                                                         131 Nev., Advance Opinion 48
                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                     THE STATE OF NEVADA,                                       No. 65429
                     Appellant,
                     vs.
                     EARL WAYNE BEAUDION,
                                                                                FILED
                     Respondent.                                                JUL 0 2 2015
                                                                              TRACE K LINDEMAN
                                                                           CLER5-nFvSUPREME COURT
                                                                                 14    .



                                                                           BY
                                                                                      DEPUTY CLERK
                                 Appeal from an order dismissing an indictment. Eighth
                     Judicial District Court, Clark County; Joe Hardy, Judge.'

                                 Reversed and remanded.

                     Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                     District Attorney, Steven S. Owens and Jonathan VanBoskerck, Chief
                     Deputy District Attorneys, and Jeffrey S. Rogan, Deputy District Attorney,
                     Clark County,
                     for Appellant.

                     Philip Kohn, Public Defender, and Jeffrey M Banks and Howard Brooks,
                     Deputy Public Defenders, Clark County,
                     for Respondent.




                     BEFORE SAITTA, GIBBONS and PICKERING, JJ.




                            'District Judge Hardy took office after the proceedings in the district
                     court concluded.



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                                                  OPINION
                By the Court, PICKERING, J.:
                            NRS 172.241 affords the target of a grand jury investigation
                the opportunity to testify before them unless, after holding "a closed
                hearing on the matter," the district court determines that adequate cause
                exists to withhold target notice. In this case, the district judge supervising
                the grand jury entered an order authorizing the State to withhold target
                notice based on the district attorney's written request and supporting
                affidavit, without conducting a face-to-face oral hearing. We must decide
                whether this procedure satisfies NRS 172.241's "closed hearing"
                requirement. We hold that it does and therefore reverse the order
                dismissing the indictment that was entered by the district judge to whom
                the criminal case was assigned after the indictment was returned.
                                                      I.
                                                      A.
                            NRS 172.241(1) provides: "A person whose indictment the
                district attorney intends to seek. . . may testify before the grand jury if
                the person requests to do so and executes a valid waiver in writing of the
                person's constitutional privilege against self-incrimination." To facilitate
                exercise of this right, NRS 172.241(2) requires the district attorney to give
                the target reasonable notice, sometimes called Marc urn notice, 2 of the
                grand jury proceeding, "unless the court determines that adequate cause
                exists to withhold notice." Addressing the circumstances in which target
                notice may be withheld, NRS 172.241(3) specifies that "[tithe district


                      2Sheriffv. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989), amended
                790 P.2d 497 (1990).



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                 attorney may apply to the court for a determination that adequate cause
                 exists to withhold notice, if the district attorney. ... [d]etermines" that the
                 target poses a flight risk, cannot be located or, as relevant here, "that the
                 notice may endanger the life or property of other persons."
                             If a district attorney applies to the court for a
                             determination that adequate cause exists to
                             withhold notice, the court shall hold a closed
                             hearing on the matter. Upon a finding of adequate
                             cause, the court may order that no notice be given.
                 MRS 172.241(4) (emphasis added).
                                                       B.
                             The State alleges that respondent Earl Wayne Beaudion
                 committed battery causing substantial bodily harm constituting domestic
                 violence against his then-girlfriend when he tied her to their bed and
                 poured boiling water over her exposed torso, burning her so severely that
                 she required skin grafts. The State further alleges that Beaudion
                 intimidated or threatened the victim with additional harm if she
                 cooperated in his prosecution.
                             Initially, the State attempted to proceed against Beaudion by
                 information, rather than indictment. Each time the date scheduled for the
                 preliminary hearing arrived, the victim failed to appear and, eventually,
                 she vanished. After three failed attempts at conducting the preliminary
                 hearing, the State dismissed its criminal complaint against Beaudion
                 without prejudice.
                             Several years later, detectives located the victim. The district
                 attorney's office renewed its efforts to charge Beaudion, this time utilizing
                 the grand jury, which conducts its proceedings largely in secret. See NRS
                 172.245. Before presenting its case against Beaudion to the grand jury,
                 the district attorney's office submitted a written application to the court
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                supervising the grand jury for permission to withhold target notice from
                Beaudion. As grounds for withholding target notice, the application
                asserted that Beaudion would threaten or harm the victim and/or her
                family to prevent the victim from testifying if Beaudion knew the grand
                jury was considering his indictment. The ex parte application was
                supported by an affidavit from the prosecutor relating that "previously the
                Defendant intimidated the Victim to the point where she would not appear
                for court"; that, when the victim had to be hospitalized for her burns,
                Beaudion had driven her from Nevada to California "to avoid being caught
                for committing the crimes in this case"; and that "[t] here is a good faith
                basis to believe that if the Defendant learns of the State's intentions of
                indicting him he will again intimidate or harm the Victim. . . to
                prevent her from testifying." After considering the written application
                and supporting affidavit, but without holding an oral hearing, the court
                entered a written order finding cause for and authorizing the State to
                proceed without notice to Beaudion.
                            The victim testified before the grand jury, which returned a
                true bill, and the State filed an indictment against Beaudion in district
                court. Under local court rules,           see   EDCR 1.31, the case was
                administratively assigned to a different department of the district court
                than had impaneled the grand jury and so had issued the order dispensing
                with target notice. Beaudion filed a motion to dismiss in the department
                of the district court to which his criminal case was assigned. He argued
                that the order authorizing the district attorney's office to withhold
                Marcum notice was deficient because it had not been preceded by the
                "closed hearing" required by NRS 172.241(4) and that this deficiency
                invalidated the indictment.

