                                  129 Nev., Advance Opinion   27
       IN THE SUPREME COURT OF THE STATE OF NEVADA


THE STATE OF NEVADA,                                No. 60298
Appellant,
vs.                                                           FILED
JERMAINE XAVIER FREDERICK,
Respondent.                                                   APR 2 5 2013



           Appeal from a district court order granting respondent's post-
conviction motion to withdraw his guilty plea. Eighth Judicial District
Court, Clark County; Michelle Leavitt, Judge.

           Reversed.


Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Elizabeth A. Mercer, Deputy District Attorney, Clark
County,
for Appellant.

Philip J. Kohn, Public Defender, and William M. Waters, Deputy Public
Defender, Clark County,
for Respondent.



BEFORE THE COURT EN BANC.

                                OPINION


By the Court, PARRAGUIRRE, J.:
           In this appeal, we consider whether Eighth Judicial District
Court Rule (EDCR) 1.48, which allows justices of the peace to serve as




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                district court hearing masters, violates the Nevada Constitution. We
                conclude that it does not.
                             Article 6, Section 8 of the Nevada Constitution grants the
                Legislature sole authority in determining the jurisdiction of justice courts.
                Through NRS 3.245, the Legislature has delegated to district courts the
                authority to designate district court hearing masters and to this court the
                authority to approve the duties that may be assigned to those hearing
                masters. Under this delegated authority, EDCR 1.48 allows justices of the
                peace to act in a separate capacity as district court hearing masters, which
                includes the taking of felony pleas. Thus, when a justice of the peace who
                has been appointed as a hearing master performs the duties set forth in
                EDCR 1.48(k), she is acting pursuant to her authority under EDCR 1.48,
                not as part of her jurisdiction as a justice of the peace.
                                               BACKGROUND
                             The Nevada Constitution authorizes the Legislature to set
                forth the jurisdiction of the state's justice courts. Nev. Const. art. 6, § 6.
                The Legislature has granted justice courts jurisdiction over
                misdemeanors. NRS 4.370(3). This leaves district courts with jurisdiction
                over felonies and gross misdemeanors.         See Nev. Const. art. 6, § 6(1)
                (providing that district courts "have original jurisdiction in all cases
                excluded by law from the original jurisdiction of justices' courts"); see also
                NRS 193.120 (setting forth three classifications of crimes—felony, gross
                misdemeanor, and misdemeanor).
                             Although a crime that is classified as a felony or gross
                misdemeanor cannot be tried in the justice court, the Legislature has
                authorized justice courts to conduct preliminary examinations in those
                cases. NRS 171.196(2). But the Legislature made clear that "[i]f an
                offense is not triable in the Justice Court, the defendant must not be called
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upon to plead." NRS 171.196(1). Even when a defendant charged with a
felony or gross misdemeanor waives a preliminary examination in the
justice court, he may enter his plea only in the district court. Id.
            To help alleviate the workload of district court judges, the
Legislature amended NRS 3.245 to permit the chief judge of a district
court to appoint one or more "masters" who, in turn, are authorized "to
perform certain subordinate or administrative duties" for the district court
judges. 2003 Nev. Stat., ch. 47, § 1, at 409. The amendment also
authorized this court to approve the duties that these masters may
perform. Id. To utilize hearing masters as authorized under the statute,
the Eighth Judicial District Court presented EDCR 1.48 to this court,
which approved the rule.       See DCR 5 (indicating that local rules for
district courts must be approved by supreme court); In the Matter of the
Amendment of Eighth Judicial District Court Rules (EDCR) Regarding
Changes to the Rules in Compliance With NRS 3.245 to Provide for the
Appointment of Criminal Masters, ADKT No. 363 (Order Amending EDCR
1.30 and Adopting EDCR 1.48, May 11, 2004).
            Among other things, EDCR 1.48 sets forth (1) who may be a
master, and (2) the duties that a master may perform. As for who may be
a master, EDCR 1.48 provides:
      A criminal division master must be a senior judge or justice,
      senior justice of the peace, justice of the peace, district judge
      serving in the family division, or a member of the State Bar of
      Nevada who is in good standing as a member of the state bar
      and has been so for a minimum of 5 continuous years
      immediately preceding appointment as a criminal division
      master.
EDCR 1.48(b) (emphasis added). As for the master's duties, EDCR 1.48
provides a list of 17 duties, one of which includes:



