge. See also MRS 176A.870(3) (stating that an
                 individual who "failed to qualify for an honorable discharge as provided in
                 NRS 176A.850 is not eligible for an honorable discharge and must be given
                 a dishonorable discharge").

SUPREME COURT
        OF
     NEVADA
                                                         9
(0) 1947A    e
                record before this court clearly evinces that the Division consistently
                denied such applications. Thus, the district court erred in concluding that
                the Division acted arbitrarily and capriciously, such that mandamus relief
                was necessary. We, therefore, reverse the district court's grant of
                mandamus relief.




                We concur:



                Hardesty



                Saitta




SUPREME COURT
        OF
     NEVADA
                                                    10
(D) 1947A