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                              The district court granted Beaudion's motion to dismiss. It
                  accepted that, on the merits, the application and supporting affidavit
                  established more than adequate cause to withhold Marcum notice from
                  Beaudion under NRS 172.241(3)(b) (permitting target notice to be
                  withheld if giving notice "may endanger the life or property of other
                  persons"). And, it rejected Beaudion's argument that the "closed hearing"
                  needed to include him and his lawyer as participants. Nonetheless, the
                  district court deemed it a violation of NRS 172.241(4)'s "closed hearing"
                  requirement for the court to have dispensed with target notice based on
                  the prosecutor's written submissions, without conducting an oral, face-to-
                  face hearing In the district court's view, the failure to hold the hearing
                  required by NRS 172.241(4) invalidated the order authorizing the State to
                  withhold target notice from Beaudion and rendered the indictment
                  procedurally defective, requiring dismissal. The dismissal was effectively
                  with prejudice since by then the statute of limitations had run. The State
                  appeals, and we reverse.


                                                      A.
                              The State makes a threshold argument that it did not make in
                  the district court challenging the district court's jurisdiction over
                  Beaudion's motion to dismiss. It contends that the district judge assigned
                  to Beaudion's criminal case lacked authority to "overrule" the grand jury
                  judge's decision to waive target notice, and that instead of asking the
                  former to "overrule" the latter, Beaudion should have challenged the
                  grand jury judge's decision by way of an extraordinary writ from this
                  court. We disagree. NRS 174.105 allows a defendant to challenge
                  procedural defects in the indictment by pretrial motion, and the State
                  offers no authority that makes an original action in this court the
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                 exclusive means for a criminal defendant to contest compliance with MRS
                 172.241. Nor are we persuaded that the district judge assigned to
                 Beaudion's criminal case improperly reexamined or second-guessed the
                 grand jury judge's substantive determination that adequate cause existed
                 to withhold target notice. On the contrary, the district judge examined the
                 procedure followed, specifically, whether it deviated from MRS 172.241(4)
                 in such a way as to require dismissal of the indictment—questions neither
                 tendered to nor decided by the district judge charged with supervising the
                 grand jury's preindictment activities. While one district judge may not
                 directly overrule the decision of another district judge on the same matter
                 in the same case, see State v. Babayan, 106 Nev. 155, 165, 787 P.2d 805,
                 812-13 (1990), this rule does not prohibit a second district judge who is
                 assigned to a matter by operation of administrative court rules from
                 deciding a matter related but not identical to another regularly assigned
                 judge's earlier rulings   Rohlfing v. Second Judicial Dist. Court, 106 Nev.
                 902, 906-07, 803 P.2d 659, 662-63 (1990) (while invalidating a third
                 district judge's order reinstating a case a second district judge had
                 dismissed on double jeopardy grounds, this court found no infirmity in the
                 second judge's order of dismissal, even though the order of dismissal
                 implicitly conflicted with the yet-earlier order of the first district judge,
                 who tried the case and had granted a mistrial over defense objection that
                 manifest necessity for a mistrial had not been shown); see Major v. State,
                 130 Nev., Adv. Op. 70, 333 P.3d 235, 237-38 (2014).
                                                      B.
                             Although we normally "review a district court's decision to
                 grant or deny a motion to dismiss an indictment for abuse of discretion,"
                 Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008), this appeal
                 concerns the proper interpretation of NRS 172.241(4), specifically, its
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                "closed hearing" requirement. "Statutory [interpretation] involves a
                question of law, and this court reviews the statute under scrutiny de novo,
                without deference to the district court's conclusions."   Schuster   V.   Eighth
                Judicial Dist. Court, 123 Nev. 187, 190-91, 160 P.3d 873, 875 (2007)
                (interpreting NRS 172.145(2)).
                            The question we must decide is what MRS 172.241(4) means
                by its "closed hearing" requirement. The statute does not define the term
                "closed hearing." Beaudion argued in the district court that the "closed
                hearing" excludes the public but includes the target—in other words, that
                before granting an application to withhold notice, the court must conduct
                an adversarial hearing, with the target present, so the target can
                challenge the factual and legal bases for withholding Marcum notice. The
                district court rejected this reading of MRS 172.241(4), and so do we. A
                defendant's rights to Marcum notice and to testify before the grand jury
                are statute-based, not constitutional in origin.   See Gordon v. Ponticello,
                110 Nev. 1015, 1020-21, 879 P.2d 741, 745 (1994) ("[T]he Nevada
                Legislature has chosen to extend the right to testify to grand jury targets
                [through MRS 172.2411, a grant of grace that it was not constitutionally
                required to make."); Gier v. Ninth Judicial Dist. Court, 106 Nev. 208, 212,
                789 P.2d 1245, 1248 (1990) ("Although Marcum announced a new rule, the
                rule was not of constitutional dimensions.      Marcum did not address a
                constitutional right because the creation of grand juries is not
                constitutionally required."). This being so, the defendant has no right to
                participate in the "closed hearing" beyond that conferred by statute and
                here, the statute does not confer the right to notice of the "closed hearing"
                on the defendant. After all, the point of the hearing is to determine
                whether "adequate cause" exists to withhold notice of the grand jury