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                      Conducting arraignments and accepting pleas of guilty, nobo
                      contendere, and not guilty, including ascertaining whether the
                      defendant will invoke or waive speedy trial rights.
                EDCR 1.48(k)(2) (emphasis added). Thus, under EDCR 1.48, a justice of
                the peace may be appointed as a criminal division master in the Eighth
                Judicial District Court and, in that capacity, may accept a defendant's
                guilty plea to an offense that is triable in the district court. Pursuant to
                EDCR 1.48, Eighth Judicial District Court Chief Judge Jennifer Togliatti
                appointed Justice of the Peace Melissa Saragosa as a district court master
                to accept pleas in cases where the defendant has waived a preliminary
                examination.
                             The State charged respondent Jermaine Frederick with both
                misdemeanor and felony crimes stemming from a domestic violence
                incident. After his initial appearance, Frederick appeared for a
                preliminary hearing in the Las Vegas Justice Court, with Judge Saragosa
                presiding.
                             Frederick's counsel informed the court that Frederick had
                entered into a plea agreement with the State wherein Frederick would
                plead guilty to one misdemeanor charge and one felony charge. Frederick
                then waived his right to a preliminary examination. He pleaded guilty to
                a misdemeanor charge of battery constituting domestic violence, and
                Judge Saragosa sentenced him on that charge. Immediately thereafter,
                she conducted a plea colloquy on the felony charge, determined that
                Frederick's plea was voluntary, and accepted his plea to the felony charge.
                Frederick was then bound over to district court where he received an 18-
                to 72-month prison sentence.
                             Subsequently, Frederick filed a motion in the district court to
                withdraw his felony plea on the ground that it was accepted by a justice of
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                the peace who lacks jurisdiction to accept a felony plea. Without
                explanation, the district court judge granted Frederick's motion. The
                State then appealed.
                                                DISCUSSION
                            At its core, this appeal involves a question of whether justices
                of the peace may take felony pleas while serving as district court masters.
                In answering that question, we address: (1) whether NRS 3.245 violates
                the separation of powers doctrine, and (2) whether EDCR 1.48 falls within
                the Legislature's grant of authority under NRS 3.245. These are pure
                questions of law that we review de novo. State v. Hughes, 127 Nev. ,
                   , 261 P.3d 1067, 1069 (2011).
                NRS 3.245 does not violate the separation of powers provision of the
                Nevada Constitution
                            Article 3, Section 1 of the Nevada Constitution prohibits the
                Legislature from delegating certain functions to other branches of
                government. Banegas v. State Indus. Ins. Sys., 117 Nev. 222, 227, 19 P.3d
                245, 248 (2001). However, the Legislature may delegate to other bodies
                the power to make rules and regulations supplementing legislation as long
                as "the power given is prescribed in terms sufficiently definite to serve as
                a guide in exercising that power."         Id.   When the delegation is to the
                judiciary, this court has held that the Legislature may only delegate
                duties and powers that are traced back to and derived from the basic
                judicial power and functions.    Galloway v. Truesdell, 83 Nev. 13, 20, 422
                P.2d 237, 242 (1967). Such a delegation can include administrative or
                ministerial powers so long as those powers are "reasonably incidental to
                the fulfillment of judicial duties." Id. at 24, 422 P.2d at 245.
                            With these principles in mind, it is clear that NRS 3.245 is a
                proper delegation of power to the judiciary to set forth the specific duties
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                of district court masters. The Legislature explicitly delegated to the
                district court the authority to appoint masters for "criminal proceedings to
                perform certain subordinate or administrative duties that the Nevada
                Supreme Court has approved to be assigned to such a master." NRS
                3.245. This enactment limits a district court master's powers to a
                specified subset of responsibilities in a particular class of cases. While the
                Legislature left the details for implementing NRS 3.245 to the courts, the
                Legislature articulated the scope of the powers it delegated to the
                judiciary with sufficient definition.
                             It is also clear that the powers delegated to the judiciary
                pursuant to NRS 3.245 fall within the judicial function, which is defined
                as "the exercise of judicial authority to hear and determine questions in
                controversy that are proper to be examined in a court of justice."
                Galloway, 83 Nev. at 20, 422 P.2d at 242. We have described ministerial
                functions as "methods of implementation to accomplish or put into effect
                the basic function of each Department."        Id. at 21, 422 P.2d at 243.
                Examples of ministerial functions that can be traced back to or derived
                from the basic judicial power and functions include regulating and
                licensing attorneys and "prescribing any and all rules necessary or
                desirable to handle the business of the courts or their judicial functions."
                Id. at 23, 422 P.2d at 244. Similarly, allowing the judiciary to determine
                the subordinate or administrative duties that may be assigned to masters
                is a ministerial function that can be traced back to or derived from the
                basic judicial power and functions (e.g., it relates to how the business of
                the district courts and their judicial functions are handled).