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                proceeding from its target because, under NRS 172.241(3), giving such
                notice might cause the target to flee or endanger the lives or property of
                others. We do not read statutes to produce absurd or unreasonable
                results, see Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1136
                (2001), and it would indeed be absurd to read NRS 172.241(4) to require
                that the target be given notice and opportunity to be heard on whether
                notice should be withheld because he or she presents a flight risk or threat
                to others if given notice. The district court correctly rejected this
                argument.
                            The harder question is whether the reference in NRS
                172.241(4) to a "closed hearing" requires an oral presentation to the court
                by the prosecutor or permits the court to decide whether to approve
                withholding target notice based on the prosecutor's written submission if
                the written submission is adequate to the task. That the hearing must be
                "closed" does not affect the analysis; the adjective "closed" signifies only
                that the hearing, whatever it may entail, be "conducted in secrecy," Black's
                Law Dictionary 310 (10th eel. 2014), which is consistent with the
                obligations of secrecy stated in NRS 172.245. The difficulty lies in the
                term "hearing."
                            The word "hearing" derives from the word "hear" and thus
                seems to carry an "auditory component."      Lewis v. Superior Court, 970
                P.2d 872, 883 (Cal. 1999). This suggestion of an oral or auditory
                component also inheres in general dictionary definitions of "hearing," for
                example, Black's Law Dictionary, which defines "hearing" as "A judicial
                session, usu. open to the public, held for the purpose of deciding issues of
                fact or of law, sometimes with witnesses testifying." Id. at 836. But this
                does not answer the question whether, invariably, a hearing must be oral

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                or can be achieved by written submissions. On this point, "[t] he term
                'hearing' in its legal context undoubtedly has a host of meanings," United
                States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 239 (1973); see also U.S. ex
                rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1350 (4th Cir. 1994)
                (observing "the fluidity in the meaning of the term 'hearing"), superseded
                by statute on other grounds as stated in U.S. ex rel. Black v. Health &
                Hosp. Corp. of Marion Cnty., 49 Fed. Appx. 285 (2012), making etymology
                and dictionary definitions less helpful than other indicia of statutory
                meaning, including the context in which the hearingS requirement arises
                and the object of the review process involved. 3 See Chanos v. Nev. Tax
                Comm'n, 124 Nev. 232, 241, 181 P.3d 675, 681 (2008) (noting multiple,
                competing dictionary definitions of "hearing" and deeming the hearing
                requirement in former NIBS 360.247 ambiguous, requiring resort to
                legislative history to determine its meaning in context).
                            The majority of courts to have considered the question "have
                concluded that the use of the term 'hearing' in a statute does not confer a
                [mandatory] right to oral argument [or oral presentation] unless
                additional statutory language or the context indicates otherwise." Lewis,
                970 P.2d at 884 (collecting cases); Chan v. Gantner, 464 F.3d 289, 296 (2d
                Cir. 2006) ("Absent some otherwise expressed Congressional intent, the




                      3Article 6, Section 2(2)(a) of the Nevada Constitution, for example,
                authorizes the Legislature to provide for the "hearing and decision of cases
                by panels of no fewer than three justices." Neither in its rules nor its
                practice has this court allowed oral argument in all panel cases, yet that
                would be the effect of interpreting "hearing" to invariably require an oral
                presentation or exchange.