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                              We conclude that NRS 3.245 is an appropriate delegation of
                ministerial power to the judiciary, such that it does not violate Article 3,
                Section 1 of the Nevada Constitution.
                EDCR 1.48 falls within the Legislature's grant of authority under NRS
                3.245
                              Having determined that the Legislature properly delegated
                the power to promulgate EDCR 1.48 to the judicial branch, we now turn to
                whether allowing justices of the peace to serve as district court hearing
                masters, under EDCR 1.48, is within the scope of the Legislature's
                delegation.
                              The State argues that EDCR 1.48 is proper because the
                Legislature intended to expand the justice court's jurisdiction when it
                amended NRS 3.245. We disagree, as there is no evidence that the
                Legislature intended to expand, nor delegate the power to expand, the
                jurisdiction of the justice courts. See Salaiscooper v. Eighth Judicial Dist.
                Court, 117 Nev. 892, 899, 34 P.3d 509, 514 (2001) ("[T]he jurisdictional
                boundaries of Nevada's justice courts are defined by the [L]egislature.").
                Furthermore, NRS 171.196(1) unequivocally states that "[i]f an offense is
                not triable in the Justice Court, the defendant must not be called upon to
                plead." We must assume that the Legislature would have amended NRS
                171.196(1) if it intended NRS 3.245 to permit justice courts to accept
                felony pleas. See Hardy Companies, Inc. v. SNMARK, LLC,        126 Nev. ,
                , 245 P.3d 1149, 1156 (2010) ("The presumption is always against the
                intention to repeal where express terms are not used." (quoting State v.




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                Donnelly, 20 Nev. 214, 217, 19 P. 680, 681 (1888))). 1 The Legislature
                provided no limitations with regard to who may serve as a master. 2
                              By allowing justices of the peace to be appointed as district
                court masters, EDCR 1.48 merely permits individuals who are qualified
                based on their judicial experience to be appointed to serve as district court
                masters. The fact that justices of the peace might also serve as district
                court masters is only incidental to their roles as justices of the peace and
                is not an unconstitutional judicial expansion of the justice court's
                jurisdiction. 3 To this extent, we disagree with our dissenting colleagues'
                misapprehension that EDCR 1.48 permits justices of the peace to serve as
                district court masters by virtue of their positions as justices of the peace.


                      1 For the same reasons, we reject the State's argument that the
                Legislature delegated the determination of the justice courts' jurisdiction
                to the judicial branch, thereby allowing each district court to determine its
                own jurisdiction in relation to each justice court.

                      2While   the Legislature did not specifically address the possibility of
                justices of the peace serving as masters, there were repeated discussions
                regarding the wide degree of deference the Legislature should give the
                judiciary in setting forth the rules. See, e.g., Hearing on A.B. 133 Before
                the Assembly Judiciary Comm., 72d Leg. (Nev., March 6, 2003) (statement
                of then-Judge Hardesty asking for flexibility in allowing the judiciary to
                determine the rules for masters); Hearing on A.B. 133 Before the
                Assembly Judiciary Comm., 72d Leg. (Nev., March 11, 2003) (statement of
                Assemblyman John Oceguera) ("I feel that the Supreme Court would be in
                a position to take care of their own rule-making process, and I think they
                have done so in the past. I don't have any problem making rules for them;
                however, I think, in this case that they should make the rules for the
                masters.").

                      3 Thepractice of justices of the peace serving in dual judicial roles is
                not unprecedented in Nevada. For example, NRS 5.020(3) allows justices
                of the peace to simultaneously serve as municipal court judges.


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                              In reaching this conclusion, we distinguish this case from our
                  recent opinion, Hernandez v. Bennett-Haron, 128 Nev. , 287 P.3d 305
                  (2012). In Hernandez, the appellants challenged the constitutionality of a
                  Clark County ordinance requiring the chief judge of the local township to
                  appoint a justice of the peace to preside over inquests involving police
                  officer-involved deaths. Id. at , 287 P.3d at 308. They argued that the
                  ordinance violated Article 6, Section 8 of the Nevada Constitution because
                  "only the Legislature has the authority to determine, by law, the
                  jurisdictional limits of the justices of the peace."   Id. at , 287 P.3d at
                  314. In response, the American Civil Liberties Union (ACLU) contended
                  that "a justice of the peace is acting as a presiding officer of an
                  investigatory body outside the purview of the justice court and is not
                  acting with the authority of a justice court magistrate." Id. at n.6, 287
                  P.3d at 314 n.6. We rejected the ACLU's contention, stating:
                              The ACLU has pointed to no authority that allows
                              an entity other than the Legislature to assign
                              duties to the justices of the peace, judicial or
                              otherwise; nonetheless, justices of the peace are
                              appointed as presiding officers of the inquest by
                              virtue of their positions as justices of the peace.
                  Id.
                              Hernandez is distinguishable for two reasons. First, the
                  Legislature in NRS 3.245 expressly provided for the appointment of
                  district court masters and gave the judiciary the authority to determine
                  who may serve as a district court master. In contrast, the Clark County
                  ordinance at issue in Hernandez usurped the Legislature's authority by
                  expanding the official duties of a justice of the peace without a grant of
                  Legislative authority to do so. Id. at , 287 P.3d at 316. Second, unlike
                  Clark County's ordinance, which required justices of the peace to preside
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                over inquests "by virtue of their positions as justices of the peace," EDCR
                1.48 does not expand the jurisdiction of justice courts or assign duties to
                justices of the peace. Hernandez, 128 Nev. at n.6, 287 P.3d at 314 n.6.
                EDCR 1.48 does not permit justices of the peace to take felony pleas by
                virtue of their positions as justices of the peace, but merely allows a justice
                of the peace to be appointed to the separate role of a district court master.
                Accordingly, in this case, Judge Saragosa did not take Frederick's felony
                plea by virtue of her role as justice of the peace. Instead, she was acting in
                her role as an appointed district court master under EDCR 1.48.
                              In conclusion, the Legislature granted this court the broad
                authority to set forth rules providing for the appointment of district court
                masters, and this very court approved EDCR 1.48 following a public
                hearing. Public Hearing on ADKT No. 363 Before the Nevada Supreme
                Court (Nov. 18, 2003). Given that this court did not usurp the
                Legislature's power as the county ordinance did in            Hernandez, we
                respectfully disagree with our dissenting colleagues' opinion that our
                conclusion vitiates our prior holding in Hernandez.4




                      4 The dissent also makes note of the fact that Judge Saragosa took
                the felony plea in the same courtroom and in the same robes in which she
                took the misdemeanor plea. Beyond the incidental convenience afforded to
                the process, we do not see the particular relevance of this fact to the
                question of whether EDCR 1.48 allows a justice of the peace to serve
                separately as a district court master.


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                               Because Frederick's guilty plea was accepted by a lawfully
                appointed district court master in accordance with EDCR 1.48, we reverse
                the district court's order granting Frederick's motion to withdraw his
                felony plea.




                                                     Parraguirre




                                                J.
                Gibbons


                                                J.