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                mere use of the word 'hearing' in a statute does not mandate an
                evidentiary hearing be held."). And as one commentator has recognized,
                            Determination whether or not an oral hearing
                            is required should depend on the susceptibility
                            of the particular subject matter to written
                            presentation, on the ability of the complainant to
                            understand the case against him and to present
                            his arguments effectively in written form, and on
                            the administrative costs.
                Henry J. Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281
                (1975), cited with approval in Mathews v. Eldridge, 424 U.S. 319, 343, 348
                (1976), and Lewis, 970 P.2d at 884. Thus, depending on context, a
                statutory hearing requirement may be satisfied by providing the parties
                the opportunity to present arguments and evidence through written
                submissions.   See, e.g., Florida K Coast Ry. Co., 410 U.S. at 241-42
                (holding that a hearing requirement contained in the Administrative
                Procedure Act could be satisfied by allowing interested parties to file
                written submission of argument and evidence and did not require oral
                testimony or argument); Anchorage Assocs. v. Virgin Islands Bd. of Tax
                Review, 922 F.2d 168, 176-77 (3d Cir. 1990) ("While [former Federal Rule
                of Civil Procedure] Rule 56 speaks of a 'hearing,' we do not read it to
                require that an oral hearing be held before judgment is entered. An
                opportunity to submit written evidence and argument satisfies the
                requirements of the rule."); Hower v. Wal-Mart Stores, Inc., Civil Action
                No. 08-1736, 2009 WL 2047892, at *3 (E.D. Pa. July 10, 2009)
                (unpublished disposition) (collecting cases).   CI Ott-Young v. Roberts, No.
                C-13-4442 EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 2013)
                (unpublished disposition) (a "notice and opportunity to be heard" in the
                vexatious litigation context requires only "that the litigant be given an

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                opportunity to oppose the order before it is entered," and does not require
                an in-person hearing).
                            Given the ex parte nature of the procedure here, if the district
                court has determined that the State's written submissions provide
                sufficient grounds to support withholding notice, nothing further would be
                accomplished by requiring the prosecuting attorney to appear before the
                district court to orally argue what is already provided in the written
                materials. And as long as the State's written submissions and the district
                court's order memorialize the reasons underlying the district court's
                decision, the target, if later indicted, would be able to challenge the basis
                upon which the notice was withheld, serving another purpose of the notice
                withholding procedure. Hearing on S.B. 82 Before the Assembly
                Committee on Judiciary, 66th Leg. (Nev., May 30, 1991) (testimony
                discussing the addition of the "closed hearing" language and other
                amendments to NRS 172.241, and confirming that if "the district
                attorney's office abused the process the defense had the remedy of filing a
                motion to dismiss the indictment").
                            Thus, the more reasonable interpretation of "closed hearing,"
                as used in NRS 172.241, does not mandate an oral hearing in all
                instances, as that would require use of court resources and time for
                essentially no reason in cases such as this, see Westpark Owners' Ass'n u.
                Eighth Judicial Dist. Court, 123 Nev. 349, 357, 167 P.3d 421, 427 (2007)
                ("[T]his court will resolve any doubt as to [a statute's fair meaning] in
                favor of what is reasonable."), but instead requires in camera review by
                the court of the State's submission, with or without the prosecutor
                present. Indeed, this is consistent with ABA Model Grand Jury Act of
                1982, section 102(3), which, like NRS 172.241, affords a target notice and

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                the opportunity to testify unless "the prosecutor demonstrates to the court
                in camera that there are reasonable grounds to believe that giving such
                notice would create an undue risk of danger to other persons, flight of the
                target or other obstruction of justice," requiring judicial review but not an
                in-person meeting between the prosecutor and the judge. And we see no
                reason to impose a blanket oral hearing requirement when NRS 172.241's
                purposes can be met without the prosecuting attorney meeting in-person
                ex parte with the district court judge.    See Markowitz v. Saxon Special
                Servicing, 129 Nev., Adv. Op. 69, 310 P.3d 569, 572 (2013) ("When a party
                accomplishes such actual compliance as to matters of substance, technical
                deviations from form requirements do not rise to the level of
                noncompliance."); see also Citizens for Allegan Cnty., Inc. v. Fed. Power
                Comm'n, 414 F.2d 1125, 1128 (D.C. Cir. 1969) ("Mhe right of opportunity
                for hearing does not require a procedure that will be empty sound and
                show, signifying nothing."). Thus, NRS 172.241's procedure for
                withholding notice is met if the State presents sufficient evidence to the
                district court, through written application and/or at oral argument, should
                the court require it, to allow the court to conclude by written order that
                that adequate cause to withhold notice of the grand jury proceedings
                exists As the State did so here, we reverse the order dismissing the
                indictment and remand.
                                                                                    J.

                We concur:




                                               J.
                GibboKs
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