                Saitta




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                HARDESTY, J., with whom PICKERING, C.J., and CHERRY, J., agree,
                concurring in part and dissenting in part:
                            The Nevada Constitution gives the Legislature exclusive
                authority to define the jurisdiction of our justice courts. Nev. Const. art. 6,
                § 8 ("The Legislature shall determine the number of Justices of the Peace
                to be elected in each city and township of the State, and shall fix by
                law . . . the limits of their civil and criminal jurisdiction . .").   See also
                Salaiscooper v. Eighth Judicial Dist. Court, 117 Nev. 892, 899, 34 P.3d
                509, 514 (2001) ("[T]he jurisdictional boundaries of Nevada's justice courts
                are defined by the [L]egislature."). NRS 4.370(3) limits the criminal
                jurisdiction of the justice courts to misdemeanors, "except as otherwise
                provided by specific statute." Going further, NRS 171.196(1) states, in
                mandatory terms, "[i]f an offense is not triable in the Justice Court, the
                defendant must not be called upon to plead." (Emphasis added.) Together,
                the Constitution and statutes deny justices of the peace authority to
                accept felony pleas.
                            The issue in this case is clear. Can the judicial branch,
                pursuant to local district court rule, give a Nevada justice of the peace
                authority over felony guilty pleas, when the Legislature has expressly
                denied that authority?
                            NRS 3.245 empowers the district court to appoint masters to
                hear plea negotiations in felony and gross misdemeanor cases. While the
                majority maintains that NRS 3.245 permits justices of the peace to be
                appointed as district court masters, they acknowledge that NRS 3.245
                does not, by its terms, override the general and express prohibitions in
                NRS 4.370 and NRS 171.196(1), respectively. Majority opinion ante at 7
                (the Legislature did not "intend [1 to expand, nor delegate the power to

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expand, the jurisdiction of. . . justice courts" when it amended NRS
3.245). Indeed, nothing in the legislative history of NRS 3.245 suggests or
even implies anything to the contrary.
             In the absence of any "specific" statutory provision to expand
the authority of a justice of the peace to accept felony pleas, the majority
turns to EDCR 1.48, which permits qualified judges to serve as masters
and claims that the local rule does not unconstitutionally expand the
jurisdiction of the justices of the peace. I disagree.
             Through EDCR 1.48, the district court allows a justice of the
peace, by virtue of his or her status as a justice of the peace, to perform
the duties granted to masters under NRS 3.245. In doing so, the court
rule grants justices of the peace jurisdiction in felony cases that the
Legislature has expressly denied them. To this extent, EDCR 1.48
expands the justice of the peace's jurisdiction, and it is unconstitutional.
As this court recently held in Hernandez v. Bennett-Haron, only the
Legislature can expand the jurisdiction of the justices of the peace. 128
Nev. „ 287 P.3d 305, 316 (2012) (holding that "by providing for the
participation of justices of the peace in Clark County's inquest
proceedings[,] . . . the Clark County Board of County Commissioners has
unconstitutionally impinged on the Legislature's constitutionally
delegated authority"); see also Nev. Const. art. 6, § 8 ("The Legislature
shall determine . . . the limits of [a justice of the peace's] civil and criminal
jurisdiction. ."). As such, I conclude that the district courts cannot
expand the jurisdiction of the justices of the peace through a local rule
such as EDCR 1.48. To hold otherwise vitiates our holding in Hernandez.
             The majority's reliance on a justice of peace's judicial
qualifications to serve as a master ignores the facts of this case. Frederick



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                  appeared in justice court before Judge Saragosa for a preliminary hearing
                  on a misdemeanor charge and a felony charge, after entering into a plea
                  agreement with the State. Frederick pleaded guilty to the misdemeanor
                  charge and was sentenced by Judge Saragosa. Immediately thereafter,
                  wearing the same robes and sitting in the same courtroom, Judge
                  Saragosa conducted a plea colloquy on the felony charge and accepted
                  Frederick's plea. After accepting his plea, she bound Frederick over to
                  district court for sentencing.
                              In this instance, Frederick tendered his plea to a sitting
                  justice of the peace during the course of his criminal proceeding over
                  which the justice of the peace had only partial jurisdiction. It is
                  unreasonable to argue that Judge Saragosa transformed from justice of
                  the peace to master between the time Frederick entered his plea on the
                  misdemeanor and, a moment later, when he entered his plea on the felony
                  charge.
                              I take no issue with the Legislature's decision to delegate to
                  district courts the authority to designate district court hearing masters. I
                  also recognize the efficiency to be achieved by expanding the authority of
                  the justices of the peace to take felony-related pleas. However, the
                  Constitution vests the authority to make this decision in the Legislature,
                  not the courts.




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                             Accordingly, I must dissent.




                                                                 , J
                                                      Hardesty


                We concur:


                P(
                Pickering
                                             ,   C.J.



                                                 J.




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